Chrisman et al v. Oklahoma County Board of County Commissioners et al

Filing 172

ORDER granting 119 Defendants Motion for Protective Order; denying 120 Plaintiffs Combined Second Motion to Compel Production of Documents from Defendant Board of County Commissioners and Motion to Compel Deposition Testimony of Defendant John Whetsel. Signed by Honorable Timothy D. DeGiusti on 11/03/2020. (mb)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ELIZABETH ANN CHRISMAN,
as Special Administrator of the Estate of
Charlton Cash Chrisman, Deceased, and
Individually as Surviving Mother and
on behalf of the Heirs of
Charlton Cash Chrisman, Deceased.
Plaintiff,
v.
BOARD OF COUNTY COMMISSIONERS
OF OKLAHOMA COUNTY, et al.,
Defendants.

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Case No. CIV-17-1309-D

ORDER
Before the Court is Defendants’ Motion for Protective Order [Doc. No. 119], to
which Plaintiff has responded in opposition [Doc. No. 139], and Defendants have replied
[Doc. No. 142]. 1

Also at issue is Plaintiff’s Combined Second Motion to Compel

Production of Documents from Defendant Board of County Commissioners and Motion to
Compel Deposition Testimony of Defendant John Whetsel [Doc. No. 120], to which
Defendants have responded in opposition [Doc. No. 138]. 2 Upon consideration of these
filings, the Court finds no need for a hearing, and issues its ruling.

1

Defendants also filed Notices of Erratum [Doc. Nos. 143, 144] in connection with their
reply.
2

Plaintiff filed a brief in support of her motion [Doc. No. 121], which the Court has also
considered.

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BACKGROUND
This case arises out of the death of Charlton Cash Chrisman on April 19, 2017,
while he was in Defendants’ custody at the Oklahoma County Jail. Plaintiff Elizabeth Ann
Chrisman, as Mr. Chrisman’s mother and Special Administrator of his estate, asserts claims
against the Board of County Commissioners of Oklahoma County (“the Board”), John
Whetsel, and detention officers Michael Coburn, Kristian Rangel, Francisco Plascencia,
Colton Ray, and Brian Harrison. Plaintiff’s federal claims, which arise under 42 U.S.C. §
1983, are based on Chrisman’s Fourth Amendment right to be free from unreasonable
seizures and excessive force, and his Fourteenth Amendment due process rights as a
pretrial detainee to appropriate medical care. Plaintiff also asserts state law claims for
battery and excessive force. The Second Amended Complaint [Doc. No. 45] is the
operative pleading.
Defendants seek a protective order barring Plaintiff’s counsel from questioning
Whetsel about funding and staffing issues at the jail, and a lawsuit involving the jail’s
former healthcare provider that was filed in 2015. 3 Plaintiff seeks to compel Defendants
to produce documents relating to budgetary and staffing matters at the jail from 2014
through 2018, and to compel deposition testimony from Whetsel. Specifically, Plaintiff
wants to ask Whetsel about (1) funding and staffing issues at the jail; (2) the 2008 United
States Department of Justice (“DOJ”) report; (3) the Armor lawsuit; and (4) an
investigation/audit of the Oklahoma County Sheriff’s Office in 2016 and 2017.

3

See Armor Corr. Health Services, Inc. v. The Bd. of Cnty. Comm’rs of Okla. Cnty.,
Oklahoma County District Court, Case No. CJ-2015-5602 (“the Armor lawsuit”).
2

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Whetsel, who was deposed by Plaintiff’s counsel on May 20, 2020, refused to
answer the following questions, which Plaintiff’s counsel certified for the Court’s review:
Question:

What led you to retire?

Question:

Sheriff, at the time that you resigned, the sheriff’s office was
under investigation, was it not?

Question:

When you said that there were problems with overall funding,
what were you talking about?

Question:

Why was additional funding needed?

Question:

What funding was necessary to operate the jail?

Question:

Sheriff, did you retire because of the investigation that was
going on?

Question:

Sheriff, my question is, were you ever made aware that the
supreme court had affirmed the finding of the trial court
regarding this lawsuit and the liability of the county to pay
Armor $3.3 million?

Question:

Who made the decision not to pay Armor?

Question:

Who was aware that Armor was not paid?

Question:

Was the board of county commissioners aware that Armor was
not paid?

Question:

In October of 2016, an audit had been conducted regarding
expenditures by the sheriff’s office and you specifically. Is that
correct?

Question:

Did the investigation or audit or combined audit and
investigation ever conclude?

Question:

Was there ever a determination of fact one way or another
regarding the audit and investigation?

Question:

Did the county seek additional funding to meet the required
staffing levels?
3

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See Whetsel’s Dep. Tr. at 49, 51, 56–58, 74–77, 90 [Doc. No. 119-1].
Plaintiff’s production requests and the Board’s responses are attached to Plaintiff’s
motion at Exhibit 9. [Doc. No. 120-9 at 4–7]. The Board asserts that Production Request
Nos. 62–66 are overly broad and not relevant or proportional to any party’s claims or
defenses. Additionally, the Board asserts that—aside from the allegation that Defendants
“failed[ed] and refus[ed] to pay the Jail’s contracted medical care provider millions of
dollars”—Plaintiff made no other allegations in her Second Amended Complaint about
funding issues at the Oklahoma County Jail.
DISCUSSION
Pursuant to FED. R. CIV. P. 26(c)(1)(D), the Court “may, for good cause shown,
issue an order to protect a party or person from annoyance, embarrassment, [or] oppression
. . . [by] forbidding inquiry into certain matters, or limiting the scope of disclosure or
discovery to certain matters.” The party seeking the protective order has the burden of
demonstrating good cause. Landry v. Swire Oilfield Services, L.L.C., 323 F.R.D. 360, 383
(D.N.M. 2018). Broad or conclusory statements are insufficient; the movant must point to
specific facts to support the assertion that a protective order is necessary. Velasquez v.
Frontier Med. Equip. Inc., 229 F.R.D. 197, 200 (D.N.M. 2005) (denying the defendants’
request for a protective order where no specific harm was asserted); see also Gulf Oil Co.
v. Bernard, 452 U.S. 89, 102 n.16 (1981) (internal quotation marks omitted) (to establish
good cause for a protective order, courts require “a particular and specific demonstration
of fact, as distinguished from stereotyped and conclusory statements”). The decision to
grant a protective order under FED. R. CIV. P. 26(c) is discretionary. Thomas v. Int’l Bus.
4

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Machines, 48 F.3d 478, 482 (10th Cir. 1995); McBride v. Medicalodges, Inc., 250 F.R.D.
581, 583 (D. Kan. 2008).
Relevance, however, does “bear[] on the protective order analysis.” Landry, 323
F.R.D. at 398. The burden of demonstrating relevance is on the party seeking discovery.
Id. at 381. Pursuant to Rule 26(b)(1), “[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense and proportional to the
needs of the case . . . .” FED. R. CIV. P. 26(b)(1). The considerations that bear on
proportionality include: “the importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and whether the burden or expense of
the proposed discovery outweighs its likely benefit.” Id. “Information within this scope
of discovery need not be admissible in evidence to be discoverable.” Id.
Following the 2015 Amendment to Rule 26, “relevance is still to be construed
broadly to encompass any matter that bears on, or that reasonably could lead to other matter
that could bear on any party’s claim or defense.” Tanner v. McMurray, 405 F. Supp. 3d
1115, 1183 (D.N.M. 2019) (internal quotation marks and citations omitted).

Thus,

relevance for purposes of discovery remains broader than relevance for purposes of trial
admissibility. Reibert v. CSAA Fire & Cas. Ins. Co., No. 17-CV-350-CVE-JFJ, 2018 WL
279348, at *3 (N.D. Okla. Jan. 3, 2018). While the scope of discovery is broad, it is not
unlimited and is further defined by proportionality considerations. Ramos v. Banner
Health, No. 15-CV-2556-WJM-MJW, 2018 WL 4700707, at *3 (D. Colo. Aug. 8, 2018).

5

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A plaintiff’s broad theory of the case does not necessarily justify broad discovery. Reibert,
2018 WL 279348, at *4. Further, courts should thwart fishing expeditions. Id.
Accordingly, Defendants must demonstrate good cause for a protective order, and
Plaintiff must demonstrate that the deposition inquiries of Whetsel and the production
requests are relevant.
A. Certified Deposition Questions
As discussed supra, Plaintiff’s counsel certified several questions for the Court’s
review. The questions involve four topics of inquiry: (1) funding and staffing issues at the
jail; (2) the DOJ report; (3) the Armor lawsuit; and (4) an investigation of the sheriff’s
office in 2016 and 2017. Pursuant to FED. R. CIV. P. 30(c)(2), counsel may instruct a
deposition witness “not to answer only when necessary to preserve a privilege, to enforce
a limitation on evidence directed by the court, or to suspend a deposition in order to present
a motion under Rule 30(d)(3).” Resol. Tr. Corp. v. Dabney, 73 F.3d 262, 266 (10th Cir.
1995). “It is inappropriate to instruct a witness not to answer a question on the basis of
relevance.” Id.
Here, counsel instructed Whetsel not to answer, citing relevance objections. For
example, when Plaintiff’s counsel asked Whetsel what led him to retire, Whetsel’s counsel
asserted the inquiry was “irrelevant” and had “nothing to do with the lawsuit.” See
Whetsel’s Dep. Tr. at 49 [Doc. No. 119-1 at 13]. Further, Whetsel’s counsel instructed
him not to answer, and advised he would move for a protective order when Plaintiff’s
counsel asked if “the sheriff’s office was under investigation” at the time of Whetsel’s
6

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retirement. Id. Likewise, when Whetsel was asked about the reference in his retirement
letter to problems with overall funding, his counsel instructed him not to answer, advised
he would move for a protective order, and stated all questions regarding funding were
irrelevant. Id. at 51. Counsel gave the same instructions when Whetsel was questioned
about the Armor lawsuit and the investigation of the sheriff’s office in 2016 and 2017. Id.
at 74–77.
Whetsel’s refusal to answer violates his obligation to submit to discovery, and
interferes with Plaintiff’s right to discovery. See, e.g., Harley-Davison Credit Corp. v.
Flint, No. 13-CV-2026-KHV-TJJ, 2014 WL 958715, at *4 (D. Kan. Mar. 12, 2014)
(concluding that the witness’s “refusal to answer violated his obligation to submit to
discovery, and interfered with [the plaintiff’s] right to discovery”). The rules “are clear”—
“[a] witness may state an objection, which will be noted on the record, but the witness must
then answer the question. A witness may not refuse to answer a question . . . on the basis
of relevance.” Id.
Defendants assert that funding issues are not relevant to Plaintiff’s claims because
Plaintiff’s only allegation in her Second Amended Complaint related to funding is
Defendants “failed[ed] and refus[ed] to pay the Jail’s contracted medical care provider
millions of dollars.” Second Am. Compl. at ¶ 63(H) [Doc. No. 45 at 16]. Further,
Defendants assert that, if Plaintiff had made additional allegations about funding, “they
would have likely been subject to dismissal akin to those dismissed by this Court in Willis
v. Oklahoma County Detention Center.” [Doc. No. 138 at 16]; see also Willis v. Okla.
Cnty. Det. Ctr., No. CIV-18-323-D, 2019 WL 4397338, at *5 (W.D. Okla. Sept. 13, 2019).
7

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Rule 30, however, “provides no basis to refuse to answer a question on a belief that the
plaintiff has failed to state a claim under Rule 12(c) or Rule 12(b)(6).” Flint, 2014 WL
958715, at *4.
Pursuant to Rule 37(a)(3)(B)(i), a party seeking discovery may move for an order
compelling an answer if a deponent fails to answer a question asked at an oral deposition.
FED. R. CIV. P. 37(a)(3)(B)(i). Concurrently, under Rule 30(d)(3)(A), a deponent or party
can move to terminate or limit a deposition if the questions are designed to harass or
embarrass a deponent or party. See FED. R. CIV. P. 30(d)(3)(A). 4 Defendants did not move
to terminate or limit Whetsel’s deposition, but rather counsel instructed Whetsel not to
answer on the basis of relevance. No assertion was made during the deposition that
counsel’s questions were designed to harass or embarrass Whetsel.
Nevertheless, relevance does bear on the protective order analysis. Defendants
assert that “the relevance of funding questions is at best not ‘readily apparent.’” [Doc. No.
138 at 17]. Plaintiff, as the party seeking the discovery, has the burden of demonstrating
relevance here because relevance “is not readily apparent.” Design Basics, L.L.C. v.
Strawn, 271 F.R.D. 513, 523 (D. Kan. 2010). The Court agrees with Defendants’ assertion
that the allegations offered by Plaintiff in her motion to compel are more appropriate for a
motion to amend. The Court has reviewed Plaintiff’s Second Amended Complaint, and
there are no failure-to-fund allegations included. Likewise, Plaintiff does not allege that

4

“If the objecting deponent or party so demands, the deposition must be suspended for the
time necessary to obtain an order.” FED. R. CIV. P. 30(d)(3)(A). Pursuant to Rule
30(d)(3)(B), the Court “may order that the deposition be terminated or may limit its scope
and manner as provided in Rule 26(c).” FED. R. CIV. P. 30(d)(3)(B).
8

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unqualified persons were hired at low pay, that the jail was grossly understaffed, that jail
funds were misappropriated, or that a lack of funding contributed to the county’s failure to
attract qualified personnel. Plaintiff’s broad theory of the case, offered in her motion to
compel, does not justify broad discovery. Reibert, 2018 WL 279348, at *4.
Plaintiff’s excessive force claim against the Board and Whetsel is based on the
theory that Whetsel failed to train the S.E.R.T. team in the use of excessive force against
prisoners, or allowed them to self-train. She asserts that the Board created an environment
at the jail that included “ignoring and failing to attend to the medical, emotional, mental
and/or psychological needs and/or conditions of [j]ail prisoners.” Pl.’s Second Am. Compl.
[Doc. No. 45 at ¶ 63(G)]. Consequently, Plaintiff does not allege that unqualified medical
personnel were hired or that the jail was understaffed.
The amendments to Rule 26 “signal[] to the [C]ourt that it has the authority to
confine discovery to the claims and defenses asserted in the pleadings, and signal[] to the
parties that they have no entitlement to discovery to develop new claims or defenses that
are not already identified in the pleadings.” Bhasker v. Kemper Cas. Ins. Co., 361 F. Supp.
3d 1045, 1113 (D.N.M. 2019). Plaintiff’s allegation that the Board and/or Whetsel
deliberately refused to pay the jail’s contracted medical care provider millions of dollars
could imply that someone misappropriated funds, but there is no reference in the Second
Amended Complaint to the investigation of the sheriff’s office or Whetsel’s abrupt
retirement after re-election. Nor is there an allegation that a lack of funding caused or
contributed to Chrisman’s death. Further, there is no allegation that the Board’s reported
failure to pay Armor resulted in Chrisman receiving inadequate medical care.
9

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Additionally, the Armor lawsuit predates Chrisman’s death by two-to-three years.
It was filed on October 14, 2015; Chrisman died on April 19, 2017. Although Plaintiff
asserts the commencement of the lawsuit does not equate to the life of the lawsuit, the
opinion from the Oklahoma Supreme Court clearly states that the medical services in
question were for the period January 1, 2014 through June 30, 2015. [Doc. No. 139-6 at
2]. Again, there is no allegation that the Armor lawsuit contributed to or caused Chrisman’s
death or that the Board and/or Whetsel were withholding payment from the medical
provider in April 2017.
Plaintiff also seeks to compel deposition testimony from Whetsel concerning the
2008 DOJ report. This area of inquiry was not included in the certified questions to the
Court, and it was only briefly covered in the deposition. See Whetsel’s Dep. Tr. at 61, 112
[Doc. No. 119-1].

Further, there is no reference to the 2008 DOJ report in Plaintiff’s

Second Amended Complaint. Consequently, Plaintiff has failed to demonstrate how a
report describing conditions at the jail in 2007 would be relevant to Plaintiff’s claims
involving Chrisman’s death in 2017.

There is no allegation that “the same conditions

noted in the 2008 DOJ Report still existed more than [ten] years later in [2017].” Turner
v. Bd. of Cnty. Comm’rs of Cnty. of Okla., No. CIV-18-36-SLP, 2019 WL 1997473, at *3
(W.D. Okla. May 6, 2019).
B. Production Requests
Discovery in this case concluded on August 14, 2020, with the exception of the
completion of Whetsel’s deposition. [Doc. No. 117]. Plaintiff filed her motion to compel
10

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on August 14, 2020. [Doc. No. 120]. However, Plaintiff received Defendants’ responses
and objections to the production requests on March 30, 2020. [Doc. No. 120-9 at 8–9].
Although Rule 37 does not specify a time limit, a party seeking to compel discovery must
do so in a timely manner. See, e.g., Buttler v. Benson, 193 F.R.D. 664, 666 (D. Colo. 2000)
(concluding that a “party cannot ignore available discovery remedies for months”); Cont’l
Indus., Inc. v. Integrated Logistics Solutions, LLC, 211 F.R.D. 442, 444 (N.D. Okla. 2002)
(concluding that a motion to compel filed after the discovery cutoff was untimely and
resulted in a waiver of any discovery violations); Barnes v. United States, No. 11-CV-582HE-PJC, 2013 WL 12425651, at *2 (N.D. Okla. Oct. 15, 2013) (denying a motion to
compel that was filed on the day discovery closed).
Although trial is not imminent in this case, dispositive motions are pending. The
granting of Plaintiff’s motion to compel would require discovery to be re-opened. This
Court has already allowed nineteen months for discovery. [Doc. Nos. 62, 117]. Moreover,
Plaintiff has not provided an adequate explanation for the delay, or a compelling reason to
extend discovery. See Barnes, 2013 WL 12425651, at *2 (timeliness depends on the
factual circumstances, including the amount of time allotted for discovery; the posture of
the case; the reasons for the delay; whether discovery would have to be re-opened; and
whether dispositive motions are pending); see also FED. R. CIV. P. 16(b)(4) (“A schedule
may be modified only for good cause and with the judge’s consent.”).
Further, as discussed supra, Plaintiff has not made any failure-to-fund allegations
in her Second Amended Complaint; thus, the documents requested are not relevant to
Plaintiff’s claims.
11

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CONCLUSION
Based on the foregoing, Defendants’ Motion for Protective Order [Doc. No. 119] is
GRANTED. Plaintiff’s Combined Second Motion to Compel Production of Documents
from Defendant Board of County Commissioners and Motion to Compel Deposition
Testimony of Defendant John Whetsel [Doc. No. 120] is DENIED. 5
IT IS SO ORDERED this 30th day of November 2020.

5

The Court noted, supra, counsel’s improper instructions not to answer deposition
questions. Counsel is warned not to repeat such conduct in future depositions.
12