Schaffer et al v. Beringer et al

Filing 29

ORDER granting in part and denying in part 21 Motion to Compel. Signed by US Magistrate Judge Veronica L. Duffy on 12/16/2014. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JILL S. N. SCHAFFER, CALLISSA A.
SCHAFFER,

4:14-CV-04138-KES

Plaintiffs,
vs.
BRYAN BERINGER, JACY NELSEN,
JESSICA WADE, MARK FOLEY, MATT
BETZEN,

ORDER DENYING
IN PART AND GRANTING IN PART
PLAINTIFFS’ MOTION
TO COMPEL
[DOCKET NO. 21]

Defendants.

INTRODUCTION
This matter is before the court on plaintiffs’ complaint pursuant to 42
U.S.C. § 1983 alleging that defendants, members of the Vermillion, South
Dakota, Police Department, violated plaintiffs’ constitutional rights. See
Docket No. 1. Pending is plaintiffs’ motion to compel further initial disclosures
from defendants under Federal Rule of Civil Procedure 26(a)(1). See Docket
No. 21. The district court, the Honorable Karen E. Schreier, referred this
motion to this magistrate judge for decision.
FACTS
Plaintiffs filed their complaint on September 4, 2014, based on events
that occurred on May 30, 2014. The following recitation of facts is drawn from
plaintiffs’ complaint and is not meant to lend the court’s imprimatur on the

verity of those facts, but merely to provide context for discussion of the instant
dispute.
On May 30, 2014, plaintiff Callissa Schaffer was driving a vehicle with
two passengers in it, one of whom was the owner of the vehicle. Callissa
alleges her two passengers had been drinking and she had not. She alleges
she was acting as the designated driver.
A Vermillion police officer stopped the vehicle. Ultimately, Callissa was
asked to perform a preliminary breath test (“PBT”), she was frisked,
handcuffed, and taken to the Vermillion police department where she was held
in a locked area until a search warrant issued authorizing officers to obtain the
PBT test from Callissa. After the PBT test was negative, Callissa was released.
Plaintiff Jill Schaffer, mother to Callissa and attorney of record for both
plaintiffs, states that she was Callissa’s attorney and that she was prevented
from providing legal advice and assistance to Callissa by defendants.
Plaintiffs allege that the actions of defendants violated their Fourth
Amendment right to be free from unreasonable searches and seizures, their
Sixth Amendment right to counsel, and their First Amendment rights to free
speech and to petition the government. Plaintiffs allege that the Vermillion
Police Department failed to properly train and monitor its officers.
On October 9, 2014, counsel for plaintiffs and for defendants held a
planning conference pursuant to Fed. R. Civ. P. 26(f). See Docket No. 26. The
parties apparently exchanged initial disclosures as required by part (a)(1) of
Rule 26.
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Plaintiffs, unhappy with the completeness of defendants’ initial
disclosures, have filed a motion to compel further voluntary initial disclosures
without the necessity of serving discovery requests on defendants. See Docket
No. 21. The plaintiffs initially sought: (1) a copy of the affidavit in support of
the PBT search warrant issued as to Callissa; (2) a copy of the search warrant
itself; (3) “copies of Vermillion Police Department policies”; (4) a copy of the city
of Vermillion’s insurance policy; and (5) true and complete copies of the police
videos complete with audios that were created at the time of the events
described in the plaintiffs’ complaint. Id.
After the initial motion was filed, defendants provided additional
documents and tangible things to plaintiffs. See Docket No. 22. The items
which are left which plaintiffs dispute are (1) the police video and audio
recordings and (2) Vermillion police department policies. See Docket No. 25.
DISCUSSION
A.

Good Faith Effort to Resolve Discovery Dispute
Both the Federal Rules of Civil Procedure and this district=s local rules of

procedure require that parties meet and confer in an attempt to resolve
discovery disputes before filing discovery motions. See FED. R. CIV. P. 37(a)(1);
DSD LR 37.1. A certification must be part of any discovery motion and the
certification must show that a good-faith effort was made to resolve disputes
before filing the motion. Id. Plaintiffs= counsel asserted in her original brief in
support of her motion that “Plaintiffs were unable to resolve this issue through
mail correspondence with Defense or through in person communication with
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Defense.” Although plaintiffs never averred that they acted in “good faith” as is
required by the local rules and Rule 37, defendants do not contest this issue.
Accordingly, the court moves on to the merits of the dispute.
B.

Initial Disclosures Under Rule 26(a)(1)
The court notes the procedural posture of plaintiffs’ motion is that no

requests for the production of documents or interrogatories have been served
by them on defendants. Rather, plaintiffs rely solely on the voluntary initial
disclosures required by Rule 26(a)(1) as their legal authority for their motion.
Indeed, plaintiffs’ motion is barren and bereft of citation to any legal authority
in support of their position other than Rule 26(a)(1). That provision states in
pertinent part as follows:
(a)(1)(A) In General. Except as exempted by [part B of the rule] or
as otherwise stipulated or ordered by the court, a party must,
without awaiting a discovery request, provide to the other parties:
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(ii) a copy—or a description by category and location—of all
documents, electronically stored information, and tangible things
that the disclosing party has in its possession, custody, or control
and may use to support its claims or defenses, unless the use
would be solely for impeachment.
See FED. R. CIV. P. 26(a)(1)(A)(ii) (emphasis supplied).
The idea of requiring parties to voluntarily disclose documents at the
inception of a lawsuit was first introduced in the Federal Rules of Civil
Procedure in 1993. At that time, the provision was made optional, and
districts could choose to opt out. The provision required parties to turn over
all information in their possession in their initial disclosures if the information
was “relevant to disputed facts alleged with particularity in the pleadings.”
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In 1997, the Federal Judicial Center surveyed districts which
implemented the requirement and attorneys who practiced in those districts.
Two things became evident as a result of the survey: (1) there was “vigorous
and enduring criticism” of the fact that the provision required attorneys to
volunteer evidence that was harmful to their clients without being served with
a discovery request for such evidence; and (2) attorneys wanted uniformity in
the discovery rules from one federal district court to another. See generally
Charles A. Wright, Arthur R. Miller & Richard L. Marcus, 8A Fed. Practice &
Procedure, § 2053 (3d ed. 2010) (hereinafter “Wright & Miller”).
Accordingly, when Rule 26 was revised in 2000, it was made mandatory
in all federal district courts, creating unanimity. In addition, the previous rule
was modified to require initial voluntary disclosure of only those materials the
party doing the disclosing was going to use in support of its claims or
defenses—the emphasized language quoted above in Rule 26(a)(1)(A)(ii). Thus,
the requirement that an attorney voluntarily turn over evidence that may harm
his or her client without a request from the opposing party was eliminated.1 Id.
See also FED. R. CIV. P. 26 cmts. to 2000 amendments (amendment to part
(a)(1) was made to enact a nationally uniform rule and to restrict a party’s
voluntary disclosures to that information the party will use to support its own
position). With this information, the court turns to the two remaining items of
discovery in dispute.
Also eliminated was the requirement that a matter be pleaded “with
particularity” before the voluntary disclosure requirement applied. See FED. R.
CIV. P. 26 cmts. to 2000 amendment.
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1.

Video and Audio Recordings

In their initial disclosures, defendants have turned over to plaintiffs an
apparently edited version of the video of the events. Plaintiffs want the original
videos and the original audio recordings. Here, neither party acknowledges or
discusses the standard applicable under Rule 26(a)(1)(A)(ii) for voluntarily
disclosing this information. Plaintiffs do not allege that this information is
going to be used by defendants to support a claim or defense. Defendants do
not deny that they would use the videos in support of a claim or defense.
Although producing a copy of a document or other tangible thing is one
way to satisfy the duty to make initial disclosures under Rule 26(a)(1), a party
may also simply make a list of such materials and that will satisfy the rule.
See 8A Wright & Miller § 2053 at p. 370. See also Fed. R. Civ. P. 26(a)(1)(A)(ii)
(stating that a party may simply give “a description by category and location” of
the documents or tangible things).
The purpose of Rule 26(a)(1) is not to put the actual document in the
opposing party’s hands. Rather, “[t]he objective of such a listing is to enable
the other parties to make informed decisions about which documents they
should request be produced pursuant to [Federal] Rule [of Civil Procedure] 34,
and to enable them to frame document requests that will avoid squabbles
about wording.” See 8A Wright & Miller § 2053 at p. 370.
Certainly, after defendants’ initial disclosures plaintiffs now know about
the existence of the video and audio recordings. That is all that is required by
Rule 26(a)(1). Id. It now remains for plaintiffs to follow up by making requests
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to produce these materials under Rule 34. Because defendants have satisfied
their obligations under Rule 26(a)(1), and Rule 26(a)(1) is the sole legal
authority relied upon by plaintiffs in making their motion, plaintiffs’ motion to
compel will be denied as to the police video and audio recordings.
2.

Vermillion Police Department Policies

Plaintiffs also assert that defendant must turn over “Vermillion Police
Department policies.” Defendants object to producing anything on the grounds
that the request is too broad and vague. The court agrees. The statement of
what plaintiffs request is extremely broad. It could cover training of
administrative assistants in computer processing all the way to training of
officers in the collection of blood from an unwilling subject.
Furthermore, because plaintiffs rely on Rule 26(a)(1) for their motion, the
motion would only be granted to the extent that defendants planned on using
the department’s policies and procedures to support a claim or defense. See
Fed. R. Civ. P. 26(a)(1)(A)(ii). Again, neither party has addressed the standard
under Rule 26(a)(1).
Finally, in context, it is clear that plaintiffs believe Vermillion police
officers handled Callissa’s May 30, 2014 detention incorrectly in the context of
a suspected incidence of driving while intoxicated. Therefore, defendants
should turn over voluntarily any portion of the Department’s policies dealing
with how officers should handle DUI stops—assuming that such policies are
documents defendants would rely upon to support their own response to
plaintiffs’ claims or defendants’ defenses.
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In this regard, it should be noted that the voluntary initial disclosure
under Rule 26(a)(1) is closely tied to the exclusionary provision under Fed. R.
Civ. P. 37(c)(1). If defendants fail to disclose information at this stage of the
proceedings, they will be barred from using that information to later support a
motion, at a hearing, or at trial. See FED. R. CIV. P. 37(c)(1). See also FED. R.
CIV. P. 26 cmts. to 2000 amendments.
If plaintiffs are dissatisfied with the copies of the department’s policies
defendants disclose or list, plaintiffs must narrow their request and define with
specificity what training policies they wish to receive copies of. Then they must
serve a discovery request pursuant to Rule 34 on defendants asking for this
discovery.
CONCLUSION
Based on the foregoing, it is hereby
ORDERED that plaintiffs’ motion to compel [Docket No. 21] is granted in
part and denied in part as follows.


Plaintiffs’ request for further production related to video and audio
recordings is denied.



Plaintiff’s request for Vermillion Police Department policies, to the extent
there are any policies defendants plan to rely upon in responding to
plaintiffs’ claims or in establishing an affirmative defense, is granted.



The remainder of plaintiffs’ request for department policies is denied.

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NOTICE OF RIGHT TO APPEAL
Pursuant to 28 U.S.C. ' 636(b)(1)(A), any party may seek reconsideration
of this order before the district court upon a showing that the order is clearly
erroneous or contrary to law. The parties have fourteen (14) days after service
of this order to file written objections pursuant to 28 U.S.C. ' 636(b)(1)(A),
unless an extension of time for good cause is obtained. See FED. R. CIV. P.
72(a); 28 U.S.C. ' 636(b)(1)(A). Failure to file timely objections will result in
the waiver of the right to appeal questions of fact. Id. Objections must be
timely and specific in order to require review by the district court. Thompson
v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black, 781 F.2d 665 (8th Cir.
1986).
DATED this 16th day of December, 2014.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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