Doe et al. v. Johnson City, TN et al.

Filing 187

MEMORANDUM AND ORDER: For the reasons expressed herein and at the May 2 hearing, Defendant Peterss motions to compel [Docs. 108, 152] are GRANTED IN PART, DENIED IN PART, AND DENIED AS MOOT IN PART and Plaintiffs Motion for Protective Order [Doc. 158] is DENIED AS MOOT AND PREMATURE. Signed by Magistrate Judge Jill E McCook on 5/10/24. (ABF)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
B.P., H.A., S.H., individually, and
on behalf of all others similarly situated,
Plaintiffs,
v.
CITY OF JOHNSON CITY, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

No. 2:23-CV-71-TRM-JEM

MEMORANDUM AND ORDER
This case is before the Court pursuant to 28 U.S.C. § 636, the Rules of this Court, and
Standing Order 13-02. Now before the Court is Defendant Kevin Peters’s Motion to Compel
Plaintiffs’ Responses to Request for Production of Documents (“Motion to Compel”) with
supporting memorandum [Docs. 108, 109], and the Motion to Compel Compliance with
Subpoenas to Original Plaintiffs (“Supplemental Motion to Compel”) with supporting
memorandum [Docs. 152, 153], as well as Plaintiffs’ Motion for Protective Order and/or Motion
to Quash Subpoena Duces Tecum Issued to Unnamed Class Members (“Motion for Protective
Order”) [Doc. 158]. Also before the Court are the parties’ responses and replies to these motions
[Docs. 114, 116, 164, 165, 174, 175].1
On May 2, 2024, the Court held a hearing on these three motions [Doc. 179]. Attorneys
Elizabeth Kramer, Vanessa Baehr-Jones, and Ashley Walter appeared on behalf of Plaintiffs.
Attorneys Jonathan Lakey, Emily Taylor, Daniel Rader, Kristin Brexa, and Keith Grant appeared

The Court will address Plaintiffs’ Motion to Strike Certain Immaterial, Misleading, and
Impertinent Matter from Defendant Kevin Peters’s Opposition to Plaintiffs’ Motion for Protective
Order [Doc. 166] by separate order.
1

on behalf of Defendants City of Johnson City, Tennessee, Karl Turner, Kevin Peters, Toma Sparks,
Justin Jenkins, Jeff Legault, and Brady Higgins.2
By way of background, Plaintiffs filed this action on June 21, 2023 [Doc. 1] and filed the
Second Amended Class Action Complaint (“Amended Complaint”) on March 1, 2024 [See
Doc. 121]. The Amended Complaint alleges that “[b]eginning in at least 2018 and continuing to
2021, Sean Williams, a known drug dealer and convicted felon, conspired with Alvaro Fernando
Diaz-Vargas and others to drug and rape women, and sexually exploit children, in his apartment in
downtown Johnson City” [Id. ¶ 18]. Plaintiffs state that “Defendant [Johnson City Police
Department] officers conspired with [Sean] Williams to participate in a venture, the purpose of
which was to recruit, entice, harbor, provide, obtain, maintain, and solicit women and children,
who had not attainted the age of 14 years, for the purpose of engaging in commercial sex acts”
[Id. ¶ 57]. They state that Johnson City Police Department (“JCPD”) officers were aware of the
complaints that Sean Williams had raped women and that “officers took overt acts in furtherance
of Williams’[s] sex trafficking venture” [Id. ¶¶ 95–143]. And despite being aware of such
complaints, Plaintiffs allege that the JCPD failed to investigate them [Id. ¶¶ 232–33]. This failure,
according to Plaintiffs, “was motivated, in part, by the officers’ discriminatory animus towards
women” [Id. ¶ 242].
Plaintiffs represent three classes: (1) “All individuals, including minors, who were sexually
abused, drugged, or trafficked by Sean Williams or Alvaro Fernando Diaz-Vargas”; (2) “All
members of the Sex Trafficking Survivor Class who were sexually assaulted by Sean Williams
following the first report to the JCPD of Sean Williams’[s] alleged sexual violence on or about

While Defendant Peters filed his motions [Docs. 108, 152] only on behalf of himself,
counsel for Defendant Peters stated at the hearing that he was arguing on behalf of all Defendants.
2

2

November 7, 2019”; and (3) “All women, including minors, who reported sexual abuse or
trafficking by any person to JCPD from January 1, 2018, to April 25, 2023” [Id. ¶ 298]. They allege
(1) sex trafficking claims, 18 U.S.C. §§ 1591, 1594, and 1595; (2) obstruction of enforcement,
18 U.S.C. §§ 1594, 1595, and 1591(d); (3) aiding and abetting a sex-trafficking venture,
18 U.S.C. §§ 2, 1591(a)(1) & (2), and 1595; (4) conspiracy to commit violations of the Trafficking
Victims Protection Act, 18 U.S.C. §§ 1594(c), 1591, and 1595; (5) violations of 42 U.S.C.
§ 1983; (6) liability under the Tennessee Governmental Tort Liability Act, Tenn. Code Ann.
§ 29-20-205; (7) negligence for the failure to train; and (8) negligence for the failure to supervise
[Id. ¶¶ 311–423].
In the Motion to Compel, which was filed before the Amended Complaint, Defendant
Peters asks the Court to order Plaintiffs to respond to the first Request for Production (“RFP”) that
sought five groups of information from Plaintiffs: (1) communications between Plaintiffs;
(2) communications between Plaintiffs and Kateri Dahl;3 (3) communications between Plaintiffs
and Sean Williams; (4) communications between Plaintiffs and Defendants; and (5) any
information on Plaintiffs’ phones relating to various search terms [Doc. 108]. After the Amended
Complaint was filed, which reduced the number of named plaintiffs to three—B.P., H.A., and S.H.
(the “Now-Named Plaintiffs”)—Defendant Peters served subpoenas on the individuals who were
named plaintiffs in the original complaint but now are only part of one of the classes represented

Kateri Dahl (“Ms. Dahl”) was a special prosecutor for Defendant Johnson City, Tennessee,
who alleges that she was fired from her position when she raised concerns over the lack of
investigation into Sean Williams. Ms. Dahl filed suit against Defendant Johnson City as well as
other Defendants who are not parties to this case [Dahl v. Turner, No. 2:22-CV-72-KAC-JEM,
Doc. 1].
3

3

by the Now-Named Plaintiffs (the “Formerly-Named Plaintiffs”)4 [Docs. 157-1 to 157-9,
SEALED].
Although Defendant Peters maintains that discovery is proper on the Formerly-Named
Plaintiffs through his RFP [Doc. 153 p. 1], he served subpoenas on the Formerly-Named Plaintiffs
[Docs. 157-1 to 157-9, SEALED] to avoid any “procedural peculiarity” [Doc. 152 p. 2] after
Plaintiffs filed the Amended Complaint [Doc. 121]. He also filed the Supplemental Motion to
Compel requesting the Court order the Formerly-Named Plaintiffs to respond to the subpoenas
[Doc. 152]. The subpoenas request from the Formerly-Named Plaintiffs the same five categories
of information as the RFP as well as a sixth category of information: communications between
them and law enforcement [Docs. 157-1 to 157-9, SEALED]. Plaintiffs concurrently filed the
Motion for Protective Order, asking the Court to “enter an order prohibiting discovery on unnamed
class members, absent leave of Court” [Doc. 158 p. 7].
Given the information presented in the parties’ filings and what had transpired since the
filing of the Motion to Compel, at the May 2 hearing, the Court inquired about what relief
Defendant Peters and Plaintiffs are seeking at this time. Defendant Peters asked the Court to order
production of the requested documents, award attorney’s fees and costs, and order removal of
redactions made to produced documents. Plaintiffs asked the Court to deny the motions to compel,
deny an award of attorney’s fees and costs, and require consent of the unnamed class members for
service of subpoenas.

For purposes of this Order, the Court adopts the terminology used in Exhibit 1—“FormerlyNamed Plaintiffs”—to distinguish between the “Now-Named Plaintiffs” under the Amended
Complaint, and those individuals who were plaintiffs in their individual capacity but who are now
unnamed class members [See Exh. 1, SEALED]. The Court may refer to the Now-Named and
Formerly-Named Plaintiffs, collectively, as “Plaintiffs” because Defendant Peters is seeking
responses from both groups and Plaintiffs’ counsel stated that they represent these individuals.
4

4

I.

DISCOVERY SOUGHT FROM FORMERLY-NAMED PLAINTIFFS
At the hearing, Plaintiffs’ counsel represented that they have produced or will produce

information in response to the subpoenas issued to the Formerly-Named Plaintiffs. The Court
therefore DENIED AS MOOT the Motion to Compel to the extent it seeks responses from them
under Rule 34 [Docs. 108, 152]. The Court also DENIED AS MOOT any request set forth in the
Motion for Protective Order for Court approval for issuance of the subpoenas to Formerly-Named
Plaintiffs. In addition, the Court DENIED AS PREMATURE any request in the Motion for
Protective Order for Court approval for future subpoenas to Formerly-Named Plaintiffs or
unnamed class members because Defendant Peters has not filed any such subpoenas and he
represented at the hearing that he does not currently have plans to file such subpoenas. To the
extent the parties desire to serve any discovery subpoenas in this case, the Court ORDERED them
to meet and confer prior to service and prior to the filing of any appropriate motions.5 Hence, the
only question with respect to the Formerly-Named Plaintiffs served with a subpoena is what must
still be produced in response to the subpoenas. The Court will address that question below in
connection with its discussion about what Now-Named Plaintiffs must produce in response to the
RFP as well.
II.

CATEGORIES OF REQUESTED INFORMATION
During argument, Defendant Peters presented a chart showing whether and when

documents were produced from the Now-Named and the Formerly-Named Plaintiffs in response

At the hearing, Defendant Peters continued to argue that the time for production had long
since passed and thus, Plaintiffs should be ordered to immediately produce documents responsive
to the RFP and the subpoenas. Based upon information presented at the hearing, Plaintiffs have
produced and will be producing responsive documents. The Court therefore finds no reason at this
time to address this argument. To the extent relevant at a later date, Defendant Peters may revisit
the issue.
5

5

to the six categories of documents sought in the RFP and subpoenas that are at issue [Exh. 1,
SEALED],6 and defense counsel used this chart to frame his argument. Plaintiffs did not challenge
this organization and used it to frame much of their argument as well. The Court has therefore
adopted it to frame the resolution of the pending motions to compel. Following argument at the
hearing, the Court announced several rulings, which are set forth below, along with additional
rulings that dispose of the pending motions.
A.

Category One: Communications Between Plaintiffs

Defendant Peters requests that Plaintiffs produce all text messages, emails, direct or instant
messages from social media sites, written communications, and phone calls between all Plaintiffs
[Doc. 108-1 pp. 1–3; Docs. 157-1 to 157-9, SEALED]. Defendant Peters argued that Plaintiffs
have not provided any documents responsive to this request and asserted the common interest
privilege without producing a privilege log. Defendant Peters contends that communications
between Plaintiffs are relevant as to statute of limitations issues and to determining factors related
to bias, class verification, and how each Plaintiff became a victim of Sean Williams. Plaintiffs
responded that they are asserting the common interest privilege for communications occurring only
on or after July 1, 2022—after the Dahl Complaint was filed and around the time Plaintiffs retained
counsel [See Dahl v. Turner, No. 2:22-CV-72-KAC-JEM, Doc. 1]. They maintained that they have
no obligation to look for responsive documentations after that date, and they believe there are no
responsive documents. For communications prior to July 1, 2022, Plaintiffs stated that they have

The Court ORDERED all exhibits to the hearing be sealed provisionally. The Court also
ORDERED the parties to meet and confer within seven (7) days of the hearing to discuss what
portions of the exhibits should be sealed and/or redacted and to file a supplement, in compliance
with the Court’s order on sealing [Doc. 6], indicating what is being requested to remain sealed or
redacted.
6

6

searched for communications between the Now-Named Plaintiffs and none exist, which is
indicative of the fact that these Plaintiffs do not know each other outside of the litigation. Yet,
during the course of the hearing, Plaintiffs agreed to search for responsive documents. The Court
therefore ORDERED Plaintiffs to search for documents responsive to Category One between the
Now-Named Plaintiffs, including on and after July 1, 2022, and to produce any responsive
documents as well as any privilege log on or before May 16, 2024. For Formerly-Named Plaintiffs,
the Court ORDERED the parties to meet and confer within seven (7) days of the May 2 hearing
to discuss how to search for information responsive to Category One, and that the meet and confer
include, but not be limited to, a discussion about how to search for information on unimaged
devices. The Court also ORDERED the parties to file a supplement indicating whether there are
any issues for the Court to resolve as to Category One within ten (10) days of the May 2 hearing.7
B.

Category Two: Communications with Kateri Dahl

Defendant Peters requests that Plaintiffs produce all text messages, emails, direct or instant
messages from social media sites, written communications, and phone calls between Plaintiffs and
Ms. Dahl [Doc. 108-1 pp. 3–5 ; Docs. 157-1 to 157-9, SEALED]. Defendant Peters argued that it
is unbelievable that no Plaintiffs have communications with Ms. Dahl because Ms. Dahl testified
that she had interviewed various individuals when trying to identify survivors of Sean Williams.
In addition, many of these Now-Named and/or Formerly-Named Plaintiffs prepared affidavits in
Ms. Dahl’s case. Plaintiffs responded that only the sister of Jane Doe 6—a Formerly-Named
Plaintiff—communicated with Ms. Dahl, and they have fully produced that communication.

In his reply brief to his Supplemental Motion to Compel [Doc. 175] as well as during the
hearing, Defendant Peters asked the Court to order “that the forensic images of the Plaintiffs’
phones be produced for inspection by Defendant Peters’s expert (using the search methodology in
the subpoenas: specific names and the specific terms)” [Id. at 20]. If, after the parties meet and
confer, Defendant Peters finds that this relief is warranted, he may indicate such in the supplement.
7

7

Plaintiffs’ counsel also represented that they have consulted with their clients, conducted a manual
search for responsive documents, imaged the cell phones of Plaintiffs B.P. and H.A., and searched
for responsive information from the class members. Plaintiffs’ counsel stated that, other than the
sister of Jane Doe 6, none of the Plaintiffs in this case communicated with Ms. Dahl. They agreed
that if they find anything responsive, they will produce it.
Based on Plaintiffs’ counsel’s representations, Now-Named and Formerly-Named
Plaintiffs have searched for documents responsive to Category Two and have reported that none
exist, other than the one already produced. To the extent supplemental discovery is necessary,
Plaintiffs shall do so in a timely manner. Fed. R. Civ. P. 26(e).
C.

Category Three: Communications with Sean Williams

Defendant Peters requests that Plaintiffs produce all text messages, emails, direct or instant
messages from social media sites, written communications, and phone calls between Plaintiffs and
Sean Williams [Doc. 108-1 pp. 5–7 ; Docs. 157-1 to 157-9, SEALED]. Prior to the hearing,
Plaintiffs produced a series of messages from Jane Doe 7 to Sean Williams that Jane Doe 7
provided to JCPD. They contend that none of the other Plaintiffs have responsive documents.
While Plaintiffs have produced some responsive documents, Defendant Peters suspects that there
has been spoilation because he finds it unlikely, based upon the nature of the scheme as described,
that all the other Plaintiffs did not have communications with Sean Williams. Further, Defendant
Peters asserted that Plaintiffs did not produce responsive documents until he specifically
referenced the missing communications. With respect to Jane Doe 7, Plaintiffs responded that the
communications produced had already been turned over to law enforcement by her and Plaintiffs
did not have knowledge of these messages until Defendant Peters told them about them. Plaintiffs’
counsel also represented that they have one more source to search for responsive documents.

8

Plaintiffs are ORDERED to review the additional source related to Category Three and
provide supplemental discovery on or before May 23, 2024. Fed. R. Civ. P. 26(e).
D.

Category Four: Communications with Defendants

Defendant Peters requests that Plaintiffs produce all text messages, emails, direct or instant
messages from social media sites, written communications, and phone calls between Plaintiffs and
any employee or official of Johnson City, Tennessee [Doc. 108-1 pp. 9–11 ; Docs. 157-1 to 157-9,
SEALED]. Prior to the hearing, Plaintiffs produced eight voicemails between Plaintiffs and JCPD.
Defendant Peters argues that these voicemails are not the complete communications between
Plaintiffs and Defendants. In support of this contention, Defendant Peters pointed to an email dated
November 2023 [Exh. 2, SEALED] and again to the communications between Jane Doe 7 and
Sean Williams that she provided to JCPD [Exh. 3, SEALED], neither of which were produced in
response to the RFP until Defendant Peters specifically referenced them. Plaintiffs provided an
explanation for why these documents had not been produced previously and responded that they
have produced everything responsive to Category Four and have been working to produce the
emails with law enforcement but require additional time due to the nature of the communications
as further described in Category Six [See infra Section II.F.].
Based on Plaintiffs’ representations, they have searched for responsive documents and
reported that none exist. To the extent supplemental discovery is necessary, Plaintiffs shall do so
in a timely manner. Fed. R. Civ. P. 26(e).
E.

Category Five: Specific Search Terms

Defendant Peters requests that Plaintiffs produce all text messages, emails, direct or instant
messages from social media sites, written communications, and phone calls between Plaintiffs and
any other person, other than an attorney, from 2018 to the present referencing the following terms:

9

“police,” or any variation of that term or related terms including “JCPD,” “cop,” “detective,”
“sergeant,” “captain,” or “chief”; “rape,” “sexual assault” or any variation of that term; “Kateri
Dahl”; and “Sean Williams” [Doc. 108-1 pp. 12–20; Docs. 157-1 to 157-9, SEALED]. Defendant
Peters argues that the search terms are very specific and narrowed to the relevant topics in this
case, and that Plaintiffs have not produced any documents responsive to this category because they
claim the search terms are too broad to be relevant. Defendant Peters contests that Plaintiffs are
improperly determining which documents are relevant and notes that Plaintiffs have not said how
many hits these search terms produced. Plaintiffs responded that they ran the search terms on the
imaged phones and had twenty-eight hits, but that many of these were irrelevant, such as
communications pertaining to Captain America in response to the “captain” search term. Plaintiffs
stated that they are working with their vendor to expand the search terms for those devices already
imaged. For the Formerly-Named Plaintiffs whose phones were not imaged, Plaintiffs stated that
they have tried to identify if there is any information responsive to these search terms, but so far,
no additional documents have been identified.
For any imaged device, the Court ORDERED Plaintiffs to produce the responsive
documents, including the twenty-eight hits identified, as well as any potential privilege log if
anything is being withheld, on or before May 16, 2024. For unimaged devices, the Court
ORDERED the parties to meet and confer within seven (7) days to discuss how to search for
information that is responsive to Category Five on the unimaged devices. The Court also
ORDERED the parties to file a supplement with the Court indicating whether there are any issues
for it to resolve pertaining to Category Five within ten (10) days of the hearing.

10

F.

Category Six: Communications with Law Enforcement

In the subpoenas served upon the Formerly-Named Plaintiffs, Defendant Peters requested
all of the above categories of information, as well as any communications between FormerlyNamed Plaintiffs and law enforcement [Docs. 157-1 to 157-9, SEALED]. Plaintiffs produced a
series of documents that Plaintiffs’ counsel emailed to law enforcement related to this matter,
which was redacted. Defendant Peters maintains that this material was improperly redacted
because it was not confidential and is not work product. Further, he contends that even if it was
work product, Plaintiffs have waived that privilege by disclosing it to a third party. Defendant
Peters also argues that Plaintiffs have referred to, but not produced, pictures and other evidence of
their assaults throughout their complaints. These documents are relevant, he asserts, to what
information JCPD had but did not act on. Plaintiffs respond that they have communicated with
Defendant Peters regarding the existence of these documents and that they need additional time to
produce them because they must coordinate with law enforcement to determine if they are asserting
an investigatory privilege, redact the documents if necessary, and then produce the documents
along with a privilege log.
At the hearing, the Court ORDERED the parties to meet and confer on the scope of
requests that fall within Category Six within seven (7) days of the hearing and to file a supplement
with the Court indicating whether there are any issues for it to resolve pertaining to Category Six
within in ten (10) days of the hearing.
III.

ATTORNEY’S FEES AND COSTS
Defendant Peters requests attorney’s fees and costs for his efforts in bringing the motions

to compel. The parties did not have an opportunity to argue this issue at the May 2 hearing given
time constraints, and the Court found that the briefs did not fully address the matter. It therefore

11

GRANTED LEAVE for Defendant Peters to file a supplemental motion for fees and costs within
ten (10) days of entry of this Order. Plaintiffs may respond within seven (7) days, and Defendant
Peters may file a reply seven (7) days thereafter.
IV.

CONCLUSION
For the reasons expressed herein and at the May 2 hearing, Defendant Peters’s motions to

compel [Docs. 108, 152] are GRANTED IN PART, DENIED IN PART, AND DENIED AS
MOOT IN PART and Plaintiffs’ Motion for Protective Order [Doc. 158] is DENIED AS MOOT
AND PREMATURE.
IT IS SO ORDERED.
ENTER:
___________________________
Jill E. McCook.
United States Magistrate Judge

12