Peters v. Metropolitan Government of Nashville and Davidson County, Tennessee et al

Filing 163

MEMORANDUM ORDER: For these reasons, Metro's amended motion for a protective order (Doc. No. 157 ) is GRANTED. Powers Management's motion to quash (Doc. No. 106 ) is DENIED WITHOUT PREJUDICE. Metro's motion to stay discovery (Doc. No. 86 ), amended motion to stay discovery (Doc. No. 89 ), motion for a protective order (Doc. No. 101 ), and motion to compel discovery and impose discovery sanctions (Doc. No. 120 ), and Winslow's motion to compel discovery (Doc. No. 119 ) are FOUND MOOT. Signed by Magistrate Judge Alistair Newbern on 11/23/2022. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ln)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JEREMY PETERS et al.,
Plaintiffs,

Case No. 3:18-cv-00564

v.
METROPOLITAN GOVERNMENT OF
NASHVILLE AND DAVIDSON COUNTY,
TENNESSEE, et al.,

Judge William L. Campbell, Jr.
Magistrate Judge Alistair E. Newbern

Defendants.
MEMORANDUM ORDER
This Memorandum Order addresses several pending discovery motions in this civil rights
action brought under 42 U.S.C. § 1983, including Defendant Metropolitan Government of
Nashville and Davidson County’s (Metro or the City) motion to stay discovery (Doc. No. 86) and
amended motion to stay discovery (Doc. No. 89); Metro’s motion for a protective order (Doc.
No. 101) and amended motion for a protective order (Doc. No. 157); non-party Powers
Management, LLC’s (Powers Management) motion to quash a subpoena (Doc. No. 106); former
Plaintiff Kenneth Winslow’s motion to compel discovery (Doc. No. 119); and Metro’s motion to
compel discovery from Winslow and to impose sanctions against him (Doc. No. 120). For the
reasons that follow, Metro’s amended motion for a protective order (Doc. No. 157) will be granted,
Powers Management’s motion to quash (Doc. No. 106) will be denied without prejudice, and the
remaining motions (Doc. Nos. 86, 89, 101, 119, 120) will be found moot.
I.

Relevant Background
The Court has discussed the facts underlying this action at length in other orders and will
briefly summarize those facts here. This action arises out of Peters’s and his associates’ attempts

to speak about their religious, political, and social beliefs on sidewalks, in a public park, and in an
outdoor plaza near Bridgestone Arena (the Arena) in downtown Nashville, Tennessee. (Doc.
No. 80.) Peters initiated this action by filing a complaint alleging that Metro and five individual
officer defendants identified as Does 1–5 violated his First and Fourteenth Amendment rights on
four occasions in 2017 and 2018. (Doc. No. 1.)
Under the Court’s amended case management order, discovery was to be completed by
December 2, 2019. (Doc. No. 60.) On November 26, 2019, the parties filed a joint motion to extend
the discovery deadline to allow them to take depositions on December 4 and 5, 2019, if a settlement
conference scheduled on December 3, 2019, proved unsuccessful. (Doc. No. 64.) The Court
granted that motion, and discovery closed on December 5, 2019. (Doc. No. 65.)
On April 6, 2020, the Court allowed Peters to file an amended complaint that: (1) added
allegations about the Arena’s ownership and operation, including allegations about the policies
governing conduct in the surrounding area; and (2) added Winslow as a plaintiff asserting claims
against Metro for similar alleged violations that took place in 2019 during an event known as
PredsFest. (Doc. No. 74.) The Court denied as untimely Peters’s efforts to add five new officer
defendants—including Metro Nashville Police Department (MNPD) Officers Hunter Fikes and
Gary Shannon—and to add claims on Winslow’s behalf against Metro for alleged violations that
took place in 2017 and 2018. (Id.)
The Court issued an amended case management order limiting “[r]emaining discovery . . .
to information arising out of the claims added in the Amended Complaint or previously unable to
be discovered.” (Doc. No. 82, PageID# 393, ¶ G.)
Metro moved to dismiss the amended complaint (Doc. No. 84) and asked the Court to stay
discovery pending resolution of that motion (Doc. Nos. 86, 89).

2

The parties filed several discovery motions while Metro’s motion to dismiss was pending.
Metro moved for a protective order precluding Peters and Winslow from deposing four of the five
MNPD officers they had sought to add as defendants, arguing that the depositions fell outside the
limited scope of discovery under the amended case management order because Metro had
disclosed the officers’ identities on November 26, 2019, and Peters could have deposed them
during the initial discovery period. (Doc. Nos. 101, 102.) The plaintiffs limited their deposition
notices to Fikes and Shannon, and the Court granted Metro leave to file an amended motion for a
protective order only as to those two officers. (Doc. Nos. 157, 158, 159.) Peters and Winslow
opposed Metro’s motions for protective orders (Doc. Nos. 104, 160), and Metro filed replies (Doc.
Nos. 105, 161). Metro also filed a motion to quash on behalf of Powers Management regarding a
subpoena for documents that Peters and Winslow’s counsel served on Powers Management. (Doc.
No. 106.) Peters and Winslow responded in opposition (Doc. No. 108) and Metro filed a reply on
behalf of Powers Management (Doc. No. 109). Winslow and Metro also filed cross-motions to
compel discovery (Doc. Nos. 119, 120) and related responses (Doc. Nos. 122, 124), and Metro
filed a reply (Doc. No. 125). Metro then filed a motion for summary judgment (Doc. No. 128),
Peters and Winslow filed a motion to stay consideration of Metro’s summary judgment motion
under Federal Rule of Civil Procedure 56(d) (Doc. No. 134), and the Court granted Peters and
Winslow’s motion to stay (Doc. No. 141).
The Court granted in part and denied in part Metro’s motion to dismiss Peters and
Winslow’s amended complaint, dismissing Winslow’s claims for failure to state a claim on which
relief can be granted but allowing Peters’ claims to proceed. (Doc. Nos. 147, 148.)

3

II.

Analysis
A.

Metro’s Motions to Stay Discovery and Metro’s and Winslow’s Motions to
Compel Discovery

Because the Court has now resolved Metro’s motion to dismiss and has dismissed
Winslow’s claims in this action, Metro’s motions to stay discovery pending resolution of its motion
to dismiss (Doc. Nos. 86, 89), Winslow’s motion to compel discovery from Metro (Doc. No. 119),
and Metro’s motion to compel discovery from Winslow and impose discovery sanctions against
him (Doc. No. 120) are moot.
B.

Metro’s Motions for Protective Orders

The scope of discovery in civil litigation falls within the sound discretion of the trial court.
S.S. v. E. Ky. Univ., 532 F.3d 445, 451 (6th Cir. 2008). “Unless otherwise limited by court order,”
Federal Rule of Civil Procedure 26 allows discovery of “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). Rule 26(c)(1) provides that a “court may, for good cause, issue an order to protect a
party or person from annoyance, embarrassment, oppression, or undue burden or expense,”
including forbidding the discovery of certain information. Fed. R. Civ. P. 26(c)(1). The party
seeking the protective order bears the burden to show good cause “with a particular and specific
demonstration of fact, as distinguished from stereotyped and conclusory statements.” Serrano v.
Cintas Corp., 699 F.3d 884, 901 (6th Cir. 2012) (quoting Nemir v. Mitsubishi Motors Corp., 381
F.3d 540, 550 (6th Cir. 2004)). Trial courts have “broad discretion . . . to decide when a protective
order is appropriate and what degree of protection is required.” Seattle Times Co. v. Rhinehart,
467 U.S. 20, 36 (1984).
The Court has limited the scope of remaining discovery in this action to “information
arising out of the claims added in the Amended Complaint or previously unable to be discovered.”

4

(Doc. No. 82, PageID# 393, ¶ G.) Metro’s amended motion for a protective order argues that
Fikes’s and Shannon’s testimony does not relate to claims added in the amended complaint and
was not “previously unable to be discovered” because Peters was aware of Fikes’s and Shannon’s
identities before the close of the initial discovery period but waited more than five months to notice
their depositions. (Doc. No. 158.) The record shows that Metro disclosed Fikes’s and Shannon’s
identities to Peters in discovery responses and objections served on November 26, 2019. (Doc.
No. 157-3.) On the same day, Peters filed the parties’ joint motion to extend the discovery deadline
to allow Peters to depose other Metro witnesses on December 4 and 5, 2019. (Doc. No. 64.) Metro
argues that Peters did not seek to depose Fikes or Shannon at that time and instead waited until
May 8, 2020, to send Metro notices of deposition for Fikes and Shannon. (Doc. No. 158.)
Peters concedes that Metro disclosed Fikes’s and Shannon’s identities on November 26,
2019. (Doc. No. 160.) He argues that Metro should have disclosed their identities sooner and that
“it was not possible for the depositions to be conducted before the close of discovery” because
Rule 30(b) requires parties to “give ‘reasonable notice’ before taking a deposition.” (Id. at
PageID# 1927.) This does not explain why Peters waited five months after the close of discovery
to notice Fikes and Shannon’s depositions. The parties were engaged in the setting of additional
depositions at the time Metro disclosed the officers’ identities, and the Court granted an extension
of the discovery period for those depositions to be taken. Peters offers no reason why he could not
have raised the issue of taking these depositions and requested a further extension at that time.
Metro’s amended motion for a protective order (Doc. No. 157) will be granted and its motion for
a protective order (Doc. No. 101) will be found moot.
C.

Powers Management’s Motion to Quash

Peters’s counsel served a subpoena on non-party Powers Management seeking production
of eighteen categories of documents, many of which concern Winslow’s now-dismissed claims
5

regarding PredsFest. (Doc. No. 107-1.) Counsel for Metro has filed a motion to quash the
subpoena, arguing that it is overly broad, unduly burdensome, and seeks documents outside the
scope of remaining discovery in this case. (Doc. Nos. 106, 107.) Metro’s counsel has not entered
an appearance on behalf of Powers Management, and it is not clear to the Court whether counsel
filed the motion to quash as part of her representation of Metro or on behalf of Powers
Management. Peters argues that, due to his counsel’s scheduling difficulties, Powers Management
never conferred with him regarding its objections to the subpoenabefore filing the motion to quash.
(Doc. No. 108.)
In light of the Court’s subsequent order dismissing Winslow’s PredsFest claims and
Peters’s representation that Powers Management has not conferred with him regarding its
objections to the subpoena, the Court will deny the motion to quash (Doc. No. 106) without
prejudice to refiling after Powers Management and Peters meet and confer in good faith about the
subpoena.
III.

Conclusion
For these reasons, Metro’s amended motion for a protective order (Doc. No. 157) is

GRANTED.
Powers Management’s motion to quash (Doc. No. 106) is DENIED WITHOUT
PREJUDICE.
Metro’s motion to stay discovery (Doc. No. 86), amended motion to stay discovery (Doc.
No. 89), motion for a protective order (Doc. No. 101), and motion to compel discovery and impose

6

discovery sanctions (Doc. No. 120), and Winslow’s motion to compel discovery (Doc. No. 119)
are FOUND MOOT.
It is so ORDERED.
____________________________________
ALISTAIR E. NEWBERN
United States Magistrate Judge

7