Powell v. Oldham
Filing
325
ORDER granting in part and denying in part 291 motion regarding discovery. Signed by Chief Magistrate Judge Tu M. Pham on 5/29/2020. (nph)
Case 2:16-cv-02907-SHM-tmp Document 325 Filed 05/29/20 Page 1 of 8
PageID 3563
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
ISSACCA POWELL et. al,
)
)
)
)
)
)
)
)
)
Plaintiffs,
v.
BILL OLDHAM et. al,
Defendants.
No. 2:16-2907-SHM-tmp
ORDER DENYING IN PART AND GRANTING IN PART
MOTION REGARDING DISCOVERY
Before the court by order of reference is the plaintiffs’
motion
for
a
discovery
conference,
to
permit
merits-based
discovery, to compel depositions, and for sanctions and fees. (ECF
No. 288.) For the reasons below, the motion is DENIED IN PART and
GRANTED IN PART.1
I.
BACKGROUND
This is a putative class action. The plaintiffs are detainees
who were at one point incarcerated in the Shelby County Jail. They
allege that due to a problem with the computer system the county
used to keep track of detainees, they were held for longer than
1There
is a split in authority about whether magistrate judges
should resolve discovery motions that seek dispositive relief
(such as this motion) by order or report and recommendation. The
undersigned’s view is that magistrate judges may deny such relief
by order but should only recommend granting dispositive relief.
See Builders Insulation of Tennessee, LLC v. S. Energy Sols., No.
17-CV-2668-TLP-tmp, 2020 WL 265297, at *4 (W.D. Tenn. Jan. 17,
2020).
Case 2:16-cv-02907-SHM-tmp Document 325 Filed 05/29/20 Page 2 of 8
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the law allows, sometimes in spite of court orders for their
release. The plaintiffs assert this violated their constitutional
rights. They are asserting claims against Shelby County, a variety
of officials employed by Shelby County, and the private vendors
who
sold
the
system
to
the
County.
Defendants
deny
these
allegations.
This motion is the result of a dispute about the timing of
depositions. Negotiations on when depositions would take place
began in May 2019 and continued for the next ten months. Those
negotiations were contentious. The plaintiffs claim that Shelby
County refused to cooperate, ignoring requests to set dates for
depositions,
asking
that
noticed
depositions
be
reset,
and
generally attempting to delay the process as much as possible.
Shelby County denies it acted improperly and argues that the
depositions could not reasonably have been set as early as the
plaintiffs wanted because, among other things, the pleadings were
not
yet
closed
and
because
the
plaintiffs
would
not
provide
adequate assurances that deposition questions would be limited to
issues related to class certification. Matters reached a boiling
point when Ed Raper, the County’s chief information technology
officer, died unexpectedly due to side effects of a medication.
The plaintiffs claim that Raper was uniquely important to the case
because he “is probably the only individual witness with a complete
picture of what happened when Shelby County launched the [relevant
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computer] system, what was supposed to happen, and how Shelby
County responded to the chaos that ensued after the launch was an
abysmal disaster." (ECF No. 288.)
In their initial brief, the plaintiffs claimed that Shelby
County knew of Raper's illness and sought to prevent his testimony
through this tactic of delay. Shelby County vehemently denies this
and presents evidence that Raper's death was unexpected. The court
held a hearing on the motion. At the hearing, plaintiffs conceded
that they have no evidence and no longer believe that Shelby County
sought to prevent Raper from testifying by delaying his deposition.
Plaintiffs argue that sanctions are still warranted based on Shelby
County’s alleged failure to cooperate in discovery.
The plaintiffs further argue that this incident demonstrates
that the bifurcation of class and merits discovery is not working.
At the outset of this case, the parties agreed that bifurcation of
class and merits discovery was appropriate and the court ordered
bifurcation in multiple successive scheduling orders. However,
disputes
about
the
appropriate
scope
of
class
versus
merits
discovery have arisen often, many of which have been resolved by
the undersigned. The plaintiffs argue ending bifurcation would
speed
up
the
progress
of
this
now
four-year-old
case.
The
plaintiffs also seek judicial intervention to assist in setting
deposition dates.
II.
ANALYSIS
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A.
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Sanctions
Plaintiffs argue that the court should use its inherent powers
to sanction Shelby County and those defendants who are employed by
it to punish them for failing to cooperate in discovery. They seek
three sanctions: (1) a default judgment against Shelby County, or,
in the alternative, (2) an adverse inference instruction regarding
Raper’s testimony, and (3) for the notes of any interview defense
counsel may have conducted with Raper to be deemed no longer
protected
by
the
attorney-client
privilege
or
work
product
doctrine.
To obtain an adverse inference based on discovery misconduct
that leads to the destruction of evidence, the moving party must
demonstrate the non-moving party acted with a culpable state of
mind. Beaven v. U.S. Dep't of Justice, 622 F.3d 540, 554 (6th Cir.
2010). “The culpable state of mind factor is satisfied by a showing
that the evidence was destroyed knowingly, even if without intent
to breach a duty to preserve it, or negligently.” Id. A default
judgment requires evidence of willful or bad faith conduct. Bank
One of Cleveland, N.A. v. Abbe, 916 F.2d 1067, 1073 (6th Cir.
1990).
There is no evidence the Shelby County defendants acted with
a culpable state of mind. All the evidence in the record indicates
that Raper’s death was unexpected. There was thus no reason to
think that a delay in depositions would lead to the unavailability
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of Raper’s testimony. Given this, the culpable state of mind factor
is not satisfied and plaintiffs are not entitled to either an
adverse inference or default judgment.
Plaintiffs are also not entitled to have privileged materials
declared unprotected.2 Plaintiffs did not argue in favor of this
sanction in their briefing and raised it for the first time at the
hearing
on
this
motion.
“[T]his
court
will
not
consider
an argument that is raised for the first time at oral argument.”
Maher v. Int'l Paper Co., 600 F. Supp. 2d 940, 948 (W.D. Mich.
2009). To allow such arguments would subject the other party to
unfair surprise. The motion for sanctions is DENIED.
B.
Bifurcation
“Courts
often
bifurcate
discovery
between
certification
issues and those related to the merits of the allegations.” Manual
for Complex Litigation, Fourth, § 21.14. The goal of bifurcation
is to achieve efficiency in the discovery process. However, in
many cases, bifurcation does the opposite because it leads to
disputes
2The
about
the
scope
of
class
discovery
versus
merits
court does not mean to suggest that the interview notes the
plaintiffs seek are immune from disclosure under the work product
doctrine. A party may obtain information protected by the workproduct doctrine if it “(1) has a substantial need for the
information, but (2) is unable to obtain the substantial equivalent
of the materials without undue hardship.” Stampley v. State Farm
Fire & Cas. Co., 23 F. App'x 467, 471 (6th Cir. 2001). The question
the court decides today is limited to the issues properly raised
in the motion before it.
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discovery. See, e.g., McCluskey v. Belford High Sch., No. 09-CV14345, 2011 WL 13225278, at *2 (E.D. Mich. Mar. 10, 2011). This is
particularly problematic when there is significant overlap between
the facts that are relevant to class certification and the facts
that are relevant to the merits.
It is clear that there is significant overlap between class
and merits issues in this case. Were the court making a decision
on bifurcation on a blank slate, it would not bifurcate this case.
However, this case has been bifurcated and the parties have relied
on bifurcation in crafting their written discovery responses and
in deciding their case strategies. Ending bifurcation would risk
reopening previously resolved disputes about the scope of document
discovery and potentially force an effective reset of the discovery
process.
The
plaintiffs
have
not
offered
a
satisfactory
explanation of how bifurcation could be ended without this risk of
reset. Four years into this case, the court is unwilling to risk
losing the progress that has already been made in discovery by
ending bifurcation.
C.
Depositions
Finally, the plaintiffs seek court intervention to order the
defendants to agree to deposition dates. The court agrees that
judicial intervention is necessary to ensure the speedy progress
of this case. As such, the court ORDERS the following:
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The plaintiffs will identify to the defendants those fact
witnesses they seek to depose who are in the defendants’
control as soon as practicable. The plaintiffs will also
identify what dates within the next three months they are
unavailable to depose witnesses.
Within seven days of receiving this list of fact witnesses,
the defendants will provide multiple possible dates for each
witness’s deposition falling within the next three months.
Plaintiffs may then choose a date for each deposition in that
list of possible dates and notice each deposition.
After these depositions are noticed, the depositions may not
be canceled by any party unilaterally. Depositions may be
reset by the agreement of all relevant parties or by court
order.
All depositions shall be conducted via videoconference unless
the parties and the witness agree otherwise.
Parties may not instruct witnesses not to answer questions
based on a party’s belief a particular question falls outside
the scope of class discovery. See Fed. R. Civ. P. 30(c)(2).
The parties are reminded that the Federal Rules of Civil
Procedure state that deposition objections “must be stated
concisely in a nonargumentative and nonsuggestive manner.”
Fed. R. Civ. P. 30(c)(2). Parties will not make speaking
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objections
at
depositions,
including
speaking
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objections
asserting a particular question is focused on merits issues
rather than class issues.
The parties will meet and confer to agree on a process for
establishing dates for Rule 30(b)(6) depositions.
The parties shall submit a joint proposed scheduling order by
June 3, 2020 at the latest.
III. CONCLUSION
For the reasons above, the motion is DENIED IN PART and
GRANTED IN PART.
IT IS SO ORDERED.
s/ Tu M. Pham
TU M. PHAM
Chief United States Magistrate Judge
May 29, 2020
Date
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