Malone et al v. Shelby County et al

Filing 133

ORDER granting in part and denying in part 129 Motion to Compel. Signed by Magistrate Judge Tu M. Pham on 1/28/2020. (nph)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
APRIL MALONE and
CELITRIA WATSON

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Plaintiffs,
v.
CITY OF MEMPHIS,
THURMOND RICHARDSON,
and JONATHAN OVERLY
Defendants.

No. 18-2201-MSN-tmp

ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFFS’ MOTION TO COMPEL

Before the court is April Malone and Celitria Watson’s motion
to

compel

discovery

responses

from

Thurmond Richardson 1

and

Jonathan Overly. 2 (ECF No. 129.) For the reasons outlined below,
the motion to compel is GRANTED in part and DENIED in part.
I.

BACKGROUND

1In

his briefing and answer, Richardson spells his first name as
“Therman.” (ECF No. 131.) Richardson’s name is spelled as
“Thurmond” in the case caption, original complaint, and amended
complaint. (ECF Nos. 1 & 106.) In their briefing, Malone and Watson
spell the officer’s first name as “Thermond.” (ECF No. 129.) For
purposes of the present motion, the court adopts the spelling from
the case caption. If this spelling is incorrect, the court invites
Richardson to move to correct the case caption.
2The

City of Memphis is also listed as a target of this motion to
compel. However, Malone and Watson’s motion only discusses
purported deficiencies in Richardson and Overly’s responses to
discovery propounded upon them in their individual capacities.
Given this, the court construes the motion as being against
Richardson and Overly in their individual capacities.

This is a federal civil rights lawsuit brought against the
City of Memphis and Memphis police officers Richardson and Overly.
(ECF No. 106.) Malone and Watson allege that the City of Memphis
provided Richardson and Overly with a cell-site simulator commonly
known as a “Stingray” device. (ECF No. 106 at 1.) Malone and Watson
further allege that the City did not establish any procedures for
when officers could use the Stingray device, provided no training
about when use of a Stingray device would be lawful, and failed to
monitor police use of the Stingray device. (Id. at 2.) Malone and
Watson allege that Richardson and Overly used the Stingray device
to monitor their text messages without a warrant. (Id. at 2-3.)
After monitoring the text messages, the complaint alleges that the
officers altered those messages to make it appear that Malone and
Watson were engaged in criminal activity. 3 (ECF No. 1 at 2.) Malone
and Watson allege that the officers then used the fabricated text

3Or,

at least, this is how the court understands the allegations.
There is some ambiguity about whether Malone and Watson are still
alleging this. In their original complaint, Malone and Watson
alleged that Richardson and Overly altered their text messages,
but did not include allegations about a Stingray device. (ECF No.
1.) In their amended complaint, Malone and Watson add allegations
about a Stingray device, but did not reincorporate the allegations
about falsification of the text messages. With that said, some of
the claims brought by Malone and Watson do not make sense without
an allegation of evidence tampering and Malone and Watson have
continued to seek discovery consistent with their evidence
tampering theory. None of the parties have raised this issue in
their briefing. For the limited purposes of this motion only, and
consistent with the pro se pleading standard, the court treats
both sets of allegations as operative.
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messages to persuade prosecutors to obtain a search warrant for
Malone and Watson’s phone records and to bring felony charges
against them. (ECF No. 1 at 2; ECF No. 106 at 2.) Malone and Watson
allege those charges were dismissed after they discovered the
alterations to the text messages. (Id.) The City and the officers
deny these allegations. (ECF Nos. 106, 110, & 111.)
On August 9, 2019, Malone and Watson propounded their first
set of requests for production and interrogatories on Richardson
and Overly. 4 Richardson and Overly objected to every request for
production on two grounds. First, the officers argued, lightly
paraphrased, that the requests were disproportionate to the needs
of

the

case.

Second,

the

officers

argued

that

the

documents

requested were not within Richardson and Overly’s “possession,
custody, or control” within the meaning of Federal Rule of Civil
Procedure 34 because Memphis police policy prohibits officers from
using police files for personal reasons. The officers also objected
to

most

of

the

propounded

interrogatories

on

proportionality

grounds. However, despite objection, the officers substantively
responded to some of the disputed interrogatories. The officers
responded to Interrogatories 2, 3, 4, 11, and 14 by providing a
partial written answer and then referring Malone and Watson under

4The

requests were propounded on each officer separately. However,
the requests are substantively the same, and the officers — each
represented by the same counsel — responded identically to each
question.
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Federal Rule of Civil Procedure 33(d) to “the complete records and
materials provided to them in discovery in their criminal cases,
as well as documents within the custody and control of Defendant
City of Memphis.” 5 The officers responded to Interrogatories 5, 6,
7, 8, and 15 without any written answer beyond a referral to the
discovery in the criminal case and City records. The officers
answered Interrogatories 1, 9, 12, and 13 by providing a full
written answer.
On December 13, 2019, Malone and Watson propounded a set of
requests for admission on Richardson and Overly. Richardson and
Overly objected that the requests for admission were untimely
because the scheduling order requires requests for admission to be
propounded 45 days before “the written discovery deadline” and the
requests were propounded less than 45 days before the close of
discovery. (ECF Nos. 66 & 131.)
On January 13, 2020, Malone and Watson filed this motion.
(ECF No. 129.) Malone and Watson seek an order compelling responses
from Richardson and Overly to their requests for production and
interrogatories. They also seek an order deeming their requests

5There

are minor variations on the quoted language in the
interrogatory responses. Sometimes, Richardson and Overly referred
the plaintiffs just to the discovery in their criminal case, at
other times, just to documents possessed by the City of Memphis.
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for

admission

to

have

been

admitted

based

on

Richardson

and

Overly’s failure to respond. See Fed. R. Civ. P. 36(a)(3).
II.
A.

ANALYSIS

Scope of Discovery
The scope of discovery is governed by Federal Rule of Civil

Procedure 26(b)(1), which provides that “[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 party seeking discovery is
obliged to demonstrate relevance. Beijing Fito Med. Co., Ltd. v.
Wright

Med.

Tech.,

Inc.,

No.

2:15-CV-2258-JPM-egb,

2017

WL

5177643, at *2 (W.D. Tenn. Apr. 20, 2017). Upon a showing of
relevance, the burden shifts to the party opposing discovery to
show,

with

specificity,

why

the

requested

discovery

is

not

proportional to the needs of the case. William Powell Co. v. Nat'l
Indem. Co., No. 1:14-CV-00807, 2017 WL 1326504, at *5 (S.D. Ohio
Apr. 11, 2017), aff'd sub nom. 2017 WL 3927525 (S.D. Ohio June 21,
2017), and modified on reconsideration, 2017 WL 4315059 (S.D. Ohio
Sept. 26, 2017). Six factors are relevant to proportionality: (1)
“the importance of the issues at stake in the action;” (2) “the
amount in controversy;” (3) “the parties' relative access to
relevant information;” (4) “the parties' resources;” (5) “the
importance of the discovery in resolving the issues;” and (6)

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“whether the burden or expense of the proposed discovery outweighs
its likely benefit.” Fed. R. Civ. P. 26(b)(1).
B.

Requests for Production
Richardson and Overly argue that they do not have “possession,

custody, or control” of police investigative records for purposes
of

Federal

Rule

of

Civil

Procedure

34

because

police

policy

prohibits them from accessing police files for personal use.
Richardson and Overly also argue that the sought-after discovery
is not proportional to the needs of the case because the City of
Memphis has already produced all of the documents that would be
responsive to the requests for production directed at Richardson
and Overly. Richardson and Overly represent that there “are no
further

documents

to

produce”

and

that

“[d]efendants

cannot

produce that which does not exist.” 6 (ECF No. 131 at 6.)
Regardless of whether Richardson and Overly have “possession,
custody, or control” of investigative records within the meaning
of Rule 34, there is no apparent reason why this discovery is

6Richardson

and Overly also observe that Malone and Watson did not
include a certificate of consultation in their motion, as required
by the local rules. See LR 7.2(a)(1)(B). It is possible that the
officers are arguing by implication that the motion should be
denied entirely on this ground. But, as Richardson and Overly
discuss at length, the parties did attempt to resolve this dispute
through consultation before the motion was filed. Richardson and
Overly are thus not prejudiced by the failure to include a
certificate of consultation. The court declines to deny the motion
on this ground.
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proportional to the needs of the case. The City of Memphis has
turned over thousands of pages of investigative documents to Malone
and Watson, which would appear to cover all of the subjects
identified in the disputed Requests for Production. (ECF No. 1315.) Malone and Watson have not identified any reason why this
production does not give them everything they have asked for from
Richardson and Overly. The scope of discovery is broad, but it is
not so broad as to allow a party to demand the same documents
twice. The motion to compel is DENIED with respect to Malone and
Watson’s first set of requests for production.
C.

Interrogatories
As an initial matter, the court notes that Malone and Watson

claim

that

Richardson

and

Overly

did

not

respond

to

any

interrogatories in their motion to compel. This is inaccurate;
Richardson and Overly responded to Interrogatories 1, 9, 12, and
13 fully without objection. The motion to compel is thus DENIED
with respect to those interrogatories.
Moving to the disputed interrogatories, Richardson and Overly
argue

that

they

have

properly

responded

to

each

disputed

interrogatory by invoking Rule 33(d)’s option to produce business
records

in

lieu

of

providing

a

written

answer.

In

addition,

Richardson and Overly argue that the disputed interrogatories are
not

proportional

to

the

needs

of

the

improper.
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case

or

are

otherwise

In certain circumstances, Rule 33(d) gives a party an option
to produce business records in lieu of giving a written answer to
an interrogatory. Fed. R. Civ. P. 33(d). Unsurprisingly, a party
cannot

simultaneously

refuse

to

produce

business

records

and

refuse to answer written interrogatories by invoking Rule 33(d)’s
option to produce business records. See, e.g., Blake Assocs., Inc.
v. Omni Spectra, Inc., 118 F.R.D. 283, 290 (D. Mass. 1988) (“It
does not take a great deal of cognitive thinking to realize that
it is improper to invoke [the business records option] in answer
to interrogatories and then claim that some or all of the documents
containing the information are privileged and not subject to
disclosure.”). Richardson and Overly have refused to provide the
requested records. Likewise, “[a] party that attempts to rely upon
Rule 33(d) with a mere general reference to a mass of documents or
records has not adequately responded.” Myers v. Anthem Life Ins.
Co., 316 F.R.D. 186, 200 (W.D. Ky. 2016). None of Richardson and
Overly’s responses are sufficiently specific enough so as to
“permit the requesting party to locate and identify [the responsive
information] as easily as the responding party itself could.”
Mullins v. Prudential Ins. Co. of Am., 267 F.R.D. 504, 514–15 (W.D.
Ky. 2010). Richardson and Overly have thus not properly invoked
Rule 33(d).
Furthermore, most of the officers’ objections to the disputed
interrogatories do not appear to be justified. Some are, such as
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Interrogatories

3

and

8,

which

are

thus

Interrogatory

2

and

Interrogatory

11

appears

questions

and

is

thus

to

appear

to

be

duplicative

disproportionate. 7

ask

four

improperly

separate

compound.

Similarly,

and

See

of

distinct

Mullins

v.

Prudential Ins. Co. of Am., 267 F.R.D. 504, 516 (W.D. Ky. 2010).
The

motion

to

compel

is

thus

DENIED

with

respect

to

those

interrogatories. But the other interrogatories all appear to be
appropriate, relevant, and proportional. Most are focused on the
specific events of the investigation of Malone and Watson. Those
few

interrogatories

that

are

not

nonetheless

ask

specific

questions about relevant subjects. For example, Interrogatory 6
asks Richardson and Overly to describe the training they received
in surveillance over the past seven years. Malone and Watson are
alleging that the City of Memphis failed to appropriately train
its officers on surveillance techniques. What training Richardson
and Overly received on surveillance is relevant to that claim and

7Interrogatory

3 is also improper because it asks Richardson and
Overly to identify the “knowledge of the facts and circumstances”
other people have of the investigation into Malone and Watson.
This is an unreasonable inquiry. This is so broadly worded as to
be disproportionate to the needs of the case. Likewise,
Interrogatory 8 is also improper because it asks for the production
of documents in addition to a written response. Though responding
parties may sometimes elect to provide documents in response to an
interrogatory, requests for production, not interrogatories, are
the appropriate discovery tool to request documents. See BNSF Ry.
Co. v. Lafarge Sw., Inc., No. CIV 06-1076 MCA/LFG, 2008 WL
11322949, at *2 (D.N.M. May 9, 2008). Those aspects of both
interrogatories that are not improper are covered by the broader
language of Interrogatory 2.
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asking them about their training is the most natural way of
discovering that information. The remaining disputed interrogatory
requests are proportional.
That Malone and Watson might be able to figure out some of
the information they seek from Richardson and Overly by examining
the documents they have been provided by the City does not make
these

interrogatories

disproportionate.

“The

various

methods

of discovery as provided for in the Rules are clearly intended to
be cumulative, as opposed to alternative or mutually exclusive.”
In re EpiPen (Epinephrine Injection, USP) Mktg., Sales Practices
& Antitrust Litig., No. 17-MD-2785-DDC-tjj, 2018 WL 6061669, at *2
n.2 (D. Kan. Nov. 19, 2018) (internal quotations, citations, and
alterations omitted). This is particularly true where, as here,
interrogatory responses may clarify information from the document
discovery. See id. at *2. Though there may be circumstances where
document

production

eliminates

the

need

for

interrogatory

responses, Richardson and Overly have not shown that is the case
here.
Richardson and Overly also object on the grounds they may not
know

or

be

able

to

remember

information

responsive

to

Interrogatories 5, 6, and 10. 8 For Interrogatories 6 and 10, this

8Richardson

and Overly raised this argument in a letter to Malone
and Watson they attached to their brief, and not in their formal
responses to the interrogatories or in the body of their brief in
response to the motion to compel. As a result, it is somewhat
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argument appears to be based on a mistaken understanding of the
scope of the interrogatories. 9 But even if Richardson and Overly
do not know or have the ability to recall answers to these
interrogatories, “[l]ack of knowledge or the ability to recollect
is, if true, a fair answer” to an interrogatory. Mohnsam v. Nemes,
No. 3:17-CV-427-CRS-CHL, 2019 WL 3307233, at *4 (W.D. Ky. July 23,
2019) (quoting Weaver v. Mateer & Herbet, P.A., 277 F.R.D. 655,
658 (M.D. Fla. 2011)). This rule has limits — parties must make a
reasonable effort to answer interrogatories, including reviewing
information available to them. Weimar v. Geico Advantage Ins. Co.,
No. 19-2698-JTF-tmp, 2020 WL 249992, at *4 (W.D. Tenn. Jan. 16,
2020). However, because lack of knowledge is a valid answer, a
party cannot object to an interrogatory on the grounds he or she

unclear if the officers intend to raise this argument before this
court. The court addresses the argument for the sake of
completeness.
9Richardson

and Overly appear to believe Interrogatory 6 requires
them to describe “all of the training they have received throughout
their employment with the City of Memphis[.]” It does not;
Interrogatory 6 only asks about surveillance training in the last
seven years. Similarly, Richardson and Overly appear to believe
Interrogatory 10 asks them to describe all of the City of Memphis’s
police procedures. But Interrogatory 10 asks only about those
procedures “for the requesting of a court order for the use of
surveillance equipment or devices.” Given that in the same letter
Richardson and Overly represent that there were no deviations from
standard police procedures regarding surveillance in Malone and
Watson’s case, it seems reasonable to think Richardson and Overly
can describe standard police procedures for requesting courtordered surveillance.
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may not know the answer. The court GRANTS the motion to compel
with respect to Interrogatories 2, 4, 5, 6, 7, 14, and 15.
D.

Requests for Admission
Malone and Watson move for the court to deem the requests for

admission propounded on Richardson and Overly admitted. Richardson
and Overly argue the requests are untimely.
The scheduling order specifies that requests for admission
need to be propounded at least 45 days before the close of “the
written

discovery

deadline[.]”

The

scheduling

order

does

not

expressly set a written discovery deadline. It instead sets the
same single date as the deadline for “completing all discovery,”
“document production and interrogatories,” and “depositions and
requests for admissions[.]” (ECF No. 66.) As such, the “written
discovery deadline” is the final discovery deadline. Originally,
that deadline was July 31, 2019. (Id.) But the discovery deadline
has since been extended several times and is currently January 23,
2020. (ECF No. 125.) The requests for admission were served on
December 13, 2019. (ECF No. 129.) There are less than 45 days
between December 13, 2019, and January 23, 2020. The requests for
admission are thus not timely. The motion to compel is DENIED with
respect to the requests for admission.
III. CONCLUSION
For the reasons above, the motion to compel is GRANTED in
part and DENIED in part. To the extent the motion is granted,
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Richardson and Overly shall respond within twenty days of entry of
this order.
IT IS SO ORDERED.
s/ Tu M. Pham
TU M. PHAM
United States Magistrate Judge
January 28, 2020
Date

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