Collins v. Bauer et al
Filing
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Memorandum Opinion and Order: 31 Defendants' Joint Motion for Protective Order to Stay Discovery, and Brief filed by Kevin Randolph is GRANTED, in part, and DENIED, in part. (Ordered by Magistrate Judge Irma C Ramirez on 8/31/2011) (mcr)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ANDREW COLLINS,
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Plaintiff,
v.
PAUL BAUER, et al.,
Defendant.
Civil Action No. 3:11-CV-887-B
MEMORANDUM OPINION AND ORDER
Pursuant to the order dated July 5, 2011, before the Court for determination is Defendants’
Joint Motion for Protective Order to Stay Discovery, and Brief (doc. 31), filed June 30, 2011. Based
on the relevant filings and applicable law, the joint motion for protective order to stay discovery is
GRANTED, in part, and DENIED, in part.
I. BACKGROUND
Plaintiff Andrew Collins sues former Dallas police officers Paul Bauer, Henry Deutsche, and
Kevin Randolph (collectively “Defendants”) in their individual capacities, for allegedly violating
his constitutional rights under 42 U.S.C. § 1983, and committing assault and battery under state law.
Defendants have asserted qualified immunity as a defense, and have filed motions to dismiss, for
judgment on the pleadings, and for a Rule 7 reply, all of which remain pending. They have also filed
a motion to stay discovery and disclosure in this case pursuant to Fed. R. Civ. P. 26(c).
II. ANALYSIS
Defendants argue that the doctrine of qualified immunity protects government officials not
only from liability, but also from the rigors of litigation such as the disruption from broad-reaching
discovery. They also argue that allowing discovery to proceed in this case would infringe on their
Fifth Amendment privilege against self-incrimination in ongoing criminal cases against them based
on the same events giving rise to this civil litigation. They contend that discovery should be stayed
pending resolution of either the qualified immunity issue or the criminal matters against them.
Plaintiff responds that he is entitled to limited discovery on the issue of qualified immunity
regardless of the pending criminal cases against Defendants.
A. Qualified Immunity
“Public officials acting within the scope of their official duties are shielded from civil
liability by the qualified immunity doctrine.” Kipps v. Caillier, 197 F.3d 765, 768 (5th Cir. 1999).
“[S]ubjecting officials to trial, traditional discovery, or both concerning acts for which they are
likely immune undercuts the protection from governmental disruption which official immunity is
purposed to afford.” Elliott v. Perez, 751 F.2d 1472, 1478 (5th Cir. 1985). Thus, “allowing any but
perhaps the most preliminary proceedings on the immunity-barred claim runs squarely counter to
the doctrine’s basic protective purpose: that officials be free to exercise their duties and functions
without fear of having their attentions distracted by the subsequent claims of unhappy or
unsuccessful litigants.” Id.
“[Q]ualified immunity does not shield government officials from all discovery but only from
discovery which is either avoidable or overly broad.” Lion Boulos v. Wilson, 834 F.2d 504, 507 (5th
Cir. 1987); see also Wicks v. Miss. State Employment Servs., 41 F.3d 991, 994 (5th Cir. 1995).
Limited discovery, for instance, may be allowed on the issue of qualified immunity. A court must
make two inquiries in determining whether to allow limited discovery on the issue of qualified
immunity. First, it must determine whether “the plaintiff’s pleadings assert facts which, if true,
would overcome the defense of qualified immunity.” Wicks, 41 F.3d at 995. If the plaintiff’s
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pleadings fail to meet this heightened pleading standard, the court should dismiss the case “before
any discovery is allowed.” Id. If, however, the plaintiff’s pleadings do meet this standard, the court
must then determine “whether the immunity defense sufficiently turn[s] on a factual issue requiring
discovery.” Id. at 997. If the defendants’ immunity defense does in fact turn on a factual issue
requiring discovery, the court “may then proceed . . . to allow the discovery necessary to clarify
those facts upon which the immunity defense turns.” Id. at 995.
In this case, Defendants have challenged the adequacy of the plaintiff’s pleadings through
their motions. Discovery limited to the qualified immunity issue should therefore only take place
if the court finds both that Plaintiff’s pleadings have met the heightened pleadings standard and that
Defendants’ qualified immunity defense turns on a factual issue requiring discovery. Because
Defendants’ motions remain pending, the court has not yet had an opportunity to determine if it is
“unable to rule on the immunity defense without further clarification of the facts” and how a
discovery order can “be narrowly tailored to uncover only those facts needed to rule on the
immunity claim.” Lion Buolos, 834 F.2d at 507-08. The decision whether to allow discovery must
therefore await assessment of whether Plaintiff’s complaint is sufficient to overcome the assertion
of qualified immunity or is otherwise adequate to warrant his obtaining limited discovery. See
Rhodes v. Prince, 2006 WL 954023, at *1 (N.D. Tex. Apr. 11, 2006) (Fitzwater J.) (citing Wicks,
41 F.3d at 994) (ruling that the decision whether to allow discovery must await the magistrate
judge’s assessment of whether plaintiff’s rule 7(a) reply was sufficient to overcome defendants’
claims of qualified immunity or is otherwise adequate to warrant his obtaining limited discovery
because even limited discovery “must not proceed until the district court first finds that plaintiffs’
pleadings assert facts which, if true would overcome the defense of qualified immunity”) (emphasis
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in original). A stay of discovery is therefore appropriate pending determination of the motions to
dismiss, for judgment on the pleadings, or for a Rule 7 reply. If the motions are denied, Plaintiff
may then seek discovery limited to the issue of qualified immunity.
B. Fifth Amendment Privilege
In deciding whether to stay discovery in light of a party’s Fifth Amendment privilege, a court
must balance the interests of the party asserting the privilege against any prejudice resulting to the
other parties. See Wehling v. Columbia Broadcasting Sys., 608 F.2d 1084, 1089 (5th Cir. 1980).
To achieve that balance, the court considers the following factors: “(1) the extent to which the issues
in the criminal case overlap with those presented in the civil case; (2) the status of the criminal case,
including whether the defendants have been indicted; (3) the private interests of the plaintiffs in
proceeding expeditiously, weighed against the prejudice to plaintiffs caused by the delay; (4) the
private interests of and burden on the defendants; (5) the interests of the courts; and (6) the public
interest.” Librado v. M.S. Carriers, Inc., 2002 WL 31495988, at *1 (N.D. Tex. Nov. 05, 2002); see
also Heller Healthcare Finance, Inc. v. Boyes, 2002 WL 1558337, at *2-3 (N.D. Tex. July 15,
2002). If these factors show that discovery implicates the party’s privilege, a court may stay
discovery. See Librado, 2002 WL 31495988, at *3 (staying discovery from employee and any
discovery causing “undue prejudice” to employer by reason of employee’s unavailability as witness
or assistant in defense); see also Heller, 2002 WL 1558337, at *4 (staying one defendant’s
redeposition until acquitted or found guilty in concurrent criminal proceedings).
1. Overlap of Criminal and Civil Issues
The most important factor is the degree to which the civil issues overlap with the criminal
issues. See Volmar Distribs., Inc. v. The New York Post Co., 152 F.R.D. 36, 39 (S.D.N.Y. 1993),
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cited in Librado, 2002 WL 31495988, at *2. “If there is no overlap, there would be no danger of
self-incrimination and accordingly no need for a stay.” Librado, 2002 WL 31495988, at *2. The
criminal and civil lawsuits here arise from the same incident and involve similar, if not precisely the
same, issues. This overlap of issues between the civil and criminal actions weighs in favor of a stay.
See id.
2. Status of Criminal Case
“The second factor to be considered is the status of the criminal case.” Librado, 2002 WL
31495988, at *2. “A stay of a civil case is most appropriate where a party to the civil case has
already been indicted for the same conduct for two reasons: first, the likelihood that a defendant may
make incriminating statements is greatest after an indictment has issued, and second, the prejudice
to the plaintiffs in the civil case is reduced since the criminal case will likely be quickly resolved
due to Speedy Trial Act considerations.” Id. Here, Defendants are under indictment rather than
merely under investigation. Therefore, the status of the criminal case weighs in favor of a stay. Id.
3. Private Interests of and Prejudice Against Plaintiff
Under the third factor, Plaintiff’s interests in proceeding expeditiously should be weighed
against any prejudice that will be caused by the delay resulting from the stay. Librado, 2002 WL
31495988, at *2. Plaintiff claims that he will be prejudiced by the stay because he will not be able
to obtain discovery from any of the defendants. See Frierson v. City of Terrell, 2003 WL 21355969,
at *10-11 (N.D. Tex. 2003) (holding that the third factor did not necessarily weigh against granting
the stay because the plaintiff’s prejudice was mitigated by her ability to obtain discovery from
another defendant). The resulting delay, he argues, could lead to the loss of evidence and frustrate
his ability to put on an effective case because with the passage of time, witnesses become
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unavailable, memories of conversations and dates fade, and documents can be lost or destroyed. He
also argues that some of the discovery he will seek from Defendants in the future may be nonprivileged and therefore discoverable. Given these arguments and the fact that Defendants have
requested a prolonged blanket stay at this early stage of litigation, the third favor weighs against
granting such a stay at this juncture.
4. Private Interests of and Burden on the Defendants
The fourth factor considers the private interest of the defendants in securing the stay and the
burden that would result if the stay were denied. See Librado, 2002 WL 31495988, at *3. Here, no
substantial prejudice to Defendants is discernable from denying a prolonged stay at this time. While
Defendants may face a conflict between asserting their Fifth Amendment privilege and fulfilling
their legal obligations in civil discovery in the future, there is no current conflict because of the stay
pending determination of the sufficiency of Plaintiff’s complaint. Because there is no prejudice to
Defendants, the fourth factor weighs against granting a prolonged stay at this time.
5. Interests of the Court
As to the fifth factor, the court has an interest in moving matters expeditiously through the
judicial system. The court’s interests therefore weighs in favor of denying a prolonged stay at this
state of litigation.
6. The Public’s Interest
Regarding the sixth factor, the public has an interest in the just and constitutional resolution
of disputes with minimal delay. Librado, 2002 WL 31495988, at *2. While the prompt resolution
of this case in light of Defendants’ privilege is important, it is equally important to consider
Plaintiff’s right to non-privileged discoverable information. Without a showing that a prolonged
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blanket stay on discovery is warranted at this time, the public’s interest will not be best served by
granting such a stay.
Based on a consideration of all the factors, it is unnecessary to stay all discovery from
Defendants pending resolution of the criminal matters at this particular stage of litigation.
III. CONCLUSION
The joint motion for protective order to stay discovery is GRANTED, in part, and DENIED,
in part. Discovery is stayed pending determination of the motions to dismiss, for judgment on the
pleadings, and for a Rule 7 reply. If the motions are denied, Plaintiff may then seek discovery
limited to the issue of qualified immunity and Defendants may assert their Fifth Amendment
privilege to avoid discovery at that time.
SO ORDERED on this 31st day of August, 2011.
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IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE
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