Lamb v. Sheriff Richard Wiles et al
ORDER GRANTING IN PART AND DENYING IN PART 124 Motion to Compel and 126 Motion for Protective Order. IT IS ALSO ORDERED that Plaintiffs Notice Requesting Oral Argument (ECF. No. 123-2) is DENIED.IT IS LASTLY ORDERED that Defendants Objections (ECF. No. 125) are HEREBY OVERRULED. Signed by Judge Kathleen Cardone. (mn)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
CARL EDWARD LAMB,
CPI F. ESTRADA,
OFFICER A. SALAZAR, and
OFFICER D. ACUNA,
On this day, the Court considered the status of the above-styled and numbered cause. As
there are various pending motions relating to discovery, the Court will address each in turn.
On May 9, 2017, Plaintiff Carl Edward Lamb filed a “Notice to the Court.” (ECF. No.
124). Although captioned as a “Notice,” Plaintiff essentially seeks to compel discovery of an
audio CD containing communications dated May 25, 2016. (ECF. No. 124). Defendants,
acknowledging that Plaintiff’s Notice is essentially a Motion to Compel, objected to the styling
of Plaintiff’s Motion to Compel (ECF. No. 125) and responded by seeking a protective order
(ECF. No. 126). However, because the issue is fully briefed, the Court, in its discretion, finds
that the issue should be decided on the merits.1 See e.g., Chambliss v. Ashcroft, 2005 U.S. Dist.
LEXIS 3680, at *1 (N.D. Tex. 2005) (construing a “notice” as a motion when filed by a pro se
litigant). Accordingly, the Court construes Plaintiff’s “Notice” as a Motion to Compel and
overrules Defendant’s objections.
Moreover, although Defendants object to the styling of Plaintiff’s Motion to Compel,
Defendants themselves inappropriately captioned their objections as a “notice.” (ECF. No. 125)
Plaintiff’s Motion to Compel & Defendants’ Motion for Protective Order
In Plaintiff’s Motion to Compel, Plaintiff notes that he wishes to file an audio CD in
support of his Motion for Summary Judgment. (ECF. No. 124). However, Plaintiff alleges that
Defendants refuse to provide him with the CD as he “may use it as a weapon.” Id. Accordingly,
Plaintiff seeks to compel Defendants to produce a copy of the CD to both himself and the Court.
Defendants respond by seeking a protective order preventing the disclosure of the CD.
(ECF. No. 126). Specifically, Defendants seek to produce a transcript of the relevant portions of
the CD, rather than produce the CD itself to Plaintiff, as: (1) “Plaintiff claims that he has
intentionally mutilated himself with sharp objects and a CD could easily be broken into pieces
and used as a weapon for Plaintiff to harm himself or others[;]” (2) redacting the portions of the
CD relating to other inmates is necessary to protect the privacy of third parties; and (3)
producing the transcript to Plaintiff relieves Defendants of “any perceived obligation to ‘support’
Plaintiff’s Motion for Summary Judgment.”
Id. at 4-5.
Plaintiff responds that: (1) he is
“entitled” to the CD as an item of discovery; (2) other inmates are allowed access to CDs in the
law library; (3) Defendants’ safety concerns are unfounded as, under jail policy, having a CD
placed in Plaintiff’s personal property does not allow him access to the CD in his cell; and (4)
allowing Defendants to prepare the transcript may result in unreviewable errors. (ECF. No. 128).
Defendants reply that, contrary to Plaintiff’s assertions, “the jail does not have the resources to
provide Plaintiff an opportunity to listen to the CD (and neither does defense counsel).” (ECF.
Federal Rule of Civil Procedure 37(a) governs motions to compel discovery responses.
Rule 37(a)(3)(B) provides that a party seeking discovery may move for an order compelling
production or inspection. Fed. R. Civ. P 37(a)(3)(B)(iv). The party resisting discovery must
show specifically how each discovery request is not relevant or otherwise objectionable. See
McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990).
Pursuant to Rule 26(b)(1) of the Federal Rules of Civil Procedure:
Parties 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,
considering the importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.
Fed. R. Civ. P. 26(b)(1). Specific to electronically stored files, as is the case with the audio files
at issue, the party must generally produce the files in their ordinary format. Fed. R. Civ. P.
Rule 26(c) governs protective orders and provides that “[a] party or any person from
whom discovery is sought may move for a protective order . . . .” Fed. R. Civ. P. 26(c)(1). Rule
26(c) further provides that “[t]he court may, for good cause, issue an order to protect a party or
person from annoyance, embarrassment, oppression, or undue burden or expense. Id. “Rule
26(c) confers broad discretion on the trial court 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); see also Harris v. Amoco Prod. Co., 768 F.2d 669, 684 (5th Cir. 1985). Thus, the Court
may, inter alia, “forbid the disclosure or discovery;” “specify terms, including time and place
or the allocation of expenses, for the disclosure or discovery;” or “prescribe[e] a discovery
method other than the one selected by the party seeking discovery . . . .” Fed. R. Civ. P.
First, the Court notes that Defendants do not contest the relevance of the CD. The CD
allegedly involves communications between Plaintiff and the guard station on May 25, 2016.
(ECF. No. 126, p. 3).
As noted in the Court’s Report and Recommendation, Plaintiff’s
notification to Defendants Acuna, Salazar, and Wilks of his open lacerations is critical to his
deliberate indifference claims arising from the May 25, 2016 incident. (Compl. ¶¶ 36-42; see
ECF. No. 56, p. 23-24). Accordingly, the Court finds that Plaintiff’s discovery request is
Second, the Court agrees with Defendants that allowing Plaintiff unsupervised access to a
CD may pose security concerns, and the Court will defer to the jail’s safety judgment in this
respect. (See ECF. No. 81, p. 5) (“[L]imiting Plaintiff’s access to sharp objects will assist in the
prevention of Plaintiff’s potential suicide, particularly as Plaintiff alleges that he has previously
cut himself with sharp objects in the El Paso County Detention Facility.”). Accordingly, insofar
as Plaintiff seeks unsupervised access to the CD itself, the Court finds good cause exists to
prevent Plaintiff from accessing the CD.
However, while production of the CD itself is inappropriate, numerous other possibilities
exist wherein Defendants could provide Plaintiff with access to the audio recordings.
Specifically, as suggested by Commander Wendy Wisneski in an email to Defense counsel, “if
[defense counsel] can provide a laptop . . . , we can let [Plaintiff] listen [to the audio recording]
in [the] visitation [room].” (ECF. No. 129-1, p. 2). Based on Commander Wisneski’s email, the
Court finds that a supervised in-person review of the audio recordings satisfies Defendants’
concerns regarding Plaintiff’s safety and Plaintiff’s concerns about listening to the audio
firsthand.2 (See ECF. No. 128, p. 2). Moreover, ordering an in-person review of the audio
recordings satisfies the general rule to produce electronic files in their ordinary format. See Fed.
In addition, ordering an in-person review of the audio recordings also prevents the
apparent dispute over which party is financially responsible for preparing the transcript. (See
ECF. No. 128, p. 2).
R. Civ. P. 34(b)(2)(E)(i)-(ii). Accordingly, the Court finds that the unique demands of this
litigation provide good cause for ordering an in-person review of the audio recordings.
Indeed, in the pro se inmate context, Courts routinely require defense counsel to provide
plaintiffs with access to audio recordings. Ruling on an identical issue, United States Magistrate
Judge R. Clarke VanDervort required defense counsel to review audio recordings with a pro se
Douty v. Rubenstein, 2015 U.S. Dist. LEXIS 44627, at *31 (S.D. W. Va. 2015)
(“Defendants are ORDERED . . . [to] review the audio recording with the Plaintiff in person, at
some point prior to the conclusion of the discovery period.”); see also Coit v. Zavaras, 2012 U.S.
Dist. LEXIS 152114, at *1-2 (D. Colo. 2012) (ordering copies of audio recordings be provided to
a pro se inmate litigant); Gilreath v. Cumberland Cty. Bd. of Educ., 2014 U.S. Dist. LEXIS
105904, at *9 n.4 (E.D.N.C. 2014) (“Plaintiff’s pro se status, in and of itself, is not enough to
support a finding that the failure to produce the audio recording was substantially justified.”).
Accordingly, in line with this case law, the Court finds that defense counsel should be required to
review the audio recordings with Plaintiff.
Lastly, while Defendants object to producing calls relating to other inmates on “privacy”
grounds, the Court finds that this argument is without merit. First, although Plaintiff references
the CD in its entirety (ECF. No. 124), it is clear from the context of Plaintiff’s Request for
Production No. 3 that Plaintiff is only requesting intercom calls relating to himself. (ECF. No.
126, p. 3) (Requesting “[a]ll calls from Separation 8 Cell #2 to the guard station on May 25,
2016 from 6:20 PM – May 26, 2016 7:30 A:M . . . .”). Second, this argument is waived because
Defendants failed to assert it in their response to Plaintiff’s Request for Production No. 3. (ECF.
No. 126, p. 3-4); see Blumenthal v. Drudge, 186 F.R.D. 236, 240 (D.D.C. 1999); Pulsecard, Inc.
v. Discover Card Servs., 168 F.R.D. 295, 303 (D. Kan. 1996). As such, the Court finds that
Defendants’ argument is without merit.
Plaintiff’s Notice Requesting Oral Argument
Similarly, on May 5, 2017, Plaintiff filed a “Notice Requesting Oral Argument” (ECF.
In Plaintiff’s Notice, Plaintiff informs the Court that there is camera footage
relevant to his Motion for Summary Judgment and requests an oral argument on the matter.
(ECF. No. 123-2). At this time, the Court does not find an oral argument necessary for the
adjudication of Plaintiff’s Motion for Summary Judgment. Accordingly, the Court finds that
Plaintiff’s Notice should be denied.
It is unclear whether Plaintiff or Defendants are in possession of this camera footage,
particularly given the discovery dispute noted above. If Plaintiff is in possession of the footage
and wishes the Court to consider it in adjudicating his Motion for Summary Judgment, Plaintiff
may submit the camera footage to the Clerk of Court as a supplement to his Motion for Summary
Judgment. If Plaintiff is unable to provide the Court with the camera footage, he shall file an
appropriate motion to that effect.
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s Motion to Compel
(ECF. No. 124) and “Defendants’ Opposed Motion for Protective Order” (ECF. No. 126) are
GRANTED IN PART and DENIED IN PART as follows:
IT IS HEREBY ORDERED that Defendants need not produce the
physical CD in question to Plaintiff.
IT IS FURTHER ORDERED that Defense counsel, or his agents, shall
review the audio recording with Plaintiff in person within thirty (30)
days of this Order. Review of the audio recording may take place on a
laptop, tablet, radio, or other electronic means as deemed appropriate by
IT IS FURTHER ORDERED that, should Plaintiff wish the Court to
consider the audio recording in adjudicating his Motion for Summary
Judgment, he shall file an appropriate motion within ten (10) days of
reviewing the audio recording.
IT IS ALSO ORDERED that “Plaintiff[’]s Notice Requesting Oral Argument” (ECF.
No. 123-2) is DENIED.
IT IS LASTLY ORDERED that Defendants’ Objections (ECF. No. 125) are HEREBY
SIGNED and ENTERED this 22th day of May, 2017.
ANNE T. BERTON
UNITED STATES MAGISTRATE JUDGE
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