Mickle et al v. Sheriff Gabriel Morgan et al
Filing
142
MEMORANDUM OPINION AND ORDER denying 126 Motion for Attorney Fees. Plaintiffs' motion for attorneys' fees, ECF No. 126, is DENIED. Signed by Magistrate Judge Lawrence R. Leonard and filed on 12/4/2014. Copies distributed to all parties 12/4/14. (ldab, )
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Newport News Division
JAYSON E. MICKLE, et al,
Plaintiffs,
CaseNo.:4:12-cv-86
v.
SHERIFF GABRIEL MORGAN, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiffs Jayson E. Mickle, et al.'s ("Plaintiffs")
motion for attorneys' fees and costs, ECF No. 126, wherein the Plaintiffs seek an award of
reasonable expenses pursuant to Federal Rule of Civil Procedure ("Rule") 37(a)(5)(A) after
successfully pursuing a motion to compel answers to interrogatories and requests for production
of documents from Defendants SheriffGabriel Morgan, et al. ("Defendants"). Defendants filed a
memorandum in opposition, ECF No. 130, and Plaintiffs replied, ECF No. 131, so the matter is
now ripe for disposition. Although Plaintiffs have requested a hearing on their motion, ECF No.
137, the Court exercises its discretion to decide the motion without an oral hearing pursuant to
Rule 78(b) and Eastern District of Virginia Local Civil Rule 7(J). For the following reasons,
Plaintiffs' motion, ECF No. 126, is DENIED.
The present action involves Plaintiffs' claim that Newport News Sheriffs Office law
enforcement officers deprived Plaintiffs of their civil rights in violation of 42 U.S.C. § 1983
while conducting an investigation of Plaintiffs for allegedly selling synthetic marijuana, or
"spice." The genesis of Plaintiffs' present motion for attorneys' fees and costs began with
Plaintiffs' service on Defendants of interrogatories and requests for production of documents
("RFP") on January 22, 2013. See ECF No. 42 at 1; attach. 1, at 12. Defendants timely
proffered their objections and provided some discovery responses.
ECF No. 42 at 1.
Dissatisfied with Defendants' refusal to withdraw their objections, Plaintiffs' counsel consulted
with Defendants' counsel in an attempt to resolve the objections in compliance with Eastern
District of Virginia Local Civil Rule 37(E). Id. at 2. This consultation, however, proved
unsuccessful, and on March 18, 2013 Plaintiffs filed their motion to compel, ECF No. 41.
Defendants then filed a memorandum in opposition on March 22, 2013, ECF No. 44, and
Plaintiff replied on March 28, 2013, ECF No. 45. The Court conducting a hearing on Plaintiffs'
motion to compel on April 26, 2013, and granted Plaintiffs' motion, albeit with some limitations
with respect to certain discovery requests, and issued its Order on April 30, 2013, ECF No. 50.
In its Order, the Court ruled: "Finally, the Plaintiffs requested attorneys' fees in accordance with
Federal Rule of Civil Procedure 37(a)(5)(A). The Court will take the matter under advisement,
and the Plaintiffs are DIRECTED to file the appropriate motion with the Court substantiating
their fee request, to which the Defendants may respond." ECF No. 50 at 2. Nearly sixteen
months later, on August 22, 2014, Plaintiffs filed the instant motion for attorneys' fees and costs
pursuant to Rule 37(a)(5)(A), seeking their reasonable expenses in prosecuting the motion to
compel. ECF No. 126.
At issue in the underlying discovery dispute were Defendants' objections to
interrogatories 14, 15 and 16 and RFPs 5, 7, 8, 10, 11, and 12. ECF No. 55 at 4. Those
discovery requests concerned three categories of information: 1) personal information of the
defendants; 2) other Newport News Sheriffs Department investigations into spice trafficking;
and 3) training manuals and records of the Sheriffs Department. See id. at 4-5. Defendants'
objections were largely based on claims that the discovery requests were overbroad, and that the
requested information was protected from disclosure by a state law enforcement privilege
codified at Virginia Code § 2.2-3706. ECF No. 130 at 5.
Meanwhile, after Plaintiffs promulgated their discovery, but before they filed their
motion to compel, both parties filed competing motions for protective order. ECF Nos. 36
(Plaintiffs' motion, filed on March 5, 2013) and 39 (Defendants' motion, filed on March 15,
2013'). The motions differed in that Defendants sought to include a provision whereby they
would be permitted to disclose Plaintiffs' discovery material to law enforcement agencies and
prosecutors that were not parties to the action. See ECF No. 40, attach. 1, at 3 If 10. Plaintiffs
objected to this provision, claiming the necessity of the confidentiality of their proprietary and
business information, and arguing that Defendants' purpose in seeking to include this provision
was to harass and intimidate them. ECF No. 46 at 2. Additionally, Defendants' proposed order
included a provision that Plaintiffs' did not, which would have permitted the parties to designate
certain material protected under the protective order as either "confidential" or "confidentialattorneys' eyes only." ECF No. 40, attach. 1, at 4-5 fl 12-14. The Court, in its Order dated
April 8, 2013, declined to enter either parties' proposed order, and instead entered an order that
did not include a provision authorizing Defendants to share discovery material with law
enforcement or other persons not parties to the litigation, but did permit the parties to designate
certain discovery material as either "confidential" or "confidential-attorneys eyes only." ECF
No. 47,48.
With the protective order entered after the briefing on the motion to compel was
complete, the Court conducted the hearing on the motion to compel. The Court advised the
parties that Section 1983 jurisprudence obligated the Court to balance the interests ofPlaintiffs in
1Defendants then filed an amended motion for protective order on March 19, 2013, one day after Plaintiffs filed
their motion to compel, because they failed to include acertification ofconsultation in their original motion. ECF
No. 43.
their right to discovery with the potential harm that could be caused to Defendants by the
disclosure of sensitive law enforcement or personal information. ECF No. 55 at 26-34. Further,
the Court remarked that such balancing could be accomplished by entry of an appropriate
protective order. Id. With such an order having recently been entered, and recognizing that "[i]n
federal question cases, particularly § 1983, 'ordinarily the overriding policy is one of disclosure
of relevant information in the interests of promoting the search for the truth,'" ECF No. 50 at 1
(citing Burke v. N.Y. City Police Dep't, 115 F.R.D. 220, 225 (S.D.N.Y. 1987)), the Court
overruled Defendant's objections to discovery and granted the motion to compel, specifically
requiring Defendants to answer the interrogatories and respond to the discovery requests, as
narrowed by the Court, and subject to the protective order. Id.; ECF No. 55 at 31-34.
Where a motion to compel is granted or where discovery is provided after the filing of a
motion to compel, "the court must, after giving an opportunity to be heard, require the
party... whose conduct necessitated the motion ... to pay the movant's reasonable expenses
incurred in making the motion, including attorney's fees." Rule 37(a)(5)(A). Rule 37(a)(5)(A)
provides for three exceptions where anaward of fees is not mandatory, despite the submission of
discovery responses after filing a motion to compel or when a motion to compel is granted. See
id. Those exceptions are where: "(i) the movant filed the motion before attempting in good faith
to obtain the disclosure or discovery without court action; (ii) the opposing party's
nondisclosure, response, or objection was substantially justified; or (iii) other circumstances
make an award of expenses unjust." Id.
In the instant case, the Court FINDS that Defendants' objections and responses, at the
time they were made, were substantially justified. Recognizing that plaintiffs in Section 1983
litigation have a substantial interest in discovering the type of information sought here in
discovery, nonetheless defendants in such litigation also have a substantial interest in mitigating
the harm that could be caused by the disclosure of such information. See Burke, 115 F.R.D. at
225. In this case, those separate interests were accommodated by entry of the protective order.
However, because of the parties' differences with respect to the contents of the protective order,
that issue was not resolved until after Plaintiffs filed their motion to compel, and the briefing was
complete. In addition, the Court narrowed the scope of the discovery by permitting the redaction
of certain personal information, permitting the designation of certain discovery as "attorneys'
eyes only," and limiting the disclosure of certain policies and procedures to those connected
solely with investigations. ECF Nos. 50, 55. Accordingly, Defendants were substantially
justified in their position in declining to turn over the requested information until the protective
order was in place and the scope of the discovery requests was narrowed by the Court, and thus
Defendants meet the exception outlined in Rule 37(a)(5)(A)(ii).
Therefore, upon finding Defendants' position to be substantially justified, Plaintiffs'
motion for attorneys' fees, ECF No. 126, is DENIED.
The Clerk is DIRECTED to forward a copy of this Orderto all counsel of record.
It is so ORDERED.
Lawrence R. Lee
United States Magistrate Judge
Norfolk, Virginia
December 4,2014
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?