Patterson v. City of South Charleston, West Virginia et al

Filing 221

MEMORANDUM OPINION AND ORDER denying 214 FOURTH MOTION by Wayne Patterson to Compel Lt. Robert Yeager to disclose his home address or the home addresses of his parents and siblings; granting 218 SECOND MOTION by R.P. McFarland, L.S. Thomas, R. T. Yeager for Protective Order to the same extent; plaintiff's motion for leave to conduct a second deposition of Lt. Yeager is granted; Lt. Yeager's motion for a protective order is denied to the same extent; denying 214 MOTION by Wayne Patterson for Sanctions. Signed by Judge John T. Copenhaver, Jr. on 11/3/2015. (cc: attys; any unrepresented party) (skh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
WAYNE PATTERSON
Plaintiff,
v.

Civil Action No. 2:12-01964

MAGISTRATE JULIE YEAGER, individually;
LIEUTENANT R.T. YEAGER, individually
and in his official capacity;
SERGEANT L.S. THOMAS, individually
and in his official capacity;
OFFICER R.P. MCFARLAND, individually
and in his official capacity,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending are plaintiff Wayne Patterson’s fourth motion
to compel discovery of defendant Lieutenant R.T. Yeager (“Lt.
Yeager”), filed on Friday, October 30, 2015, and Lt. Yeager’s
second motion for a protective order, filed on November 2, 2015.
I.
Plaintiff conducted the deposition of Lt. Yeager
telephonically on October 26, 2015.

During the deposition,

plaintiff asked Lt. Yeager to disclose his home address.
Counsel for Lt. Yeager objected to the question and instructed
his client not to answer.

After some debate, plaintiff then

asked, and counsel for Lt. Yeager objected to, a series of

questions seeking Lt. Yeager’s previous home addresses, the
addresses of his mother and father, and the addresses of his
siblings.

In each instance, counsel objected and instructed Lt.

Yeager not to answer.

After continuing in this fashion for

several more minutes, plaintiff abruptly concluded the
deposition.
In his pending motion to compel, plaintiff seeks an
order “finding [that] [Lt. Yeager] and Counsel acted
improper[ly], and compelling Deponent Lt. Robert Yeager to
attend future depositions, to answer Plaintiff’s deposition
questions, [as well as] awarding Plaintiff reasonable expenses”
in seeking the discovery.

Plaintiff contends that the

challenged questions “were germane to the subject matter of the
pending action and therefore were properly within the scope of
discovery.”
Because plaintiff has noticed a second deposition of
Lt. Yeager, Lt. Yeager moves the court separately for a
protective order prohibiting plaintiff from deposing him a
second time.

Inasmuch as plaintiff has scheduled the second

deposition for this date at noon, the court considers the
parties’ motions on an emergency basis.

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II.
Federal Rule of Civil Procedure 26 provides that
“[p]arties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense -including the existence, description, nature, custody,
condition, and location of any documents or other tangible
things and the identity and location of persons who know of any
discoverable matter.”

Fed. R. Civ. P. 26(b)(1); see also

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 350 (1978)
(information is “relevant” if it “bears on, or . . . reasonably
could lead to other matter[s] that could bear on, any issue that
is or may be in the case”); see also Ralston Purina Co v.
McFarland, 550 F.2d 967, 973 (4th Cir. 1977) (information that
is “germane to the subject matter of the pending action” is
discoverable).
Generally, the party seeking to avoid discovery bears
the burden of establishing good cause to grant the motion.

See

Fed. R. Civ. P. 26(c); see also Ayers v. Cont’l Cas. Co., 240
F.R.D. 216, 221 (N.D. W. Va. 2007) (same); Webb v. Green Tree
Servicing, LLC, 283 F.R.D. 276, 278-79 (D. Md. 2012) (citing 8A
Charles Alan Wright et al., Federal Practice and Procedure §
2035 (3d ed. 1998)).

He must do so with specific facts, for

“[b]road allegations of harm, unsubstantiated by specific

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examples or articulated reasoning, do not support a good cause
showing.”

Baron Fin. Corp. v. Natanzon, 240 F.R.D. 200, 202 (D.

Md. 2006).
A.
Federal Rule of Civil Procedure 30(c)(2) provides that
a deponent may be instructed not to answer a question “when
necessary to preserve a privilege, to enforce a limitation
ordered by the court, or to present a motion under Rule
30(d)(3).”

Otherwise, the general rule is that “[a]n objection

at the time of the examination . . . must be noted on the
record, but the examination still proceeds; the testimony is
taken subject to any objection. . . .”

The court takes Lt.

Yeager’s motion for a protective order as, in part, a Rule
30(d)(3) motion.
Here, though it was never specifically invoked during
the deposition, Lt. Yeager asserts that his refusal to answer
questions regarding his home address was justified by the
“official information” privilege.
The official information privilege is a privilege in
federal common law, though it was originally derived from
provisions of New York state law in a series of cases in New
York district courts.

See King v. Conde, 121 F.R.D. 180, 188-89

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(E.D.N.Y. 1988) (noting that privilege could protect disclosure
of officers’ home addresses “in cases involving past violence
between the officers and the plaintiffs”); Unger v. Cohen, 125
F.R.D. 67, 70 (S.D.N.Y. 1989) (following King and concluding
that defendant officers’ home addresses should be redacted);
Collens v. City of New York, 222 F.R.D. 249, 254 (S.D.N.Y. 2004)
(denying motion to compel where defendant officer’s home address
only “marginally relevant” to plaintiff’s case).

In King, the

court explained that when an officer’s interest in privacy and
safety outweighs the plaintiff’s interest in the specific piece
of information sought, especially when its relevance is
doubtful, non-disclosure is appropriate.

King, 121 F.R.D. at

191; see also Collens, 222 F.R.D. at 254 (protecting officer’s
address from disclosure even in the absence of “proof that harm
would occur,” based chiefly on officer’s privacy interest).
Though case law elsewhere is sparse, it appears that
when plaintiffs bring federal civil rights claims against police
officers and request the officers’ personnel files, those files
are typically made available only after information like the
kind plaintiff seeks here is redacted.

See Scaife v. Boenne,

191 F.R.D. 590, 592 (N.D. Ind. 2000) (denying motion to compel
that sought defendant officer’s home address); Sasu v.
Yoshimura, 147 F.R.D. 173, 176 (N.D. Ill. 1993) (making access

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to police officer’s personnel files contingent upon the
redaction of personal information about officer and his family);
Johnson v. City of Philadelphia, 1994 WL 612785 (E.D. Pa. 1994)
(home addresses of defendant officers redacted before personnel
file handed over to plaintiff).
On the other hand, disclosure of home addresses has
been required when the harm risked, or the privacy interest
claimed, was only “hypothetical” or “uncertain.”

See, e.g.,

Hartman v. American Red Cross, 2010 WL 1882002, * 1 (C.D. Ill.
May 11, 2010).

In Hartman, a labor employment case, the

defendant employer sought to avoid disclosure of non-party
employees’ home addresses.

The defendant was concerned that

opposing counsel might contact employees directly without going
through counsel.

The court, however, concluded that this

hypothetical concern “d[id] not justify unilateral disregard for
the disclosures mandated by Rule 26(a).”

In the absence of less

“perfunctory and undeveloped” reasons non-disclosure, the court
granted the plaintiff’s motion to compel.
Here, counsel for Lt. Yeager objected on the grounds
that Lt. Yeager “is a police officer” and “giv[ing] out the home
addresses of police officers . . . places them in a precarious
position. . . .”

Plaintiff conceded that “I don’t even know how

it’s germane,” and admitted that “I’m not saying it’s

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relevant[,]” but was emphatic that “I’m entitled to it.”

When

pressed, plaintiff eventually explained that, “geographically I
think that there’s a possibility that, you know, we can probably
establish some kind of a -- a link maybe between some of the -the defendants -- or some of the parties.”

This justification

does not outweigh Lt. Yeager’s proffered basis for avoiding
disclosure.
Moreover, Rule 26 limits discovery to “relevant”
matters; though the evidence sought need not be admissible at
trial, it must be reasonably calculated to lead to the discovery
of admissible evidence.

Fed. R. Civ. P. 26(b)(1).

There is

little basis for believing that the information sought here
would lead to the discovery of admissible evidence relevant to
plaintiff's claims.
Federal Rule of Civil Procedure 26(b)(2)(C) vests the
court with the discretion to “limit the frequency or extent of
discovery otherwise allowed by these rules or by local rule if
it determines that: . . . (iii) the burden or expense of the
proposed discovery outweighs its likely benefit. . . .”

To the

extent that plaintiff’s motion seeks to compel disclosure of the
home addresses of Lt. Yeager’s parents and siblings, and in the
absence of any proposed relevant connection between the
allegations in plaintiff’s complaint and the information so

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sought, the request is denied.

Plaintiff was unable to provide

any justification for discovery of this information, remarking
only that he was “entitled to discover evidence.”

While it is

not clear that such information is protected by the “official
information” (or any other) privilege, the burden of the
proposed discovery on the privacy interests of Lt. Yeager’s
parents and siblings outweighs its likely benefit to plaintiff’s
case.

Plaintiff’s proffered justification is thus insufficient

to outweigh Lt. Yeager’s interest in his own privacy or that of
his family.
B.
Plaintiff requests that the court order Lt. Yeager to
make himself available for a second deposition.

Plaintiff

maintains that counsel’s instructions to Lt. Yeager “not to
answer the question [regarding Lt. Yeager’s address] summarily
halt[ed] the inquiry.”
Federal Rule of Civil Procedure 30(a)(1) states that
“[a] party may, by oral questions, depose any person, including
a party, without leave of court except as provided in Rule
30(a)(2). . . .”

Rule 30(a)(2) in turn provides that “[a] party

must obtain leave of court, and the court must grant leave to
the extent consistent with Rule 26(b)(2): (A) if the parties
have not stipulated to the deposition and: . . . (ii) the

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deponent has already been deposed in the case[.]”

Cf. Ralston

Purina Co. v. McFarland, 550 F.2d 967 (4th Cir. 1977) (motion to
compel discovery granted where counsel for party seeking to
avoid discovery instructed client to categorically refuse to
answer any question related to claims at issue during
deposition).
Many district courts simply follow the directive of
Rule 30(a)(2) by considering the principles set out in Rule
26(b)(2) in deciding whether they must grant leave. See, e.g.,
Collins v. Int'l Dairy Queen, 189 F.R.D. 496, 498 (M.D. Ga.
1999); Hurley v. JARC Builders, 164 F.R.D. 39, 40 (E.D. Pa.
1995); Keck v. Union Bank of Switzerland, 1997 WL 411931, at *1
(S.D.N.Y. July 22, 1997).

Rule 26(b)(2) bestows on a court the

authority to limit discovery if it is: (1) unreasonably
cumulative or duplicative or can be obtained from some other
source that is more convenient, less burdensome or less
expensive; (2) the person seeking the discovery has had ample
opportunity already to obtain the same information; or (3) the
burden or expense of taking the discovery outweighs its likely
benefit.

See Ganci v. U.S. Limousine Serv., Ltd., 2011 WL

4407461, at *2 (E.D.N.Y. September 21, 2011) (collecting cases)
(citations omitted).

Courts have reopened a deposition “where a

witness was inhibited from providing full information at the

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first deposition” or “where new information comes to light
triggering questions that the discovering party would not have
thought to ask at the first deposition.”

Keck, 1997 WL 411931,

at *1 (citations omitted).
Here, it is evident from the deposition transcript
that plaintiff voluntarily and unilaterally concluded the
deposition of Lt. Yeager.

Though Lt. Yeager, upon his counsel’s

recommendation, refused to answer questions pertaining to his
home address or those of his family, nothing indicates that Lt.
Yeager refused point blank to answer any questions at all.
Neither is there any indication that he (or his counsel)
directly interfered in the deposition as a whole.

Plaintiff had

an opportunity to follow other lines on inquiry with Lt. Yeager.
However, he instead chose to end the deposition.
Nevertheless, the court is mindful that plaintiff, as
a pro se litigant, is entitled to a greater degree of liberality
at this stage of the case.

The court thus concludes that the

plaintiff be permitted to proceed with the deposition to proceed
with the deposition of Lt. Yeager, which the court understands
to be scheduled for this day at 12:00 p.m. EST.

Inasmuch as

plaintiff chose, without justification, not to complete the
deposition of Lieutenant Yeager in the first instance, the court
denies plaintiff’s request to assess costs.

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III.
In light of the foregoing, it is ORDERED that
plaintiff’s motion to compel Lt. Yeager to disclose his home
address or the home addresses of his parents and siblings be,
and it hereby is, denied.

Lt. Yeager’s motion for a protective

order is granted to the same extent.

It is further ORDERED that

plaintiff’s motion for leave to conduct a second deposition of
Lt. Yeager be, and it hereby is, granted.

Lt. Yeager’s motion

for a protective order is denied to the same extent.
Because sanctions are only available under Federal
Rule of Civil Procedure 37(a) to a party who substantially
prevails on a motion to compel discovery, it is further ORDERED
that plaintiff’s motion to impose costs upon Lt. Yeager be, and
it hereby is, denied.
The Clerk is directed to transmit copies of this order
to all counsel of record and any unrepresented parties.
ENTER: November 3, 2015

John T. Copenhaver, Jr.
United States District Judge

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