Buskirk v. Huntington Police Department et al

Filing 48

MEMORANDUM OPINION AND ORDER granting in part and denying in part Plaintiff's 42 MOTION to Compel the Production of Discovery Material, as more fully set forth herein. Signed by Magistrate Judge Omar J. Aboulhosn on 12/6/2016. (cc: Plaintiff; counsel of record) (jsa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
KENNETH RAY BUSKIRK,

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Plaintiff,
v.
DANIEL WILES, et al.,
Defendants.

Civil Action No. 3:15-03503

MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff’s “Motion to Compel the Production of Discovery
Material” (Document No. 42), filed on October 28, 2016. Having thoroughly considered the
issues raised by this Motion, the undersigned concludes that Plaintiff’s Motion (Document No.
42) should be granted in part and denied in part.
STANDARD
The Federal Rules of Civil Procedure contemplate that in conjunction with disclosure,
civil discovery is a process of elucidation and clarification of facts and circumstances relevant to
claims and defenses as presented in pleadings through which the claims and defenses are
validated, defined and shaped and issues are sharpened and refined for consideration at the
dispositive motion stage and trial of a civil case. The civil discovery process is to be engaged in
cooperatively. Violation of the Rules undermines the process.
Rule 26(b)(1) of the Federal Rules of Civil Procedure provides as follows:
Unless otherwise limited by court order, the scope of discovery is as follows:
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 the 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.
Information within this scope of discovery need not be admissible in evidence to
be discoverable.
Although the Rule 26(b) was recently amended to remove language permitting the discovery of
“any matter relevant to the subject matter involved in the action” and “relevant information . . .
reasonably calculated to lead to the discovery of admissible evidence,” the Rule still
contemplates the discovery of information relevant to the subject matter involved in the action as
well as relevant information that would be inadmissible at trial. See Advisory Committee Notes
to 2015 Amendment, Fed. R. Civ. P. 26(b)(1). As stated above, the recent amendment further
provides that discovery must be proportional to the needs of the case by considering certain
factors. Thus, Rule 26(b) “cautions that all permissible discovery must be measured against the
yardstick of proportionality. Lynn v. Monarch Recovery Management, Inc., 285 F.R.D. 350, 355
(D. Md. 2012)(citation omitted).
When parties request relevant nonprivileged information in a Request for Production or
Inspection of Documents under Rule 34, “[t]he party to whom the request is directed must
respond in writing . . ..” Fed.R.Civ.P. 34(b)(2)(A). Federal Rule of Civil Procedure 34(b)(2)(B)
and (C) provide as follows:
(B) Responding to Each Item. For each item or category, the response must either
state that inspection and related activities will be permitted as requested or state
with specificity the grounds for objecting to the request, including the reasons.
The responding party may state that it will produce copies of documents or of
electronically stored information instead of permitting inspection. The production
must then be completed no later than the time for inspection specified in the
request or another reasonable time specified in the response.
(C) Objections. An objection must state whether any responsive materials are
being withheld on the basis of that objection. An objection to part of a request
must specify the part and permit inspection of the rest.

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Thus, objections to Rule 34 requests must be stated specifically and boilerplate objections
regurgitating words and phrases from Rule 26 are completely unacceptable. Frontier-Kemper
Constructors, Inc., v. Elk Run Coal Company, Inc., 246 F.R.D. 522, 528 - 529 (S.D.W.Va.
2007).
Federal Rule of Civil Procedure 37(a)(1) provides that if a party fails to cooperate in
discovery, “[o]n notice to other parties and all affected persons, a party may move for an order
compelling disclosure or discovery. The motion must include a certification that the movant has
in good faith conferred or attempted to confer with the person or party failing to make disclosure
or discovery in an effort to obtain it without court action.” Rule 37(a)(4) provides that an
incomplete answer or response “must be treated as a failure to . . . answer, or respond.” Rule 37
(a)(5)(A) – (C) provide as follows:
(A) If the Motion is Granted (or Disclosure or Discovery is Provided After
Filing). If the motion is granted – or if the disclosure or requested discovery is
provided after the motion was filed – the court must, after giving an opportunity
to be heard, require the party or deponent whose conduct necessitated the motion,
the party or attorney advising that conduct, or both to pay the movant’s
reasonable expenses incurred in making the motion, including attorney’s fees. But
the court must not order this payment if:
(i)
(ii)
(iii)

the movant filed the motion before attempting in good faith to
obtain the disclosure or discovery without court action;
the opposing party’s nondisclosure, response, or objection was
substantially justified; or
other circumstances make an award of expenses unjust.

(B) If the Motion is Denied. If the motion is denied, the court may issue any
protective order authorized under Rule 26(c) and must, after giving an
opportunity to be heard, require the movant, the attorney filing the motion, or
both to pay the party or deponent who opposed the motion its reasonable
expenses incurred in opposing the motion, including attorney’s fees. But the court
must not order this payment if the motion was substantially justified or other
circumstances make an award of expenses unjust.
(C) If the Motion is Granted in Part and Denied in Part. If the motion is granted
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in part and denied in part, the court may issue any protective order authorized
under Rule 26(c) and may, after giving an opportunity to be heard, apportion the
reasonable expenses of the motion.
ANALYSIS
A.

Failure to Meet and Confer:
First, Defendants argue that Plaintiff’s Motion to Compel should be denied because

Plaintiff failed to meet and confer with Defendants as required by Rule 37(a)(1). (Document No.
44, p. 4.) Rule 37 of the Federal Rules of Civil Procedure provides that if a party fails to answer
a Request for Production, the discovering party may move for an Order compelling the
production. See Fed. R. Civ. P. 37(a)(3)(B). Additionally, the Rule requires a certification “that
the movant has in good faith conferred or attempted to confer with the person or party failing to
make disclosure or discovery in an effort to obtain it without court action.” Fed. R. Civ. P.
37(a)(1). This Court’s Local Rules provide in greater detail that “each party shall make a good
faith effort to confer in person or by telephone to narrow the areas of disagreement to the
greatest extent possible.” See L. R. Civ. P. 37.1(b); also see Frontier-Kemper Constructors, Inc.,
supra, 246 F.R.D. 522, 526 (S.D.W.Va. 2007)(“[I]t is mandatory for parties to meet and confer in
person or by telephone prior to filing a motion to compel . . .”); Wilson v. Liberty Insurance
Underwriters, Inc., 2008 WL 2074040 (S.D.W.Va. May 15, 2008)(“If a party only requests
additional time, and fails to raise the issue at the heart of the dispute, then the meeting and
conference is a waste of time, paying only lipservice to the Rule’s requirement.”) In the instant
case, there is no indication that the parties ever met and conferred regarding the heart of the
discovery dispute. The undersigned, therefore, finds that the parties never met and conferred in
person or by telephone concerning the actual issues in dispute in an attempt to obtain the

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discovery material without Court action. Although Plaintiff failed to meet and confer prior to
filing his Motion to Compel, the Court finds that such failure does not result in the denial of the
Motion to Compel. See Frontier-Kemper Constructors, Inc., supra, 246 F.R.D. at 526(“While it
is mandatory for parties to meet and confer in person or by telephone prior to filing a motion to
compel, the Federal Rules of Civil Procedure and the Local Rules do not provide that failure to
meet and confer automatically results in denial of the motion. Rather, the sanction for failing to
meet and confer is the denial of a request for expenses incurred in making a motion, including
attorney’s fees.”) Accordingly, the undersigned will consider the merits of Plaintiff’s Motion to
Compel.
B.

Request for Production of Documents No. 1.
REQUEST FOR PRODUCTION NO. 1. Officer statements pertaining to incident.
RESPONSE: Defendants object to this request on the grounds that the same is
vague, ambiguous and susceptible to multiple interpretations which prevents
Defendants from submitting a formal response hereto. Due to the vagueness of
this request, Defendants reserve and incorporate herein objection to the extent this
request calls for information that is subject to the attorney-client privilege, the
work product doctrine, or both.
Without waiving, please see the following:
(a)
HPD Use of Force Report;
(b)
CAD Call Info Sheet;
(c)
HPD Incident – Offense Report;
(d)
Concise IA Pro – Use of Force Report;
(e)
Injury Report – Officer Wiles.

(Document No. 44-2 and Document No. 45-1, pp. 1 - 2.)
In his Motion to Compel, Plaintiff complains that Defendants objected on grounds that
“[t]he request is overly broad, unduly burdensome, and not reasonably calculated to lead to the
discovery of admissible evidence.” (Document No. 42, p. 1.) Plaintiff then notes that he is
proceeding pro se and argues that his requests “are vitally pertinent to his proving his case.”
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(Id., p. 2.) Plaintiff notes that the production is pertinent “in showing a pattern of excessive force
and misconduct involving the H.P.D. Officers named in this action.” (Id.)
In Response, Defendants argue that, “subject to objection, they have in good faith
complied with Plaintiff’s broad, vague, and overly ambiguous request for production of ‘Officer
Statements pertaining to incident.’” (Document No. 44, p. 4.) Defendants note that in response to
the above request, Defendants “produced thirty pages of documents containing the following: (i)
Huntington Police Department Use of Force Report, (ii) SunGard CAD Call Information Sheet,
(iii) Huntington Police Department Incident/Offense Report, (iv) Concise IA Pro – Use of Force
Report, and (v) Injury Report – Officer Wiles.” (Id., p. 5.) Defendants further state that “the
document produced in response to this request for production represent the entirety of the
documents in Defendants’ possession which are responsive to Plaintiff’s discovery request and
not otherwise subject to the attorney-client privilege, the work product doctrine, or both.” (Id.)
Defendants, therefore, argue that Plaintiff’s attempt to compel the production of additional
information in response to the above request is without merit. (Id.)
The undersigned finds that Plaintiff’s Motion to Compel regarding Request No. 1 should
be denied in part and granted in part. Defendants argue that Plaintiff’s general request for
“Officer statements pertaining to incident” is vague and ambiguous. The party objecting to
discovery as vague or ambiguous has the burden of showing such vagueness or ambiguity.
McCoo v. Denny’s Inc., 192 F.R.D. 675, 694 (D.Kan. 2000); also see Johnson v. Kraft Foods
North America, Inc., 238 F.R.D. 648 (D.Kan. 2006). A party responding to discovery requests
“should exercise reason and common sense to attribute ordinary definitions to terms and phrases
utilized in interrogatories.” Id. “If necessary to clarify its answers, the responding party may

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include any reasonable definition of the term or phrase at issue.” McCoo, 192 F.R.D. at 694;
High Point Sarl v. Sprint Nextel Corp., 2011 WL 4036424, * 13 (D.Kan. 2011). Exercising
reason and common sense, the undersigned finds that Plaintiff’s request is not vague or
ambiguous. In requesting “statements,” the undersigned finds that Plaintiff is requesting any
document or report containing a summary or description of the incident. In referring to the
“incident,” the undersigned finds that Plaintiff is referring the time period beginning when he
allegedly vandalized the vending machines until Plaintiff was arrested following his flight from
officers. Despite Defendants claim that Plaintiff’s request was vague or ambiguous, the record
reveals that in attempting to respond to Plaintiff’s requests, Defendants produced 30 pages of
documents related to officer statements concerning the incident. Defendants state that they have
produced all non-privileged documents that could possibly be responsive to Plaintiff’s above
request. The Court, therefore, finds that Defendants appropriately responded to Plaintiff’s
discovery request regarding any documents claimed to be non-privileged. Accordingly, it is
hereby ORDERED that Plaintiff’s request for production of additional non-privileged
documents is DENIED.
The undersigned, however, notes that Defendants indicate that there are other documents
responsive to Plaintiff’s request that are protected from discovery based upon the attorney-client
privilege or attorney work-product protection. When a party withholds information on the basis
of attorney-client privilege or the work-product protection, the party is required to: (1)
“expressly make the claim;” and (2) “describe the nature of the documents, communication, or
tangible things not produced or disclosed – and do so in a manner that, without revealing
information itself privileged or protected, will enable other parties to assess the claim.” Fed. R.

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Civ. P. 26(b)(5)(A). “A party can sustain this burden through a properly prepared privilege log
that identifies each document withheld, and contains information regarding the nature of the
privilege/protection claimed, the name of the person making/receiving the communication, the
date and place of the communication, and the document’s general subject matter.” Sky Angel
U.S., LLC v. Discovery Communications, LLC, 28 F.Supp.3d 465, 483 (D.Md. 2014). A
privilege log must contain “specific facts which, taken as true, establish the elements of the
privilege for each document for which privilege is claimed. A privilege log meets this standard,
even if not detailed, if it identified the nature of each document, the date of its transmission or
creation, the author and recipients, the subject, and the privilege asserted.” Clark v. Unum Life
Insurance Co. of America, 799 F.Supp.2d 527, 536 (D. Md. 2011)(quoting N.L.R.B. v. Interbake
Foods, LLC, 637 F.3d 492, 502 (4th Cir. 2011)(footnote omitted). A conclusory assertion,
however, that a document is privileged is inadequate to satisfy the requirements of Rule
26(b)(5)(A). See United Stationers Supply Co. v. King, 2013 WL 419346, * 2 (E.D.N.C. Feb. 1,
2013); also see Victor Stanely, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 264 (D. Md.
2008)(“[W]hen a party refuses to produce documents during discovery on the basis that they are
privileged or protected, it has a duty to particularize that claim.”); Neuberger Berman Real Estate
Income Fund, Inc. v. Lola Brown Trust No. 1B, 230 F.R.D. 398 (D. Md. 2005)(“[T]he burden of
the party withholding documents cannot be ‘discharged by merely conclusory or ipse dixit
assertions.’”).
In the instant case, there is no indication that Defendants provided Plaintiff with a
privilege log or any other particularized description of the allegedly privileged or protected
documents that Defendants seek to shield from discovery. Defendants must provide Plaintiff

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with a privilege log sufficiently informing Plaintiff about the nature of documents withheld that
would enable Plaintiff to make an intelligent determination about the validity of Defendants’
assertion of the attorney-client privilege or the attorney work-product protection. Defendants,
however, appear to have provided Plaintiff with a discovery response only asserting their
conclusory claim that certain documents were either privileged or protected. (Document No.
45-1.) As stated above, a conclusory assertion that a document is privileged or protected is
insufficient under Rule 26(b)(5).1 (Document No. 45-1.) Therefore, Plaintiff’s Motion to Compel
is GRANTED to the extent he seeks the production of a privilege log concerning the allegedly
privileged or protected documents containing officer statements. Defendants are ORDERED to
provide Plaintiff with a privilege log on or before December 20, 2016.2 If Plaintiff wishes argue
that any document is not privileged or protected, Plaintiff should file on or before January 3,
2017, a Supplemental Motion to Compel addressing only his dispute concerning any privileged
or protected document contained in the privilege log.

1

Additionally, Rule 37.1 of the Local Rules of Civil Procedure requires “any claim of privilege
or objection” to comply with Rule 26(b)(5) of the Federal Rules of Civil Procedure.

2

“When a party provides an inadequate or untimely privilege log, the Court may choose
between four remedies: (1) give the party another chance to submit a more detailed log; (2) deem
the inadequate log a waiver of the privilege; (3) inspect in camera all of the withheld documents;
and (4) inspect in camera a sample of the withheld documents. Johnson v. Ford Motor Co., 309
F.R.D. 226 (S.D.W.Va. Aug. 28, 2015)(citing Nationwide Mutual Fire Ins. Co. v. Keit, Inc.,
2015 WL 1470971, * 9 (M.D. Fla. March 31, 2015); Sectek Incorporated v. Diamond, 2016 WL
5897763 (E.D.Va. Oct. 6, 2016); also see AVX Corp. V. Horry Land Co., Inc., 2010 WL
4884903, * 4 (D.S.C. Nov. 24, 2010)(finding that the failure to produce a timely or sufficient
privilege log may constitute waiver of any asserted privileges); Herbalife Intern., Inc. v. St. Paul
Fire and Marine Ins. Co., 2006 WL 2715164 (N.D.W.Va.)(“Failure to timely produce or
production of an inadequate privilege log may constitute a waiver of any asserted privileges.
However, some courts have held that the waiver of a privilege extends only to those cases in
which the offending party committed unjustified delay, inexcusable conduct or bad faith in
responding to discovery.”)(citations omitted).
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C.

Request for Production of Documents No. 2.
REQUEST FOR PRODUCTION NO. 2. I.D. of any/all individuals present
during incident (Sunday, December 14, 2014 @ 4:00 a.m.)
RESPONSE: Defendants object and state that they cannot possibly know of all
individuals present when Plaintiff was caught vandalizing vending machines with
a crowbar and committing various other crimes, such as malicious assault against
a police officer, which subsequently resulted in Plaintiff fleeing and evading
arrest over a broad geographical area.

(Document No. 44-2 and Document No. 45-1, p. 2.)
In his Motion to Compel, Plaintiff appears to generally argue that Defendants failed to
properly respond to his request. (Document No. 42.) Plaintiff, however, fails to specifically
address Defendants’ objections. (Id.)
In Response, Defendants continue to assert that “Plaintiff’s request for the production of
the ‘I.D. of any/all’ individuals present when Plaintiff was caught vandalizing vending machines
with a crowbar and committing various other crimes including malicious assault of a police
officer is overly broad and therefore, not reasonably calculated to lead to the discovery of
admissible evidence.” (Document No. 44, p. 5.) Defendants explain that “[i]t is physically
impossible for Defendants’ to provide this information given that Plaintiff requested ‘I.D. of
any/all individuals present during the incident.’” (Id.) Defendants state that the “incident”
includes various locations such as: “site where Plaintiff was caught vandalizing vending
machines with a crow bar, the site where Plaintiff maliciously assaulted a police officer, and the
broad geographical area over which Plaintiff fled while attempting to evade arrest.” (Id.) Next,
Defendants argue that “Plaintiff’s use of the term ‘present’ is so extraordinary vague that it is
susceptible to multiple interpretations and therefore prevents Defendants from being able to
provide any reasonable response.” (Id., p. 6.) Defendants contend that it is unclear whether
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Plaintiff’s request would include “only those individuals involved in the commission or
prevention/apprehension of Plaintiff’s crimes; or would include all individuals within the
vicinity of the various locations where Plaintiff’s crimes occurred and where Plaintiff
subsequently fled in order to avoid arrest.” (Id.) Defendants argue that regardless of the
vagueness issue, Plaintiff’s request is “overly broad and unduly burdensome because it seeks
production of information that Defendants are physically incapable of ascertaining, let alone
producing.” (Id.) Defendants finally claim that “Plaintiff’s request is extraordinarily
burdensome, if not impossible, and the information sought is very unlikely to yield useful
information.” (Id., p. 7.)
First, the Court will consider whether the phrase “present” is vague or ambiguous.
Exercising reason and common sense, the undersigned finds that “present” is used by Plaintiff in
requesting the identities of any persons “present” during the incident. Although Defendants
argue that it is unclear whether Plaintiff is requesting the identity of “individuals involved in the
commission or prevention/apprehension of Plaintiff’s crimes; or would include all individuals
within the vicinity of the various locations where Plaintiff’s crimes occurred and where Plaintiff
subsequently fled in order to avoid arrest,” the undersigned notes that a common sense definition
would be all individuals in the vicinity of the incident. The undersigned finds Defendants’ above
objection is without merit because the phrase “present” is not overly vague or ambiguous.
Next, the Court will consider whether Plaintiff’s request seeks relevant information or is
unduly burdensome. Discovery requesting relevant information may be restricted if necessary to
protect a person or party from an undue burden. Fed.R.Civ.P. 26(c). To prevail upon an objection
of burdensomeness, the objecting party must demonstrate how the request is burdensome by

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submitting affidavits or other evidence revealing the nature of the burden. See McKelvey v.
Western Regional Jail, 2015 WL 2144668 (S.D.W.Va. May 7, 2015); Convertino v. United
States Department of Justice, 565 F.Supp.2d 10, 14 (D.D.C. 2008)(the court will only consider
an unduly burdensome objection when the objecting party demonstrates how discovery is overly
broad, burdensome, and oppressive by submitting affidavits or other evidence revealing the
nature of the burden). The undersigned first considers whether Plaintiff’s request seeks relevant
information. In his Complaint and Amended Complaint, Plaintiff contends that Defendants used
excessive force during his arrest. Thus, the identities of any individual present during the
commission of the underlying crime, present in the areas through which Plaintiff traveled during
his flight from police, and present during the arrest are relevant to Plaintiffs’ claims or
Defendants’ defenses. Next, the undersigned considers whether Plaintiff’s request is unduly
burdensome or disproportionate to the needs of the case. As explained above, discovery must
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 the 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.” Defendants state that
they are physically incapable of ascertaining all individuals present during Plaintiff’s
commission the underlying crime, flight, and arrest because these events involved a broad
geographical area. The undersigned finds that there is no indication that Defendants have access
to the identities of all individuals present in the vicinity of the incident. The undersigned further
finds that the production of the identities of all individuals present is overly broad because such
would include the production of the identities of individuals who were present, but were neither

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a witness nor involved in the incident. Furthermore, the request is unduly burdensome as it
would require substantially investigative work involving a broad geographical area to determine
all individuals present during Plaintiff’s commission of the crime, flight, and arrest. The
anticipated benefit of such a search would not outweigh the burden because requiring
Defendants to identify all individuals present would likely result in the production of un-useful
information such as the identities of individuals who were not witnesses or involved in the
incident. Accordingly, the undersigned finds that Plaintiff’s request is overly broad, unduly
burdensome, and disproportionate to the needs of the case. It is hereby ORDERED that
Plaintiff’s Motion to Compel regarding Request for Production No. 2 is DENIED.
D.

Request for Production of Documents No. 3.
REQUEST FOR PRODUCTION NO. 3. Procedure for Pre-Hiring Investigation.
RESPONSE: Objection. Plaintiff has not asserted any claims related to the hiring
and/or the pre-hiring investigation process and Defendants object as this Request
is attempting to embark upon an overly broad, ambiguous, and unduly
burdensome fishing expedition for information that is not relevant or material to
the subjection matter of the pending action, nor is it reasonably calculated to lead
to the discovery of admissible evidence. Defendants further object to this request
on the grounds that it calls of disclosure of confidential and proprietary
information.

(Document No. 44-2 and Document No. 45-1, pp. 2 - 3.)
In his Motion to Compel, Plaintiff argues that “counsel for Respondents attempt to sweep
this issue under the rug by stating that the Plaintiff is attempting to embark upon an overly broad,
ambiguous, and unduly burdensome fishing expedition for information that is not relevant or
material to the subject matter of the pending action.” (Document No. 42., p. 2.)
In Response, Defendants argue that “Plaintiff’s request for production of ‘procedure for
Pre-hiring investigation’ is exceptionally vague, ambiguous, and far exceeds the scope of
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permissible discovery in this matter.” (Document No. 44, p. 7.) Specifically, Defendants argue
that Plaintiff’s above request seeks the production of irrelevant information. (Id., pp. 7 - 8.)
Defendants note that “Plaintiff’s case is based on the theory that Defendants allegedly used
excessive force while apprehending the Plaintiff following his attempts to avoid arrest.” (Id.)
Defendants contend that Plaintiff has “not asserted any claims relating to hiring and/or pre-hiring
investigation process.” (Id.) Defendants, therefore, argue that Plaintiff’s request “cannot be said
to be reasonably calculated to lead to the discovery of admissible evidence because it does not
even correlate with a cause of action with which Plaintiff has asserted.” (Id.)
The undersigned finds that Plaintiff’s Motion to Compel regarding Request No. 3 should
be denied. A review of Plaintiff’s Complaint and Amended Complaint reveals that he is asserting
an excessive force claim against certain police officers. Plaintiff’s Complaint and Amended
Complaint, however, are void of any allegation of negligent hiring or supervisory indifference.
Accordingly, any “Procedure for Pre-Hiring Investigation” is irrelevant to any claims or defenses
in the instant action. No information concerning “Procedure for Pre-Hiring Investigation” would
be relevant concerning whether Defendants subjected Plaintiff to excessive force during his
arrest. It is hereby ORDERED that Plaintiff’s Motion to Compel regarding Request for
Production No. 3 is DENIED.
E.

Request for Production of Documents No. 4.
REQUEST FOR PRODUCTION NO. 4. Psychological/psychiatric testing of all
officers involved.
RESPONSE: Objection. Plaintiff has not asserted any claims related to the hiring
and/or the pre-hiring investigation process and Defendants object as this Request
is attempting to embark upon an overly broad, ambiguous, and unduly
burdensome fishing expedition for information that is not relevant or material to
the subjection matter of the pending action, nor is it reasonably calculated to lead
to the discovery of admissible evidence. Instead, this information is designed
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simply to harass Defendants and waste judicial resources, and Defendants reserve
the right to move for sanctions related thereto. Defendants further object to this
request on grounds that it calls for disclosure of confidential and proprietary
information.
(Document No. 44-2 and Document No. 45-1, p. 3.)
In his Motion to Compel, Plaintiff argues that “counsel for Respondents attempt to sweep
this issue under the rug by stating that the Plaintiff is attempting to embark upon an overly broad,
ambiguous, and unduly burdensome fishing expedition for information that is not relevant or
material to the subject matter of the pending action.” (Document No. 42., p. 2.) Plaintiff contends
that Defendants “are attempting to hide facts that ARE material and/or relevant to the case at
hand.” (Id.) Plaintiff asserts that “[t]he request to review the outcomes of both
psychiatric/psychological testing and evaluations are pertinent to the Plaintiff’s allegations of
misconduct and the Jekyll/Hyde Behavior of these officers at the time of Plaintiff’s injuries.”
(Id.) Plaintiff argues that the behavior of Defendants was “NOT the behavior of stable
individuals,” but “much like a pack of wild dogs pouncing on their prey.” (Id.) Finally, Plaintiff
states that his request is not designed to harass Defendants or waste judicial resources. (Id.)
In Response, Defendants argue that “Plaintiff’s request is so overly broad and ambiguous
that it prevents Defendants from appropriately responding.” (Document No. 44, p. 8.)
Defendants state that it remains “unclear as to whether Plaintiff’s request is for the Defendants to
undergo a psychological/psychiatric evaluation or for Defendants to produce their mental health
records, if any.” (Id.) Regardless, Defendants argue that “there exists no legal basis for Plaintiff’s
request.” (Id.) First, Defendants argue that Plaintiff’s request is procedurally improper if he is
requesting that Defendants undergo testing. (Id., pp. 8 - 9.) Citing Rule 35 of the Federal Rules
of Civil Procedure, Defendants note that the Court “may order a party whose mental or physical
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condition . . . is in controversy to submit to a physical or mental examination by a suitably
licensed or certified examiner.” (Id., p. 9.) Defendants, however, note that “[t]he order may be
made only on motion for good cause and on notice to all parties and to the person to be
examined.” (Id.) Defendants argue that they are not properly subject to a Rule 35 evaluation
because their physical and mental conditions are not in controversy. (Id.) Additionally,
Defendants note that Plaintiff has failed to file a proper motion and demonstrate good cause for
his request. (Id.)
Second, to the extent Plaintiff is requesting the production of Defendants’ mental health
records, Defendants argue that such are not relevant. (Id.) Defendants contend that “[t]his action
centers on Plaintiff’s allegations that the Defendants allegedly used excessive force against him
when the Defendants apprehended him following this attempt to avoid arrest.” (Id.) Defendants
argue that Defendants’ mental health records are “in no way reasonably calculated to lead to the
discovery of admissible evidence and is accordingly outside the scope of discovery.” (Id.)
Based upon a review of Plaintiff’s Motion to Compel, the undersigned finds that Plaintiff
is requesting the production of any psychiatric/psychological testing already conducted on
Defendants. In his Motion to Compel, Plaintiff asserts that “[t]he request to review the outcomes
of both psychiatric/psychological testing and evaluations are pertinent to the Plaintiff’s
allegations of misconduct and the Jekyll/Hyde Behavior of these officers at the time of Plaintiff’s
injuries.” Accordingly, the undersigned finds it unnecessary to address whether Plaintiff may
compel Defendants to undergo psychiatric/psychological testing. Thus, the undersigned will
address Plaintiff’s request for the production of any psychiatric/psychological testing already
conducted on Defendants. A review of Plaintiff’s Complaint and Amended Complaint reveal no

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allegations that Defendants used excessive force due to some psychiatric/psychological condition
or mental impairment. Plaintiff further does not allege that Defendants are asserting a mental
health condition as a defense to their alleged use of excessive force. As stated above, discovery
must be relevant and proportional to the needs of the case. Plaintiff merely argues that
Defendants should be required to produce their mental health records because the behavior of
Defendants was “NOT the behavior of stable individuals.” Based upon the foregoing, the
undersigned finds that Plaintiff’s above request seeks information that is irrelevant to the claims
or defenses in the underlying action and disproportionate to the needs of the case. Thus, it is
hereby ORDERED that Plaintiff’s Motion to Compel regarding Request for Production No. 4 is
DENIED.
F.

Request for Production of Documents No. 5.
REQUEST FOR PRODUCTION NO. 5. Any/all rules/regulations and
policies/procedures for making a safe arrest.
RESPONSE: Defendants object to this request on the grounds that the request is
overly broad, unduly burdensome, and not reasonably calculated to lead to the
discovery of admissible evidence. Defendants further object to this request on the
grounds that the same is vague, ambiguous and susceptible to multiple
interpretations which prevents Defendants from submitting a formal response
hereto.

(Document No. 44-2 and Document No. 45-1, pp. 3 - 4.)
In his Motion to Compel, Plaintiff argues that “Defendants objection to this request is a
scheme to prevent the truth from being exposed.” (Document No. 42., p. 3.) Plaintiff contends
that “[b]reaking an individual’s arm while he/she has it raised as a means to ‘protect’ their face
and head from extreme injury is hardly proper policy and procedure from making a ‘safe’
arrest.” (Id.) Plaintiff alleges that “[m]edical records support the Plaintiff’s claim that his arm

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was raised in defense of his face and head, not in an offensive posture.” (Id.)
In Response, Defendants argue that they are “physically unable to appropriately respond
to Plaintiff’s request.” (Document No. 44, p. 10.) Defendants explain that “Plaintiff’s use of the
terms ‘any/all’ makes his request overly broad and unduly burdensome.” (Id.) Defendants asserts
that the plain reading of Plaintiff’s above request would require Defendants to produce “copies
of every single rule, regulation, policy, or procedure that relates to ‘making a safe arrest’
regardless of the rule, regulation, policy, or procedure’s author, source, location, or format of
existence.” (Id.) Defendants further argue that “Plaintiff’s reference to ‘making a safe arrest’ is
vague, ambiguous and subject to multiple interpretations that it makes Defendants unable to
respond in a cogent manner.” (Id.)
First, the undersigned finds that Plaintiff’s request is vague and ambiguous. Plaintiff
requests a copy of rules and regulations regarding “making a safe arrest.” Applying reason and
common sense to attribute ordinary definitions to the above phrase, the undersigned finds that
the phrase “making a safe arrest” could be subject to multiple interpretations. Next, the
undersigned finds that Plaintiff’s request for “any/all rules/regulations and policies/procedures”
is overly broad. Rule 34(b)(1) requests that a production request “must describe with reasonable
particularity each item or category of items” to be produced. Plaintiff clearly fails to describe his
above request for production with “reasonable particularity.” Plaintiff generally requests “any/all
rules/regulations and policies/procedures.” Plaintiff fails to set forth the source or author of the
rules, regulations, policies, or procedures. Although the requested information may be relevant,
discovery must proportional to the needs of the case. Defendants explain that to appropriately
respond, Defendants “would be required to produce copies of very single rule, regulation, policy,

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or procedure that relates to ‘making a safe arrest’ regardless of the rule, regulation, policy, or
procedure’s author, source, location, or format of existence.” The burden and expense of
requiring Defendants to respond to the above overly broad request clearly outweighs any likely
benefit. Further, Plaintiff should be able to obtain a copy of relevant law through use of the law
library. Based upon the foregoing, the undersigned finds that Plaintiff’s above request, as stated,
is overly broad and disproportionate to the needs of the case. To the extent Plaintiff is requesting
a copy of any internal policies or procedures established by the Huntington Police Department
regarding the use of force, the undersigned finds that such would be relevant. Further, it is
reasonable to assume that Plaintiff would not have access to a copy of such policies or
procedures. Based upon the foregoing, it is hereby ORDERED that Plaintiff’s Motion to
Compel regarding Request for Production No. 5 is GRANTED in part and DENIED in part.
To the extent Plaintiff requests “any/all rules/regulations and policies/procedures for making a
safe arrest,” his Motion is DENIED. To the extent Plaintiff is requesting a copy of any internal
policies or procedures of the Huntington Police Department regarding the use of force, Plaintiff’s
above request is GRANTED. Defendants are ORDERED to produce a copy of the foregoing
policies or procedures, to the extent they exist, to Plaintiff on or before December 20, 2016.
G.

Request for Production of Documents No. 6.
REQUEST FOR PRODUCTION NO. 6. Background checks/work histories/suits
against or reprimands for misconduct.
RESPONSE: Defendants object to this request on the grounds that the request is
overly broad, unduly burdensome, and not reasonably calculated to lead to the
discovery of admissible evidence. Other complaints or reprimands against these
Defendants, to the extent brought, are not relevant to or discoverable in this case.
Defendants also object to this request on the grounds that it requests inadmissible
propensity evidence under applicable law, and Defendants object on the grounds
that the burden of conducting a search for irrelevant or only marginally relevant
information is disproportionate to any possible relevance to the issues here.
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Defendants further object because Plaintiff has not asserted any claims related to
the hiring and/or pre-hiring investigation process and Defendants object as this
Request is attempting to embark upon an overly broad, ambiguous, and unduly
burdensome fishing expedition for information that is not relevant or material to
the subject matter of the pending action, nor is it reasonably calculated to lead to
the discovery of admissible evidence.
Lastly, Defendants object to this request on the grounds that the same is vague,
ambiguous, and susceptible to multiple interpretations which prevents Defendants
from submitting a formal response hereto.
(Document No. 44-2 and Document No. 45-1, pp. 4 - 5.)
In his Motion to Compel, Plaintiff argues that his above request for the above information
“is pertinent to support his claim of repeated excessive force used by the Huntington Police
Department, and this information will also prove beyond reasonable doubt that there is an
ongoing pattern of excessive force during arrests in Huntington.” (Document No. 42., p. 3.)
In Response, Defendants argue that Plaintiff’s above request is “nothing shy of a fishing
expedition designed to catch and reel in information Plaintiff can use to harass Defendants.”
(Document No. 44, p. 11.) Defendants explain that “Plaintiff has not asserted any claim relating
to the hiring and/or pre-hiring investigation process.” (Id.) Defendants, therefore, claim that
“Plaintiff’s request for Defendants’ background checks, work histories, prior lawsuits, and prior
reprimands is particularly puzzling and certainly not relevant or likely to lead to the discovery of
admissible evidence.” (Id.) Next, Defendant asserts that Plaintiff requests is “so vague and
ambiguous that Defendants would be unable to formulate any sensible response.” (Id.)
Defendants explain that Plaintiff’s request for production of information relating to “suspected
misconduct” is vague and “prevents Defendants from meaningfully responding.” (Id.) Finally,
Defendants argue that personnel records are confidential in nature and not properly discoverable

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under the West Virginia Freedom of Information Act. (Id., pp. 11 - 12.)
To the extent Plaintiff is requesting the complete personnel file for each Defendant, the
Court deems certain portions of the file to be relevant. Specifically, the Court finds that any
performance reviews, citations/commendations, reprimands, or disciplinary actions for any
improper use of force by any Defendant is relevant. To the extent Plaintiff requests Defendants’
personnel files containing such information as Defendants’ background, training, physical or
mental fitness/condition, employment history, and applications for employment, the Court finds
these requests to be overly broad and irrelevant. Next, Defendants object to the above request for
information concerning prior civil suits against any Defendant as irrelevant. The Court, however,
finds that Plaintiff’s request for information concerning prior suits against any Defendant is
relevant to the extent Plaintiff requests information concerning prior suits against any Defendant
for using excessive force. Information concerning prior lawsuits for use of excessive force is
relevant to Plaintiff’s claim. See Laws v. Cleaver, 1999 WL 33117449 (D.Conn. Nov. 17,
1999)(permitting discovery of defendants’ prior disciplinary hearings, administrative actions and
any prior lawsuits, but only to the extent that allegations were made for excessive force or
mistreating an inmate); Cox v. McClellan, 174 F.R.D. 32, 34-35 (W.D.N.Y. June 11,
1997)(finding that prior complaints made against the defendants and incidents of excessive force
by individual defendants are clearly discoverable in Section 1983 actions); Cornelius v. Consol.
Rail Corp., 169 F.R.D. 250, 251-52 (N.D.N.Y. 1996)(evidence of prior claims and lawsuits is
relevant and discoverable, regardless that it later may be inadmissible at trial). It is therefore
hereby ORDERED that Plaintiffs’ Motion to Compel as to Request for Production No. 6 is
GRANTED in part and DENIED in part. Defendants shall produce any performance reviews,

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citations/commendations, reprimands, or disciplinary actions for any improper use of force by
any Defendant. If the Defendants wish to seek the entry of a Protective Order concerning the use,
reproduction, or return of the foregoing documents, they should submit a proposed Protective
Order for entry by the Court. Concerning Plaintiff’s request for civil actions filed against any
Defendant, Defendants shall produce information concerning any such civil actions filed in the
last five years against each individual Defendant concerning claims of excessive use of force.
For each civil action, Defendants shall provide the following information: (i) the court (state and
county/city) in which the lawsuit was filed; (ii) the case number and the date on which the case
was filed; (iii) the case caption; (iv) a detailed description of the allegations made in the lawsuit
against the Defendant; and (v) a description of the resolution of the lawsuit. Defendants are
ORDERED to produce the above information to Plaintiff on or before December 20, 2016.
H.

Request for Production of Documents No. 7.
REQUEST FOR PRODUCTION NO. 7. Any/all eyewitness accounts of the
incident.
RESPONSE: Defendants object and state that they cannot possibly know of all
individuals present when Plaintiff was caught vandalizing vending machines with
a crowbar and committing various other crimes, such as malicious assault against
a police officer, which subsequently resulted in Plaintiff’s fleeing and evading
arrest over a broad geographical area.

(Document No. 44-2 and Document No. 45-1, p. 5.)
In his Motion to Compel, Plaintiff argues that “counsel for Defendants is mocking the
Plaintiff and the fact that he is a lay person.” (Document No. 42., p. 3.) Plaintiff first argues that
the fact that he was “caught vandalizing a vending machine has absolutely nothing to do with
this case.” (Id.) Plaintiff next argues that the fact that he was only vandalizing a vending machine
is relevant to show that Defendants treated Plaintiff “as if he was a dangerous criminal on the
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loose.” (Id.) Plaintiff contends that Defendants “should have never acted in a way that would
endanger the Plaintiff, themselves, or the public for a petty offense such as breaking into a
vending machine.” (Id.) Plaintiff states that “officers already knew the identity of the Plaintiff
and would have been able to apprehend him at any time.” (Id.)
In Response, Defendants argue Plaintiff’s above request for “any/all eyewitness accounts
of the incident” is so overly broad that it is “physically impossible for Defendants to meaningful
comply.” (Document No. 44, p. 12.) Defendants again contend that term “incident” could refer to
multiple locations such as the following: “the site where Plaintiff was caught vandalizing
vending machines with a crowbar, the site where Plaintiff maliciously assaulted a police officer,
and the broad geographical area over which Plaintiff fled while attempting to evade arrest.” (Id.)
Next, Defendants claim that “it is impossible for them to identify ‘any/all’ individuals who
witnessed the accounts of the incident at these various and encompassing locations throughout
the commission of Plaintiff’s crimes.” (Id.) Notwithstanding the forgoing, Defendants state that
they have “produced thirty pages of documents which contain narrative statements provided by
the officers who were directly involved with the incident.” (Id.) Defendants, therefore, state that
“they have made a good faith attempt to respond to Plaintiff’s discovery request and are
physically unable to further comply.” (Id.)
To the extent Plaintiff is requesting the production of statements from “any/all”
eyewitnesses, the undersigned finds Plaintiff’s request to be overly broad and unduly
burdensome. Eyewitness accounts from any individual present during the commission of the
underlying crime, present in the areas through which Plaintiff traveled during his flight from
police, and present during the arrest would be relevant to Plaintiffs’ claims or Defendants’

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defenses. As stated above, discovery must 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 the 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.” Defendants state that they are physically incapable of ascertaining eyewitness
statements from all individuals that may have observed Plaintiff’s commission of the underlying
crime, flight, and arrest because these events involved a broad geographical area. The
undersigned finds that there is no indication that Defendants have access to eyewitness
statements from all individuals who observed the incident. To the extent Plaintiff is requesting
the production of statements from “any/all” eyewitnesses, the undersigned finds Plaintiff’s
request to be overly broad, unduly burdensome, and disproportionate to the needs of the case. To
the extent Plaintiff is requesting the production of existing eyewitness statements that are in
Defendants’ possession or control, the undersigned finds that Plaintiff’s request is relevant and
not unduly burdensome. It is therefore hereby ORDERED that Plaintiffs’ Motion to Compel as
to Request for Production No. 7 is GRANTED in part and DENIED in part. Defendants are
ORDERED to produce any existing eyewitness statements that are within Defendants’
possession or control, that have not already been produced, to Plaintiff on or before December
20, 2016.
I.

Request for Production of Documents No. 8.
REQUEST FOR PRODUCTION NO. 8. Any/all reports and statements
pertaining to this incident that are not listed above.
RESPONSE:

(Document No. 44-2 and Document No. 45-1.)
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In his Motion to Compel, Plaintiff contends that he is “in need of any/all statements
and/or reports that may be in possession of the Defendants, or their attorneys so that he has a
chance to investigate into any/all erroneous statements or reports, such as the claim that one of
the officers sustained serious injury as a result of the Plaintiff’s actions, when the officer
sustained a non-existent injury caused by his own actions.” (Document No. 42., p. 2.)
In Response, Defendants argue that they have “previously produced all documents that
are responsive to this discovery request, yet Plaintiff seems to continue to fish for more.”
(Document No. 44, p. 13.) Defendants contend that they have produced all documents in their
possession that are responsive to Plaintiff’s discovery request and properly within the scope of
discovery. (Id.)
The undersigned finds that Plaintiff’s above request should be denied. Plaintiff requests a
copy of any and all reports or statements “pertaining to this incident that are not listed above.”
Rule 34(b)(1) requests that a production request “must describe with reasonable particularity
each item or category of items” to be produced. Plaintiff clearly fails to describe his above
request for production with “reasonable particularity.” Defendants state that they have
previously produced all documents responsive to Plaintiff’s discovery request. The undersigned
notes that defense counsel properly signed the discovery responses certifying that his responses
were complete and correct. Besides Plaintiff conclusory allegation, there is no indication that
Defendants have not appropriately and fully responded to Plaintiff’s above discovery request.
The Court, therefore, finds that Defendants have appropriately responded to Plaintiff’s discovery
request. It is hereby ORDERED that Plaintiff’s Motion to Compel regarding Requests for
Production No. 8 is DENIED.

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In accordance with Rule 72(a) of the Federal Rules of Civil Procedure, the parties are
hereby notified that the rulings set forth above may be contested by filing objections to this
Order within 14 days. If objections are filed, the District Court, Honorable Chief United States
District Judge Robert C. Chambers, presiding, will consider the objections and modify or set
aside any portion of the Order which it finds to be clearly erroneous or contrary to law.
The Clerk is hereby directed to mail a copy of this Order to Plaintiff, who is acting pro
se, and to counsel of record.
ENTER: December 6, 2016.

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