Parrish v. Auto Detailing by Me, LLC

Filing 107

ORDER: It is ORDERED that Plaintiffs' 68 MOTION to Compel Detective Gary Epling and Sergeant John Dunn to Fully Respond to Interrogatories and Requests for Production of Documents is GRANTED; Defendants shall file UNDER SEAL by 11/13/2013, the personal and departmental cell phone records for Det. Gary Epling and Sgt. John Dunn from 7/27/2011 through 8/1/2011; the Defendant shall file UNDER SEAL the personal departmental cell phone numbers for Det. Gary Epling and Sgt. John Dunn; it is ORDERED that Plaintiffs shall file UNDER SEAL by 11/13/2013, a list of names and phone numbers they seek to discover; parties shall file a proposed Agreed Protective Order by 11/15/2013; the Court will conduct a telephonic hearing with the parties t o discuss the Court's in camera review of the sealed information on 11/19/2013 at 10:30 a.m. The Court ORDERS Defendants, should they wish to be heard regarding sanctions, to file with the Court within 10 business days of the entry of this Order , a Memorandum explaining why their nondisclosure was substantially justified or why an award of attorney's fees would be unjust; the Court ORDERS Plaintiffs to file an itemized statement of the costs and fees associated with this Motion within 10 business days of the entry of this Order. Signed by Magistrate Judge R. Clarke VanDervort on 11/7/2013. (cc: attys; any unrepresented party) (slr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
HUNTER PARRISH, KYLE KING and
RICKI McCALLISTER,
Plaintiffs,
v.
AUTO DETAILING BY ME, LLC,
MATTHEW D. EPLING,
DETECTIVE GARY D. EPLING, and
SGT. JOHN DUNN,
Defendants.

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CIVIL ACTION NO.: 5:12-03759

ORDER
Pending before the Court is Plaintiffs’ Motion to Compel Detective Gary Epling and
Sergeant John Dunn to Fully Respond to Interrogatories and Requests for Production of Documents
(Document No. 68.), filed on March 20, 2013, by counsel. Defendants filed their Response to the
Motion on April 3, 2013 (Document No. 78.), to which Plaintiffs filed their Reply on April 4, 2013.
(Document No. 81.)
Background
Plaintiffs filed their Complaint on July 26, 2012 (Document No. 1.), and their Amended
Complaint on April 26, 2013. (Document No. 86.) Plaintiffs state Ricki McCallister was working
at Auto Detailing by Me as part of the Regional I TANF Summer Youth Program on July 27, 2011,
when a dispute arose and she was terminated when she attempted to take her break. (Document No.
86 at ¶¶ 11-13.) Miss McCallister’s mother, Florence McCallister, gave permission over the
telephone for her boyfriend, Hunter Parrish, to pick her up from Auto Detailing by Me. (Id. at ¶¶ 1415.) Prior to Mr. Parrish’s arrival, Matthew Epling called his brother, Det. Gary Epling to come to
Auto Detailing by Me to assist him in their employment dispute with Ricki McCallister. (Id. at ¶ 17.)
Detective Epling and Sgt. John Dunn, undercover officers with the Raleigh County Sheriff’s

Department arrived at Auto Detailing by Me and prevented Miss McCallister from leaving the
premises. (Id. at ¶¶ 16, 18.) When Mr. Parrish and Kyle King arrived at the premises at the request
of Florence McCallister, they observed Ricki McCallister backed into a corner, crying and
surrounded by three men, all dressed in street clothes. (Id. at ¶ 19.) Mr. Parrish and Mr. King were
told by Det. Epling to leave the premises before exiting the vehicle and then again upon approaching
Ricki McCallister. (Id. at ¶¶ 20-22.) Mr. Parrish, unaware that Det. Epling and Sgt. Dunn were
police officers, attempted to walk past them when Det. Epling grabbed his arm and Mr. Parrish
pushed it away. (Id. at 23-24.) Det. Epling then slung Mr. Parrish into a garage door causing him
to incur a severe cut to his right hand that severed the sagittal band of his right middle finger. (Id.
at 24.) Det. Epling then threw Mr. Parrish to the ground “and jumped on top of him and proceeded
to further assault and batter him.” (Id. at 25.) Mr. King attempted to pull Det. Epling off Mr. Parrish,
who shoved Mr. King against the garage door and pinned him there. (Id. at 26.) During their actions,
Ricki McCallister was knocked to the ground and sustained injuries to her neck and back. (Id.) Sgt.
Dunn finally intervened and separated Det. Epling and Mr. King. (Id. at 27.) At that point, Det.
Epling identified himself as a police officer and threatened Mr. Parrish and Mr. King with arrest.
(Id. at 28.)
In their Amended Complaint, Plaintiffs allege violations of 42 U.S.C. § 1983, including but
not limited to violations of their Fourth and Fourteenth Amendment Constitutional rights, when
Defendants unlawfully detained Plaintiff Ricki McCallister and prevented her from leaving Auto
Detailing by Me on July 27, 2011, without a valid legal basis. (Document No. 86, Count I.) Plaintiffs
also allege that Defendants used excessive force and unreasonable and unnecessary force in
physically assaulting and battering Plaintiffs Hunter Parrish and Kyle King. (Id.) Plaintiffs further
allege Assault and Battery (Count II), False Imprisonment (Count III), Outrageous Conduct (Count

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IV), and Vicarious Liability (Count V). (Id.) Plaintiffs seek damages for medical expenses,
compensatory damages, punitive damages, attorney fees and costs, and pre-judgment and postjudgment interest. (Id. at Count VI.) Defendants Auto Detailing by Me and Matthew D. Epling filed
a cross-claim against Detective Gary D. Epling and Sgt. John Dunn for indemnification and
contribution. (Document No. 89.)
Motion to Compel
Plaintiffs served their Interrogatories and Requests for Production of Documents to
Defendants Det. Gary Epling and Sgt. John Dunn on January 18, 2013. (Document Nos. 39 and 40.)
Defendants served their responses on February 19, 2013. (Document Nos. 53 and 54.) By letter
dated March 5, 2013, Plaintiffs’ counsel requested full and complete responses to the discovery
requests. (Document No. 68, Exhibit 3 at 1-2.) By letter dated March 7, 2013, Defendants’ counsel
refused to produce any cell phone records of the police officers while they were working in an
undercover capacity. (Id., Exhibit 3 at 3.) On March 13, 2013, at the Defendants’ depositions,
Plaintiffs’ counsel verbally agreed to redact numbers related to ongoing criminal investigations, a
protective order, or any other means to preserve the confidentiality of the information. (Document
No. 68 at 3.) By email dated March 14, 2013, counsel again reiterated his agreement to redaction
and welcomed defense counsel’s alternative proposals and limited the scope of his request to the
period of July 27, 2011, through August 1, 2011. (Document No. 68, Exhibit 3 at 4.) By letter dated
March 19, 2013, defense counsel indicated their continued unwillingness to produce the requested
information, stating that it was beyond the scope of the case. (Id. at 6-7.) Defense counsel further
stated that the documents sought contained sensitive confidential information, “the disclosure of
which could compromise ongoing investigations as well as safety of witnesses.” (Id. at 6.)
Plaintiffs filed their instant Motion to Compel seeking an Order directing Defendants to

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produce cell phone numbers and cell phone records from July 27, 2011, through August 1, 2011, as
requested in Interrogatory Number 3 and Request for Production Number 13. (Document No. 68.)
Plaintiffs assert that Det. Gary Epling has personal and departmental cell phone numbers that ring
to the same personal cell phone and that he receives calls from confidential informants on both the
personal cell phone and departmental cell phone numbers. (Id. at ¶ 4.) Plaintiffs assert that the
departmental cell phone number was produced in discovery, without redaction, via the incident
report. (Id.) However, Matthew Epling called Detective Gary Epling on his personal cell phone,
which is distributed widely among his family and friends. (Id.) Plaintiffs assert that Gary and
Matthew Epling have testified that Matthew’s call was made at approximately 11:33 a.m. (Id. at ¶
5.) Plaintiffs therefore, seek the cell phone records of Defendants to verify the information in their
statements and testimony as to when the calls actually were made, which is a relevant issue in this
case. (Id.)
Plaintiffs argue that Defendants’ sole basis for refusing to produce the information, that the
information may jeopardize ongoing investigations as they are undercover agents, is without merit.
(Document No. 68 at 5.) Plaintiffs assert that the majority of the confidential informants call the
Defendants on their departmental phone numbers. (Id.) Furthermore, Plaintiffs note that Sgt. Dunn
retired a year ago and no longer is working on any undercover investigations. (Id.) Rather, he is
working as a litter control officer. (Id.) Plaintiffs also assert that they have been willing to address
the Defendants’ concerns regarding the confidentiality of ongoing criminal investigations by
agreeing to redaction of any numbers from confidential informants and entry into a Protective Order.
(Id.)
To the extent that the requested information constitutes confidential information, Plaintiffs
assert that limits can be created by the Court under Rule 26(c)(1)(G). (Document No. 68 at 6.)

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Plaintiffs assert however, that the requested information does not constitute confidential information.
(Id.) Plaintiffs assert that Defendants already have produced their departmental cell phone numbers
in the incident report and Det. Epling’s personal cell phone number is published widely to his family
and friends, and known to others outside law enforcement officers or confidential informants. (Id.
at 6-7.) Plaintiffs assert that Defendants have failed to demonstrate how production of a limited set
of cell phone records will jeopardize ongoing criminal investigations. (Id. at 7.) Plaintiffs have
offered redaction, a protective order, and a more narrow time frame. (Id.) Accordingly, Plaintiffs
request that an Order compelling Defendants to produce the requested information is appropriate
under Rule 37(a)(3) and (4). (Id.)
In response, Defendants assert that they are amenable to turning over Det. Gary Epling’s cell
phone records for July 27, 2011, the day the incident took place, with all records redacted except for
the time Det. Epling received the call from his brother, Matthew Epling. (Document No. 78 at ¶ 4.)
Defendants assert that there is no reason to produce cell phone records from July 28, 2011, through
August 1, 2011, because these dates fail to relate to the subject of the litigation. (Id.) Defendants
further assert that Sgt. John Dunn’s records are no longer at issue because Plaintiffs have retracted
the allegation of failure to call for medical assistance after Mr. Parrish injured himself. (Id. at ¶ 6.)
Additionally, Defendants have produced proof of Sgt. Dunn’s call through the 911 report that notes
the time the call was made, as well as the CD recording of Sgt. Dunn and Mr. Parrish. (Id.)
Nevertheless, Defendants assert that they are amenable to producing Sgt. Dunn’s cell phone records
for July 27, 2011, the day of the incident, with all numbers redacted except for the time he called
for medical assistance. (Id. at ¶ 7.) Defendants note that because Mr. King has a pending criminal
case, the records should not be released to him, or anyone with pending criminal charges or a past
drug conviction. (Id. at ¶ 8.) Defendants assert that these records will be produced only under an

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agreed protective order and that if Plaintiffs persist in their request for the phone records from July
28, 2011, through August 1, 2011, they request that the Court review the records in camera for
relevancy before they are produced. (Id. at ¶ 9.)
Plaintiffs assert in reply that the scope of their request for information from July 28, 2011,
through August 1, 2011, is appropriate. (Document No. 81 at ¶ 3.) First, Plaintiffs assert that their
request for five days of information is not overly broad and is similar in length of time to
Defendants’ request for cell phone records from July 25, 2011, through July 29, 2011. (Document
No. 81 at ¶ 3.) Secondly, Plaintiffs assert that Det. Epling’s investigation continued through July 29,
2011, when he traveled back to the site to collect evidence, complete his incident report, and caused
warrants to be issued for Mr. Parrish and Mr. King. (Id.) Accordingly, Plaintiffs assert that the scope
of their requests is appropriate. (Id.)
Plaintiffs further assert that Defendants’ belated agreement to provide the discovery “after
their vexatious litigation conduct necessitating Plaintiffs’ Motion does not relieve them of their
obligation to pay Plaintiffs’ costs and attorney fees associated with the bringing [of] the Motion.”
(Id. at ¶ 4.) Plaintiffs assert that they repeatedly attempted to resolve this matter without court action
and that Defendants have offered no substantial justification for their refusal. (Id. at ¶¶ 6-7.)
Accordingly, Plaintiffs assert that they are entitled to costs and fees associated with filing the Motion
to Compel. (Id.)
Analysis
Rule 37 of the Federal Rules of Civil Procedure provides that if a party fails to answer an
Interrogatory or Request for Production, the discovering party may move for an Order compelling
the answer or 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

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party failing to make disclosure or discovery in an effort to obtain it without court action.” Fed. R.
Civ. P. 37(a)(1).
Rule 26(b)(1) of the Federal Rules of Civil Procedure provides as follows:
Parties 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. For good cause, the
court may order discovery of any matter relevant to the subject matter involved in
the action. Relevant information need not be admissible at the trial if the discovery
appears reasonably calculated to lead to the discovery of admissible evidence.
Discovery is generally limited therefore to nonprivileged information which is relevant to any claim
or defense of any party. Fed.R.Civ.P. 26(b)(1). To be relevant, the discovery sought must be “any
matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that
is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 57
L.Ed.2d 253 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501, 67 S.Ct. 385, 388, 91 L.Ed. 451
(1947)). Moreover, “the discovery rules are given ‘a broad and liberal treatment.’” National Union
Fire Ins. Co. of Pittsburgh, P.A. v. Murray Sheet Metal Co. Inc., 967 F.2d 980, 983 (4th Cir. 1992)
(quoting Hickman v. Taylor, 329 U.S. at 507, 67 S.Ct. at 392). Given this broad and liberal treatment
of the federal discovery rules, the party resisting discovery bears the burden “to clarify and explain
precisely why its objections are proper.” United Oil Co., Inc. v. Parts Assoc., Inc., 227 F.R.D. 404,
411 (D.Md. Mar. 4, 2005).
Defendants argue that there is no reason to turn over cell phone records beginning the day
after the incident took place, July 28, 2011, through August 1, 2011, as these dates having nothing
to do with the subject of this litigation and will not lead to the discovery of admissible evidence.
(Document No. 78 at ¶ 5.) Defendants further argue that because Plaintiffs have withdrawn their
claim of failure to call for medical assistance after Mr. Parrish injured himself, Sgt. Dunn’s cell

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phone records are irrelevant. (Id. at ¶ 7.) Plaintiffs argue that the dates encompass the conclusion
of the Defendants’ investigation following the date of the incident, and therefore, are relevant.
(Document No. 81 at ¶ 3.) The Court finds that Interrogatory Number 3 and Request for Production
Number 13 request information that is relevant to the development of Plaintiffs’ claims. Defendants
fail to explain how this evidence would be irrelevant, simply asserting that it is. The incident
occurred on July 27, 2011, and the investigation continued at least through July 29, 2011. Though
Plaintiffs may have retracted their claims of negligence in failing to call for medical help, Sgt.
Dunn’s cell phone records may still be relevant as he responded with Det. Epling to Matthew
Epling’s call for assistance at Auto Detailing by Me, and possibly continued to assist with the
investigation. Accordingly, the Court finds Plaintiffs’ requests cover a short period of time and are
not burdensome, and are relevant to Plaintiffs’ claims.
Defendants further assert that the information is confidential. However, the Court notes that
even trade secrets are discoverable with an appropriate protective order in place. See MDK, Inc. v.
Mike’s Train House, Inc., 27 F.3d 116, 120 (4th Cir. 1994); see also Federal Open Mkt. Comm. of
Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 362, 99 S.Ct. 2800, 2813, 61 L.Ed.2d 587 (1979) (no
absolute privilege protecting trade secrets from discovery). In the instant case, Plaintiffs are
amenable to redaction or an appropriate protective order. The Court finds that a combination of the
two means provides the appropriate resolution in this matter. Accordingly, it is hereby ORDERED
that Plaintiffs’ Motion (Document No. 68.) is GRANTED; Defendants shall file UNDER SEAL,
on or before Wednesday, November 13, 2013, the personal and departmental cell phone records
for Det. Gary Epling and Sgt. John Dunn from July 27, 2011, through August 1, 2011. The
Defendants also shall file UNDER SEAL the personal and departmental cell phone numbers for
Detective Gary Epling and Sgt. John Dunn. As the Court is unaware what records Plaintiffs are

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seeking to discover, it is further ORDERED that Plaintiffs shall file UNDER SEAL, on or before
Wednesday, November 13, 2013, a list of names and phone numbers they seek to discover. The
Court then will conduct an in camera review of the sealed information to determine its relevancy.
The parties shall file a proposed Agreed Protective Order on or before Friday, November 15, 2013.
The Court will conduct a telephonic hearing with the parties to discuss the Court’s in camera
review of the sealed information on Tuesday, November 19, 2013, at 10:30 a.m. The parties shall
join the hearing by calling the Court’s conference line at [phone].
Plaintiffs have requested sanctions under Rule 37. Rule 37(a)(5)(A) of the Federal Rules of
Civil Procedure, provides as follows:
If the motion [to compel] 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 to the movant’s reasonable
expenses incurred in making the motion, including attorney’s fees. But the court
must not order this payment if:
(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.
Fed. R. Civ. P. 37(a)(5)(A) (Emphasis added).
Having granted the Motion to Compel, the Court ORDERS Defendants, should they wish
to be heard regarding sanctions, to file with the Court within 10 business days of the entry of this
Order a Memorandum explaining why their nondisclosure was substantially justified or why an
award of attorney’s fees would be unjust. The Court further ORDERS Plaintiffs to file an itemized
statement of the costs and fees associated with this Motion within 10 business days of the entry of
this Order. The Court will regard the failure of counsel to file their respective documents by the
prescribed date their forbearance and/or assent as the case may be.
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In accordance with Rule 72(a) of the Federal Rules of Civil Procedure, the ruling set forth
above on this non-dispositive motion may be contested by filing, within 14 days, objections to this
Order with District Judge Irene C. Berger. If objections are filed, the District Court will consider the
objections and modify or set aside any portion of the Order found clearly to be erroneous or contrary
to law.
The Clerk is requested to send copies of this Order to counsel of record.
ENTER: November 7, 2013.

R. Clarke VanDervort
United States Magistrate Judge

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