Doe v. County of Milwaukee et al

Filing 87

ORDER signed by Judge Rudolph T. Randa on 10/23/2015. 76 Defendants' MOTION for Protective Order to Preclude Depositions of David A. Clarke, Jr. and Richard Schmidt DENIED; Clarke and Schmidt to make themselves available for deposition within reasonable time as proposed by Doe. 81 Doe's MOTION to Strike/for Relief GRANTED with respect to alternative relief under Rule 56(d) and DENIED in all other respects; defendants must make the three deputies available for prompt deposition; Doe MAY FILE her partial summary judgment response by 11/30/2015. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JANE DOE,
Plaintiff,
-vs-

Case No. 14-C-200

COUNTY OF MILWAUKEE;
DAVID A. CLARKE, JR.;
individually and in his official capacity,
XAVIER D. THICKLEN;
and JOHN and JANE DOE, unknown
Milwaukee County Jail employees and Officers;
Defendants,
and
WISCONSIN COUNTY MUTUAL
INSURANCE CORPORATION,
Intervenor.

DECISION AND ORDER
Plaintiff Jane Doe filed this action pursuant to 42 U.S.C. § 1983
alleging that while in the custody of Defendant David A. Clarke, Jr. at the
Milwaukee County Jail, she was sexually assaulted by Defendant Xavier
D. Thicklen, a Jail correctional officer, and his conduct was facilitated by
Defendant

Milwaukee

County’s

widespread

practice

of

failing

to

adequately train, discipline, or supervise officers with regard to sexual
misconduct on duty.

Additionally, she alleges that while in Clarke’s

custody, and pursuant to the County’s policy, she was required to give birth
to her first child while shackled to a hospital bed.
This matter is before the Court on two expedited non-dispositive
motions pursuant to Civil L.R. 7(h). (ECF Nos. 76, 81.) The first motion,
filed by the County Defendants requests a protective order precluding the
depositions of Clarke and Richard Schmidt (“Schmidt”). The Defendants
state that given their production of County Inspector Kevin A. Nyklewicz, a
competent Rule 30(b)(6) witness, for deposition regarding Defendant
Milwaukee County’s restraint policy, and the written policy, the
depositions of Clarke and Schmidt would only annoy and oppress them and
cause them undue burden and expense.
Rule 26(b)(1) of the Federal Rules of Civil Procedure allows parties
to obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense. See Appleton Papers, Inc. v. E.P.A., 702 F.3d
1018, 1023 (7th Cir. 2012). The County named Clarke and Schmidt as
Rule 26(a)(1) witnesses.

Clarke, who is sued in his official and individual

capacities, is a County policy maker, and the County’s policies are being
challenged on Fourteenth Amendment grounds. (Compl. ¶¶ 6, 46-48, 50,
-2-

53, 62, ECF No. 1.)

During his deposition, Nyklewicz testified that he

was unable to provide the answer as to whether Schmidt could change the
policy of shackling during delivery or whether Schmidt would have to “go to
Clarke.” (Kleinhaus Decl., Ex. B (Nyklewicz Dep.) 26, ECF No. 84-2.)
The Court may issue an order to protect a “person from annoyance,
embarrassment, oppression, or undue burden or expense” only for good
cause. See Fed. R. Civ. P. 26(c). The party seeking a protective order has
the burden of demonstrating good cause for issuance of such an order. BP
Prods. N. Am., Inc. v. Bulk Petroleum Corp., No. 07-C-1085, 2008 WL
4066106, at *3 (E.D. Wis. Aug. 27, 2008).

That burden may only be

satisfied with “a particular and specific demonstration of fact, as
distinguished from stereotyped and conclusory statements, in order to
establish good cause.” Patt v. Family Health Sys., Inc., 189 F.R.D. 518, 522
(E.D. Wis. 1999) aff’d, 280 F.3d 749 (7th Cir. 2002). The movant must
show that requested discovery will cause a clearly defined and serious
injury. Id
The County Defendants’ conclusory assertions of annoyance and
oppression do not satisfy their burden of showing good cause for the
issuance of a protective order.

The motion (ECF No. 76) is DENIED.

Clarke and Schmidt must make themselves available for deposition within
-3-

a reasonable time as proposed by Doe.
Doe filed a motion for an order pursuant to Fed. R. Civ. P. 37(c)
striking the declarations of three sheriff’s deputies which were filed in
support of the County Defendants’ motion for partial summary judgment
(ECF Nos. 71-73). Alternatively, she requests an order pursuant to Fed.
R. Civ. P. 56(d) allowing her to depose the three deputies before filing her
response, and extending the time for her to file her

partial summary

judgment response until November 30, 2015.
Doe states that deputies Felicia McCoy-Maten, Pamela Terell, and
Anne Varick apparently were personally involved in guarding her while
she was in the hospital and made observations regarding her shackling;
however, their names were not included in the County Defendants’ Fed. R.
Civ. P. 26(a) initial disclosures or response to her interrogatory. She
requests their declarations be stricken contending the failure to disclose
these witnesses is not justifiable or harmless.
The Defendants argue Doe’s motion should be denied because she
has been in possession of the documents identifying all three witnesses
since May 2015, they offer production of the three deputies for depositions,
and they have no objection to Doe deposing them before filing her partial
summary judgment response.
-4-

Rule 37(c)(1) provides that a party who fails to identify a witness as
required by Rule 26(a) “is not allowed to use that . . . . witness to supply
evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.”

The Court should consider the

following factors in determining whether the sanction of exclusion is
warranted: “(1) the prejudice or surprise to the party against whom the
evidence is offered; (2) the ability of the party to cure the prejudice; (3) the
likelihood of disruption to the trial; and (4) the bad faith or willfulness
involved in not disclosing the evidence at an earlier date.”

Smithfield

Foods v. United States, No. 13-C-651, 2014 WL 4749430, at *3 (Sept. 23,
2014) (quoting David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir.
2003)).
The Defendants have not established substantial justification for
their failure to provide the names of the three deputies in their Rule
26(a)(1) disclosures, in response to Doe’s interrogatory, or to supplement
their discovery information. While there is no evidence of bad faith or
willfulness in the non-disclosure, it is unexplained. However, Doe can cure
the prejudice by deposing the three deputies before filing her partial
summary judgment response, and she is willing to accept such alternative
relief. Therefore, Doe’s motion (ECF No. 81) is GRANTED with respect to
-5-

alternative relief under Rule 56(d) and DENIED in all other respects. The
County Defendants MUST make the three deputies available for prompt
deposition, and Doe MAY FILE her partial summary judgment response
on or before November 30, 2015.
SO ORDERED at Milwaukee, Wisconsin, this 23rd day of October,
2015.
BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

-6-