Terry v. County of Milwaukee et al

Filing 76

ORDER signed by Judge J.P. Stadtmueller on 3/21/2018 GRANTING in part and DENYING in part 60 Plaintiff's Expedited Motion to Compel Discovery Responses. See Order for further details. (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
REBECCA TERRY,
Plaintiff,
v.

Case No. 17-CV-1112-JPS

COUNTY OF MILWAUKEE, DAVID
A. CLARKE, JR., OFFICER BRIAN
WENZEL, UNKNOWN EMPLOYEES
OF MILWAUKEE COUNTY JAIL,
UNKNOWN JAIL SUPERVISORS,
ARMOR CORRECTIONAL HEALTH
SERVICES, CAROLYN EXUM,
MORGAN BEVENUE, MARGARET
HOOVER, UNKNOWN EMPLOYEES
OF ARMOR CORRECTIONAL
HEALTH SERVICES, and
UNKNOWN ARMOR
HEALTHCARE SUPERVISORS,

ORDER

Defendants.
On March 6, 2018, Plaintiff filed an expedited motion under Civil
Local Rule 7(h), seeking to compel responses to certain of her discovery
requests from Armor Correctional Health Services (“Armor”). (Docket #60).
As has been noted elsewhere, this suit concerns Defendants’ alleged
deliberate indifference to Plaintiff’s serious medical needs—namely, an
instance in March 2014 during which she, as an inmate at the Milwaukee
County Jail (the “Jail”), gave birth to a child in a cell in the infirmary without
any assistance from Jail personnel or medical staff employed by Armor. As
with the prior Rule 7(h) motions the Court has recently addressed, it will
assume familiarity with the facts and procedural history of the case to
facilitate expedited consideration of the present motion.

Plaintiff raises four areas of disagreement between the parties
regarding discovery. First, she complains that Armor has not produced all
relevant medical records in its possession concerning her, including records
for periods of incarceration in 2013 during which she was pregnant with
the child to whom she gave birth in the Jail in March 2014. (Docket #60 at
2). Armor responds that it did not previously understand the need for
records relating to Plaintiff’s prior periods of incarceration—i.e., that she
was pregnant during those periods—and now that it does, it has produced
the requested records. With nothing left to compel, the Court will deny
Plaintiff’s motion on this point.
Second, Plaintiff asserts that Armor must produce job descriptions
for each of its personnel assigned to the Jail during the relevant period. Id.
at 3. Armor claims that the first it heard of this request was during Plaintiff’s
efforts to meet and confer regarding the present discovery disputes.
(Docket #71 at 2). It remains open to responding to a specific request for
“job descriptions” for the appropriate personnel. Id. at 2 n.5.
The Court, however, reads Plaintiff’s underlying discovery request
as broad enough to encompass job descriptions. In that request, Plaintiff
asked for “[a]ll documents reflecting the names, work schedules, work
assignment location, and work duties and responsibilities” of individuals
responsible for administering medical care at the Jail on March 9–10, 2014.
(Docket #60-3 at 5). Whatever form a “job description” might take, it
certainly falls within the realm of documents that reflect the “work duties
and responsibilities” of Armor employees. As such, and because Armor

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does not object to the request on any other grounds, the Court will grant
Plaintiff’s motion in this regard.
Third, Plaintiff asks for an order compelling Armor to produce
additional documents regarding its policies and procedures in order to
support her Monell claim. (Docket #60 at 3–4). Plaintiff has requested
policies, training materials, and the like pertaining to Armor’s medical care
policies, including complaints from inmates about their medical care at the
Jail, the evaluations, licensure, or discipline of healthcare staff, and the
procedures for obtaining medical care at the Jail. Id. In an effort to
compromise, Plaintiff reports that she has limited her request to the period
spanning May 2013 through April 2014. Id. at 4.
Armor explains that it has produced some documents in response to
these requests, including specific policies and procedures when asked for
them. (Docket #71 at 3). Armor objects that to the extent any additional
documents are required, the requests are overly broad and unduly
burdensome, as they amount to a request for a review of “effectively every
page of nearly every document generated by Armor since it began
providing services at the Milwaukee County Jail [on] May 11, 2013.” Id.
Armor suggests that the document production should be limited to policies,
procedures, complaints, and discipline regarding pregnancies, which is the
focus of Plaintiff’s individual constitutional claim. Id. at 3–4.
While it appreciates that Plaintiff seeks a large body of documents,
the Court remains convinced that any objection to the scope of her Monell
claim is best reserved for a dispositive motion, which Armor has not filed.
See (Docket #59 at 2–3). If Plaintiff’s Monell claim was confined to issues

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regarding childbirth at the Jail, her discovery requests would certainly be
overbroad and lack a proportional relationship to the needs of the case. See
Fed. R. Civ. P. 26(b)(1); Patterson v. Hepp, Case No. 16–CV–942–JPS, 2017
WL 1901573, at *1 (E.D. Wis. May 9, 2017). As it stands, however, her Monell
claim embraces a broader theory that Armor ignored or totally failed to
provide health care to inmates, including, as one example, the specific
instance of Plaintiff’s March 2014 childbirth. Her discovery requests are,
therefore, necessary to fully probe the bases for her Monell claim.
Refereeing a recent, similar dispute between Plaintiff and the other
Defendants, the Court explained:
Without expressing any view as to the soundness of
either party’s interpretation of the Monell claim, in the context
of the present motion the Court is obliged to side with
Plaintiff. Defendants have not sought to dismiss the claim on
the ground that it is overbroad or untethered from Plaintiff’s
individual injury. To rule in their favor here would
accomplish precisely that, for without wide-ranging
discovery on the lack of medical care at the Jail, summary
judgment against Plaintiff on her Monell claim is a foregone
conclusion. The scope of discovery is tied to the state of the
pleadings. See Fed. R. Civ. P. 26(b)(1) (discovery may be had
on any matter “relevant to any party’s claim or defense”).
While Plaintiff’s Monell claim remains in its current form, she
is entitled to take discovery as to the full scope of the claim.
The Court is sensitive to what will likely be an enormous
document production on Defendants’ part, but if they wish to
avoid litigating the full breadth of Plaintiff’s Monell claim,
their only path is through a dispositive motion.
(Docket #59 at 2–3). There is no reason for a different result in this instance.
This decision is consistent with Armor’s cited cases, in which the
district courts appropriately considered the scope of the claims at issue to
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determine the outer bounds of permissible discovery. For instance, in
Saunders v. City of Chicago, Case No. 12-cv-9158, 2017 WL 36407, at *7–9
(N.D. Ill. Jan. 4, 2017), the court limited production of records from a vast
police database to those records concerning the relevant individuals. And
in Mann v. City of Chicago, No. 15 CV 9197, 2017 WL 3970592, at *5 (N.D. Ill.
Sept. 8, 2017), the court, after observing the importance of broad discovery
regarding the plaintiff’s wide-ranging Monell claim, concluded that certain
government officials had such short tenures that discovery of their emails
was not sufficiently important and risked needless duplication of effort.
Here too, the Court has addressed the fit between Plaintiff’s Monell claim
and the discovery sought, and although Armor complains about the
quantity of documents, it does not suggest any problem with duplicative
production. Plaintiff’s motion will be granted on this point.1
Finally, Plaintiff argues that Armor should be required to respond to
her Interrogatory No. 12, which asks it to provide the factual basis for each
of its affirmative defenses. (Docket #60 at 4). Armor originally objected on
the basis of work-product protection, but it now raises a different
objection—namely, that its contentions regarding its affirmative defenses
should not be required until, at earliest, the close of discovery. (Docket #71

That said, the parties should continue to engage in meaningful efforts to
streamline any necessary document production. For example, Armor has offered
to produce all medical grievances from May 2013 through March 2014. (Docket
#71 at 4 n.8). The grievances may not cover all of the ground Plaintiff needs to
adequately support her Monell claim, but it would be a good place to start, and it
could help inform what additional records she needs from among the other types
she identified. The Court expects the parties to continue to work cooperatively in
this regard.
1

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at 4); Gregg v. Local 305 IBEW, Cause No. 1:08–CV–160, 2009 WL 1325103, at
*6 (N.D. Ind. May 13, 2009) (answers to contention interrogatories are often
delayed until the end of discovery to promote judicial economy and
fairness).
The Court does not accept either of Armor’s objections. First, it is
unclear why Armor would claim work-product protection for its response
to this interrogatory, as it is well-settled that contention interrogatories are
entirely appropriate even though they ask for opinions as to the interaction
of law and fact. See Fed. R. Civ. P. 33(a)(2); Davis v. City of Springfield, Ill.,
No. 04-3168, 2009 WL 268893, at *7 (C.D. Ill. Jan. 30, 2009). Second, although
Armor is correct that it is sometimes permissible to delay responses to
contention interrogatories until the close of discovery, in this branch of the
Court discovery does not close until thirty days before trial, as provided in
the Local Rules. Civ. L. R. 26(c). Waiting until that juncture might deprive
Plaintiff of the ability to seek summary disposition of the affirmative
defenses, if she so chose. Moreover, the end of discovery is not a hard
deadline; courts have also expressed the need for delaying until
“substantial discovery has taken place.” In re H & R Block Mortgage Corp.,
Prescreening Litig., No. 2:06–MD–230, 2006 WL 3692431, at *4 (N.D. Ind. Dec.
13, 2006). Armor does not argue that there has not been substantial
discovery in this case to date. Moreover, Armor is free to respond to the
extent it is able at this time and amend its responses as new responsive
information comes to light. See Fed. R. Civ. P. 26(e). Consequently, the
Court will grant Plaintiff’s motion to compel a further response to
Interrogatory No. 12.

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Accordingly,
IT IS ORDERED that Plaintiff’s expedited motion to compel
discovery responses from Armor (Docket #60) be and the same is hereby
GRANTED in part and DENIED in part in accordance with the terms of
this Order.
Dated at Milwaukee, Wisconsin, this 21st day of March, 2018
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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