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Ellis v. Hobbs Police Department

United States District Court, D. New Mexico

July 26, 2019

BRANDON ELLIS, et al., Plaintiffs,
v.
HOBBS POLICE DEPARTMENT, et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART MOTION TO COMPEL

          GREGORY B. WORMUTH, UNITED STATES MAGISTRATE JUDGE

         THIS MATTER comes before the Court on Plaintiffs' Motion to Compel Chief Christopher McCall's Answers to Interrogatories and Related Production of Documents. Doc. 131. Plaintiffs filed their Motion on May 10, 2019. Id. Defendants responded on June 6, 2019 (doc. 138), and Plaintiffs replied on June 20, 2019 (doc. 140). Having reviewed the Motion and the attendant briefing, the Court will GRANT IN PART and DENY IN PART Plaintiffs' Motion to Compel, for the reasons stated below.

         I. Legal Standard

         In large part, the instant dispute between Plaintiffs and Defendants turns on whether the requested information is discoverable. Federal Rule of Civil Procedure 26(b) outlines the general legal standard for discoverability:

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 partyʹs 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 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.

Fed. R. Civ. P. 26(b)(1) (2015) (emphasis added). In order to be discoverable, therefore, material must be both relevant and proportional to the needs of the case. Information “need not be admissible in evidence to be discoverable.” Id. However, “Rule 26 vests the trial judge with broad discretion to tailor discovery narrowly.” Murphy v. Deloitte & Touche Group Ins. Plan, 619 F.3d 1151, 1163 (10th Cir. 2010) (quoting Crawford-El v. Britton, 523 U.S. 574, 598 (1998)).

         Defendants object to Plaintiffs' discovery requests on six general grounds: relevance, proportionality, confidentiality, violation of a collective bargaining agreement, vagueness, and overbreadth.[1] See generally doc. 131-1. The Court will address each general category of objection in turn.[2]

         II. Relevance and Proportionality Objections

         Defendants object to Interrogatories No. 1, 4, 5, 6, 8, 13, 14, 15, 16, 17, and 18 on the basis of “Relevance and Proportionality, ” arguing that Plaintiffs have requested information from time periods not relevant to their claims. Some of these interrogatories relate specifically to a prior civil rights case involving the Hobbs Police Department (“HPD”), while others simply encompass a time period outside of what Defendants believe to be relevant.

         A. Appropriate Scope of Discovery Generally

         Approximately twenty years ago, the City of Hobbs was involved in a civil rights suit based on the allegedly discriminatory actions of HPD. See Johnson, et al. v. Hobbs City of, et al., No. 6:99-cv-0348 MV/DJS. The allegations involved events which occurred between April 1996 and November 1999. See id. (doc. 59). The class of plaintiffs was comprised of all African-American citizens residing in Hobbs, New Mexico between March 29, 1999 and June 10, 2001. See id. (doc. 123). On June 21, 2001, the parties reached a Stipulated Agreement Resolving All Class and Individual Claims for Injunctive Relief. Id. (doc. 123) (hereinafter “Stipulated Agreement”). The Stipulated Agreement mandated certain actions on the part of HPD to remedy and prevent racial discrimination in policing. The Court retained jurisdiction for several years in order to ensure compliance. On February 23, 2007, the Court entered a Stipulated Order of Dismissal With Prejudice, noting that the term of the Stipulated Agreement had expired. Id. (doc. 278). Indeed, all parties agree that the Stipulated Agreement ended at this time. See doc. 131 at 6; doc. 138 at 9.

         Plaintiffs' Complaint contains three claims: (1) retaliation for whistleblowing in violation of the New Mexico Whistleblower Protection Act, (2) retaliation for protected speech and association in violation of the First Amendment and 42 U.S.C. § 1983, and (3) racial discrimination and deprivation of due process in violation of the Fourteenth Amendment, 42 U.S.C. § 1981 and § 1983. See doc. 1 at 15-20. Each of these claims relates directly to employment actions taken by HPD against Plaintiffs. Plaintiff Brandon Ellis began his employment with HPD on July 20, 2012. See doc. 77 at 2. Plaintiff Vasshawn Robinson began his employment with HPD on September 1, 2015. Id. Plaintiff Jeremy Artis began his employment with HPD on September 29, 2015. Id. Therefore, the earliest of Plaintiffs' claims relate to matters more than five years after the Stipulated Agreement was terminated. In fact, it appears likely that the events giving rise to Plaintiff Ellis' claims may not have occurred until several years later. Unfortunately, the Complaint does not assign dates to many of the specific events described. See generally doc. 1. However, in a review of the docket, the earliest allegation related to any Plaintiff involved the conduct of dispatchers in January 2015 toward Plaintiff Ellis. See doc. 22 at 8. Moreover, claims that involve Plaintiffs Robinson and Artis relate to matters more than eight after the Stipulated Agreement was terminated. It is also notable that the longest applicable statute of limitation-four years for § 1981 claims[3]-creates a liability period back only until October 2013. Many of the disputed discovery requests seek materials created as a result of the Stipulated Agreement which would reach back into June 2001. Consequently, Plaintiffs seek discovery from eleven years before Plaintiff Ellis' hiring, from twelve years before the liability period, and from more than fifteen years before the hiring of Plaintiffs Robinson and Artis.

         In support of this long reach into the past, Plaintiffs make a number of arguments. First, they cite Heward v. Western Electric Co., 1984 WL 15666, at *6 (10th Cir. Jul. 3, 1984) (unpublished) (quoting Rich v. Martin Marietta Corp., 522 F.2d 333, 343 (10th Cir. 1978)), for the proposition that the scope of discovery in cases of alleged discrimination can be “extensive” where the evidence sought is “particularly cogent” (emphasis in original) to the plaintiff's claims. However, courts regularly limit the temporal scope of discovery, even in discrimination cases, to a few years before or after the challenged action or period of liability. See, e.g., Benney v. Midwest Health, Inc., 2018 WL 6042591, at *2 (D. Kan. Nov. 19, 2018) (unpublished) (limiting discovery request about prior claims to the period of the plaintiff's employment, beginning two years before the challenged employment action); Horizon Holdings v. Genmar Holdings, 209 F.R.D. 208, 212 (D. Kan. 2002) (collecting cases; limiting discovery scope to two years before and after the alleged discriminatory conduct). Indeed, in James v. Newspaper Agency Corp., 591 F.2d 579, 582-83 (10th Cir. 1979), a case involving employment sex discrimination claims, the Tenth Circuit found that the trial court's limitation of discovery to a four-year time period was reasonable even though the plaintiff's employment had begun prior to that period. Even where courts have described the discovery they are permitting as “broad, ” that discovery has not entailed the temporal scope sought by Plaintiffs. See, e.g., Flanagan v. ScriptPro, LLC, U.S. Dist. LEXIS 107464, at *10-11 (D. Kan. June 27, 2018) (unpublished) (allowing “broad” discovery which included the time period two years before and two years after the plaintiff's termination); EEOC v. BOK Fin. Corp., 2013 WL 12047029, at *12 (D.N.M. Jan. 25, 2013) (unpublished) (because the “federal rules contemplate broad discovery, ” the court permitted discovery requests relating to matters from three years before, and two years after, the liability period in an employment discrimination case). While the Court agrees that, in the context of employment discrimination cases, information before and after the liability period may be relevant and discoverable, such discovery would not ordinarily reach more than five, let alone twelve, years into the past. Such material will rarely be sufficiently relevant and proportional within the meaning of Rule 26.

         Plaintiffs argue that information and documents related to the Johnson case are relevant to their present claims because “a department-sanctioned history of discriminatory law enforcement in the face of civil rights lawsuits, evidenced by records created and kept in response to the stipulated agreement in Johnson, is probative of discriminatory intent, which is required to proceed on Plaintiffs' equal protection claim.” Doc. 131 at 10. Of course, as Defendants have argued, Plaintiffs' claims are based on employment discrimination and retaliation, not discriminatory policing, so they are conceptually distinct from the claims in Johnson. Moreover, as noted above, there is a decided lack of temporal proximity between the instant claims and the discovery sought based on the Stipulated Agreement. Certainly, the Court agrees that establishing racism in one context can relevant to establishing racism in other contexts. In this context, “stray remarks by decision-makers, which were unrelated to the decision-making process [even if] made temporally remote from the date of the decision … could provide background evidence that may be critical to a juryʹs determination of whether the decision-maker was more likely than not acting out of a discriminatory motive.” Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 368 (3d Cir. 2008). However, generally speaking, the discovery sought based on the Stipulated Agreement is not focused on the independent actions or remarks of the decisionmakers relevant in the instant case. Instead, it primarily seeks the materials and data created to comply with the Stipulated Agreement. Given this fact along with the conceptual and temporal dissimilarities between the Johnson information and the disputes in this case, the discovery sought based on the Stipulated Agreement is so marginally relevant on the issue of intent that the related discovery requests are generally not “proportional to the needs of the case.” Fed.R.Civ.P. 26(b)(1).

         Next, Plaintiffs argue that Johnson-related material is important for their whistleblower claims. See doc. 131 at 10-11. Indeed, protection for whistleblowers under New Mexico law is premised on the existence of an “unlawful or improper act.” See N.M. Stat. § 10-16C-3 (2010). However, Plaintiffs' whistleblower claims are based on claims that they observed racially discriminatory policing during their time as HPD officers. Thus, they must show that HPD engaged in racially discriminatory policing during the period of Plaintiffs' employment. It is neither necessary nor sufficient for them to prove discriminatory policing prior to their employment. Without question, some of the categories of information sought by Plaintiffs would be discoverable if directed at relevant time periods. However, the Court cannot agree that the remedial actions taken up until 2007 for alleged racially discriminatory policing in 1996-1999 are “critical, ” see doc. 131 at 11, to establishing the unlawfulness or impropriety of HPD's actions beginning in 2012. Nor have Plaintiffs demonstrated that information and materials related to Johnson are necessary to establishing Plaintiff's good faith in reporting HPD's activities. Finally, the Court does not see why temporally remote evidence would be necessary in order to establish that racially discriminatory policing is a “matter of public concern” for purposes of New Mexico whistleblower law or the First Amendment, see doc. 140 at 3. The public concern of such unlawful actions, if Plaintiffs' allegations prove true, is evident on its face.

         Next, Plaintiffs argue that information and documents associated with the Johnson case and the Stipulated Agreement are relevant because they are “necessary” to prove municipal liability because they must show the existence of a municipal policy or custom.[4] Indeed, to prevail against the municipality, Plaintiffs must establish that “an unconstitutional city-wide custom was the ‘moving force' behind their injuries under the First and Fourteenth Amendments.” Doc. 131 at 12 (citation omitted). However, Plaintiffs are focused on the wrong policy/custom. As noted above, Plaintiffs' claims are based upon allegations of improper employment actions taken against them-racial discrimination and retaliation. To prove these claims, they must show that the discrimination and retaliation against them was the result of a municipal policy or custom.[5] It would not be necessary or sufficient for them to establish a policy/custom of discriminatory policing. This logic is true even for their whistleblower claims. It does not advance their municipal liability claim to show that they were whistleblowers about an unlawful policy.[6] They must show a policy/custom of retaliating against whistleblowers.[7] Consequently, the Johnson-related discovery is not sufficiently relevant to be proportional discovery for establishing Plaintiffs' municipal liability claims.

         Finally, Plaintiffs argue that Johnson-related discovery is relevant to establishing punitive damages against the individual Defendants because it will show that their conduct was “reprehensible”: specifically, that it “involved repeated actions” rather than being an “isolated incident.” Doc. 131 at 13 (quoting State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 409 (2003). Indeed, discovery focused on prior instances of racially discriminatory conduct by the named Defendants would be relevant on whether they should be subject to punitive damages. However, most of the disputed discovery requests seeking information related to the Stipulated Agreement are not focused on the prior conduct of named Defendants. They seek broad swathes of information across the entire Department. In those circumstances, the discovery sought is not sufficiently relevant to be proportional discovery for establishing Plaintiffs' punitive damages claims.

         B. Interrogatories No. 1, 4, 5, 13, 14 and 17

         Based on the foregoing, the Court determines that discovery requests that seek materials created to comply with the Stipulated Agreement while it was in effect are insufficiently relevant to be proportional to the needs of the case. As written, Interrogatories No. 1, 4, 5, 13, 14 and 17 seek such information. Therefore, as it relates to those interrogatories and related requests for production, Defendants' objections based upon relevance and proportionality are sustained and Plaintiffs' Motion to Compel is DENIED.

         C. Interrogatories No. 6, 8, 15, 16

         Although Interrogatories No. 6, 8, 15, and 16 refer to the Stipulated Agreement and/or obligations thereunder, they must be addressed separately.

         Interrogatory No. 6 seeks to identify “all documents generated and/or reviewed by HPD to analyze responsive arrest and charging data from January 2008 to January 2019, including any document created by HPD senior staff to ensure that officers were not engaging in arrest and charging practices that had a disparate and/or negative impact on minority communities in Hobbs.” Doc. 131-1 at 35. Earlier in the interrogatory, the Stipulated Agreement is referenced because it created an obligation “to develop procedures that required senior staff to analyze arrest and charging information on a quarterly, cumulative basis to detect trends in arrests and charging practices.” Id. Nonetheless, the Stipulated Agreement was no longer in effect by January 2008, so the request is not technically seeking information related to compliance. In fact, given the expiration of the Stipulated Agreement, HPD may not have continued to produce the analyses described in Interrogatory No. 6. If the analyses continued and the documents exist, the information would be relevant and discoverable if more temporally limited. To the extent that Interrogatory No. 6 seeks information outside of July 2012-January 2019, Defendants' objection based upon relevance and proportionality is sustained. Otherwise, it is overruled.[8]

         Interrogatory No. 8 seeks to identify “every internal affairs investigation since January 2008 concerning any HPD quotas, policies, and procedures that HPD identified as potentially implicating the race-driven policing provisions of the Stipulated Agreement….” Id. at 48. As noted above, the Stipulated Agreement was no longer in effect by January 2008, so the request is not technically seeking information related to compliance. As written, the request appears to seek a null set given that, arguably, no investigation after February 2007 could implicate the expired Stipulated Agreement. Perhaps Plaintiffs intended to request post-2007 investigations which would have implicated the Stipulated Agreement if it had been still in effect. Regardless, the Court will not rewrite their interrogatory. Moreover, even if interpreted in that fashion, the interrogatory would seek information which extends more than five years before the liability period. As with the interrogatories focused on compliance with the Stipulated Agreement, this request goes beyond the temporal limits of discovery which would be proportional to the needs of the case. Therefore, as to Interrogatory No. 8 and related request for production, Defendants' objections based upon relevance and proportionality are sustained and Plaintiffs' Motion to Compel is DENIED.

         Interrogatory No. 15 notes that the Stipulated Agreement required HPD to “establish formal eligibility criteria for training instructors and FTOs” and seeks to identify “(a) all criteria established in response to this provision of the Stipulated Agreement; (b) all trainers or FTOs since the provision took effect that met the required criteria; (c) all trainers or FTOs that did not meet the required criteria; (d) all records related to the FTO/training eligibility of Jeremy Kirk, Jeremy Shimer, Brendan Ast, Robert Hammer, Crystal Marin, and Officer Herndon.” Id. at 78. By its terms, subsection (a) seeks information focused on past compliance with the Stipulated Agreement. As noted above, given the expiration of the Stipulated Agreement, it is possible that HPD no longer has formal eligibility criteria for training instructors and FTOs. However, whether or not such eligibility criteria were in effect since July 2012, and if so what they were, would be relevant and discoverable. To the extent that Interrogatory No. 15(a)-(c) seeks information outside of July 2012-January 2019, Defendants' objection based upon relevance and proportionality is sustained. Otherwise, it is overruled.[9] As there is no showing from Plaintiffs regarding the relevance of subsection (d), Defendants' objection based upon relevance and proportionality to that subsection is sustained and Plaintiffs' Motion to Compel is DENIED as to Interrogatory No. 15(d).

         Interrogatory No. 16 seeks to identify “the existence of all documents and data created and/or reviewed pursuant to the discrete requirements of Section X of the Stipulated Agreement.” Id. at 81. However, as with Interrogatory No. 8, Plaintiffs seek this information since January 2008, or after the expiration of the Stipulated Agreement. As written, the request appears to seek a null set given that, arguably, no documents after February 2007 could be created pursuant to the discrete requirements of the expired Stipulated Agreement. Perhaps Plaintiffs intended to request post-2007 documents which would have been required by the Stipulated Agreement if it had been still in effect. Regardless, the Court will not rewrite their interrogatory. Moreover, even if interpreted in that fashion, the interrogatory would seek information which extends more than five years before the liability period. As with the interrogatories focused on compliance with the Stipulated Agreement, this request goes beyond the temporal limits of discovery which would be proportional to the needs of the case. Therefore, as to Interrogatory No. 16 and related request for production, Defendants' objections based upon relevance and proportionality are sustained and Plaintiffs' Motion to Compel is DENIED.

         D. Interr ...


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