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Stout v. Long

United States District Court, W.D. Oklahoma

March 14, 2018

THERESA STOUT, as personal representative of the Estate of Christopher Stout, Plaintiff,
DANNY LONG, et al., Defendants.



         This matter comes before the Court on the Individual Defendants' Motion Under Rule 37 to Compel Disclosure and for Sanctions with Brief in Support. Doc. 197. In their Motion, the Individual Defendants request that the Court (1) compel Plaintiff to fully respond to their Interrogatories Nos. 7 and 19 prior to depositions; (2) permit the Individual Defendants to use Plaintiff's unverified First Supplemental Response to Defendants' Interrogatory No. 4 as a prior inconsistent statement, and to depose her regarding the circumstances surrounding the response and related communications with counsel; and (3) grant the Individual Defendants two additional interrogatories. Id. at 27. The Court held a hearing on the Motion on February 1, 2018. Doc. 200. At the close of the hearing, the Court issued an oral ruling granting in part and denying in part the relief requested in the Motion. Id. at 13-14. This Order memorializes that ruling and gives the factual and legal basis therefor.

         I. Factual Background

         This case and the related case 15-cv-379 WPJ/GBW arise from a common nexus of facts related to the fatal shooting of Stacey and Christopher Stout by law enforcement officers on April 9, 2013. Doc. 96 at 5-7. Plaintiff is the mother and Personal Representative of the Estate of Christopher Stout. The plaintiffs in the related case are the Administrators of the Estate of Stacey Stout and guardians of Stacey and Christopher Stout's minor child, C.S. Plaintiff and the plaintiffs in the related case have brought § 1983 and Bivens claims against Defendants based on the following common factual allegations.

         On April 9, 2013, the Individual Defendants (Danny Long, Oklahoma Highway Patrol Trooper; James Leone, Agent of the Oklahoma Bureau of Narcotics and Dangerous Drugs; Chad Pope, Pottawatomie County Deputy Sheriff; Ed Grimes, Canadian County Deputy; Kevin Johnson, Oklahoma City Police Sergeant; and Callen Stephens and Taran Groom, Deputy U.S. Marshals) were attempting to serve an arrest warrant on Christopher Stout arising from a burglary charge in Payne County, Oklahoma. Doc. 96 at 5. The Individual Defendants attempted to serve the warrant on Christopher Stout as he and Stacey began driving out of the parking lot of a Motel 6 in Oklahoma City, Oklahoma. Id. As Mr. Stout drove away from the motel parking lot, the Individual Defendants performed a tactical vehicle intervention maneuver in order to prevent his flight. Id. at 6. According to the Second Amended Complaint, the officers then surrounded Mr. Stout's car with their own vehicles. Inside the car, the Stouts raised their hands with open palms facing the windshield. Id. At that point, the Individual Defendants exited their vehicles, took up shooting positions around the Stout vehicle, and fired at least 75 bullets into the car, killing both Stacey and Christopher. Id. at 6-7.

         II. Legal Standards

         A. Motions to Compel

         “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 . . . .” Fed.R.Civ.P. 26(b)(1). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id. The Court has the authority “to order discovery of any matter relevant to the subject matter involved in the action for good cause.” Fed.R.Civ.P. 26(b)(1), Advisory Committee Note to 2000 Amendments.

         Federal Rule of Civil Procedure 37(a) permits a party to file a motion to compel responses to properly propounded discovery after a good faith attempt at conferral with the opposing party. See Fed. R. Civ. P. 37(a)(1), (a)(3)(B). The Court is required to limit discovery if it determines that the discovery sought is outside the scope permitted by Rule 26(b)(1). Fed.R.Civ.P. 26(b)(2)(C)(iii).

         B. Work Product Doctrine

         The work product doctrine was first recognized by the Supreme Court in Hickman v. Taylor, 329 U.S. 495 (1947). The purpose of the doctrine is to “shelter[] the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case.” United States v. Nobles, 422 U.S. 225, 238 (1975).

         The doctrine applies to “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.” Fed.R.Civ.P. 26(b)(3)(A). Further, the Court “must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.” Fed.R.Civ.P. 26(b)(3)(B).

         This latter type of protected information-the mental impressions of the attorney-constitutes opinion work product, which generally receives greater protection than ordinary work product-i.e., facts or materials gathered by an attorney in anticipation of litigation. See, e.g., In re Qwest Comm'ns Intern., Inc., 450 F.3d 1179, 1186 (10th Cir. 2006) (explaining that some courts have held “opinion work product” to be “absolutely privileged, ” while “non-opinion work product, i.e., fact work product, [] may be discoverable under appropriate circumstances.”). See also Encon Int'l, Inc. v. Garrahan, 2013 WL 12250907, at *1 (D. Kan. Jan. 16, 2013) (finding the work product doctrine barred an interrogatory asking the defendant to “identify the percentage of fault [the defendant] contends is attributable to [itself] and other persons or entities who caused or contributed to [the plaintiff's] damages” because it “does not ask for an opinion or contention that relates to a fact or an application of law to a fact” but instead “asks for an opinion regarding what will ultimately be an issue for the jury when it applies the law to the facts presented at trial.”).

         The party claiming work product protection bears the burden of establishing that the doctrine applies to bar discovery of the disputed material. Resolution Trust Corp. v. Dabney, 73 F.3d 262, 266 (10th Cir. 1995). While the doctrine bars discovery of an “attorney's strategies and legal impressions, it does not protect facts concerning the creation of work product or facts contained within work product.” Id. (citing Feldman v. Pioneer Petroleum, Inc., 87 F.R.D. 86, 89 (W.D. Okla. 1980)). Moreover, “[a] party clearly cannot refuse to answer interrogatories on the ground that the information sought is solely within the knowledge of his attorney.” Hickman, 329 U.S. at 504. “Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession.” Id. at 507.

         C. Contention Interrogatories

         Under Rule 33, “[a]n interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but the court may order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time.” Fed R. Civ. P. 33(a)(2).

         Although the Court has the power to delay answers to contention interrogatories until after designated discovery is complete, a plaintiff is “not entitled to withhold discovery information until he has obtained to his own satisfaction all discovery from [the d]efendants.” Johnson v. Kraft Foods. N. Am., Inc., 236 F.R.D. 535, 544 (D. Kan. 2006). Rather, “[b]ecause of the simplicity of notice pleading, [the p]laintiff should provide as much information as possible regarding his claims without delay and as early as required. Defendants are ‘entitled to know the factual basis of plaintiff's allegations.'” Id. (quoting Continental Ill. Nat'l Bank & Trust Co. v. Caton, 136 F.R.D. 682, 684 (D. Kan. 1991)). See also S.E.C. v. Goldstone, Civ. No. 12-0257 JB/LFG, 2014 WL 4349507, at *30 (D.N.M. Aug. 23, 2014).

         “‘Requests for opinions or contentions that call for the application of law to fact-contention interrogatories-are proper.'” S.E.C. v. Goldstone, 2014 WL 4349507 at *30 (quoting Kraft Foods, 236 F.R.D. at 544) (internal alterations omitted). See also DʹAlise v. Basic Dental Implant Sys., Inc., Civ. No. 10-0016 WJ/DJS, 2010 WL 11552977, at *3 (D.N.M. July 12, 2010) (“The general view is that contention interrogatories are a perfectly permissible form of discovery, to which a response ordinarily would be required.”) (quoting Starcher v. Correctional Med. Sys., Inc., 144 F.3d 418, 421 n.2 (6th Cir. 1998), aff'd sub nom. Cunningham v. Hamilton Cty., 527 U.S. 198 (1998)). Rule 33 and its advisory notes “clearly indicate that requests for opinions of contentions that call for application of the law to fact are proper.” Id. (citing Fed.R.Civ.P. 33(a)(2) and the Advisory Committee Notes to 1970 Amendments).

         Contention interrogatories are useful for the purpose of providing the requesting party “the opportunity to determine what proof is necessary to effectively refute [the opposing party's] position” on the issues in contention. Pouncil v. Branch Law Firm, 277 F.R.D. 642, 650 (D. Kan. 2011). Where an interrogatory cannot be fully answered prior to the completion of discovery, it is appropriate to order the party to answer such interrogatory “as fully as they can, keeping in mind their continuing obligation to supplement their discovery responses as additional or different information becomes available.” Id.

         D. Verification of Disclosures and Discovery Responses

         Rule 26(g) requires that every Rule 26(a)(1) or (a)(3) disclosure and every discovery response be signed by at least one attorney of record. By signing, an attorney certifies that to the best of his knowledge, information, and belief formed after a reasonable inquiry:

(A) with respect to a disclosure, it is complete and correct as of the time it is made; and
(B) with respect to a discovery request, response, or objection, it is:
(i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law;
(ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and
(iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.

Fed. R. Civ. P. 26(g)(1).

         The duty to make a “reasonable inquiry” is satisfied “if the investigation undertaken by the attorney and the conclusions drawn therefrom are reasonable under the circumstances. It is an objective standard similar to the one imposed by Rule 11.” Fed.R.Civ.P. 26(g), Advisory Committee Note to 1983 Amendments. The Tenth Circuit has expressly recognized that case law interpreting Rule 11 is applicable to cases implicating Rule 26(g). In re Byrd, Inc., 927 F.2d 1135, 1137 (10th Cir. 1991).

         The “central issue” under Rule 26(g) “is whether ‘the person who signed the pleading conducted a reasonable inquiry into the facts and law supporting the pleading.'” In re Byrd, 927 F.2d at 1137. In making the “reasonable inquiry, ” the attorney “may rely on assertions by the client . . . as long as that reliance is appropriate under the circumstances. Ultimately, what is reasonable is a matter for the court to decide on the totality of the circumstances.” Fed.R.Civ.P. 26(g), Advisory Committee Note to 1983 Amendments.

         “Rule 26(g) is designed to curb discovery abuse by explicitly encouraging the imposition of sanctions.” Fed.R.Civ.P. 26(g), Advisory Committee Note to 1983 Amendments. Specifically, the rule mandates the imposition of sanctions “[i]f a certification violates [Rule 26(g)] without substantial justification . . . . The sanction may include an order to pay the ...

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