United States District Court, W.D. Oklahoma
THERESA STOUT, as personal representative of the Estate of Christopher Stout, Plaintiff,
DANNY LONG, et al., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART INDIVIDUAL
DEFENDANTS' MOTION TO COMPEL
GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE
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.
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.
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
Motions to Compel
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
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).
Work Product Doctrine
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,
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.
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.”).
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.
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.
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,
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).
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.
Verification of Disclosures and Discovery Responses
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).
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).
“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
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 ...