Case: 4:10-cv-02436-SNLJ Doc.

#: 125 Filed: 04/05/13 Page: 1 of 8 PageID #: 560

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION MARK R. PERRY, ) ) Plaintiff, ) ) v. ) ) BARRY MARTIN, DWAYNE DARDEN, ) & CITY OF ST. LOUIS, MISSOURI ) ) Defendants. )

Case No. 4:10-CV-2436 (SNLJ)

DEFENDANT CITY OF ST. LOUIS MEMORANDUM IN OPPOSITION TO PLAINTIFFS MOTION TO COMPEL Comes now Defendant City of St. Louis (Defendant City), by its undersigned Attorney, and for its Memorandum in Opposition to Plaintiffs Motion to Compel Disclosure Against Defendant City of St. Louis [Doc. No. 124], states as follows: I. INTRODUCTION Plaintiff propounded a Request for Production of Documents pursuant to Rule 34 of the Federal Rules of Civil Procedure to the following Defendant City of St. Louis employees: The Grievance Coordinator for the Division of Corrections, City of St. Louis Department of Public Safety; Alderman Craig Schmid, City of St. Louis Board of Alderman; and Richard Frank, Director of the City of St. Louis Department of Personnel. Defendant City of St. Louis raised its objections to each of the requested documents. These objections are the subject of Plaintiffs Motion to Compel Disclosure Against Defendant City of St. Louis. Plaintiffs Motion regarding his Request for Production of Documents directed to Defendant Citys Alderman is moot. Dft. Exh. B. Ald. Response. Plaintiffs Request for

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Production of Documents directed to Defendant Citys Grievance Coordinator and Citys Director of the Department of Personnel (with the exception of Request No. 5 regarding Administrative Regulation No. 117 directed toward the Director) can summarily be described as over broad, irrelevant, beyond any relevant time period related to the events described in Plaintiffs Second Amended Complaint, violating privacy and confidentiality of individuals not parties to this lawsuit especially matters concerning the discipline of individuals under the Citys discipline policy (set forth in the Citys Administrative Regulation No. 117). Dft. Exhs. E, F, G Objections.

II.

LAW AND ARGUMENT A. Defendant City of St. Louis raised its objections timely under Rule 34(b)(2)(A) and Rule 29(b). Plaintiff propounded a Request for Production of Documents to Defendant City of St. Louis employees Grievance Coordinator, Alderman, and the Director of the Department of Personnel on January 31, 2013. Defendants are entitled to 30 days in which to object and respond to Plaintiffs Request for Production of Documents. Fed.R.Civ.P. 34(b)(2)(A). Further, parties may stipulate to matters limiting or extending discovery. Fed.R.Civ.P. 29(b); Dft. Exh. A Letter dated February 22, 2013 Flojo to Tate regarding Request for Production to City Employees. Defendants raised objections to the Request for Production directed to Defendant City of St. Louis employees within the time period allowed by Rule 34 (the 30th day having fallen on a Saturday, Defendants raised their objections the next business day, Monday, March 4, 2013, and as discussed with Plaintiffs Counsel as described in Defendants Exhibit A).

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B. Documents have been produced to Plaintiff specifically related to his alleged incident involving Defendants Martin and Darden. As a preliminary matter, the Request for Production of Documents directed to Defendant City of St. Louis Alderman Schmid and objections raised are now moot issues for the purposes of the present Motion. The Alderman has no documents responsive to Plaintiffs requests. Dft. Exh. B Ald. Response; Dft. Exh. E Ald. Objections. Defendant City has produced documents provided by the Grievance Coordinator related to Plaintiff, i.e., the Informal Resolution Request Notification, Detainee Injury Report, and Informal Resolution Request Response. Dft. Exh. C Response. Defendant City has also produced a copy of Administrative Regulation No. 117 which was in effect during the relevant time period, in 2010. Dft. Exh. D Response.

C. Defendant City of St. Louis objections should be sustained on the merits. [A] subpoena for employment records must be limited to the issues raised in the pleadings. Weitz Company, L.L.C. v. MacKenzie House, L.L.C., 2010 WL 4683723 (W.D.Mo. 2010) citing State ex rel. Crowden v. Dandurand, 970 S.W.2d 340, 343 (Mo. banc 1998). Caution must be exercised when a court orders production of an employees file. Id. citing, e.g., State ex rel. Delmar Gardens North Operating, LLC v. Hon. Gary M. Gaertner, Jr., 239 S.W.3d 608 (Mo. banc 2007); State ex rel. Madlock v. OMalley, 8 S.W.3d 890 (Mo. banc 1999); State ex rel. Tally v. Grimm, 722 S.W.2d 604 (Mo. 1987). A request for an employees entire personnel file is impermissibly over broad and not reasonably tailored to the issues in the proceedings. Delmar Gardens North Operating, LLC, 239 S.W.3d at 611. Personnel records of a government agency are generally not subject to blanket examination simply because litigation is pending. Sherf v. Antoniak,

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2007 WL 2263901 (W.D.Mo.). Defendants acknowledge that reasonably limited discovery has been allowed. Id. In the present case, Plaintiff has requested from the Grievance Coordinator [a] report or compilation of any and all grievance files (non-redacted) initiated since 2003 relating to inmate complaints of excessive or unnecessary force, and/or failure to protect. Dft. Exh. C Response; Dft. Exh. F Objections. Plaintiffs requests delve into matters of individuals inmates and City employees who have absolutely nothing to do with the May 9, 2010 event alleged by Plaintiff against Defendants Martin and Darden. Second Amended Complaint [Doc. No. 113.] Moreover, such requests are unduly

burdensome on Defendant City given the fact Plaintiffs claim arises out of an alleged assault by two correctional officers who are defendants in this case and defending against his allegations. Defendant City would be required to look into approximately 550 Division employee files. Plaintiffs requests directed to the Citys Department of Personnel Director are even more over broad, irrelevant, beyond any relevant time period related to the events described in Plaintiffs Second Amended Complaint, violating privacy and confidentiality of individuals not parties to this lawsuit especially matters concerning the discipline of individuals under the Citys discipline policy (set forth in the Citys Administrative Regulation No. 117). Plaintiff has requested documents on any and all matters related to the Citys discipline policy, Administrative Regulation No. 117, as it relates to Eugene Stubblefield since 2005. Dft. Exh. D Response; Dft. Exh. G -- Objections (RFP[s] 1, 2, 3, 4). Again, such disciplinary action taken by Stubblefield have nothing to do with the May 9, 2010 events alleged by Plaintiff against Defendants Martin and Darden except

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with respect to the aforementioned Defendants. Moreover, litigation is also ongoing and continuing with respect to any discipline (termination) imposed on Stubblefield. Stubblefield v. City of St. Louis et al., Cause No. 1222-CC09741 pending in the Twenty Second Judicial Circuit, State of Missouri. Plaintiff has requested documents on any amendment, modifications, and/or annotations of Administrative Regulation No. 117 (discipline policy) since May 2005 and official requests for modification of the policy. Dft. Exh. D Response; Dft. Exh. G Objections (RFP[s] 5, 6). Such documents pertaining to revising and reissuing

Regulation No. 117 are protected by the work product and attorney client privilege in that the City Counselors Office may work with the Department of Personnel to prepare the regulation. Defendant also fails to see how the revisions and versions of the discipline policy have anything to do with Stubblefields handling of the discipline of Defendants Darden and Martin assuming that is even relevant Plaintiffs lawsuit. Defendant City contends it does not, but have in the interests of disclosure and discovery have provided documents on the subject to Plaintiff. Dft. Exh. H List of Documents Produced by Defendants. Finally, the remainder of Plaintiffs requests to the Department of Personnel Director clearly delve into the discipline imposed on individuals (again) having have absolutely nothing to do with the May 9, 2010, events alleged by Plaintiff against Defendants Martin and Darden. Dft. Exh. D Response; Dft. Exh. G Objections (RFP[s] 7, 8, 9). Moreover, such requests are unduly burdensome on Defendant City. Again, Defendant City would be required to look into approximately 550 Division employee files. The allegations against the individuals involved are defending against

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Plaintiffs claims in the present case. As such, the Court should deny Plaintiffs Motion to Compel as it relates to all individuals other than Defendants Darden and Martin, and any action taken by Stubblefield as to Defendants Darden and Martin.

D. In the alternative, the Court should limit document production to the pertinent issues and parties involved. The issues in this case are limited to Plaintiffs allegations against Darden and Martin on May 9, 2010. On January 25, 2013 over one year after this Court appointed Counsel to represent Plaintiff a Second Amended Complaint was filed and, for the first time in this case, contained allegations of a class action lawsuit yet no indication of a Class Action Complaint. See, e.g., Wright v. St. Louis Board of Police Commissioners et al., Cause No. 4:12-cv-00107 AGF. No action has been taken by Plaintiff for class certification. Indeed, Defendant City has raised the affirmative defense that Plaintiff has failed to plead or otherwise meet the requirements of Rule 23 (class action) of the Federal Rules of Civil Procedure. Plaintiffs cause of action is limited to the event of May 9, 2010, with allegations by Plaintiff against Defendants Darden and Martin. As such, and in the alternative, the Court should limit any and all discovery requested by Plaintiff to Defendants Darden and Martin, and the allegations made by Plaintiff for the events of May 9, 2010.

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E. The Court should give no consideration on Plaintiffs references to the pro se discovery referenced by Plaintiff in his Motion to Compel. Plaintiffs Counsel makes accusations against Defendants in 1 through 10 of Plaintiffs Motion to Compel prior to his appointment as Counsel (and prior to present Counsels entry of appearance). Order [Doc. No. 88]; Entry of Appearance [Doc. No. 98]. Plaintiff references discovery requests made by Plaintiff pro se in 3 and 5. Defendant City of St. Louis finds such references disingenuous and misleading. Such discovery was rendered moot when the case was dismissed with prejudice as to Stubblefield as of July 5, 2011. Memorandum and Order [Doc. No. 50]. Discovery had been stayed by the Court on June 15, 2011. Orders [Doc. Nos. 32, 33]. The Court denied Plaintiffs motions, including motion to compel discovery, on January 4, 2012. Order [Doc. No. 86.] Counsel for Plaintiff was appointed by this Court on January 19, 2012. Order [Doc. No. 88.] Plaintiff never discussed the pro se discovery referenced in 3 and 5 with Defendants Counsel, only to propound over one year later on January 31, 2013, the discovery requests which are the subject of Plaintiffs present Motion to Compel. Plaintiff would have the Court believe Defendants have failed to make any disclosures or respond to discovery. Defendant City attaches a listing of every document produced to Plaintiff related to the events of May 9, 2010, as alleged by Plaintiff, and involving Defendants Darden and Martin. Dft. Exh. H List of Documents Produced by Defendants; See also II. D., above. As such, Defendant City respectfully requests the Court give no consideration to 1 through 10 of Plaintiffs Motion to Compel.

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III.

CONCLUSION For the foregoing reasons, Plaintiffs Motion to Compel Disclosure Against

Defendant City of St. Louis should be denied, and for such other relief the Court deems just and proper. In the alternative, Plaintiff should be allowed discovery limited to the alleged events of May 9, 2010, involving Defendants Martin and Darden, and for such other relief the Court deems just and proper. Respectfully submitted, PATRICIA A. HAGEMAN, CITY COUNSELOR By: /s/Raymond B. Flojo, #50464MO Associate City Counselor - Attorney for Defendants Darden, Martin, and City of St. Louis 1200 Market Street - 314 City Hall St. Louis, MO 63103 Phone: 314-622-3361; Fax: 314-622-4956 Email: FlojoR@stlouis-mo.gov Certificate of Service I hereby certify that on the 5th day of April, 2013, the foregoing was filed electronically with the Clerk of the Court to be served by operation of the Courts electronic filing system upon: Rufus J. Tate, Jr. 7751 Carondelet, Suite 803 Clayton, Missouri 63105 Telephone: (314) 726-6495 Fax: (314) 726-0424 Attorney for Plaintiff /s/ Raymond B. Flojo