JAMES S. GWIN, District Judge.
In this
The City Defendants move to strike Tamika Harris' affidavit.
For the following reasons, the Court
This civil rights actions stems from the now-overturned convictions of Plaintiffs Derrick Wheatt, Laurese Glover, and Eugene Johnson. After spending well over a decade in prison for a murder that they maintain they did not commit, Plaintiffs were released from prison and given a new trial. In granting the motion for a new trial, an Ohio court found that arguably exculpatory evidence had been withheld from Plaintiffs. Plaintiffs now seek compensation for the alleged constitutional violations that put and kept them imprisoned.
As part of this suit, Plaintiffs seek to use
Once named as a deponent, an entity "must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf."
If a party fails to comply with a Rule 30(b)(6) subpoena,
The Sixth Circuit has adopted a four-factor test regarding whether to impose sanctions:
(1) whether the party's failure to cooperate in discovery is due to willfulness, bad faith, or fault;
(2) whether the adversary was prejudiced by the party's failure to cooperate in the discovery; (3) whether the party was warned that failure to cooperate could lead to the sanction; and (4) whether less drastic sanctions were first imposed or considered.
Both Magistrate Judge Baughman and this Court have ordered the City of East Cleveland to designate a Rule 30(b)(6) witness who is competent to testify about the matters Plaintiffs requested. The City has failed to do so.
The Court recognizes that the events the City's 30(b)(6) witness would testify about occurred almost two decades ago. In that time, memories fade, documents are lost or innocently destroyed, and relevant parties may leave the Court's jurisdiction. If the City had shown that it undertook a diligent inquiry in an attempt to respond to Plaintiffs' request, but the passage of time made their search impossible, the Court would see no reason for sanctions.
That is not what happened here. In response to Plaintiffs' request that the City designate a 30(b)(6) witness, the City has attempted to designate three people. Initially, the City failed to designate anyone, purportedly because of the years between the events at issue in this case and the present litigation.
Magistrate Judge Baughman then met with the parties and determined that the City had failed to perform a due diligent inquiry before failing to name a designee.
Shortly after Judge Baughman's order, the City attempted to designate the former Mayor of East Cleveland, Emmanuel Onunwor.
Then, the City designated Detective Patricia Lane, a named defendant who was, in counsel for the City's words, "in a coma."
This Court then informed the City that neither Detective Lane nor Mayor Onunwor was a proper designation, and ordered the City to designate a witness who was competent to testify within thirty days.
The City, however, apparently never informed Ms. Forbes Fields that she would be the City's designated witness. After Plaintiffs subpoenaed Ms. Forbes Fields and scheduled her deposition in consultation with the City, Ms. Forbes Fields called Plaintiffs' attorneys. She told them that she (1) lacked any knowledge of the information Plaintiffs would depose her about, other than what she had previously stated in an affidavit, and (2) was unavailable at the time of her scheduled deposition.
These facts make clear that the City never contacted Ms. Forbes Fields when scheduling her deposition with Plaintiffs, made no effort to prepare Ms. Forbes Fields, and seemingly did not contact her about serving as the designated witness. These lapses are especially troubling, because
The City's repeated failure to designate an adequate 30(b)(6) witness is particularly perplexing because Rule 30(b)(6) has no personal knowledge requirement for the designated witness. Indeed, the plain text of the rule shows that the City could even designate any of its current "officers, directors, or managing agents," so long as the City adequately prepared that designee to testify.
Plaintiffs seek Rule 37 sanctions against the City Defendants.
Plaintiffs argue that the appropriate sanction is for the Court to deem two facts as established for the purposes of trial.
In addition or in the alternative, Plaintiffs ask the Court to restrain the City Defendants from arguing or introducing evidence at trial that (1) the City did not intend to produce the Clifton Hudson police file in 1998 until receiving the June 24 letter, and (2) that the City had a lawful or otherwise legitimate basis for failing to produce that file.
The Court finds that the facts discussed above amount to "willfulness, bad faith, or fault" by the City, satisfying the first prong of the Sixth Circuit's test for sanctions.
In light of the final two prongs of the Sixth Circuit's four-part test for sanctions,
As a sanction, the City Defendants will pay the court reporter and transcript costs of this deposition. Additionally, the City Defendants will pay Plaintiffs' expenses and reasonable attorneys' fees incurred during the actual taking of this deposition.
If the City fails to comply with this order without showing good cause prior to their failure, the Court will impose Plaintiffs' requested Rule 37 sanctions. The Court will also consider awarding Plaintiffs' their reasonable attorneys' fees and expenses incurred in the process of litigating this Rule 30(b)(6) issue.
The City Defendants ask this Court to strike Tamika Harris' 2004 affidavit because it is unsworn and unsigned. Upon review, however, that affidavit is both sworn and signed before a notary.
The County Defendants ask this Court to compel Plaintiffs to respond to their written discovery requests and to extend the discovery deadline. The County Defendants initially requested that Plaintiffs respond to their discovery requests by October 23, 2017 and they filed this motion to compel on October 25, 2017.
Plaintiffs responded to the County's requests on October 25 and October 26, 2017. The County's motion to compel is therefore moot, and this minimal delay does not warrant an extension of the discovery deadline.
The Court
The Court
The Court
The Court
IT IS SO ORDERED.