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Barnes v. Brown County

United States District Court, E.D. Wisconsin

January 11, 2016

LAMON LAMAR BARNES, Plaintiff,
v.
BROWN COUNTY, BROWN COUNTY DRUG TASK FORCE, DAVE POTEAT, JEFF LADE, ZAK HOSCHBACH, MARK HACKETT, JOHN LAUX, GUY SHEPARDSON, INVESTIGATOR DERNBACH, VILLAGE OF ASHWAUBENON, CITY OF GREEN BAY, JUJUAN JONES, DTF INVESTIGATOR SCANLAN, MARY LYNN YOUNG, and BRAD BRODBECK, Defendants.

DECISION AND ORDER

RUDOLPH T. RANDA, District Judge.

The plaintiff has filed a motion to compel discovery in which he requests that the Court compel the defendants to fully answer and respond to interrogatories and requests for production of documents previously served on the defendants (ECF No. 186). In response, the Brown County defendants (Brown County, Brown County Drug Task Force, Dave Poteat, Mark Hackett, Guy Shepardson, Zak Hoschbach, Brad Brodbeck) contend that the Court should deny the plaintiff's motion because they appropriately responded to each discovery request. The County defendants contend that the plaintiff's motion does not meet the substance of their objections to the requests and, instead of addressing why the objections are not proper, the plaintiff adds explanation as to why he needs the requested material and what he was actually requesting.

The plaintiff's motion to compel is fully briefed and, for the reasons explained herein, the Court will deny the motion. This order also sets deadlines for limited discovery as to the newly identified and served Doe defendants (DTF Investigator Scanlan, Brad Brodbeck, Mary Lynn Young), and for filing dispositive motions. Defendant JuJuan Jones has been served (ECF No. 210), but he did not answer the amended complaint.

Plaintiff's Motion to Compel Discovery

The Court addresses each challenged discovery request below.

1. ECF No. 85, Doc. Req. No. 2

REQUEST NO. 1: Any and all designated electronically stored information in Brown County's administrative "W-Drive" in its complete indexed form, depicting dates it was obtained in relation to and/or in connection with Brown County Drug Task Force (hereinafter DTF) investigation 10-269, including but not limited to: photographs, sound recordings, video recordings, images, and other data or data compilations stored in any medium from which information can be obtained. Ingle v. Yelton, 439 F.3d 191 (4th Cir. 2006).
RESPONSE: Objection. This Request is impermissibly vague through the use of the phrases "any and all" and "Brown Counties' administrative W-Drive.'" Without waiving this objection and in an effort to be responsive, see attached Exhibit A, which includes all electronically stored information related to DTF investigation 10-269.

(ECF No. 196 at 2-3.)

In his motion to compel, the plaintiff contends that the DVD the defendants provided him in response to this request (Exhibit A, ECF No. 105-6), was faulty because numerous files did not open and because it contained only one digital file for DTF investigation 10-269-004 and there should be numerous files. The plaintiff also contends that the DVD did not contain the controlled transaction from October 21, 2010, or October 29, 2010.

In response, the defendants contend that the plaintiff's inability to play the files is not a basis for a motion to compel. They assert that they provided him with digital files in the same file format in which they were originally recorded, and each of the files can be opened and played using standard, widely available software. According to the defendants, they have produced all digital recordings created as part of DTF Investigation 10-269.

The defendants provided the plaintiff with a DVD containing all digital recordings created as part of the requested investigation. According to the defendants, they sent the plaintiff a second DVD on March 10, 2015, after reviewing the disc from their file and discovering that the digital files pertaining to investigations XX-XXXX-XXX, XX-XXXX-XXX, XX-XXXX-XXX, and XX-XXXX-XXX did not copy onto the disc saved for their file. (ECF No. 196 at 4.) The plaintiff asserts that the defendants' representation that they sent him a second disc is a "complete fabrication" and he avers that he never received the second disc. (ECF No. 209.) The defendants submitted the FedEx tracking information which shows that they submitted an overnight package to the plaintiff at Fox Lake Correctional Institution on March 10, 2015, that arrived there on March 11, 2015. (ECF No. 213-1.)

Because the defendants have provided the plaintiff with all of the digital files, there is nothing for the Court to compel the defendants to produce. Thus, the plaintiff's motion to compel as to this discovery request will be denied. However, the defendants did not have control over the handling of the second disc once it reached Fox Lake Correctional Institution. Thus, under the circumstances and because the plaintiff swears that he did not receive the second disc, the Court will direct the County defendants to send him the disc again.

2. ECF No. 85, Doc. Req. 2

REQUEST NO. 2: Any and all designated documents by Brown County, DTF and/or any public employee created in relation to and/or in connection with DTF investigation 10-269 including but not limited to: investigative reports, surveillance reports, controlled buy reports, activity logs, graphs, charts, photographs, images, data or data compilations and/or memoranda not included in item 1 (one) of this request. Clark v. Township Falls, 124 F.R.D. 91 (E.D. Pa. 1988), Hayden v. Maldonado, 110 F.R.D. 154 (N.D. N.Y. 1986); Segura v. City of Reno, 116. F.R.D. 42 (D. Nev. 1987).
RESPONSE: Objection. This Request is impermissibly vague through the use of the phrase "any and all." Without waiving this objection and in an effort to be responsive, see attached Exhibit B.

(ECF No. 196 at 5.)

The plaintiff contends that the defendants failed to provide him with case activity reports, surveillance reports, investigative fund receipts, and controlled buy reports for DTF investigation 10-269, case XX-XXX-XXX, dated October 21, 2010. The County defendants contend that they did not produce the requested materials for October 21, 2010, because none exist. According to the defendants, although there was an "operational plan" for a transaction or buy for October 21, 2010, it never went beyond the planning stage. The defendants assert that they cannot produce that which does not exist. "Simply put, there are not now, nor were there ever, any case activity reports, surveillance reports, Investigative fund receipts, and controlled buy reports for DTF investigation 10-269 case XX-XXX-XXX dated October 21, 2010, ' because no controlled buy or controlled transaction occurred in DTF investigation 10-269 on October 21, 2010." (ECF No. 196 at 9) (emphasis in original).

The Court finds that the defendants fully responded to this discovery request.

3. ECF No. 85, Doc. Req. 3

REQUEST NO. 3: Any and all documents created as part of or in connection with JuJuan Bernard Jones (hereinafter Jones) informant file related to DTF investigation 10-269, that are not deemed personal information/data including but not limited to: activity log indexed, receipt for cash payments indexed, amounts of controlled buy money expended indexed, memorandums regarding informant conduct, cooperating individual agreement, informant statements, rules regarding informants and documentation of any representation made on Jones' behalf or nonmonetary consideration furnished for his use as an informant not included in items 1 and 2 of this request. Rosee v. Board of Trade City of Chicago, 36 F.R.D. 684 (N.D. IL 1965); Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 329 (D.C. 1966), aff 128 U.S.App. D.C. 10, 384 F.2d 979 (1967); Olson v. Camp, 328 F.Supp. 728 (E.D. Mich. 1970; United States v. Reynolds, 345 U.S.I (1953); Brady v. Maryland, 373 U.S. 83 (1963). Boyd v. Gillet, 64 F.R.D. 169 (D. MD 1974).
RESPONSE: Objection. This Request is impermissibly vague through the use of the phrase "any and all." Without waiving this objection and in an effort to be responsive, see attached Exhibit C.

(ECF No. 196 at 10.)

In his motion to compel, the plaintiff contends that the defendants erroneously failed to provide him with investigative fund expense reports related to each controlled transaction that JuJuan Jones participated in. In response, the County defendants contend that the plaintiff mischaracterizes their response regarding the existence of investigative fund expense reports.

According to the County defendants, there is a difference between a controlled "buy" and a controlled "transaction." Specifically, a controlled transaction is "any act that is conducted with a Confidential Information and/or Under Cover Officer to buy, sell, or pay for contraband" while a controlled buy is "[a] purchase of contraband by utilizing a Confidential Information and/or Under Cover Officer by using pre-recorded U.S. currency." (ECF No. 196 at 11.) The County defendants explain that a controlled transaction may not involve the use of U.S. currency, and therefore there may not be a corresponding investigative fund expense report for each controlled transaction JuJuan Jones participated in.

The plaintiff has not shown that the defendants failed to properly respond to his discovery request. Thus, the Court will deny the ...


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