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Estate of Swayzer v. Clarke

United States District Court, E.D. Wisconsin

December 11, 2017

THE ESTATE OF LALIAH SWAYZER, et al., Plaintiffs,
v.
DAVID A. CLARKE, JR., et al., Defendants.

          ORDER

          WILLIAM E. DUFFIN, U.S. Magistrate Judge

         The Honorable Pamela Pepper referred to this court the plaintiffs' expedited non-dispositive motion to compel regarding defendant David A. Clarke, Jr. See Civ. L.R. 7(h). Although there is no apparent exigency (discovery does not close until September 2018 (ECF No. 63)), plaintiffs chose to file their motion to compel as an expedited motion under Civil Local Rule 7(h). The consequence was that the parties were held to strict page limits, Clarke had only 7 days in which to respond (which encompassed the Thanksgiving holiday), and the plaintiffs were not permitted to reply.

         The plaintiffs ask the court to compel Clarke to answer their Interrogatory No. 6, respond to Request for Production No. 2, verify his interrogatory answers, and confirm whether, based upon the boilerplate objections and references to privilege included in Clarke's discovery responses, any responsive documents are being withheld from production. (ECF No. 101 at 4.)

         This action relates to the medical care provided at the Milwaukee County Jail. Specifically, the complaint alleges that Shade Swayzer was incarcerated at the jail. She gave birth in July 2016, alone in her cell, without medical assistance. The child, Laliah Swayzer, died, allegedly because the defendants failed to provide appropriate medical care.

         The plaintiffs' motion states:

The Interrogatories and RPD served on Clarke sought information related to the officers under his command responsible for Ms. Swayzer and her unborn child during the time period in question, the corresponding policy/procedures that governed those individuals conduct related thereto and Clarke's calendar of activities during varying times in 2016. All Plaintiffs' inquiries are reasonably calculated to lead to the discovery of admissible evidence on their constitutional and Monell claims, as well as narrow the issues for trial.

(ECF No. 101 at 2-3.)

         Interrogatory No. 6 states: “At the specific time(s) from 2016 forward where six (6) different inmates/detainees at CJF died in-custody, identify your physical whereabouts (e.g.--private residence, out of state conference, presidential campaign trail, on duty at CJF, etc.).” (ECF No. 101-2 at 11.) Initially Clarke did not personally respond to the relevant interrogatory or request for production. Rather, the responses were verified by Inspector James Cox of the Milwaukee County Sheriff's Department. (ECF No. 101-2 at 15.) The plaintiffs ask the court to compel Clarke to verify the responses.

         Clarke revised his responses on November 7, 2017, and this time verified the responses personally. (ECF No. 109-3 at 5.) However, defense counsel did not serve the revised response on plaintiffs' counsel until after the plaintiffs filed their motion to compel. (ECF No. 109, ¶ 6.) Nonetheless, this aspect of the plaintiffs' motion to compel is now moot.

         Turning to the substance of the matter, with respect to Interrogatory No. 6 Clarke responded:

Object to the request as seeking information neither relevant to an issue pertinent to the matter nor seeking information reasonably calculated to lead to the discovery of relevant information. Sheriff Clarke is no longer a proper party defendant, F.R.C.P. 25(d), and his physical location at a particular time is not relevant to any issue in the case. Further object to the request as incomprehensibly vague inasmuch as the identities of the non-party inmates/detainees and/or date is not provided. Without waiving the objections, Sheriff Clarke was speaking to a law enforcement association in the State of Georgia on the date of the Swayzer incident, July 14, 2016.

(ECF No. 109-1 at 6.)

         Interrogatory No. 6 does not identify the specific inmates who allegedly died or the dates and times of the alleged deaths. Even if the interrogatory was more specific and provided the missing information, the plaintiffs have failed to show that Clarke's physical location when another inmate died is “relevant to any party's claim or defense[.]” Fed.R.Civ.P. 26(b)(1).

         The plaintiffs' bald assertion that their “inquiries are reasonably calculated to lead to the discovery of admissible evidence on their constitutional and Monell claims, as well as narrow the issues for trial, ” is not only insufficient but an incorrect statement of the law. “[T]he oft-cited ‘reasonably calculated to lead to the discovery of admissible evidence' language was removed from [Rule 26] through the amendment because it had been used ‘by some, incorrectly, to define the scope of discovery' as more broad than the scope set forth in Rule 26(b)(1).” ArcelorMittal Ind. Harbor LLC v. Amex Nooter, LLC, No. 2:15-CV-195-PRC, 2016 U.S. Dist. LEXIS 89117, at *6 (N.D. Ind. July 8, 2016) (quoting Fed.R.Civ.P. 26(b)(1) advisory committee's note to 2015 ...


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