United States District Court, E.D. Wisconsin
THE ESTATE OF LALIAH SWAYZER, et al. Plaintiffs,
DAVID A. CLARKE, JR., et al., Defendants.
WILLIAM E. DUFFIN U.S. Magistrate Judge.
January 29, 2018, the plaintiffs filed a motion to compel,
seeking from the Milwaukee County defendants “names or
audio interviews of inmates who were near and/or present
during the time period in question.” (ECF No. 149.)
Included in the plaintiffs' motion is an email from
counsel for the County stating, “We need the approval
of the court before releasing their identities. We would not
oppose a motion to compel to release the identities of the
other inmates who were interviewed.” (ECF No.149 at
1-2.) The plaintiffs' motion closes:
Plaintiffs' counsel has repeatedly sought to gain this
information absent a motion to compel without success.
F.R.C.P. 37(a)(5)(A) necessitates the imposition of costs
absent the non-moving party's substantial justification
for withholding the information. Here, the County has never
provided any legal basis for withholding the names or audio
recorded interviews of the other inmates present during the
events leading up to the in-custody death of Laliah Swayzer.
(ECF No. 149 at 2.)
County defendants respond and, as indicated, do not oppose
the motion to compel. They explain that they had no objection
to turning over the requested information but that they
viewed a court order as necessary in light of the
County's obligations under HIPPA and the privacy
interests of the inmates whose identities were to be
disclosed. (ECF No. 153 at 1-2 (citing Franklin v.
McCaughtry, 110 F. App'x 715, 718-19 (7th Cir.
County defendants, rightfully in the court's view, take
issue with the plaintiffs' demand for costs. In fact,
they ask that the court order the plaintiffs to pay
their costs incurred in having to respond to the
plaintiffs' request for costs.
for the County defendants apparently raised the privacy issue
regarding the identity of the other inmates with
plaintiffs' counsel back in September 2017 in an email
where he stated, “call if you get a chance. I'd
like to work through the other inmate identity issue.”
(ECF No. 153-3.) Plaintiffs' counsel never called. (ECF
No. 153-1, ¶ 5.) Counsel for the County again raised the
issue with plaintiffs' counsel in subsequent
conversations, suggesting an unopposed motion to compel as a
means to resolve it. (ECF No. 153-1, ¶ 5.) No motion was
filed. The suggestion of an unopposed motion to compel was
reiterated in a January 19, 2018, email from counsel for the
County to plaintiffs' counsel:
As we have discussed previously, these witnesses have
potential privacy and confidentiality rights. We cannot
release those recordings without revealing the identity of
the witnesses. We need the approval of the court before
releasing their identities. We would not oppose a motion to
compel to release the identities of the other inmates who
(ECF No. 153-4.)
days later, plaintiffs' counsel sent the following email:
“We are filing the motion to compel now and seeking
costs because you have not provided a legal basis for your
clients' non-cooperation in providing names of inmates or
their audio interviews.” The motion to compel was filed
25 minutes later.
plaintiffs' demand for costs was unjustified. It is just
the latest episode of what has been all too common in this
case-an unnecessary fight over something the parties should
have been able to resolve on their own. If plaintiffs'
counsel did not like the County's proposal in that it
required him to draft and file a motion to compel, he should
have accepted defense counsel's offer to discuss the
matter and worked toward finding a different solution than
the one defense counsel suggested. Perhaps another option was
the County defendants filing some sort of “Motion for
Court Approval to Disclose Identities.”
plaintiffs felt that the County defendants needed to provide
“a legal basis” for their non-disclosure, the
absence of which justifies the request for costs, the spirit
if not the letter of Federal Rule 37 and Civil Local Rule 37
obligated the plaintiffs to request it from counsel for the
County defendants before filing the request for costs.
Therefore, although the motion to compel (ECF No. 149) is
granted as unopposed, the court finds that
under Rule 37(a)(5)(i) and (iii) the plaintiffs are not
entitled to any costs incurred in bringing this motion.
fact, by seeking costs the plaintiffs needlessly caused the
County defendants to have to respond to the motion to compel.
As a result, the court finds that there is cause to conclude
that the plaintiffs violated Federal Rule of Civil Procedure
11(b)(1); see also 28 U.S.C. § 1927
(“Counsel's liability for excessive costs”).
not later than February 7, 2018,
the plaintiffs shall show cause why sanctions-likely in the
form of any costs the County defendants incurred in having to
respond to the plaintiffs' demand for costs -should not
be imposed for ...