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Estate of Swayzer v. Clarke

United States District Court, E.D. Wisconsin

May 3, 2019

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

          ORDER DENYING PLAINTIFFS' MOTION TO COMPEL AND GRANTING COUNTY DEFENDANTS' MOTION TO COMPEL

          WILLIAM E. DUFFIN, U.S. Magistrate Judge.

         Yet again, the court is called on to resolve discovery disputes between the parties. (See, e.g., ECF Nos. 42, 85, 88, 116, 154, 162, 176, 216, 236, 279.) Discovery having now closed, hopefully this will be the last such dispute.

         Plaintiffs' Motion to Compel Interrogatory Response from Richard E. Schmidt

         The plaintiffs ask the court to order Richard E. Schmidt to respond “to Plaintiffs' First Set of Interrogatories to Defendant [sic] Richard E. Schmidt, dated February 15, 2019.” (ECF No. 280 at 1.) Although defendant Milwaukee County, by whom Schmidt was formerly employed, answered the interrogatories, the plaintiffs contend the responses are insufficient. “Specifically, Plaintiffs sought the name of the Sheriff's department personnel who located the audio of the intercom communications produced in discovery, as well as the method in which that audio recording was reproduced prior to discloser [sic].” (ECF No. 280 at 2.)

         Richard E. Schmidt is no longer a defendant. The court has no authority by which to compel him to answer any interrogatory. That by itself is a sufficient basis for denying the plaintiffs' motion. Setting that defect aside and construing the motion as one to compel defendant Milwaukee County to answer the interrogatory, the court would still deny the motion.

         Although the plaintiffs do not identify the specific interrogatory to which they seek a response, it appears to be Interrogatory No. 5, in which the plaintiffs inquire: “Please identify the Sheriff Department's personnel who located the audio of the intercom communications produced through discovery in this case, as well as the method in which that audio recording was reproduced prior to disclose [sic] to the plaintiff here.” (ECF No. 281-1 at 4.) After offering various objections, Milwaukee County responded, in relevant part, that the person was “a member of the Internal Affairs division of the Sheriff's Department staff.” (ECF No. 281-2 at 5.) The plaintiffs ask that Milwaukee County be compelled to disclose this person's identity “so that this person may be deposed.” (ECF No. 280 at 2.) They state, “Due to the repeated delays by the County to answer, Plaintiffs seeks [sic] to extend discovery deadline until this unidentified person(s) can be deposed.” (ECF No. 280 at 2.)

         Obviously, without knowing the person's identity, the plaintiffs cannot depose him. But the plaintiffs have not shown why they need to depose the person who downloaded data from a computer system. The plaintiffs' only explanation is as follows:

Here, Plaintiffs' Interrogatories served on Schmidt seek a variety of information related to radio transmissions, audio recordings, and audio intercom communications during the operative time period and the identification of correctional staff responsible for same. 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. 280 at 3.)

         The first sentence addresses the plaintiffs' interrogatories generally and does not explain why they need the identity of the particular employee. That leaves only the second sentence, which is verbatim the same argument the plaintiffs offered in support of one their prior motions to compel. (ECF No. 101 at 2-3.) But that argument completely ignores what the court said before when it denied the prior motion:

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 amendment). Thus, it was inappropriate for the plaintiffs to rely upon the standard in their brief ….

Estate of Swayzer v. Clarke, No. 16-CV-1703, 2017 U.S. Dist. LEXIS 203170, at *5 (E.D. Wis. Dec. 11, 2017).

         The plaintiffs' motion to compel is denied.

         County Defendants' Motion to Compel ...


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