United States District Court, N.D. Ohio
OPINION & ORDER [RESOLVING DOC. 103, 110, 116,
S. GWIN UNITED STATES DISTRICT JUDGE
42 U.S.C. § 1983 action, the parties have filed
numerous motions stemming from discovery disputes and other
pre-trial conflicts. Plaintiffs seek sanctions against the
City of East Cleveland Defendants (hereinafter “the
City” or “the City Defendants”) for their
failure to designate an appropriate Federal Rule of Civil
Procedure 30(b)(6) witness.
City Defendants move to strike Tamika Harris'
affidavit. Defendants Cuyahoga County, Naiman, and
Dunn (“the County Defendants”) move the Court to
compel Plaintiffs to respond to their written discovery
following reasons, the Court DENIES
Plaintiffs' motion for sanctions without prejudice,
DENIES the City Defendants motion to strike,
and DENIES the County Defendants' motion
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
of this suit, Plaintiffs seek to use Federal Rule of
Procedure 30(b)(6) to depose a City of East Cleveland
representative on a number of issues related to how the City
handled public records requests in 1998. The motions
discussed in this order have grown out of this and other
discovery disputes among the parties.
Rule of Civil Procedure 30(b)(6) allows a party to name
a “public or private corporation, a partnership, an
association, or other entity” as a deponent. The party
seeking to depose this entity “must describe with
reasonable particularity the matters for
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.” These designated persons “must
testify about information known or reasonably available to
party fails to comply with a Rule 30(b)(6) subpoena, Rule
37(b)(2)(A) describes numerous sanctions that a court
may impose against the noncompliant party. These include
taking the subjects of the deposition as established for
purposes of the action,  or “prohibiting the disobedient
party from supporting or opposing designated claims or
defenses.” Rule 37(b)(2)(C) also permits a court to
order the payment of reasonable expenses and attorney's
fees as a sanction.
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.
Plaintiffs' Motion for Sanctions
The City Defendants' Inability to Designate a Rule
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.
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.
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
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. He ordered the City to perform
its due diligence and to designate someone within thirty days
of his order.
after Judge Baughman's order, the City attempted to
designate the former Mayor of East Cleveland, Emmanuel
Onunwor. The City, however, has had zero contact
with the former ...