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Wheatt v. City of East Cleveland

United States District Court, N.D. Ohio

November 15, 2017

DERRICK WHEATT, et al., Plaintiffs,
v.
CITY OF EAST CLEVELAND, et al., Defendants.

          OPINION & ORDER [RESOLVING DOC. 103, 110, 116, 119]

          JAMES S. GWIN UNITED STATES DISTRICT JUDGE

         In this 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.[1]

         The City Defendants move to strike Tamika Harris' affidavit.[2] Defendants Cuyahoga County, Naiman, and Dunn (“the County Defendants”) move the Court to compel Plaintiffs to respond to their written discovery requests.[3]

         For the following reasons, the Court DENIES Plaintiffs' motion for sanctions without prejudice, DENIES the City Defendants motion to strike, and DENIES the County Defendants' motion to compel.

         I. Background

         This 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 imprisoned.[4]

         As part 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.

         II. Legal Standard

         Federal 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 examination.”[5]

         Once 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.”[6] These designated persons “must testify about information known or reasonably available to the organization.”[7]

         If a 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, [8] or “prohibiting the disobedient party from supporting or opposing designated claims or defenses.”[9] Rule 37(b)(2)(C) also permits a court to order the payment of reasonable expenses and attorney's fees as a sanction.

         The 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.[10]

         III. Analysis

         A. Plaintiffs' Motion for Sanctions

         1. The City Defendants' Inability to Designate a Rule 30(b)(6) Witness

         Both 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.

         The 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.

         That is 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 litigation.[11]

         Magistrate 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.[12] He ordered the City to perform its due diligence and to designate someone within thirty days of his order.[13]

         Shortly after Judge Baughman's order, the City attempted to designate the former Mayor of East Cleveland, Emmanuel Onunwor.[14] The City, however, has had zero contact with the former ...


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