United States District Court, S.D. Ohio, Western Division
Stephanie K. Bowman United States Magistrate Judge
civil action is now before the Court on Plaintiff's
motion for sanctions (Doc. 105) and the parties'
responsive memoranda. (Docs. 108, 110).
asks the court to order appropriate sanctions against
Defendants, Deputy William Cotton (“Deputy
Cotton”) and the Hamilton County Sheriff's
Department (“HCSD”) for committing fraud on the
court by rendering false testimony and manufacturing a
document purported to be an official record of the events
giving rise to this lawsuit.
during discovery, in the deposition of Deputy William Cotton,
he referenced that in addition to the official National
Incident Based Reporting System (“NIBRS”) report
prepared by the Cincinnati Police Department
(“CPD”) regarding the November 10, 2013, he
created another report on his own initiative. Deputy William
Cotton testified that he prepared the report approximately
two days following the events giving rise to this action.
Referenced as Exhibit 30, this document consisted of a
handwritten narrative in which Deputy Cotton, as the
reporting officer, supplied his alleged version of the events
which occurred on November 13, 2013. Exhibit 30 contains no
date as to when it was written by Deputy Cotton; nor when it
was submitted to a superior officer; nor when it was
submitted to Mr. Kunkel for inclusion in the prelitigation
file. Moreover, according to Lieutenant David Downing, who
testified on behalf of the HCSD as that party's 30(b)(6)
Designee, there is nothing about Exhibit 30 which on its face
reflects that it was prepared in adherence to any official
policy of the HSCD. (Doc. 100, PageID 1586-87).
contends that this report was not provided by Hamilton County
Sheriff's Department (HCSD) in response to
Plaintiff's public record request prior to initiating
this lawsuit, nor was it supplied by Defendants in a timely
response to a request for production of documents during
discovery. The report allegedly “surfaced” on or
about December 18, 2017 when defense counsel was checking
their files following Deputy Cotton's deposition in July
2017 when he first made mention of the report.
Court became aware of this issue when Plaintiff requested
leave to depose Jerry Kunkel, a member of the Hamilton County
legal department regarding a purported National Incident Base
Reporting System (NIBRS) Report. Following a telephone
conference, the Court issued an Order denying Mr.
Pineda's request to depose Mr. Kunkel. (Doc. 80, PageID
1313-14). Subsequent to that order, however, Mr. Pineda
deposed additional officers regarding their knowledge of the
NIBRS report. None of them testified as having any knowledge
of Exhibit 30. As such, Plaintiff contends that this report
is not authentic and necessarily constitutes a fraud on the
court as Deputy Cotton's purpose in creating it was to
present the false impression that Exhibit 30 constitutes a
contemporaneously created record of what took place in 2013.
argues that the actions of Deputy Cotton and HCSD,
respectively, by creating and by tacitly representing that
Exhibit 30 is an official government record documenting the
events surrounding Plaintiff's injuries constitutes a
fraud on the court warranting the sanction of a default
judgement and an award of attorney's fees in favor of Mr.
Pineda. Plaintiff's contention is not well-taken.
37(d), Fed. R. Civ. P., provides for sanctions when a party
fails to attend his own deposition or to provide complete
responses to written discovery requests. In general, the rule
provides for sanctions if a party “after being properly
served with interrogatories ... or a request for inspection
... fails to serve its answers, objections, or written
response.” Id. at (d)(1).
to Defendants, what Mr. Cotton had filled out was a
supplement to a NIBRS report called a Narrative/Statement
Form. Cotton created a report on his own initiative, despite
not being requested or required to do so by any supervisor or
any policy of the HCSD. (Doc. 95, Cotton Depo at PageID
1441). Deputy Cotton has never represented that his report
was created for any official purpose or that it serves as an
official document of the HCSD. Id.
time of both the discovery responses and Deputy Cotton's
Response to the Request for Admissions, the HCSD was not a
party to this lawsuit. Neither Sheriff Neil nor the HCSD have
made any representations in regards to this document, and as
demonstrated by statements made in the various depositions
cited by Plaintiff, certainly never “vouched” for
this document. This is not an official document of the HCSD
and there is no intention to offer it at a trial. This
document was overlooked as it was not the official NIBRS
report and not requested or created on behalf of any HCSD
supervisor or policy. It was provided in response to a
request for admissions directed only at Deputy William
further note that given the existence of the policy of only
one NIBRS report being created for a particular incident, and
in this case, it was created by the Cincinnati Police
Department, when preparing Discovery responses this document
was overlooked. When brought to counsel's attention by
Plaintiff's counsel in a Request for Admissions the
document was located in Mr. Kunkel's pre-litigation file
and provided to Plaintiff, all before the discovery cut-off.
The pre-litigation file has also been provided at the request
of Plaintiff's counsel. It is the policy of the HCSD that
since the incident did not occur in County jurisdiction it
was the responsibility of the CPD on the scene to create any
reports on the incident. (See Doc. 65, at PageID
light of the foregoing, the undersigned finds that Defendants
did not commit fraud or fabricate evidence in support of
their claims. As such, Plaintiff's motion for sanctions
(Doc. 105) is not well-taken under the circumstances and is