United States District Court, M.D. Alabama, Northern Division
MEMORANDUM AND ORDER
C. LAMBERTH UNITED STATES DISTRICT COURT JUDGE.
City of Montgomery (the "City") clearly does not
want this case to move forward, at least with it as a party.
At various times, it has asked for stays, moved to dismiss
for failure to state a claim, and-even after the Court denied
that motion-moved for judgment on the pleadings. And now,
with the stay lifted and its motions largely denied, it
appears its latest tactic is to attempt to gum up the process
through recalcitrance in discovery. But this case is old and
must start progressing toward trial or resolution. For the
reasons stated herein, the Court will largely grant Mr.
Carter's Second Motion to Compel [ECF No. 171 ], as
amended in the Joint Status Report and Proposed Schedule [ECF
April 2017, Mr. Carter served his First Interrogatories and
Requests for Production on the City. PL's Second Mot.
Compel Ex. A, ECF No. 171-1. In June of that year, the City
served its responses to those requests, PL's Second Mot.
Compel Ex. C, ECF No. 171-3, but maintained that it would not
participate in discovery until the Court resolved its
then-pending motion to stay discovery. PL's Second Mot.
Compel Ex. E, ECF No. 171-5. Taking umbrage with that
position, Mr. Carter filed a motion to compel production of
the requested discovery. Mot. Compel, ECF No. 127. However,
the Court eventually granted the motion to stay the case
pending resolution of an appeal in a similar case involving
the City. Order, ECF No. 131. And Mr. Carter's first
motion to compel was denied as moot. Order, ECF No. 138.
2018, the stay was lifted, Order, ECF No. 142, and in July,
counsel for Mr. Carter asked the City for substantive
responses to his original discovery requests. PL's Second
Mot. Compel Ex. F, ECF No. 171-6. In September 2018, the City
provided amended responses to Mr. Carter's First
Interrogatories and Requests for Production. PL's Second
Mot. Compel Ex. J, ECF No. 210-1 (hereinafter,
"RFP/Interrogatory Responses"). Still unsatisfied
with the City's responses, Mr. Carter filed his Second
Motion to Compel-the subject of this Order. See
PL's Second Mot. Compel, ECF No. 171.
since the filing of Mr. Carter's motion, the case has
narrowed slightly. The Court dismissed claims against the
City for false imprisonment and money had and received-the
only claims against the City with a six-year, rather than
two-year, statute of limitations. Order, ECF No. 207.
Accordingly, Mr. Carter has revised his document requests to
the City reducing the time frame from six to two years. Joint
Status Report and Proposed Schedule 3, ECF No. 208.
Accordingly, the City submitted a supplemental response in
opposition to Mr. Carter's motion. City's Suppl.
Resp., ECF No. 211. The Court evaluates the present motion in
light of this change.
Mr. Carter seeks to compel responses to twenty-one separate
requests for production or interrogatories, see
Second Mot. Compel ¶ 13, ECF No. 171, the Court begins
by responding to two of the City's global objections.
the City argues that it need not produce municipal court
files or related records because the "municipal court,
though funded by the City, is part of the Unified Judicial
System of the State of Alabama and the courts' files are
not city documents." RFP/Interrogatory Responses at 9,
11, 14, 15, 20, 22, 25, 27, 29, 36, 38, 52, 54, 57, 59, 61.
Not so. Under Rule 34(a), aparty must generally produce
responsive documents within its "possession, custody, or
control." Fed.R.Civ.P. 34(a). The Eleventh Circuit has
"broadly construed 'control' for purposes of
discovery as 'the legal right to obtain the documents
requested upon demand.'" Sergeeva v. Tripleton
Int'l Ltd., 834 F.3d 1194, 1201 (11th Cir. 2016)
(quoting SeaRock v. Stripling, 736 F.2d 650, 653-54
(1 lth Cir. 1984)).
"legal right to obtain" does not require actual
possession or legal control. Id. at 1201 n.6. For
example, in Sergeeva, the Eleventh Circuit affirmed
a district court's "determin[ation] that 'the
legal right to obtain documents requested upon demand'
may be established where affiliated corporate entities ...
have actually shared responsive information and documents in
the normal course of their business dealings."
Id. at 1201. In that case, a corporation could not
avoid producing responsive documents simply by claiming that
they belonged to a separate, albeit affiliated corporation.
here. The City, who is responsible for "provid[ing]
appropriate facilities and necessary supportive personnel for
the municipal court," undoubtably shares the responsive
information and documents in the normal course of performing
its administrative functions. See Ala. Code §
12-14-12. After all, the City is responsible for housing the
court and any records, as well as employing the court's
supporting staff. Therefore, the City does not meet its
discovery obligations simply by stating court files are not
city documents. The City must make a good faith effort to
obtain the court documents. SeaRock, 736 F.2d at
654. And to the extent that the City responded to a discovery
request by claiming that the request seeks documents and
information in possession of the municipal court and thus
outside of its possession, custody, or control, Mr.
Carter's motion is hereby GRANTED.
the City argues that documents related to absent class
members are irrelevant prior to class certification and would
be overly burdensome to locate and produce. See
City's Resp. 3-5, ECF No. 182. It asserts that at least
of eleven of the requests presently before the Court
"are purely related to potential claims of
absent class members, and clearly should not be imposed on
the City, either now or at all." Id. at 5. The
Court rejects this notion.
one, documents or information related to absent class members
are not categorically irrelevant to Mr. Carter's claims.
To impose municipal liability under § 1983, Mr. Carter
must prove a government policy or custom on the part of the
City. See Hill v. Cundiff, 797 F.3d 948, 977 (11th
Cir. 2015). The treatment of other JCS probationers is
undoubtedly relevant to showing that policy or custom. Of
course, it also bears on the elements of class certification
under Rule 23. (Indeed, this is part of the reason the Court
thought it better to reserve on the issue of class
certification until after completion of merits discovery.)
But at bottom, Mr. Carter's attempt to hold the City
liable under § 1983 makes this information relevant to
his merits claim too. And the City may not refuse Mr.
Carter's requests based on a blanket relevance objection.
the City has not sufficiently demonstrated that Mr.
Carter's requests are overly burdensome. The party
resisting production bears the responsibility of establishing
Undue burden. Coker v. Duke & Co., Inc., 177
F.R.D. 682, 686 (M.D. Ala. 1998). "Generally, a party
seeking to avoid discovery on a burdensomeness argument must
substantiate that position with detailed affidavits or other
evidence establishing an undue burden." Id.
Conclusory statements about the difficulty of complying with
a discovery request or the expected expense are not enough.
Id.; see also Twin City Fire Ins. Co. v. Ford Motor
Co., 124 F.R.D. 652 (D. Nev. 1989). Instead, "[t]he
resisting party must make a particular and specific
demonstration of fact." Coker, 177 F.R.D. at
the City has made no such showing. The City does attach
affidavits to its supplemental response. City's Suppl.
Resp. Ex. 1, ECF No. 211-1; City's Suppl. Resp. Ex. 3,
ECF No. 211-3. But they fail to acknowledge the reduced scope
of Mr. Carter's amended requests. Mr. Carter has reduced
the time-frame of his requests from six to two years since
the filing of his motion. Thus, the responsive material is
theoretically one-third of that originally requested. Joint
Status Report and Proposed Schedule 3, ECF No. 208. Because
this change is unacknowledged by the City's affiants, the
Court finds the City's arguments conclusory and largely
Court is sensitive to the costs associated with discovery.
But based on the correspondence between the parties submitted
with Mr. Carter's motion, it appears that Mr.
Carter's counsel is willing to make accommodations to the
City to attempt to keep costs down, such'as
cross-referencing discovery received from JCS to limit the
City's searches. See PL's Second Mot. Compel
Ex. M, ECF No. 171-13. At this time, the City has not met its
burden to show burdensomeness and the Court
GRANTS Mr. Carter's motion as to the
requests related to absent class members. The Court agrees
that the City is not obligated to create ...