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Scott v. City of Bismarck

United States District Court, D. North Dakota

September 17, 2018

Jamie Scott, individually and as Personal Representative for the Wrongful Death Estate of James Anthony Scott, deceased, Plaintiff,
v.
City of Bismarck, North Dakota, a Municipal Corporation; Dan Donlin, in his official capacity as Chief of Police for the City of Bismarck, North Dakota; Shaun Burkhartsmeier, in his official and individual capacity; Justin Antonovich, in his official and individual capacity; John Does 1-5, in their individual and official capacities, Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART MOTION TO COMPEL

          Charles S. Miller, Jr., Magistrate Judge

         Before the court is defendants' Motion to Compel Discovery (Doc. No. 34). For the reasons set forth below, the motion is granted in part and denied in part.

         I. BACKGROUND

         On March 6, 2016, multiple Bismarck Police Department officers were dispatched to an apartment building in Bismarck, North Dakota to investigate reports of an intoxicated man roaming the neighborhood with a shotgun and threatening to kill one of the apartment's residents. Upon arriving, they encountered James Anthony Scott (“Scott”). Scott fled when confronted by law enforcement, leaving his shotgun behind. One of the officers in pursuit-defendant Antonovich-yelled repeated warnings about a gun, although he never saw Scott with a gun as Scott was fleeing. Exactly what Officer Antonovich said and how many times he repeated it are disputed. After one or more of the warnings about a gun, another officer-defendant Burkhartsmeier-fired his rifle at Scott three times. Two rounds struck Scott in the back, mortally wounding him. Scott was unarmed at the time.

         On March 31, 2017, plaintiff, Scott's widow, initiated the above action on behalf of herself as well as Scott's estate and his survivors. Plaintiff asserts in the complaint claims for violations of civil rights under the federal and state constitutions and state law claims for wrongful death, negligence, and gross negligence. Presently before the court is a motion to compel brought by all of the named defendants with the exception of defendant Antonovich, who was added as a party defendant subsequent to the filing of the instant motion.

         II. DISCUSSION

         A. Interrogatory Nos. 1, 2, 3, 17, and 18

         Defendants' Interrogatory Nos. 1, 2, 3, 17, and 18 seek background information with respect to Scott's past residences, employment, education, and lawsuits initiated by or brought against Scott. Plaintiff responded to defendants' interrogatories by providing what information she personally has. This is limited to her first hand knowledge dating back to about 2009 when she first met Scott before she married him in November 2011, and information Scott may have shared with her about his past, e.g., where he was from, the fact he graduated from high school, some of the past places he lived, and who some of his relatives were.

         Defendants contend that plaintiff's responses are inadequate, arguing that she, as the personal representative of Scott's estate, is under an obligation to provide full and complete information to the interrogatories, which variously request information dating back fifteen years, twenty years, or for an unlimited amount of time. Plaintiff responds, contending the information she has provided is adequate and any further information would be of little assistance and disproportionate to the needs of the case.

         The court has carefully reviewed both plaintiff's interrogatory answers and the deposition testimony she has given. The information defendants seek beyond what has been provided with respect to these interrogatories and during plaintiff's deposition testimony would be of marginal, if any, assistance, particularly given the information defendants already have with respect to Scott. The only exceptions might be past locations where Scott has lived (at least in terms of the city if not the exact address) and his past employment. This information might assist defendants in locating additional medical records.

         It appears from the interrogatory answers that plaintiff relied primarily upon her own information in answering, although there is some suggestion she may have queried Scott's elderly stepfather in response to defendants' complaints of inadequacy. There is no suggestion, however, that she made any inquiry of Scott's two adult children.

         The court concludes with respect to Interrogatory Nos. 1 and 2 that plaintiff must make a good faith effort to obtain whatever information the two adult children have with respect to Scott's prior residences and past employment dating back fifteen years from the date of Scott's death, but only if damages are going to be requested in this action on behalf of the two adult children or if they are “takers” of any amount that may be recovered by Scott's estate. If neither are the case, then no effort need be made to elicit the information from them, and, if defendants think it is worth the additional costs (which the court doubts), they may depose these individuals to obtain it.

         Beyond this, while defendants have the right to discover at least some of the information requested by the interrogatories, there is no right to receive the same information in multiple ways. In exercise of the court's authority under Fed.R.Civ.P. 26(b)(2)&(c)(1) to control the manner and sequence of discovery, including prescribing a discovery method other than what a party may select, the remainder of defendants' motion to compel with respect to Interrogatory Nos. 1, 2, 3, 17, and 18 is denied for the reasons set forth above.

         B. Interrogatory Nos. 10-12 and Request for Production No. 1

         1. Introduction

         Defendants seek in these discovery requests information and documents about Scott's past treatment by medical care providers, psychologists, psychiatrists, pharmacists, drug and alcohol treatment providers, and marital counselors. For some of the information and documents requested, defendants seek information for Scott's entire life. For others, the time period is more limited. Also, in Request for Production No.1, defendants request that plaintiff sign releases for information from all of the foregoing treatment and service providers so that defendants can obtain the records directly from them.

         Defendants contend that plaintiff's responses to these discovery requests are deficient. With respect to the interrogatory answers, defendants state that plaintiff has provided only limited information as to where and from whom Scott obtained medical treatment during his life. With respect to the document requests, defendants contend plaintiff is required to execute the releases but has refused to do so. Further, defendants state that, even for the medical records that plaintiff agreed to provide in lieu of releases, not all have been provided, including none of the alcohol treatment or mental health records.

         In response, plaintiff states with respect to the interrogatories that she has provided all the information she has and that the questions seeking information for Scott's entire life are unduly burdensome and unlikely to produce relevant information. As for the medical and other treatment records, plaintiff states she has obtained and produced some of the known records and is in the process of obtaining the remaining known records, including Scott's recent alcohol treatment records. She states she will produce the remaining records when received. Finally, plaintiff refuses to execute the tendered releases for treatment records, claiming there is nothing in the federal discovery rules that requires she must do so.

         2. Interrogatory Nos. 10-12

         The court agrees that a number of the interrogatories served upon plaintiff in defendants' First Set of Interrogatories are overbroad and unduly burdensome. For example, of those at issue now, Interrogatory No. 11 asks plaintiff to list the dates of each medical prescription and refill for the ten years preceding Scott's death. Really?

         While the court is tempted to simply deny the clearly overbroad requests rather than attempt to edit them, plaintiff shall respond with the information she has and shall also make inquiry of Scott's adult children for any other information that they might possess (if any), but limited as follows:

Interrogatory No. 10 - limited to fifteen years preceding Scott's death and only to the names of the facilities or providers for medical care related to Scott's physical health.
Interrogatory No. 11 - limited to ten years preceding Scott's death and only to the names of the pharmacies and the location.
Interrogatory No. 12 - limited to seven years preceding Scott's death and only to the names of the facilities, the locations, and the reason for treatment or service if known.

         3. Releases for records held by non-parties

         a. Whether the court has authority to require execution of records releases

         The court will address first the issue of whether it can compel a party to execute releases for records held by a non-parties (e.g., releases for medical, employment, education, social security, and cell phone records) when a request for execution of releases has been made as part of a request for documents pursuant to Fed.R.Civ.P. 34 and the party ...


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