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Kevin Furey v. Police Officer Travis Wolfe

February 18, 2011


The opinion of the court was delivered by: Elizabeth T. Hey United States Magistrate Judge


In this action, Plaintiff Kevin Furey ("Plaintiff") alleges that his civil rights were violated by Police Officer Travis Wolfe ("Officer Wolfe"), the City of Philadelphia (the "City"), and Philadelphia Police Commissioner Charles Ramsey ("Commissioner Ramsey") (collectively, "Defendants"), as a result of Officer Wolfe making an off-duty arrest of Plaintiff in the early morning hours of April 5, 2008. Presently before the court are multiple discovery motions filed by the parties, as well as the Philadelphia District Attorney's assertion of privilege and oral motion to quash with respect to the deposition of Charles Erlich. I held oral argument on all of the motions on February 8, 2011.*fn1


As alleged in the complaint, on April 5, 2008, Plaintiff, an undergraduate at Temple University, was arrested by Officer Wolfe and charged with several criminal offenses. See Compl. at ¶¶ 9, 14, 30. Plaintiff entered an Accelerated Rehabilitative Disposition ("ARD") program, and subsequently completed the program. See id. at ¶ 18. Meanwhile, following a disciplinary hearing held at Temple University at which Officer Wolfe testified, Plaintiff was expelled from the university. See id. at ¶ 30.

On March 10, 2010, Plaintiff commenced this action in the Philadelphia Court of Common Pleas, and on April 23, 2010, Defendants removed it to this Court. See Doc. 1. Plaintiff alleges that his civil rights were violated pursuant to 42 U.S.C. § 1983. See Compl. at First Cause of Action. Plaintiff also alleges various state law claims against Officer Wolfe. Id. at Second Cause of Action. Among other things, Plaintiff alleges that Officer Wolfe unlawfully used force against him without probable cause to believe he had committed a crime, assaulted Plaintiff, subjected him to an unlawful arrest, and committed perjury. See id. at ¶¶ 9-16. Plaintiff further alleges that Officer Wolfe's conduct was the result of policies, practices and customs and deliberate indifference on the part of the City and Commissioner Ramsey. See id. at First Cause of Action.

Several disputes arose during the course of discovery, resulting in formal motions and the entry of an Order dated January 14, 2011, in which I scheduled oral argument on all pending discovery motions. See Doc. 41. In addition, on January 31, 2011, the parties contacted me by telephone during the deposition of Assistant District Attorney Charles Ehrlich to address privilege assertions made by counsel for the Philadelphia District Attorney ("DA").*fn2 I appended this informal dispute to the February 8th oral argument and gave both Plaintiff's counsel and the DA the opportunity to submit letter briefs. See Docs. 45 & 46.

On February 8, 2011, I heard oral argument on all pending formal discovery motions, on the DA's assertion of privilege related to the Ehrlich deposition, and on the DA's motion to quash Ehrlich's deposition made for the first time in his letter brief.


A trial court has broad discretion to fashion discovery orders. See Florsheim Shoe Co., Div. of Interco, Inc. v. United States, 744 F.2d 787, 797 (Fed. Cir. 1984) ("Questions of the scope and conduct of discovery are, of course, committed to the discretion of the trial court."). In the Third Circuit, "it is well recognized that the federal rules allow broad and liberal discovery." Pacitti v. Macy's, 193 F.3d 766, 777-78 (3d Cir. 1999) (citations omitted). With this in mind, I turn to the parties' myriad discovery disputes.

A. Plaintiff's Motion to Compel Discovery Responses (Doc. 28)

Plaintiff's first motion seeks to compel full and complete responses to Plaintiff's initial interrogatories and requests for production, arguing that Defendants' general objections, specific objections and reservations of rights as to those requests are insufficient. See Doc. 28; N.T. 02/08/11 at 49-90. Defendants oppose the motion, arguing that their objections based on relevance and the breadth and scope of Plaintiff's discovery requests ought to stand. See Doc. 31.*fn3

Given the broad nature of the materials sought by Plaintiff, and the equally broad objections asserted by Defendants, I will begin by defining the broad outlines of permissible discovery in this case. Many of the records described below as discoverable have already been provided, but discovery may have to be supplemented in certain areas.

First, because Officer Wolfe is a named defendant in this case, records related to his performance as a Philadelphia Police Officer are highly relevant. Therefore, records of his training and all allegations of misconduct, both off-duty and on-duty, are relevant and must be provided. Defendants state that this has been done.

Second, this case involves allegations of excessive force, false arrest and malicious prosecution arising from an incident in which Officer Wolfe confronted Plaintiff while off-duty and brandished, but did not discharge, a firearm, and attacked and threw Plaintiff to the ground without provocation or cause. I reject Plaintiff's argument that all allegations of police misconduct are relevant to his claim and am persuaded that discovery of a broad category of alleged excessive force and false arrest investigations would be overbroad and unduly burdensome. The presence of a Monell*fn4 claim entitles Plaintiff to discovery beyond the scope of the April 5, 2008, incident, as Plaintiff is entitled to discover whether the force, arrest and prosecution, if they violated Plaintiff's constitutional rights, were the result of unlawful police practices and policies. Balancing the competing interests, I conclude that Plaintiff is entitled to discovery of investigations in which an off-duty officer has been found by the Philadelphia Police Department or a court to have used excessive force in making an arrest or to have made a forcible arrest without provocation.

Third, Plaintiff alleges that Officer Wolfe committed perjury and that the Police Department has a practice of protecting perjurious officers, and in support references an Internal Affairs Department ("IAD") report that did not entirely credit Officer Wolfe's statements regarding the danger that Plaintiff presented. I conclude that Plaintiff is entitled to discovery related to investigations of perjury by police officers. This discovery is not limited to off-duty officers, because officers testify in their official capacity regardless of whether they were on- or off-duty at the time of the underlying incident(s). However, because discovery concerning all false statements would be overbroad and unduly burdensome, I will similarly limit the production in this area to investigations in which an officer has been found by the Police Department or a court to have provided perjurious testimony.

Fourth, there must be temporal limitations placed on the scope of discovery in all cases. "In setting time limits, courts generally consider relevancy and the burdensomeness of furnishing the information requested." Miller v. Hygrade Food Prod. Corp., 89 F.Supp.2d 643, 657 (E.D. Pa. 2000). Here, I conclude that the full ten-year range requested by Plaintiff in most of his requests is overbroad and unduly burdensome. Instead, I find the period 2003-2008 to be reasonable, as it provides a six-year span of documents which includes the year in which the incident leading to Plaintiff's arrest occurred. Therefore, all discovery permitted in this case is limited to those years.*fn5

With these findings as to the relevance, breadth and scope of discovery, it should not be necessary to specifically rule as to each request and response individually. Instead, the specific requests raised by Plaintiff at oral argument should suffice to illustrate how the limitations should be applied.

Plaintiff argues that he is entitled to "any studies, investigations regarding the police department either inter-departmental or extra-departmental," including materials related to excessive force, perjury, and corrupt officers "from 2000 to date." See N.T. 02/08/11 at 50-51. This request is overbroad and should be limited to founded incidents of excessive force, false arrest and perjury as discussed above.

Plaintiff next argues that he is entitled to "use of force complaints" for the period 2000-2010. N.T. 02/08/11 at 65. As previously indicated, "use of force complaints" related to on-duty incidents are not relevant. Additionally, Defendants have provided "use of force complaints" for off-duty officers for the period 2003-2008 (id. at 65-66), as well as the smaller sub-set of Police Board of Inquiry ("PBI") hearings regarding off-duty incidents for the same time period (id. at 75-78). Therefore, Defendants are not obligated to provide documents encompassing additional years, except to the extent that such complaints from 2009 and 2010 relate back to incidents that occurred during the relevant time period.*fn6 ...

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