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Romanus Miles v. Alfred Elliot et al.

March 10, 2011

ROMANUS MILES
v.
ALFRED ELLIOT ET AL.



The opinion of the court was delivered by: O'neill, J.

MEMORANDUM

Now before me is plaintiff Romanus Miles' motion for sanctions pursuant to Rule 37(b)(2) of the Federal Rules of Civil Procedure. Plaintiff alleges that defendants have engaged in a sanctionable pattern of discovery abuse, including spoliation of evidence, failure to comply with their deposition obligations, failure to produce requested documents and failure to provide initial disclosures in compliance with Rule 26 of the Federal Rules of Civil Procedure. For the reasons that follow, I will deny plaintiff's motion for sanctions in part, grant it in part, and award sanctions against defendants as set forth below.

BACKGROUND

Plaintiff Romanus Miles, a.k.a. Monte Miles, was arrested on September 1, 1992 after firing a sawed-off shotgun at Police Officers Christopher Lewis and Alfred Elliott. During the incident, Officer Elliott returned fire, striking plaintiff three times. On July 12, 1993, a jury convicted plaintiff of aggravated assault on Police Officers Christopher Lewis and Alfred Elliott and of carrying a firearm on a public street. Commonwealth v. Monte Miles, Nov. Term, 1992, No. 2225 3/3 (Pa. Ct. Comm. Pl. Phila. Cnty.).*fn1 On August 9, 1994, plaintiff filed the instant action alleging that the individual defendants used excessive force when he was arrested and that the City's failure to train, supervise and discipline its police officers on the use of force was the direct cause of the alleged violations of his civil rights.

In January 1996, plaintiff served defendants with interrogatories and a request for production of documents. Defendants answered plaintiff's interrogatories in May and June of 1996. Attorneys for plaintiff deposed Officer Elliott on August 8, 1996 and Officers Christopher Lewis and Tyrone Randall on August 9, 1996. An attorney for defendant deposed plaintiff on August 16, 1996. During the course of his deposition, plaintiff invoked the Fifth Amendment when asked questions about the shotgun he was alleged to have been carrying on September 1, 1992. After this limited discovery, the instant action was placed into civil suspense on October 21, 1996 while plaintiff pursued appeals of his criminal convictions.

In 2002, in response to the Court's request for a status update, plaintiff requested that the matter remain in civil suspense. On February 8, 2010, I granted plaintiff's motion to restore the case to the active docket.

I. Supplemental Interrogatory Responses

On April 30, 2010, plaintiff asked defendants to supplement their answers to the interrogatories they had been served with in 1996. Following several unanswered requests from plaintiff to amend the interrogatory answers, on July 30, 2010, the scheduled close of fact discovery in this matter, plaintiff filed a motion to compel supplemental responses to defendants' interrogatory responses. In response to the motion to compel, defendants amended their interrogatories and plaintiff withdrew its motion to compel.

II. Documents

On May 19, 2010, plaintiff served a request for production of documents on counsel for defendants. On July 16, 2010, having received no response, plaintiff moved to compel defendants to serve responses to his request for production of documents. I granted plaintiff's motion, requiring defendants to produce all documents by July 20, 2010. Defendants failed to respond to the request for production in accordance with my Order and instead promised to respond to the request for production on July 21. Defendants did not respond as promised on July 21, but promised to respond to the request for production on July 23. No documents were produced on July 23. Plaintiff asked defendants when he could expect to receive responses again on July 28, August 26, August 27 and September 8. Without ever having petitioned the court for an extension of the discovery period, defendants ultimately produced certain documents and materials to plaintiff after the close of fact discovery. Documents produced to plaintiff included evidence relating to the shotgun, police training materials, the City's document retention policy and the official Internal Affairs investigation file for Officer Elliott's shooting of plaintiff (the "shooting team binder").

Plaintiff asserts that defendants have not produced certain other documents to him including the investigator's case file for the investigation into plaintiff's aggravated assault of Officers Lewis and Elliott, documents regarding forensic testing conducted in the course of the police investigation of the events of September 1, 1992, and the City of Philadelphia Law Department case file for the matter of DeMaio v. DeDonato, et al., an unrelated civil case involving defendants Lewis and Randall. Defendants admit that the investigator's case file and forensic documentation were destroyed, but counter that it is reasonable to assume that plaintiff possesses nearly every document relevant to his claims given that: (1) defendants produced the shooting team binder, (2) plaintiff has the District Attorney's file on plaintiff's aggravated assault on Officers Lewis and Elliott, and (3) plaintiff's has firsthand knowledge of his prosecution and conviction. Defendants also admit that the DeMaio case file was destroyed, but assert that any materials contained in the file beyond those present in the public record would have been undiscoverable as attorney-client privileged materials or attorney work product.

III. Depositions

On July 6, 2010, after defendants failed to supply plaintiff with dates for requested depositions, plaintiff unilaterally noticed the depositions of defendants Lewis, Randall, and Elliot for July 21, 22, and 23, respectively. On July 7, plaintiff unilaterally noticed the City's deposition for July 26. Plaintiff did not respond to these notices and did not seek a protective order. On July 21, defendant Lewis failed to appear at his scheduled deposition causing plaintiff to file a motion to extend the time to complete depositions in this action. Officers Lewis, Randall, and Elliott were then deposed for the second time in the matter on August 5, 16, and 30, respectively. I granted plaintiff's unopposed motion for an extension of time to complete depositions on September 1. On September 2, plaintiff's counsel took the deposition of Albert (formerly Officer Jose) Cruz. Plaintiff re-noticed the City's Rule 30(b)(6) deposition for October 5, 2010. No 30(b)(6) designee appeared on October 5. The City's Rule 30(b)(6) deposition ultimately took place on December 2, 3, 9, and 10, 2010. Six individuals were designated to testify on behalf of the City.

Plaintiff asserts that a number of the City's designees were unprepared to testify with respect to their designated topics.*fn2 Topic 1 asked for a designee to testify with respect to "[t]he documents requested in Plaintiff's various document requests to the City of Philadelphia and the search for those documents." The City's designee for Topic 1, Mr. Cesare, testified that he had not seen plaintiffs' document requests, did not know whether steps had been taken to preserve responsive documents, and did not know what steps, if any, had been taken to locate the requested documents. (Pl.'s Br. Ex. E. at 13:16-14:7, 24:17-25:11.) When asked what he had done to prepare for the deposition, he said, "I just made copies of the retention schedule." (Id. at 10:8-17.) Topic 2 asked for a designee to testify as to the City's document retention policies in effect on and since September 1, 1992. Mr. Cesare, the designated witness, testified that he did not know whether the City had a policy on document retention in 1992 or when the city first created a document retention policy. (Id. at 27:11-29:4)

Topic 7 asked for a designee to testify as to any lawsuits, complaints, accusations or allegations regarding the use of force by the individual defendants. Lieutenants Long and Prendergast were identified as the City's designees. However, Prendergast testified that he was at his deposition to testify only about Topic 5. (Pl.'s Br. Ex. Q. at 10:22-11:9) Lieutenant Long testified that although he had located files relevant to the officer histories of Lewis, Randall, and ...


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