WAYNE PATTERSON, Plaintiff, v. LIEUTENANT R.T. YEAGER, et al., Defendants Case No. 2:12-cv-01964 United States District Court, S.D. West Virginia, CHARLESTON Filed September 29, 2014 Tinsley, Dwane L., United States Magistrate Judge ORDER *1 Pending before the court are the plaintiff's Second Motion to Compel Production, Inspection and Copying of Documents and to Compel Responses to Interrogatories as to Lt. Yeager, or in the alternative, Motion for Leave to Increase Discovery Under Rule 33 and Motion to Extend Time for Discovery (ECF No. 122), the plaintiff's Motion to Compel the City of South Charleston to Fully Respond to Subpoena (ECF No. 125) and the plaintiff's Third Motion to Compel Defendant R.T. Yeager's Discovery Responses and to Increase Discovery Time (ECF No. 144). The undersigned will first address the Motion to Compel directed to the City of South Charleston, and will then turn to the other pending motions. A. The plaintiff's Motion to Compel the City of South Charleston to Fully Respond to Subpoena. The City of South Charleston was granted summary judgment and dismissed as a defendant in this matter by Memorandum Opinion and Order entered on March 29, 2013. (ECF No. 40).[1] However, by Order entered on October 18, 2013, the undersigned granted the plaintiff's request for service of a subpoena on the City of South Charleston to obtain certain documents in the City's possession. (ECF No. 107). As ordered by the court, the subpoena was addressed to the South Charleston Police Department and limited the scope of the responsive documents to the time period between 12:01 a.m. on June 29, 2011 and 11:59 p.m. on July 1, 2011, which is the operative time period in which the sole remaining claim of civil trespass allegedly arose. The subpoena sought production of the following documents: 1. All documents, including time records and dispatch records (but not pay records) which indicate or reflect the names and job titles of City of South Charleston Police Officers who were on duty beginning at 12:01 a.m. on June 29, 2011 up to and including 11:59 p.m. on July 1, 2011. 2. All documents, video or audio recordings, and electronically stored information, including cell/mobile phone text messages, and police camera footage, which indicate or reflect any citizens, including police officers, Gail Reid, Danaya Steiner, Joe Steiner, or Jaime Adkins, who visited, were at/in or brought to the South Charleston Police Department (“SCPD”), or were otherwise present in the Police Department building, Office of the Chief of Police, and Police Commander's Office beginning at 12:01 a.m. on June 29, 2011 up to and including 11:59 p.m. on July 1, 2011, concerning the incidents involving the entry by South Charleston Police Department officers to 825 Barrett Street in South Charleston, West Virginia, on June 29, 2011 and July 1, 2011 that are the subject of this action. 3. To the extent not already produced in response to Paragraphs 1 and 2 above, all documents, e-mails, video/audio, electronically stored information including cell/mobile phone text messages, social media posts and police camera footage which indicate, reflect, or suggest that SCPD received information from fellow police officers, Gail Reid, Danaya Steiner, Joe Steiner or Jaime Adkins, with respect to the SCPD forming a good faith belief that they had a right to enter Patterson's property on July 1, 2011, including but not limited to: *2 (A) any and all documents, emails, video/audio, and electronically stored information including cell/mobile phone text messages, social media posts and police camera footage of communications to and from SCPD which in any way relate to the practice, policy, substance and procedure of the SCPD decisional process concerning all claims against Patterson during the continuum of time beginning on or about 2:00 p.m. on June 29, 2011, or anytime thereafter when SCPD first interviewed or spoke to fellow police officers, Gail Reid, Danaya Steiner, Joe Steiner, Jaime Adkins, or anyone else concerning domestic battery charges against Patterson, and when the SCPD entered Patterson's property on July 1, 2011 and ejected Patterson. (B) any and all documents, emails video/audio, and electronically stored information including cell/mobile phone text messages, social media posts and police camera footage of communications received by the SCPD and garnered from fellow police officers, Gail Reid, Danaya Steiner, Joe Steiner, Jaime Adkins during the continuum of time beginning on or about 2:00 p.m. on June 29, 2011, or anytime thereafter, concerning domestic battery charges, whether or not the same were communicated to or from any officer, which in any way relates to information or advice provided to SCPD concerning prerogatives that SCPD had legal authority to enter Patterson's house on July 1, 2011, forcefully eject Patterson from his house on July 1, 2011; and turn over physical possession of Patterson's house to Danaya Steiner on July 1, 2011. (ECF Nos. 107 at 16-18). According to the docket sheet, the subpoena was served on B.L. Rinehart, Chief of Police, South Charleston Police Department, on October 28, 2013. (Return of Service on Subpoena, ECF No. 109). The date on the subpoena for return of any responsive documents was November 22, 2013 at 5:00 p.m. (ECF No. 125, Ex. 1). According to the plaintiff's Motion to Compel, on November 27, 2013, the plaintiff mailed a letter to the defendants' counsel requesting that Chief Rinehart respond to the subpoena “in a timely manner as time is of the essence ....” (Id., Ex. 2). The letter further requested that all electronically stored information that had been requested be provided forthwith. (Id.) The Motion to Compel further indicates that, as of December 2, 2013, Chief Rinehart had not responded to the plaintiff's request. (ECF No. 125 at 1-2). The plaintiff's Motion to Compel further states: 5. On July 2, 2011, Patterson witnessed South Charleston Police Officer T.A. Bales [sic; Bailes] recording Patterson with a camcorder, which that and any other recordings recording's [sic] as requested should be provided under Patterson's October 18, 2013 subpoena. 6. Thus far, as of December 2, 2013, B.L. Rinehard [sic; Rinehart] has not and refused to turn over any communications or other electronically stored information requested by Plaintiff Patterson's October 18, 2013 Subpoena to Produce Documents, Information, Or Objects or To Permit Inspection of Premises in a Civil Action, and Patterson's November 27, 2013 letter directed to counsel. 7. These requested recordings, communications, computer files, etc., are essential and needed in the prosecution and further amendments to the pleadings in this civil case. *3 8. The information sought to be obtained by and through Patterson's subpoena is relevant and reasonably calculated to lead to the discovery of admissible evidence. 9. As of this date, December 2, 2013, B.L. Rinehard [sic; Rinehart] has not filed an objection to Patterson's October 18, 2013 subpoena. (ECF No. 125 at 2). On this basis, the plaintiff moves for an Order compelling Chief Rinehart and the South Charleston Police Department to fully and completely comply with the subpoena and to show cause why they should not be held in contempt. (Id.) The plaintiff also filed his own Affidavit in support of his motion. (ECF No. 127). On December 12, 2013, Chief Rinehart, by counsel, filed a Response to the Motion to Compel. (ECF No. 130). The Response asserts that, on November 22, 2013, Chief Rinehart responded to the subpoena and sent the plaintiff all documents in the South Charleston Police Department's possession that were responsive to the requests within the limited scope and time period set forth therein. (Id. at 2). The Response further states as follows: Importantly, in said response [to the subpoena], Plaintiff was advised that “South Charleston Police Department is not in possession of any video or audio recordings or any type of electronically stored information, including cell/mobile phone text messages, and police camera footage, involving Gail Reid, Danaya Steiner, or Jaime Adkins, or any South Charleston Police Officers between June 29, 2011 up to July 1, 2011 concerning incidents involving 825 Barrett Street, South Charleston, West Virginia.” (Id.) The letter-form response to the subpoena indicates that Chief Rinehart and the South Charleston Police Department produced a CAD Operations Report, a West Virginia Uniform Incident/Offense Report Form and the South Charleston Police Department Attendance and Assignment Sheets for June 28, 2011 until July 2, 2011. The response to the Motion to Compel reiterates that Chief Rinehart and the South Charleston Police Department have no further responsive documents or electronically stored information in their possession and, thus, requests that the plaintiff's Motion to Compel be denied. (Id. at 3). On December 23, 2013, the plaintiff filed a Reply which largely reiterates his belief that Chief Rinehart and the South Charleston Police Department has withheld responsive documentation from him, including audio/video tapes recorded on July 2, 2011. (ECF No. 132). It is clear that the documentation or electronic information sought by the plaintiff in his Motion to Compel addressed to the City of South Charleston falls outside the scope of the subpoena served on the South Charleston Police Department. The plaintiff seeks audio or video recordings allegedly made on July 2, 2011, after the alleged civil trespass that is presently the sole subject of this civil action. The subpoena itself limited the scope of documentation to be produced to the time period between July 29, 2011 and July 1, 2011, and the plaintiff has not demonstrated that the City of South Charleston, via its Police Chief, has failed to fully respond within that limited scope. Accordingly, it is hereby ORDERED that the plaintiff's Motion to Compel the City of South Charleston to Fully Respond to Subpoena (ECF No. 125) be DENIED. Should the presiding District Judge ultimately grant the plaintiff's pending Rule 60(b) motion and/or the plaintiff's Motions for Leave to Amend his Amended Complaint (ECF No. 150 and 153), and permit the plaintiff to pursue any other claims in addition to his civil trespass claim, the plaintiff may be able to seek additional discovery concerning those claims at a later time. B. The plaintiff's Motions to Compel Discovery Responses from Lt. Yeager, to Increase Discovery under Rule 33, and to Extend Time for Discovery. The plaintiff's Second Motion to Compel (ECF No. 122) *4 On November 22, 2013, the plaintiff filed what is titled as the plaintiff's “Second Motion to Compel Production, Inspection and Copying of Documents and to Compel Responses to Interrogatories as to Lt. Yeager or in the alternative for Leave to Increase Discovery under Rule 33.” (ECF No. 122). According to the docket sheet, the plaintiff has served five sets of discovery requests on Lt. Robert Yeager. The plaintiff's Second Motion to Compel appears to concern the plaintiff's Fourth Set of Interrogatories and Third Set of Requests for Production of Documents served on Lt. Yeager on or about October 3, 2013. On December 6, 2013, defendant Yeager filed a Response to the plaintiff's Second Motion to Compel. (ECF No. 126). The Response sets forth the procedural history concerning each set of discovery served on Lt. Yeager by the plaintiff and his responses thereto. (Id.) In pertinent part, the Response indicates that, on August 22, 2013, Lt. Yeager responded to the plaintiff's Third Set of Interrogatories and Second Set of Requests for Production of Documents. The Response further indicates that Lt. Yeager objected to all of the interrogatories therein on the basis that the total number of interrogatories asked by the plaintiff exceeded the permissible number of 25 interrogatories, including discrete subparts, as stated in Rule 33 of the Federal Rules of Civil Procedure. (ECF No. 126 at 3, ¶ 11). Lt. Yeager contends that the plaintiff actually exceeded that number in his First Set of Interrogatories to Lt. Yeager. (Id. at 5, ¶ 18). Lt. Yeager's Response further states that he has produced all responsive documents in his possession. (Id.) Notwithstanding Lt. Yeager's objection to the Third Set of Interrogatories, on October 3, 2013, the plaintiff served his Fourth Set of Interrogatories and Third Set of Requests for Production of Documents on Lt. Yeager, who again objected to responding to any of the interrogatories based upon the fact that they exceeded the number permitted by Rule 33. Lt. Yeager asserts that he has fully responded to all discovery requests that are permissible under the Federal Rules of Civil Procedure. He further asserts that the plaintiff “has had ample opportunity to discover the facts of the case through written discovery, and Lieutenant Yeager has, within the confines of the Federal Rules of Civil Procedure, provided as much requested information as possible and produced all requested documents within his possession.” (Id. at 6, ¶ 21). Accordingly, Lt. Yeager contends that the plaintiff's Second Motion to Compel should be denied and the plaintiff should not be granted an extension of time for additional discovery. (Id.) On December 23, 2013, the plaintiff filed a Reply to Lt. Yeager's Response to his Second Motion to Compel (ECF No. 131). In the Reply, the plaintiff contends that the defendants have refused to produce, or possibly have destroyed, evidence, including audio/video recordings of persons involved in this matter made on July 2, 2011, the day after the alleged civil trespass that is the subject of this case. The plaintiff also asserts that an undated letter authored by Jaime Adkins was not timely disclosed and is newly discovered evidence that would support additional claims against Lt. Yeager and other potential defendants, who have either already been dismissed from this case, or would be new defendants who have not previously been named herein. Thus, the plaintiff contends that Lt. Yeager should be compelled to respond to all of the discovery requests made to him and that the court should grant an increase in the number of interrogatories that the plaintiff is permitted to ask of Lt. Yeager. The plaintiff also seeks an extension of the previously expired discovery deadline to permit him to complete this additional discovery. The undersigned will collectively address the plaintiff's two motions addressed to Lt. Yeager below. The plaintiff's Third Motion to Compel (ECF No. 144) *5 On December 9, 2013, the plaintiff served his Fifth Set of Interrogatories and Requests for Admissions on Lt. Yeager. (ECF No. 128). These requests are the subject of the plaintiff's “Third Motion to Compel Defendant R.T. Yeager's Response to Admissions, Interrogatories, and Production of Documents and Motion to Increase Discovery Time” (ECF No. 144), which was filed on February 12, 2014. The Third Motion to Compel states that the plaintiff's Fifth Set of discovery requests to Lt. Yeager consisted of two admissions, interrogatories and requests for production of documents. The plaintiff notes that Lt. Yeager again objected to the interrogatories on the basis that they exceeded the number permitted by Rule 33. The plaintiff's motion contends that the defendants are “thwarting the discovery process” and “should not be permitted to defend this case by evading and refusing to disclose or admit facts that have become more evident based upon the current court record.” (ECF No. 144 at 2). Lt. Yeager filed a Response to the plaintiff's Third Motion to Compel on February 21, 2014 (ECF No. 145). Lt. Yeager first aptly notes that the plaintiff's Fifth Set of discovery requests (misnamed as the Fourth Set in the defendant's response) was not served in compliance with the current discovery deadline, which was December 10, 2013. (ECF No. 145 at 6). As explained in the undersigned's October 10, 2013 Order, all discovery was to be completed by December 10, 2013, and “ ‘completed’ ” means that all written discovery requests must be served in time to allow responses (and the filing of any objections, and/or motions to compel related thereto) by the discovery deadline.” (ECF No. 105 at 3). Thus, discovery requests served by the plaintiff on December 9, 2013, could not have been “completed” by December 10, 2013, the following day. Likewise, the plaintiff's Third Motion to Compel was filed beyond the discovery deadline. Lt. Yeager's response acknowledges that he also objected to the Fifth Set of Interrogatories on the basis that they exceeded the 25 interrogatories permitted by Rule 33. (ECF NO. 145 at 7). Lt. Yeager repeats his assertion that the plaintiff has had ample opportunity to develop the facts surrounding the sole claim of civil trespass, and that there is no basis for extending the discovery deadline or increasing the number of interrogatories the plaintiff is permitted to ask. Lt. Yeager further contends that he would be prejudiced by such action because the written discovery has become redundant and unnecessary. (Id. at 8). The plaintiff filed a Reply brief on March 4, 2014 (ECF No. 147). In his Reply, the plaintiff again attempts to address alleged misconduct by the defendants in failing to earlier disclose evidence that he believes would support additional claims against Lt. Yeager and other defendants, including the revival of claims upon which the defendants were previously granted summary judgment. Pursuant to Rule 33 of the Federal Rules of Civil Procedure, the parties are limited to asking 25 interrogatories, including discrete sub-parts, of each defendant. Clearly, the plaintiff exceeded that number with respect to Lt. Yeager prior to the service of his Fourth and Fifth Sets of Interrogatories that are the subject of his two Motions to Compel. The only claim upon which discovery is presently permitted is the plaintiff's claim of civil trespass concerning the defendants' entry onto the plaintiff's property on July 1, 2011. The plaintiff had sufficient opportunity to develop the facts necessary to address that claim before he reached the 25 interrogatory limit. Thus, the undersigned FINDS that, presently, there is no good cause to extend the discovery deadline, which has already passed, or to increase the number of interrogatories that the plaintiff is permitted to ask of Lt. Yeager. *6 As noted previously herein, the plaintiff filed a Rule 60(b) motion and two motions seeking to amend his Amended Complaint, which are under review by the court. Should the presiding District Judge ultimately grant the plaintiff's pending Rule 60(b) motion (ECF No. 146) and/or the plaintiff's Motions for Leave to Amend his Amended Complaint (ECF No. 150 and 153), and permit the plaintiff to pursue any other claims in addition to his civil trespass claim, the plaintiff may be able to seek additional discovery concerning those claims at a later time. For these reasons, it is hereby ORDERED that the plaintiff's Second Motion to Compel Production, Inspection and Copying of Documents and to Compel Responses to Interrogatories as to Lt. Yeager, or in the alternative, Motion for Leave to Increase Discovery Under Rule 33 and Motion to Extend Time for Discovery (ECF No. 122) and the plaintiff's Third Motion to Compel Defendant R.T. Yeager's Discovery Responses and to Increase Discovery Time (ECF No. 144) be DENIED. The Clerk is directed to mail a copy of this Order to the plaintiff and to transmit a copy to counsel of record. Footnotes [1] Pending before the court are a Motion for Relief from Judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure (ECF No. 146) and two Motions for Leave to Amend First Amended Complaint (ECF Nos. 150 and 153), in which the plaintiff is seeking to revive the prior claims brought against the City of South Charleston and other former defendants and/or to pursue new claims against the City and others. These motions are presently under consideration by the court and will be separately addressed.