United States District Court, D. South Dakota Southern Division.
JILL S. N. SCHAFFER, CALLISSA A. SCHAFFER, Plaintiffs,
BRYAN BERINGER, JACY NELSEN, JESSICA WADE, MARK FOLEY, MATT BETZEN, Defendants.
ORDER DENYING IN PART AND GRANTING IN PART PLAINTIFFS' MOTION TO COMPEL [DOCKET NO. 21]
VERONICA L. DUFFY, Magistrate Judge.
This matter is before the court on plaintiffs' complaint pursuant to 42 U.S.C. § 1983 alleging that defendants, members of the Vermillion, South Dakota, Police Department, violated plaintiffs' constitutional rights. See Docket No. 1. Pending is plaintiffs' motion to compel further initial disclosures from defendants under Federal Rule of Civil Procedure 26(a)(1). See Docket No. 21. The district court, the Honorable Karen E. Schreier, referred this motion to this magistrate judge for decision.
Plaintiffs filed their complaint on September 4, 2014, based on events that occurred on May 30, 2014. The following recitation of facts is drawn from plaintiffs' complaint and is not meant to lend the court's imprimatur on the verity of those facts, but merely to provide context for discussion of the instant dispute.
On May 30, 2014, plaintiff Callissa Schaffer was driving a vehicle with two passengers in it, one of whom was the owner of the vehicle. Callissa alleges her two passengers had been drinking and she had not. She alleges she was acting as the designated driver.
A Vermillion police officer stopped the vehicle. Ultimately, Callissa was asked to perform a preliminary breath test ("PBT"), she was frisked, handcuffed, and taken to the Vermillion police department where she was held in a locked area until a search warrant issued authorizing officers to obtain the PBT test from Callissa. After the PBT test was negative, Callissa was released. Plaintiff Jill Schaffer, mother to Callissa and attorney of record for both plaintiffs, states that she was Callissa's attorney and that she was prevented from providing legal advice and assistance to Callissa by defendants.
Plaintiffs allege that the actions of defendants violated their Fourth Amendment right to be free from unreasonable searches and seizures, their Sixth Amendment right to counsel, and their First Amendment rights to free speech and to petition the government. Plaintiffs allege that the Vermillion Police Department failed to properly train and monitor its officers.
On October 9, 2014, counsel for plaintiffs and for defendants held a planning conference pursuant to Fed.R.Civ.P. 26(f). See Docket No. 26. The parties apparently exchanged initial disclosures as required by part (a)(1) of Rule 26.
Plaintiffs, unhappy with the completeness of defendants' initial disclosures, have filed a motion to compel further voluntary initial disclosures without the necessity of serving discovery requests on defendants. See Docket No. 21. The plaintiffs initially sought: (1) a copy of the affidavit in support of the PBT search warrant issued as to Callissa; (2) a copy of the search warrant itself; (3) "copies of Vermillion Police Department policies"; (4) a copy of the city of Vermillion's insurance policy; and (5) true and complete copies of the police videos complete with audios that were created at the time of the events described in the plaintiffs' complaint. Id.
After the initial motion was filed, defendants provided additional documents and tangible things to plaintiffs. See Docket No. 22. The items which are left which plaintiffs dispute are (1) the police video and audio recordings and (2) Vermillion police department policies. See Docket No. 25.
A. Good Faith Effort to Resolve Discovery Dispute
Both the Federal Rules of Civil Procedure and this district's local rules of procedure require that parties meet and confer in an attempt to resolve discovery disputes before filing discovery motions. See FED. R. CIV. P. 37(a)(1); DSD LR 37.1. A certification must be part of any discovery motion and the certification must show that a good-faith effort was made to resolve disputes before filing the motion. Id . Plaintiffs' counsel asserted in her original brief in support of her motion that "Plaintiffs were unable to resolve this issue through mail correspondence with Defense or through in person communication with Defense." Although plaintiffs never averred that ...