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Scheetz v. Vooren

United States District Court, D. South Dakota, Southern Division

November 21, 2017

DARYL SCHEETZ, Plaintiff,
v.
CRYSTAL VAN VOOREN, Major Special Security, in her individual and official capacity; and HUNTER SUMMERS, Lieutenant Special Security, in his individual and official capacity, Defendants.

          ORDER GRANTING PLAINTIFF'S MOTION TO STRIKE IN PART

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE.

         Plaintiff, Daryl Scheetz, moves to strike the affidavit of defendant Hunter Summers dated September 13, 2017, including all attached exhibits and for other appropriate Rule 37 sanctions. Docket 113. Defendants, Crystal Van Vooren and Hunter Summers, oppose the motion. Docket 122.

         FACTUAL BACKGROUND

         Plaintiff's amended complaint alleges that defendants retaliated against him for exercising his First Amendment rights by restricting plaintiff's visitation to Class II visitation. Docket 66. Defendants maintain that plaintiff's visitation was restricted because he was under investigation for smuggling contraband into the prison with another prisoner, Nathaniel Hayes. On February 27, 2017, defendants responded to plaintiff's interrogatories and requests for production. Plaintiff's interrogatories asked defendants to identify correspondence, information, reports and documents relied upon in placing Scheetz on Class II visitation status. Docket 115-12 at 7-8. In response, Summers identified Leeland Tjeerdsma's affidavit (Docket 41-16) and his own September 25, 2015, affidavit (Docket 75-1). Docket 115-12 at 7-8. Summers was further asked to identify the basis for statements made in his September 2015 affidavit and specifically to identify any exhibits he intended to introduce at trial. Docket 115-12 at 7. In response, he identified an Administrative Detention Order (Docket 41-1), Scheetz's Judgment of Conviction (Docket 41-15), the South Dakota Board of Pardons and Paroles Violation Report (Docket 75-7), and Scheetz's Request for Administrative Remedy (Docket 75-16). Docket 115-12 at 7.

         In addition, plaintiff served sixteen requests for production on Summers. In response to the requests for production, Summers produced three documents entitled Attachments A, B, and C. Attachment A is an email thread from April 18, 2013, between Summers and Van Vooren. Docket 115-12 at 12. Attachment B is a disciplinary report documenting charges made against Nathaniel Hayes. Id. at 13. And Attachment C is a Confidential Informant Report drafted by Summers regarding information on Hayes. Id. at 14. On June 30, 2017, this court granted Scheetz leave to extend discovery and take six depositions. Docket 107. The depositions of defendants Van Vooren and Summers were set for July 19, 2017. On July 13, 2017, Scheetz sent a letter to defendants requesting that defendants produce an email to which Warden Dooley referred to in paragraphs 8 and 9 of his September 17, 2015 affidavit.

         Docket 115-3 at 2. Scheetz also asked that the defendants review the docket and produce “all documents that should be produced pursuant to Rule 26.” Id. Defendants responded to the letter stating that the email referred to by Dooley could not be located, and defendants did not produce any additional documents. Docket 115-4 at 3-4.

         During Summers' deposition, he was questioned about his efforts to locate emails related to Scheetz. See Docket 115-1 at 14. Scheetz's counsel asked, “Are there other emails between you and Miss Van Vooren about the Hayes investigation that you haven't produced in this case?” Id. Summers responded, “No.” Id. Scheetz's counsel also questioned Van Vooren as to whether there was any other responsive email correspondence and she denied that there was. See Docket 115-2 at 3-4, 6-7.

         On July 25, 2017, during Leland Tjeerdsma's deposition, defendants provided Scheetz with an email from Tjeerdsma to Summers regarding the 2012 investigation of Scheetz smuggling contraband with a correctional officer. Docket 115-10 at 4. Van Vooren was also included on the email, but neither defendant had produced the email until after their depositions. On August 17, 2017, defendants produced eight pages of emails from Tjeerdsma[1] that had been sent to DOC counsel Ashley McDonald on August 26, 2014. Docket 115-10. Also on August 17, 2017, defendants produced, for the first time, 78 pages of documents including: a May 7, 2013 email; a May 10, 2013 email; a November 5, 2013 email; a November 6, 2013 email; an Administrative Detention Order dated November 1, 2016, and a November 1, 2016 email from Lee Kaufenberg.[2] Summers now offers those documents in his September 13, 2017 affidavit. Docket 111. Because defendants disclosed the documents after the defendants' July 19, 2017 depositions, Scheetz's counsel was unable to depose the defendants about the contents of the documents.

         On July 26, 2017, Scheetz served a subpoena for a Rule 30(b)(6) deposition and subpoena duces tecum to the South Dakota Department of Corrections (DOC) and set the date for the deposition and production on August 17, 2017. Docket 115-5. The notice of deposition identified ten subject areas the deponent should be prepared to address. Id. at 6. The notice also identified sixteen categories of documents that the DOC should produce. Id. at 8. Scheetz alleges that the DOC did not produce a witness who was knowledgeable about three of the topics[3] and instead produced an affidavit from an attorney with the South Dakota Attorney General Office that outlined the search terms used to search the email database. See Docket 115-14. The attorney's affidavit described the process by which the DOC searched its emails. Id. He conducted the initial inquiry of the mailboxes of Warden Robert Dooley, Van Vooren, and Steve Baker on July 25, 2017, using the terms “Scheetz AND Visitation.” Id. at 4. He performed the second search of the mailboxes of Van Vooren, Art Allcock, Summers, Bob Dooley, Denny Kaemingk, Clifton Fantroy, Steve Baker, Troy Ponto, and Darin Young on August 11 and 14 of 2017. Id. at 5. The second search used the terms “Scheetz AND visit, ” “Scheetz AND Visitation, ” and “Scheetz AND parole.” Id. The affidavit states that, in total, the searches produced 548 results. Id.

         Scheetz now moves this court for the following: (1) to dismiss the defendants' renewed motion for summary judgment (Docket 109) because it is based on evidence that was not timely disclosed; (2) to award Scheetz reasonable attorney's fees for time spent on addressing the lack of production with defendants' counsel, preparing for the Rule 30(b)(6) witness deposition, drafting and preparing this motion to strike (Docket 113), and drafting and preparing a response to the defendants' renewed motion for summary judgment; (3) to inform the jury of defendants' failure to timely produce responsive documents through an adverse jury instruction; and (4) to preclude defendants from offering, referring to, testifying, or otherwise relying on all untimely-disclosed documents for any purpose other than impeachment.

         DISCUSSION

         I. The untimely disclosure of the Tjeerdsma emails and the Summers Affidavit documents

         Federal Rule of Civil Procedure 26(a)(1)(A)(ii) requires parties to make initial disclosures including “a copy-or a description-of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment.” Fed.R.Civ.P. 26(a)(1)(A)(ii). If a party fails to satisfy an initial or supplemental disclosure, the court has discretion to apply appropriate sanctions-unless the nondisclosure “was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). An untimely disclosure is considered a nondisclosure. Trost v. Trek Bicycle Corp., 162 F.3d 1004, 1008 (8th Cir. 1998). The Eighth Circuit applies a four-part balancing test to determine whether a failure to disclose is substantially justified or harmless and to fashion an appropriate remedy. Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008). The balancing test considers “the reason for noncompliance, the surprise and prejudice to the opposing party, the extent to which allowing the information or testimony would disrupt the order and efficiency of the trial, and the importance of the information or testimony.” Id.

         A. Whether defendants' untimely disclosure of the Tjeerdsma emails and the Summers Affidavit ...


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