HINKEL v. COLLING (2022)

ORDER ON DEFENDANT COLLING'S MOTION TO STRIKE PURSUANT TO RULE 37

Defendant Derek R. Colling moves (ECF No. 195) to strike two of the witnesses whose affidavits Plaintiff Debra Hinkel submits in support of her motion for default judgment as a sanction for spoliation (the “Spoliation Motion,” ECF No. 143). Plaintiff opposes the motion. ECF No. 184. As follows, the Court grants Colling's motion in part.

I. Background Facts

A. Deputy Sheriff Colling's Traffic Stop and Shooting of Robbie Ramirez

This is a civil rights action arising from the November 4, 2018 death of Ms. Hinkel's adult son, Robbie Ramirez, after then-Deputy Sheriff Defendant Colling shot Ramirez in a struggle ensuing after he fled from a traffic stop. The parties sharply dispute the facts of these events. The Court has summarized the parties’ claims and defenses in other orders and assumes the parties’ familiarity with those orders.

As pertinent to Colling's motion, both sides appear to agree that during the shooting (1) Colling was wearing a body camera on his left shoulder and activated it while following Ramirez a few blocks before the traffic stop; (2) the bodycam recording included both video and audio; (3) the bodycam recording that has been produced in discovery ends before the shots were fired; (4) Colling reactivated the bodycam a few minutes after the shooting; and (5) Colling activated his dash camera (facing outward) as he followed Ramirez a few blocks before the traffic stop and continued recording throughout the entire incident.

B. Procedural History

The parties exchanged initial disclosures by December 2020. Plaintiff supplemented her disclosures in the meanwhile, but she did not disclose two of her affiants (Rennie Phillips and Sarah Manwarren) for the Spoliation Motion until March 10, 2022. The completeness of Albany County's production of the bodycam and dashcam recordings has been an issue since at least the first of the parties’ several discovery conferences, when Magistrate Judge Carman “advised that any and all data concerning original body/dash camera video should be produced.” ECF No. 51 (February 2, 2021). Plaintiff apparently raised issues regarding the completeness of the recordings – including the dashcam file – again in a discovery conference with Magistrate Judge Carman by October 28, 2021.

On November 2, 2021, Plaintiff filed a motion to compel inspection asserting that Albany County altered the bodycam and dashcam files to withhold discovery. ECF No. 110. She alleged among other things that if the native format of the dashcam recording had been preserved, “audio evidence would have been likely available to the Plaintiff allowing for a more accurate sequencing of the shots.” Id. at 6.

As pertinent to Colling's motion to strike, Plaintiff alleges in her Spoliation Motion that the “Sheriff's Office deleted audio from the original dash camera video and produced a ‘copy’ that does not have sound.” For support, Plaintiff points to Laramie Police Chief Dale Stalder's deposition of August 25, 2021 (ECF No. 143-25) and the affidavits of two attorneys – Rennie Phillips and Sarah Manwarren – who watched the bodycam and dashcam videos at a meeting with then-county attorney Peggy Trent, Sheriff O'Malley, and Undersheriff DeBree in November 2018. ECF No. 143-26, 143-27. Phillips and Manwarren each state that they remember the dash camera video had audio.¹

On April 19, 2022, Defendant Colling filed a motion to strike the affidavits of Manwarren and Phillips under Rule 37. ECF No. 195. Colling argues that these witnesses should be stricken because Plaintiff knew of these witnesses since November 2018 and untimely disclosed them only on the eve of the discovery cutoff. The Court required Plaintiff to respond to this motion by April 26, 2022. Plaintiff argues the disclosure was timely, should not have been a surprise, and caused no prejudice. ECF No. 199.

II. Standard of Review

Rule 37(c) of the Federal Rules of Civil Procedure provides in relevant part:

If a party fails to ․ identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that ․ witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.

Fed. R. Civ. P. 37(c)(1). Rule 26(a) requires in relevant part that

a party must, without awaiting a discovery request, provide to the other parties: (i) the name ․ of each individual likely to have discoverable information --along with the subjects of that information-- that the disclosing party may use to support its claims ․ unless ․ solely for impeachment.

Rule 26(e) requires timely supplementation of the initial disclosures:

A party who has made a disclosure under Rule 26(a) ․ must supplement or correct its disclosure ․ in a timely manner if the party learns that in some material respect the disclosure ․ is incomplete ․ and if the additional ․ information has not otherwise been made known to the other parties during the discovery process or in writing.

Fed. R. Civ. P. 26(e)(1)(A) (emphasis added).

III. Analysis

Here, Plaintiff was aware since the meeting in November 2018 that Phillips and Manwarren viewed the videos at the same time she did. Although Plaintiff raised the completeness of the bodycam and dashcam productions as an issue as early as February 2021, the specific question of whether the dashcam recording originally had audio arose August 25, 2021 in Chief Stalder's deposition. This was over six months prior to Plaintiff's disclosure of Phillips and Manwarren as witnesses on March 10, 2022. Even assuming Plaintiff needed a week or two after Stalder's deposition to discover whether Phillips or Manwarren's recollections were such that Plaintiff would use them as witnesses, waiting over six months to disclose them as witnesses was plainly not timely.

Plaintiff argues that she did not delay disclosing these witnesses because she first contacted them on February 26, 2022, received their affidavits on March 7, 2022 and disclosed them three days later. ECF No. 199 at 2. But Plaintiff recognizes that the question of whether the dashcam recording originally had audio came up in Stalder's August 2021 deposition. Plaintiff also specifically alleged this issue in her November 2, 2021 motion to compel. ECF No. 110 at 6. Plaintiff does not explain why she nonetheless waited until late February 2022 to contact Phillips and Manwarren on this issue.

Although Plaintiff did disclose these witnesses within the fact discovery period, Colling cites several persuasive cases holding that witness disclosures made just before the discovery cutoff are untimely. ECF No. 195 at 4-5 (citing e.g., Gomez v. Haystax Tech. Inc., 761 F. App'x 220, 233 (4th Cir. 2019); Jindal v. U.S. Dep't of Educ., No. CIV.A. 14-534-SDD-RL, 2015 WL 2405950, at *2 (M.D. La. May 18, 2015)). Some of the facts in those cases differ somewhat from this case – in Gomez for instance, the scheduling order required disclosures to be made in time for witnesses to be deposed. Here, the initial pretrial order simply provides that “[a]ll discovery depositions must be completed by the discovery cutoff.” But reading the initial pretrial order together with Rule 26(e), disclosing a witness near the discovery cutoff – when the disclosing party was aware of the witness well before then – is not timely.

Nor has Plaintiff established that Defendants otherwise knew from discovery or in writing that she intended to use these witnesses. Although Albany County and the Sheriff's Office were aware through their representatives – Peggy Trent and then-Sheriff O'Malley – that Phillips and Manwarren viewed the videos with Plaintiff in November 2018, Defendants were not aware that Plaintiff intended to use them as witnesses until March 10, 2022. See, e.g., Downhole Stabilization Rockies Inc. v. Reliable Field Servs. LLC, No. 15-CV-226-J, 2017 WL 3473213, at *1–2 (D. Wyo. Mar. 23, 2017) (“To complete the disclosure obligation, the party must also identify ‘the subjects of [the discoverable] information’ that the putative witness may provide;” “knowledge of the existence of a person is distinctly different from knowledge that the person will be relied on as a fact witness.”); RBS Citizens, N.A. v. Husain, 291 F.R.D. 209, 215 (N.D. Ill. 2013) (declining to require the opposing party to be more capable of discerning which of the late-disclosing party's representatives were important to the opponent's case); Jordan v. LAP Worldwide Servs., Inc., No. 6:18-CV-1610-ORL-37-EJK, 2019 WL 13152019, at *3 (M.D. Fla. Oct. 23, 2019) (undisclosed witness is “otherwise made known” in discovery “when testimony or information demonstrates the undisclosed witness's knowledge of facts pertinent to the litigation,” not simply by being mentioned in depositions).²

Plaintiff's delay in disclosure was also not substantially justified. Again, Plaintiff's counsel became aware of the audio issue in the dashcam recording no later than Stalder's deposition. She has provided no good reason for delaying from August 25, 2021 to February 26, 2022.

The delayed disclosure was also not harmless. “The party opposing Rule 37(c) sanctions has the burden of showing the failure to disclose was harmless.” Downhole Stabilization, 2017 WL 3473213, at *3.

While Rule 37(c)(1) is written in mandatory terms, it also vests the court with discretion to impose “other appropriate sanctions” short of, or in addition to, an order striking witnesses.

The Tenth Circuit has, however, identified four factors that should guide the trial court's discretion:

(1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving party's bad faith or willfulness.

Id. at *3–4 (internal citations omitted, quoting Woodworker's Supply, Inc. v. Principal Mutual Life Insurance Co., 170 F.3d 985, 993 (10th Cir. 1999)).

Here, Defendants are prejudiced by the late disclosure. Because the fact discovery period closed the day after the disclosure, regardless that Plaintiff would have agreed to their late depositions, Defendants were precluded from deposing Phillips and Manwarren without obtaining the Court's leave. ECF No. 33 at 4, 13 (“All discovery depositions must be completed by the discovery cutoff;” “[t]he schedule established in this Order may be modified only for good cause and with the Court's consent”); Fed. R. Civ. P. 29(b). Plaintiff points to Defendants taking the deposition of one of Plaintiff's retained experts beyond the discovery cutoff, but the initial pretrial order makes plain: the discovery cutoff does not apply to expert depositions. Id. at 6.³ Defendants have thus been required to respond to Plaintiff's Spoliation Motion – which seeks the highest sanction of default judgment for allegedly deleting the audio from the dashcam recording – without any ability to cross-examine these witnesses.

Plaintiff also points to Defendants (a) declining to question Chief Stalder in his deposition regarding his recollection of the dashcam recording, and (b) themselves supplying affidavits with previously undisclosed statements in response to the Spoliation Motion. As for the first point, Plaintiff overstates the facts. Defendants did follow up briefly with Chief Stalder regarding his testimony on the dashcam recording. Counsel for the Commissioners asked Chief Stalder what media the recording was stored on (he did not know) and where that meeting was held (Trent's office). Stalder Depo. at 157:21-158:19.

Plaintiff also does not explain why Defendants’ decision to not question Stalder more extensively shows that they would not have deposed Manwarren and Phillips if they had known sooner that Plaintiff intended to use them as witnesses. The Court has read Chief Stalder's complete deposition testimony on this issue, and without predetermining the Spoliation Motion, his testimony on this issue is not – as Plaintiff states in her brief – “substantially the same as” (ECF No. 199 at 3) Manwarren and Phillips’ affidavits. Defendants’ counsel could have decided to not question Chief Stalder further on this issue for any number of reasons that have no bearing on whether they would have deposed Manwarren and Phillips on their recollections if they had known sooner that Plaintiff could use them as witnesses for the Spoliation Motion.

As for Defendants supplying previously undisclosed statements to respond to the Spoliation Motion, Plaintiff does not contend that any of the Defendants’ affiants were previously undisclosed. It also does not appear that prior to Plaintiff's Spoliation Motion Defendants had a reason to supply detailed statements or affidavits on this issue. Their response to Plaintiff's November 2021 motion raising this issue simply focuses on asserting they had subsequently produced the complete dashcam recording. ECF No. 123.

Defendants also have no ability to cure the prejudice with respect to Plaintiff's Spoliation Motion. Defendants’ dispositive motions were due March 11, 2022, the day after Plaintiff's disclosure. Each Defendant timely filed an extensive brief and exhibits in support of summary judgment. Defendants’ responses to Plaintiff's Spoliation Motion – which raises numerous issues, not just the allegedly deleted audio from the dashcam – were originally due March 24, 2022, and the dispositive motions hearing was originally set for April 26. Due to the number of issues presented, Defendants requested and the Court granted additional time to respond to the Spoliation Motion and the dispositive motion hearing was moved out to May 3, 2022. Given the sheer amount of work necessary to respond to the Spoliation Motion, file the dispositive motions and prepare for oral argument next week, it is unreasonable for Plaintiff to expect Defendants to have sought leave to depose these witnesses before filing their response to the Spoliation Motion or before the hearing on these motions.

Plaintiff argues that Defendants can cure the prejudice by deposing Manwarren and Phillips before the trial set to begin June 21, 2022. Plaintiff disclosed these witnesses only regarding the November 2018 viewing and their recollection that the dashcam recording included audio of the shooting itself. ECF No. 195-1 at 8. She did not identify any other subjects of discoverable information for these witnesses. Without predetermining the outcome of Plaintiff's Spoliation Motion or Defendant's summary judgment motions, if after those rulings Manwarren's and Phillips’ disclosed subjects of testimony are relevant to trial, Plaintiffs are correct that Defendants can cure the prejudice by deposing them with the Court's leave before trial.⁴

The third Woodworker's factor – disruption of trial if the witnesses are allowed to testify – in this instance is neutral. The fourth factor – Plaintiff's intent in the timing of its disclosure – weighs in favor of Defendants. Plaintiff has not suggested any good reason why she delayed contacting these witnesses until late February 2022. Nor does she explain why, having their affidavits on March 7, 2022, she waited another three days until the day before the discovery cutoff to disclose them.

Accordingly, Colling's motion to strike Phillips and Manwarren as witnesses is granted in part and denied in part. Phillips’ and Manwarren's affidavits in support of the Spoliation Motion are stricken. To the extent they have personal knowledge relevant to any issue at trial after the Court rules on the Spoliation Motion and Defendants’ summary judgment motions, Plaintiff may present them at trial. Defendants may depose Phillips and Manwarren at any time before trial.

IV. Conclusion

Consistent with the foregoing, Defendant Colling's motion to strike witnesses Rennie Phillips and Sarah Manwarren is GRANTED IN PART and DENIED IN PART.

FOOTNOTES

1.   The parties appear to agree the original of the dashcam file no longer exists, and there is no audit or log file to definitively answer whether or when anyone deleted the audio.

2.   In addition, Plaintiff has not suggested any reason why Albany County's knowledge of Phillips and Manwarren's existence could be imputed to Defendants Colling or O'Malley, who do not appear to have been part of the meeting.

3.   The initial pretrial order refers to Plaintiff deposing Defendants’ experts up to fourteen days prior to the final pretrial conference, but this simply assumes defendants will have already deposed the plaintiff's experts to prepare their own expert reports. The Court has always construed that provision to apply to both sides.

4.   In addition, the parties appear to have taken on the order of 40 or 50 fact depositions already. This is well over the presumptive limit of ten depositions per side. Fed. R. Civ. P. 30(a)(2)(A)(i).

NANCY D. FREUDENTHAL, UNITED STATES DISTRICT JUDGE