Professional Documents
Culture Documents
Motion To Compel DART 4-7-17
Motion To Compel DART 4-7-17
AVI S. ADELMAN,
Plaintiff,
v. CIVIL ACTION NO. 3:16-cv-2579
DALLAS AREA RAPID TRANSIT and
STEPHANIE BRANCH, individually and in
her official capacity as a Dallas Area Rapid
Transit Police Officer,
Defendants.
TABLE OF CONTENTS
Page
SUMMARY ...................................................................................................................... 1
ARGUMENT ................................................................................................................... 2
C. RFP No. 18: DARTs current and historical photography policies .............. 6
D. Requests for Admission Nos. 6, 12, 13, 15-18, 22, 23, 26-29, 36,
38, 39, and 51 ............................................................................................. 7
1. RFA Nos. 12, 13, 15-18, and 51: Improper deposition objections .... 7
3. RFA Nos. 22, 23, 26-29, 38, and 39: Improper denials of
mutually exclusive requests ............................................................ 10
CONCLUSION .............................................................................................................. 13
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TABLE OF AUTHORITIES
Page(s)
Cases
Keycorp v. Holland,
No. 3:16-cv-1948-D, 2016 WL 6277813 (N.D. Tex. Oct. 26, 2016) ................... 10
Statutes
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Plaintiff Avi S. Adelman files this motion to compel seeking the following
documents and discovery responses from Defendant Dallas Area Rapid Transit (DART):
(1) documents relating to complaints against and investigations of Officer Branch (RFP
No. 10); (2) documents relating to communications between DARTs public relations
office and the media (RFP Nos. 11-14); (3) DARTs current and historical photography
policies (RFP No. 18); (4) responses to Requests for Admission Nos. 12, 13, 15-18, 22,
23, 26-29, 36, 38, 39, and 51; and (5) responses to Interrogatory Nos. 4-7.1
SUMMARY
This case is about the violation of fundamental constitutional rights by DART and
one of its officers, Defendant Stephanie Branch. Officer Branch arrested Adelman
without probable cause, simply for taking photographs of a medical scene at a DART
station, in direct violation of Adelmans First and Fourth Amendment rights. DARTs
own internal investigation confirmed Officer Branchs unlawful arrest and also found that
she made 23 false statements in her report to justify the unconstitutional arrest.
After filing this lawsuit under 42 U.S.C. 1983, Adelman sought discovery from
DART and Officer Branch. Although DART provided some documents and answered
answer certain interrogatories and requests for admission. Adelman has made extensive
efforts to obtain complete discovery from DART without court intervention, but DART
has, to date, failed to comply with its discovery obligations. Adelmans efforts include the
following:
1
To assist the Court in deciding this motion, Adelman has prepared a summary containing all of the
discovery requests at issue and DARTs responses and objections to each, which is attached hereto as
Exhibit 1. Adelman also includes the complete discovery requests and responses in the Appendix.
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On March 14, 2017, having not heard from DARTs counsel, Adelmans
counsel sent a follow-up email summarizing the discovery issues from the
parties phone call and identifying additional issues with DARTs discovery
responses and objections. (Id. at 44-45.) DARTs counsel responded by
telephone addressing one of the issues raised but did not respond to the other
issues. (Id. at 47.)
Adelmans counsel sent another follow-up email on March 27, 2017, and
DARTs counsel responded that he was in trial and would have to address these
issues later. (Id. at 46-47.)
Nearly two months after Adelmans counsel raised numerous discovery issues for
DART to address, DART has not produced a single additional document or supplemented
its discovery responses in any way, other than to amend its Privilege Log. With
depositions and other deadlines approaching, Adelman now seeks relief from this Court
ARGUMENT
Federal Rule of Civil Procedure 26 provides that [p]arties may obtain discovery
regarding any nonprivileged matter that is relevant to any partys claim or defense. FED.
R. CIV. P. 26(b)(1). The party resisting discovery must show specifically how each
No. 3-13-cv-2110-P, 2014 WL 884742, at *1 (N.D. Tex. Feb. 27, 2014) (Horan, M.J.).
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may rise (or fall) to the level of what the Fifth Circuit has described as an all-to-common
example of the sort of Rambo tactics that have brought disrepute upon attorneys and
the legal system. Heller v. City of Dallas, 303 F.R.D. 466, 483 (N.D. Tex. 2014)
responsive documents, and failed to provide proper answers to requests for admission and
interrogatories. The Court should order DART to produce all responsive documents and
RFP No. 10 seeks [a]ll documents relating to any complaints against Officer
Branch and any investigations of Officer Branch. (App. 4, RFP No. 10.) DART does
not object to this request but states that it has submitted a Privilege Log briefly
describing any withheld documents. (Id.) On the document that DART calls a
Privilege Log, DART includes several documents responsive to RFP No. 10 that it is
withholding on relevance grounds. (App. 29.) Adelman requests that the Court overrule
DARTs relevance claims and order DART to produce document numbers 2 through 9 on
As an initial matter, Adelman is not aware of any procedure whereby a party logs
considered relevant if there is any possibility that the information sought may be
2
DART did not number the documents on its Privilege Log, so Adelman added numbers for ease of
reference. Additionally, DART served an Amended Privilege Log to provide more detail about the withheld
documents. In this motion, Adelman references this Amended Privilege Log rather than the original log.
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relevant to the claim or defense of any party. Merrill v. Waffle House, Inc., 227 F.R.D.
467, 470 (N.D. Tex. 2005) (Ramirez, M.J.) (citation and internal quotation marks
omitted). Under this broad standard, DART cannot credibly claim a lack of relevance of
incident reports and investigations involving the police officer whose conduct is at issue in
this litigation. These documents are especially relevant since this is a section 1983 case
against DART, which requires Adelman to show that Officer Branchs violations of his
constitutional rights were pursuant to a DART policy or custom. Monell v. N.Y. City
Dept. of Soc. Servs., 436 U.S. 658 690-91 (1978). A pattern of conduct by Officer
Branch, combined with DARTs failure to discipline or take corrective action, is directly
relevant to the Monell requirements in a section 1983 claim. See T.R. Hoover Cmty.
Dev. Corp. v. City of Dallas, C.A. No. 3:06-CV-2148-O, 2009 WL 2001442, at *4 (N.D.
Tex. July 9, 2009) (OConnor, J.) (citing Supreme Court case law for the proposition that
a section 1983 claim against a municipal entity may be based on, among other things,
investigative reports from plaintiffs in section 1983 cases. For example, one court in this
circuit noted that [t]he apparent trend in this country is to permit disclosure of law
enforcement departments internal affairs investigative reports and files. Tyner v. City of
Jackson, Miss., 105 F.R.D. 564, 566 (S.D. Miss. 1985) (collecting cases). The court
explained:
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Id. Other courts are in accord. See, e.g., Carnaby v. City of Houston, C.A. No. 4:08-cv-
1366, 2008 WL 4546606, at *3 (S.D. Tex. Oct. 10, 2008) (ordering defendant to produce
internal affairs and personnel files of police officers and finding that such IAD and
personnel files are highly relevant to the case at hand (collecting cases)).3 This Court
should follow those decisions and compel DART to produce the withheld documents.
B. RFP Nos. 11-14: Documents relating to communications between DART and the
media.
DART and members of the press. (App. 4-5, RFP Nos. 11-12.) RFP Nos. 13 and 14 seek
documents on which Lyons relied in making statements to the media. (App. 5, RFP Nos.
13-14.) DART objects to each of these requests as overly broad, vague, and ambiguous
and on the grounds that the requests are best responded to in the questions [sic] and
In conferring on these objections, DARTs counsel claimed that DART was not
withholding documents based on its objections and had produced all responsive
documents. (App. 44.) If that is, in fact, the case, the Court should overrule the
objections as prophylactic and improper. Heller, 303 F.R.D. at 486-87. And if DART is
relying on its objections to withhold documents, the Court should overrule them as
3
The Carnaby court also held that federal common law privilege applies to federal claims and rejected
the defendants attempt to shield these documents under state-law confidentiality claims. Carnaby, 2008
WL 4546606, at *2-3. As in that case, the Court here should reject DARTs attempt to withhold
documents under the Texas Government Code. This is particularly true given that Adelmans counsel
offered to agree to a protective order maintaining the confidentiality of the documents. (App. 44.)
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boilerplate and unsupported. See id. at 483-84, 491-92 (overruling improper boilerplate
objections and rejecting vagueness objections where party did not make any effort to
attribute ordinary definitions to the terms used). Adelmans counsel asked DART to
confirm that DART had produced not only email communications but also (a) any text
messages or notes memorializing meetings; and (b) any documents Lyons relied upon, as
requested in RFP Nos. 13 and 14. (App. 44.) To date, DARTs counsel has not
responded to this request. Adelman requests that the Court order DART to produce these
RFP No. 18 seeks [a]ll documents relating to any prior DART policies and
including but not limited to any policy that was in effect prior to July 1, 2014. (App. 5-
6, RFP No. 18.) DART objects on relevance grounds and on the grounds that the request
In conferring on this objection, DARTs counsel indicated that he did not believe
DART was withholding its historical photography policies, but he would confirm. (App.
44.) To date, he has not confirmed this issue. If DART has, in fact, produced all
historical policies and is not withholding documents based on this objection, the Court
should overrule the objection as unnecessary and prophylactic. Heller, 303 F.R.D. at
486-87. If DART is standing on its objections, the Court should overrule them. DARTs
historical policies are plainly relevant, particularly given that there is evidence that DART
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policies (and thus, may have been acting under old policies in arresting Adelman). (See
App. 40 (statement from Officer Branch that DART Police Officers, including myself,
were not made aware of the photography policy and/or trained until after this incident).)
Under the broad standards of relevance, DARTs objection is not proper. Merrill, 227
F.R.D. at 470. Nor is this request vague or ambiguous, as it plainly specifies the
historical policy documents Adelman is seeking. DARTs boilerplate objection does not
specify anything in particular that is vague or ambiguous in this request, and the objection
D. Requests for Admission Nos. 6, 12, 13, 15-18, 22, 23, 26-29, 36, 38, 39, and 51.
objections and also provided evasive and incomplete responses. DARTs responses at
issue in this motion fall into three categories: (1) improper objections asserting that the
requests should be made through depositions (RFA Nos. 12, 13, 15-18, and 51); (2) an
evasive and non-responsive answer (RFA Nos. 36); and (3) improper denials of mutually
exclusive requests (RFA Nos. 22, 23, 26-29, 38, and 39). The Court should order DART
1. RFA Nos. 12, 13, 15-18, and 51: Improper deposition objections.
RFA Nos. 12 and 13 ask DART to admit whether Officer Branch acted properly
or improperly in connection with the arrest of Adelman. (App. 12-13, RFA Nos. 12-13.)
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(Id.) The Court should reject DARTs attempt to use a deposition to obtain this
stipulation, Rule 26(d)(2)(A) generally dictates that Plaintiffs may seek information
through an interrogatory even if Defendant believes the subject matter would be better
explored through a deposition. Heller, 303 F.R.D. at 493. Further, DART cannot avoid
answering the request with its evasive response. See Marchand v. Mercy Med. Ctr., 22
F.3d 933, 938 (9th Cir. 1994) (holding that in answering requests for admission, parties
should not seek to evade disclosure by quibbling and objection); see generally FED. R.
CIV. P. 36(a)(4). DART is free to qualify its answer, as necessary, but it cannot simply
Rescue personnel at the scene of the incident. (App. 13-14, RFA Nos. 15-18.) DART
responds that it does not have sufficient information or knowledge to admit or deny
the requests and that the information is better obtained through a deposition. (Id.) The
Court should, again, follow Heller and reject DARTs improper objection regarding the
discovery device Adelman has opted to use to obtain this information. Nor can DART
credibly claim that it lacks sufficient information to admit or deny the request. DARTs
own internal records reflect that it reviewed audio and video of the unlawful arrest of
Adelman, interviewed officers who were present at the scene, and determined what
statements Dallas Fire Rescue did and did not make. In fact, DARTs Internal Affairs
Report confirms that the statements that are the subject of RFA Nos. 15 through 18
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ha[ve] been denied by DFR personnel and by Officers Craig and Cannon and [are] not
heard or viewed on any video or audio recordings taken from the scene. (App. 32.)
DART cannot now claim lack of knowledge about information that is plainly reflected in
its own records. See FED. R. CIV. P. 36(a)(4) (The answering party may assert lack of
knowledge or information as a reason for failing to admit or deny only if the party states
that it has made reasonable inquiry and that the information that it knows or can readily
ignores the requirements of Rule 36, and the Court should order DART to answer RFA
Nos. 15-18.
RFA No. 51 asks DART to [a]dmit that Lieutenant R. Lindsey recommended that
Officer Branch be terminated as a result of the incident. (App. 20, RFA No. 51.) DART
responded as follows:
(Id.) DART again relies on an improper deposition objection, which the Court should
reject under Heller and similar cases. And DARTs response does not answer the question
asked, but instead answers a question Adelman did not ask. DART cannot rewrite
Adelmans requests for admission merely because it does not like the question posed. The
Court should reject DARTs evasive answer and order DART to properly respond.
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RFA No. 36 asks DART to [a]dmit that DART policy permits its police officers
to issue a criminal trespass warning to a person who is on DARTs property for purposes
other than to utilize public transportation services. (App. 17, RFA No. 36.) DART
responds that it admits its police officers are given discretion to enforce DARTs Code of
Conduct and any offense under the Texas Penal Code. (Id.) This answer simply is not
responsive to the request. DART cannot rewrite the request to one that it would prefer to
answer, but instead must answer the question actually asked. See Keycorp v. Holland,
No. 3:16-cv-1948-D, 2016 WL 6277813, at *14 (N.D. Tex. Oct. 26, 2016) (Horan, M.J.)
(holding that it was improper for party to refuse to answer a request for admission as
asked, particularly where the request was a simple declarative statement); accord
Marchand, 22 F.3d at 938. The Court should order DART to answer the request as
phrased.
3. RFA Nos. 22, 23, 26-29, 38, and 39: Improper denials of mutually
exclusive requests.
The remaining requests for admission at issue are converse requests, where one
request asks DART to admit a fact and the next request asks DART to admit the converse
of that fact. Such requests for admission are permissible and provide a useful way for a
party to determine the other sides position on a given fact or issue. Layne Christensen
Co. v. Purolite Co., C.A. No. 09-2381-JWL-GLR, 2011 WL 381611, at *7 (D. Kan. Jan.
25, 2011). Converse requests for admission are, by their very nature, mutually exclusive,
such that the answer cannot be the same for both requests. For example, RFA No. 38
asks DART to [a]dmit that Officer Branchs arrest of Adelman was inconsistent with
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DART policy; No. 39 asks DART to [a]dmit that Officer Branchs arrest of Adelman
was consistent with DART policy. (App. 17-18, RFA Nos. 38-39 (emphasis added).)
Without any explanation or qualification, DART denied both requests. (Id.) It simply
defies logic that the answer to both of these requests is denied. See Interland, Inc. v.
Bunting, No. 1:04-CV-444-ODE, 2005 WL 2414990, at *9 (N.D. Ga. Mar. 31, 2005)
([T]he Court admits its skepticism that both sides of Buntings denials [to converse
requests] could be made in good faith. Bunting is advised to reconsider his position, as
to prepare for and present evidence at trial.). Although DART may not like the fact that
one of the sides of the converse requests must be true, it must answer the requests in
good faith, which it has not done. The Court should order DART to provide accurate
Interrogatory No. 4 asks DART to [i]dentify all DART police officers and
personnel who had not received training on photography and the right to photograph as
of February 9, 2016. (App. 24, Interrog. No. 4.) DART responded as follows:
Defendant DART has offered photography training to its all officers and/or
has made the Photography Policy available to all its officers. Defendant
DART will continue to provide photography training as part of the new
hire orientation meetings.
(Id.) DARTs response does not answer the question asked. The question is not whether
DART offered training but whether there are any officers who had not received the
name any officers who had not been properly trained, indicating the relevance and
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importance of this request. The Court should order DART to provide a non-evasive
Interrogatory No. 5 asked DART to [i]dentify any DART policies that Officer
Branch violated in connection with the Incident. (App. 24, Interrog. No. 5.) DART
responded by simply referencing its policy documents. (Id.) Again, DARTs answer is
not responsive. The text of DARTs policies is insufficient to identify the specific policies
DART believes Officer Branch violated. This is a critical issue, given the policy
component of a section 1983 claim against a municipality. See Monell, 436 U.S. at 690-
91. The Court should reject DARTs evasive response and order DART to answer the
Interrogatory Nos. 6 and 7 ask DART to explain the bases for statements and
actions of its employees, Morgan Lyons and James Spiller. (App. at 24-25, Interrog. Nos.
6-7.) DART objects to the interrogatories as unduly burdensome and overly broad
because they seek information that would be better requested through depositions. (Id.)
As the party resisting discovery, DART has the burden to show specifically how . . . each
oppressive. McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482,
1484-85 (5th Cir. 1990) (citation and internal quotation marks omitted). In addition,
DARTs objection that this information is better sought through a deposition is improper
and does not provide a basis for DART to avoid answering. See Heller, 303 F.R.D. at
493 (Absent a court order providing otherwise or a binding stipulation, Rule 26(d)(2)(A)
generally dictates that Plaintiffs may seek information through an interrogatory even if
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Defendant believes the subject matter would be better explored through a deposition.).
The Court should overrule DARTs objections and order DART to answer these
interrogatories.
issues without Court intervention. To date, DART has not addressed any of these issues.
Adelman therefore requests that the Court order DART to pay his reasonable and
necessary attorneys fees incurred in connection with this discovery dispute. See FED. R.
CIV. P. 37(a)(5)(A) (If the motion is granted . . . the Court must, after giving an
opportunity to be heard, require the party . . . whose conduct necessitated the motion . . .
to pay the movants reasonable expenses incurred in making the motion, including
CONCLUSION
investigations of Officer Branch, its policies and customs relating to the right to
photograph, and media communications about the arrest of Adelman. There is no basis
to withhold these documents, and the Court should order them produced. DART also
has failed to answer relevant and important requests for admission and interrogatories.
Adelman respectfully requests that the Court overrule DARTs objections and order
DART to answer this discovery. Finally, Adelman respectfully requests that the Court
order DART to pay his reasonable and necessary attorneys fees pursuant to Rule 37.
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Respectfully submitted,
CERTIFICATE OF CONFERENCE
I hereby certify that I conferred with Gene Gamez, counsel for DART, on multiple
occasions, as set forth in the Summary. The parties discussed each matter presented in
this motion during the course of their conferences, and DART is opposed to the relief that
Plaintiff is requesting in this motion.
s/ Tyler J. Bexley
CERTIFICATE OF SERVICE
The undersigned certifies that, on April 7, 2017, the foregoing document was
submitted to the clerk of the U.S. District Court, Northern District of Texas, using the
electronic case filing system (CM/ECF) of the court. I certify that the document was
served on all known counsel of record electronically as authorized by Federal Rule of
Civil Procedure 5(b)(2).
s/ Tyler J. Bexley
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10. All documents relating to any complaints against Officer Branch and any
investigations of Officer Branch.
11. All communications between DART and members of the media relating to
Adelman or the Incident, including but not limited to any formal statement
issued by DART and Morgan Lyonss e-mails with members of the media.
12. All communications between Morgan Lyons and any DART Police
personnel relating to Adelman or the Incident.
13. All documents provided to or relied upon by Morgan Lyons in making the
statement to the news media that DART had reviewed the exchange and
believes the officers acted properly.
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14. All documents provided to or relied upon by Morgan Lyons in making the
statement to the news media that Adelman was arrested for failing to
comply with instructions from Dallas Fire/Rescue personnel.
18. All documents relating to any prior DART policies and procedures
regarding photography and the right to photograph on DART property,
including but not limited to any policy that was in effect prior to July 1,
2014.
RFA Nos. 12, 13, 15-18, and 51: Improper deposition objections
12. Admit that Officer Branch did not act properly in connection with the
Incident.
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13. Admit that Officer Branch acted properly in connection with the Incident.
15. Admit that Dallas Fire Rescue did not ask Adelman to move.
16. Admit that Adelman did not refuse to move in response to a request from
Dallas Fire Rescue.
17. Admit that paramedics did not ask DART police to move Adelman.
18. Admit that Adelman did not fail to comply with any request from
paramedics to move.
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36. Admit that DART policy permits its police officers to issue a criminal
trespass warning to a person who is on DARTs property for purposes
other than to utilize public transportation services.
RESPONSE: DART admits its police officers are given discretion to enforce
DARTs Code of Conduct and any offense under the Texas Penal Code.
RFA Nos. 22, 23, 26-29, 38, 39: Improper denials of mutually exclusive requests
22. Admit that DART determined that the arrest was in accordance with the
guidance published for dealing with photographers.
RESPONSE: Deny.
23. Admit that DART determined that the arrest was not in accordance with
the guidance published for dealing with photographers.
RESPONSE: Deny.
26. Admit that DART trained its police officers before February 9, 2016 that
individuals had a First Amendment right to take photographs of a person
receiving medical treatment.
RESPONSE: Deny.
27. Admit that DART did not train its police officers before February 9, 2016
that individuals had a First Amendment right to take photographs of a
person receiving medical treatment.
RESPONSE: Deny. DART has produced its Photography Policy dated June
4, 2014.
28. Admit that DART trained its police officers before February 9, 2016 that
individuals had a First Amendment right to take photographs on DART
property.
RESPONSE: Deny. DART has produced its Photography Policy dated June
4, 2014.
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29. Admit that DART did not train its police officers before February 9, 2016
that individuals had a First Amendment right to take photographs on
DART property.
RESPONSE: Deny. DART has produced its Photography Policy dated June
4, 2014.
38. Admit that Officer Branchs arrest of Adelman was inconsistent with DART
policy.
RESPONSE: Deny.
39. Admit that Officer Branchs arrest of Adelman was consistent with DART
policy.
RESPONSE: Deny.
Interrogatories
4. Identify all DART police officers and personnel who had not received
training on photography and the right to photograph as of February 9,
2016.
5. Identify any DART policies that Officer Branch violated in connection with
the Incident.
6. Explain the basis for Morgan Lyons statement that DART believes the
officers acted appropriately in connection with the Incident, including to
whom Mr. Lyons spoke and what materials he relied upon in reaching that
conclusion.
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7. Explain the basis for Chief James Spillers determination that a three-day
suspension was an appropriate disciplinary action for Officer Branchs role
in the Incident.