Knight v. State of Oklahoma

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

THOMAS KNIGHT, )

)

Plaintiff, )

)

v. )

)

STATE OF OKLAHOMA ex rel. )

OKLAHOMA DEPARTMENT OF )

Case No. 22-cv-00069-TCK-SH

PUBLIC SAFETY; JOHN SCULLY; )

BRENT SUGG; CITY OF TULSA; )

WENDELL FRANKLIN; STATE OF )

OKLAHOMA DOES 1-15; CITY OF )

TULSA DOES 16-30; and JOHN DOE )

DRIVER, )

)

Defendants. )

OPINION AND ORDER

Before the Court is Plaintiff’s motion to open discovery a few weeks early for the

limited purpose of serving an interrogatory and subpoena to ask a simple question—the

identity of Defendant John Doe Driver, including his contact information. Defendant City

of Tulsa (the “City”) does not oppose this motion. The State Defendants do.1 In their

opposition, State Defendants do not respond to the substance of Plaintiff’s request or to

the legitimacy of his need for the information. Instead, State Defendants assert that,

because they have filed a motion to dismiss, in which the individual defendants (Scully

and Sugg) are asserting qualified immunity and OKDPS is asserting sovereign immunity,

Plaintiff should be deprived of his ability to learn the identity of John Doe Driver before

the statute of limitations expires. The Court rejects State Defendants’ arguments and

finds Plaintiff should be granted the limited relief he seeks.

1 The term “State Defendants” refers to Defendants State of Oklahoma ex rel. Oklahoma

Department of Public Safety (“OKDPS”), John Scully (“Scully”), and Brent Sugg (“Sugg”).

Background

Plaintiff Thomas Knight (“Knight”) filed this lawsuit on February 14, 2022, seeking

relief relating to injuries he suffered after falling off an Interstate 244 overpass in Tulsa

on May 31, 2020. (See, e.g., Compl., ECF No. 2, ¶¶ 2-11.) Knight alleges that City police

officers and agents funneled him and other “Rallygoers” from a city street and onto I-244;

that the Oklahoma Highway Patrol2 initially stopped traffic on I-244 but then allowed a

truck to pass through the barricade and drive through the Rallygoers; and that the truck—

driven by Defendant John Doe Driver—caused the crowd to disperse and swell back

toward the edges of the overpass, knocking Knight off the bridge and causing him to fall

20 feet to the city street below. (Id.) Knight has asserted negligence claims against the

City and OKDPS under the Oklahoma Governmental Tort Claims Act (“GTCA”), Okla.

Stat. tit. 51, § 151 et seq., and claims against various City and State defendants under 42

U.S.C. § 1983. (Id. ¶¶ 101-79.) Knight also asserts a negligence claim against Defendant

John Doe Driver, alleging the driver breached a duty to operate his vehicle in a safe and

reasonable manner and caused Knight’s damages. (Id. ¶¶ 180-84.)

The first defendant was served with Knight’s complaint on February 28, 2022, and

the first defendant appeared on March 21, 2022. (ECF Nos. 4-10.) Absent an order from

the court, the parties would be obligated to confer as to discovery “as soon as practicable”

and no later than April 29, 2022, at which point discovery could commence. See Fed. R.

Civ. P. 26(d)(1) (noting, with certain exceptions, that “[a] party may not seek discovery

from any source before the parties have conferred as required by Rule 26(f)”); id. 26(f)(1)

(noting that such conference must occur “as soon as practicable--and in any event at least

2 Knight alleges that the OKDPS is responsible for managing and overseeing the

Oklahoma Highway Patrol, which is a division of the OKDPS. (Id. ¶ 15.)

21 days before . . . a scheduling order is due under Rule 16(b)”); id. 16(b)(2) (noting that

a scheduling order is due absent good cause for delay, “the earlier of 90 days after any

defendant has been served with the complaint or 60 days after any defendant has

appeared,” here May 20, 2022).

Knight filed the instant motion on April 1st, seeking to open discovery less than

one month early and for a strictly limited purpose. (ECF No. 14.) In his motion, Knight

outlines the efforts his counsel has taken—both before and after filing the instant

lawsuit—to discover John Doe Driver’s identity without formal discovery. This has

included reviewing media footage and social media information, hiring a private

investigator, and issuing open records requests to OKDPS, City, and others. (Id. at 2-3.)

Plaintiff’s counsel also requested the information from non-party Tulsa County District

Attorney’s Office (the “County DA”), which stated it knows John Doe Driver’s identity but

cannot provide that information without a court order. (Id. at 3.) Finally, Plaintiff’s

counsel also attempted to resolve this issue informally with OKDPS and the City. (Id.)

According to Plaintiff, it is possible the City may not have this information, but OKDPS

refused to cooperate in any consensual discovery and, further, advised Plaintiff to note its

objection to any of the requested relief. (Id.)

True to its word, State Defendants have filed a response opposing Plaintiff’s

requested relief in its entirety. (ECF No. 21.) State Defendants offer no arguments as to

why Plaintiff should be prevented from conducting discovery from other parties or non-

parties on this issue. As for Scully and Sugg, State Defendants argue they “cannot be

required” to respond to discovery at this point in the lawsuit when they have asserted a

defense of qualified immunity. (Id. at 2.) As for OKDPS, State Defendants agree the

pending motion to dismiss does not foreclose discovery but argue such discovery should

be limited to issues raised by their motion to dismiss. (Id. at 3.)

Analysis

I. Plaintiff Has Demonstrated Good Cause for the Limited Early

Discovery He Seeks

As noted above, by default, a party cannot commence discovery until after the Rule

26(f) conference has occurred, though the Court may alter this schedule. Fed. R. Civ. P.

26(d)(1) (allowing earlier discovery “when authorized . . . by court order”). The decision

of whether to allow early discovery is within the broad discretion of the Court upon the

movant’s showing of good cause.3 Qwest Commc’ns Int’l, Inc. v. WorldQuest Networks,

Inc., 213 F.R.D. 418, 419 (D. Colo. 2003); see also CGB Diversified Servs., Inc. v.

Forsythe, No. 20-2120-JAR-TJJ, 2020 WL 2193114, at *1 (D. Kan. May 6, 2020) (noting

the Court’s broad discretion to permit discovery before the Rule 26(f) conference and to

shorten the time to respond to interrogatories). In deciding whether good cause is shown,

the Court may look to the scope of the discovery request. Qwest, 213 F.R.D. at 420. The

request should be narrowly tailored to seek the information necessary to support the

3 Some have questioned whether the “good cause” standard still applies after the 2015

amendments to Rule 26(b), which restated the general scope of discovery in terms of

proportionality and relevance. See, e.g., Strike 3 Holdings, LLC v. Doe, 964 F.3d 1203,

1207, n.2 (D.C. Cir. 2020). But see Richard L. Marcus, Fed’l Practice & Procedure § 2046.1

(3d ed.) (“Although the rule does not say so, it is implicit that some showing of good cause

should be made . . ., and courts . . . have frequently treated the question whether to

authorize early discovery as governed by a good cause standard.” (collecting cases)). For

purposes of this motion, the Court will assume that the “good cause” standard applies

where a party seeks to open discovery early. The information sought by Plaintiff is also

relevant to his claims and proportional to the needs of the case. Fed. R. Civ. P. 26(b).

expedited relief.4 Trainor v. Doe, No. 22-cv-00350-RM-NYW, 2022 WL 444396, at *2

(D. Colo. Feb. 14, 2022).

Several courts have found good cause where a party is attempting to learn the name

of a Doe defendant. See, e.g., id. at *3 (seeking issuance of subpoenas to learn identity of

Doe defendants); Ibarra, 816 F. Supp. 2d at 555 (seeking identities of John Doe officers

in § 1983 action); N. Atl. Operating Co., Inc. v. JingJing Huang, 194 F. Supp. 3d 634, 637

(E.D. Mich. 2016) (seeking names and addresses of parties sued under their usernames);

Council on Am.-Islamic Rels.-Minn. v. Atlas Aegis, LLC, 497 F. Supp. 3d 371, 380-81 (D.

Minn. 2020) (seeking names and contact information of Doe co-defendants); cf. Strike 3

Holdings, 964 F.3d at 1208-12 (finding district court abused its discretion in refusing

plaintiff’s Rule 26(d)(1) request to conduct discovery into identity of Doe defendant).

Here, the Court finds Plaintiff has shown good cause. He seeks very limited

information relating to a specifically identifiable individual against whom he has asserted

a garden-variety tort of negligence. Plaintiff’s counsel has attempted numerous methods

of obtaining this information without conducting formal discovery.5 The potential burden

on the objecting defendants is exceedingly minimal—a written answer to a single

interrogatory. The potential damage to Plaintiff without this minimal discovery is great—

Plaintiff has stated a belief that, absent this information, a court may find the statute of

limitations against John Doe Driver has run on May 31, 2022, and that the relation-back

4 Some courts look at a larger series of factors, including (1) whether a preliminary

injunction is pending; (2) the breadth of the discovery requests; (3) the purpose for

requesting the expedited discovery; (4) the burden on the defendants to comply with these

requests; and (5) how far in advance of the typical discovery process the request was

made. See, e.g., Ibarra v. City of Chicago, 816 F. Supp. 2d 541, 554 (N.D. Ill. 2011). The

Court does not find its discretion to be necessarily cabined by these factors but notes all

but the first favor Plaintiff in this instance.

5 See supra, Background, at 3.

provisions of Fed. R. Civ. P. 15(c) do not apply. See Garrett v. Fleming, 362 F.3d 692,

696 (10th Cir. 2004) (“a plaintiff’s lack of knowledge of the intended defendant’s identity

is not a ‘mistake concerning the identity of the proper party’ within the meaning of Rule

15(c)(3)(B)”).

II. Plaintiff May Subpoena the County DA

No party has offered any argument as to why Plaintiff should not be allowed to

conduct early discovery by issuing a subpoena to the County DA for the sole purpose of

learning the identity (including contact information) of John Doe Driver. Having offered

no argument or authority for why such discovery should be prohibited, the Court finds

the appearing defendants have waived any objections to such discovery.

III. The Pending Motion to Dismiss Does Not Foreclose the Requested

Relief as to the State Defendants

A. Sovereign Immunity – OKDPS

OKDPS argues that it should not be required to respond to non-jurisdictional

discovery where it has a pending motion to dismiss based on its sovereign immunity.

(ECF No. 21 at 3.) Normally, sovereign immunity does not bar litigation against the State

of Oklahoma or its subdivisions under the GTCA. Okla. Stat. tit. 51, § 152.1(B). However,

the motion to dismiss argues this waiver is inapplicable, (1) incorrectly stating that

Plaintiff’s complaint makes “no mention of the GTCA whatsoever, much less [alleging]

compliance with the GTCA’s provisions”;6 (2) arguing Plaintiff’s claims are too conclusory

under Fed. R. Civ. P. 8(a); and (3) asserting an exemption from GTCA liability under Okla.

6 In his complaint, Plaintiff alleges that he notified the defendants of his claims pursuant

to the GTCA on May 20, 2021; his claims were denied; and he brought the instant action

within 180 days of the denial. (ECF No. 2 at 6 n.3.) See also Okla. Stat. tit. 51, § 156(B)

(requiring presentation of claims within one year of loss); id. § 157(B) (requiring filing of

suit within 180 days of denial of claim). Plaintiff further alleges that the OKDPS is liable

to him pursuant to the GTCA. (Id. ¶ 119.)

Stat. tit. 51, § 155(6), which applies to civil disobedience and the failure to provide, or

method of providing, police protection.7 (ECF No. 10 at 12-13 (emphasis omitted).) The

parties are still briefing State Defendants’ motion to dismiss.

In the meantime, the undersigned must address whether the mere fact that the

motion to dismiss is pending prohibits Plaintiff from seeking limited discovery as to the

name and last known location of another named defendant. OKDPS does not argue that

such discovery is prohibited, but it does argue that such discovery should be limited to

the factual issues raised by its motion. (ECF No. 21 at 3.) OKDPS’s only authority is a

case that simply notes, “[w]hen a defendant moves to dismiss for lack of jurisdiction,

either party should be allowed discovery on the factual issues raised by that motion.” Xie

v. Univ. of Utah, 243 F. App’x 367, 375 (10th Cir. 2007) (unpublished) (quoting Sizova v.

Nat’l Inst. of Standards & Tech., 282 F.3d 1320, 1326 (10th Cir. 2002)).

Still, as with qualified immunity, a state’s immunity from suit is intended to protect

it from the burden of discovery. Univ. of Texas v. Vratil, 96 F.3d 1337, 1340 (10th Cir.

1996). However, as noted below, the Court finds that even immunity from the burden of

discovery does not bar the limited request sought by Plaintiff here.

B. Qualified Immunity – Scully and Sugg

Defendants Scully and Sugg also have pending a motion to dismiss, making various

arguments including that their actions are shielded by qualified immunity. As State

Defendants note, qualified immunity is not only a defense to liability but also an

7 As it relates to police protection, the Oklahoma Supreme Court has stated, “The State

and its political subdivisions enjoy immunity for the choice to adopt or enforce a law, the

formulation of law enforcement policy, and the method by which policy is implemented.

The exemptions do not apply to tortious acts of government servants in the daily

implementation of policy.” State ex rel. Okla. Dep’t of Pub. Safety v. Gurich, 2010 OK 56,

¶11, 238 P.3d 1, 4.

entitlement to immunity from the demands of litigation. Workman v. Jordan, 958 F.2d

332, 336 (10th Cir. 1992) (noting discovery should not be allowed until the court resolves

the threshold question of clearly established law). While discovery against public officials

is one of the evils qualified immunity is intended to address, case law does not “create an

immunity from all discovery.” Crawford-El v. Britton, 523 U.S. 574, 593 n.14 (1998).

Rather, the goal is to avoid broad-reaching discovery, while limited discovery may

sometimes be necessary. Id. (referring to the need to resolve a motion for summary

judgment on qualified immunity).

In this instance, it is not truly the § 1983 litigation that would subject Scully and

Sugg to discovery from Plaintiff regarding the identity of John Doe Driver; the “burden,”

instead, would result from Plaintiff’s separate claims against that individual.8 Scully and

Sugg do not, for example, argue that Plaintiff could not subpoena them for this

information if they were not parties to this case. Cf. Bonnet v. Harvest (U.S.) Holdings,

Inc., 741 F.3d 1155, 1162 (10th Cir. 2014) (expressing doubt as to whether an Indian tribe

should be able to use a claim of tribal sovereign immunity to shut off an appropriate

judicial demand for discovery served on a tribal official).

In any event, even where qualified immunity is presented, courts have allowed

limited discovery like that being sought here. See, e.g., Bustos v. United States, No. 08-

cv-00153, 2009 WL 416511, at *3-4 (D. Colo. Feb. 18, 2009) (allowing limited discovery

for “identifying the three John Doe defendants” despite pending motions to dismiss

asserting qualified immunity, sovereign immunity, and lack of jurisdiction); Ferro v. Bd.

8 That is not to say that discovery sought from or about John Doe Driver is irrelevant to

Plaintiff’s claims against the other defendants. But, at this stage of the litigation, the

primary impetus of Plaintiff’s request for limited early discovery is to allow his negligence

action against John Doe Driver to proceed.

of Cnty. Comm'rs, No. 18-cv-0223 GJF/SMV, 2018 WL 5268202, at *3 (D.N.M. Oct. 23,

2018) (allowing interrogatory to identify other individuals involved in incident despite

pending qualified immunity motion testing the legal sufficiency of the complaint). The

Court finds that the limited discovery sought imposes a very minimal burden on the

potentially immune parties and is warranted in the circumstances presented by this case.

The Court will require State Defendants to answer a simple interrogatory seeking the

identity, including contact information, of John Doe Driver.

IT IS THEREFORE ORDERED that Plaintiffs Motion for Emergency Discovery

(ECF No. 14) is GRANTED. Plaintiff is authorized to serve an interrogatory on any of the

parties, seeking John Doe Driver’s identity and last known contact information. Any

party served with such an interrogatory shall respond within five days of service. Plaintiff

is authorized to issue a deposition subpoena to the Tulsa County District Attorney’s Office

in order to seek this same information.

ORDERED this 12th day of April, 2022.

UNITED STATES DISTRICT COURT