Chrisman v. Oklahoma County Board of County Commissioners

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

ELIZABETH ANN CHRISMAN, )

as Special Administrator of the Estate of )

Charlton Cash Chrisman, Deceased, and )

Individually as Surviving Mother and )

on behalf of the Heirs of )

Charlton Cash Chrisman, Deceased. )

)

Plaintiff, )

)

v. ) Case No. CIV-17-1309-D

)

BOARD OF COUNTY COMMISSIONERS )

OF OKLAHOMA COUNTY, et al., )

)

Defendants. )

ORDER

Before the Court is Defendants’ Motion for Protective Order [Doc. No. 119], to

which Plaintiff has responded in opposition [Doc. No. 139], and Defendants have replied

[Doc. No. 142].1 Also at issue is Plaintiff’s Combined Second Motion to Compel

Production of Documents from Defendant Board of County Commissioners and Motion to

Compel Deposition Testimony of Defendant John Whetsel [Doc. No. 120], to which

Defendants have responded in opposition [Doc. No. 138].2 Upon consideration of these

filings, the Court finds no need for a hearing, and issues its ruling.

1 Defendants also filed Notices of Erratum [Doc. Nos. 143, 144] in connection with their

reply.

2 Plaintiff filed a brief in support of her motion [Doc. No. 121], which the Court has also

considered.

BACKGROUND

This case arises out of the death of Charlton Cash Chrisman on April 19, 2017,

while he was in Defendants’ custody at the Oklahoma County Jail. Plaintiff Elizabeth Ann

Chrisman, as Mr. Chrisman’s mother and Special Administrator of his estate, asserts claims

against the Board of County Commissioners of Oklahoma County (“the Board”), John

Whetsel, and detention officers Michael Coburn, Kristian Rangel, Francisco Plascencia,

Colton Ray, and Brian Harrison. Plaintiff’s federal claims, which arise under 42 U.S.C. §

1983, are based on Chrisman’s Fourth Amendment right to be free from unreasonable

seizures and excessive force, and his Fourteenth Amendment due process rights as a

pretrial detainee to appropriate medical care. Plaintiff also asserts state law claims for

battery and excessive force. The Second Amended Complaint [Doc. No. 45] is the

operative pleading.

Defendants seek a protective order barring Plaintiff’s counsel from questioning

Whetsel about funding and staffing issues at the jail, and a lawsuit involving the jail’s

former healthcare provider that was filed in 2015.3 Plaintiff seeks to compel Defendants

to produce documents relating to budgetary and staffing matters at the jail from 2014

through 2018, and to compel deposition testimony from Whetsel. Specifically, Plaintiff

wants to ask Whetsel about (1) funding and staffing issues at the jail; (2) the 2008 United

States Department of Justice (“DOJ”) report; (3) the Armor lawsuit; and (4) an

investigation/audit of the Oklahoma County Sheriff’s Office in 2016 and 2017.

3 See Armor Corr. Health Services, Inc. v. The Bd. of Cnty. Comm’rs of Okla. Cnty.,

Oklahoma County District Court, Case No. CJ-2015-5602 (“the Armor lawsuit”).

Whetsel, who was deposed by Plaintiff’s counsel on May 20, 2020, refused to

answer the following questions, which Plaintiff’s counsel certified for the Court’s review:

Question: What led you to retire?

Question: Sheriff, at the time that you resigned, the sheriff’s office was

under investigation, was it not?

Question: When you said that there were problems with overall funding,

what were you talking about?

Question: Why was additional funding needed?

Question: What funding was necessary to operate the jail?

Question: Sheriff, did you retire because of the investigation that was

going on?

Question: Sheriff, my question is, were you ever made aware that the

supreme court had affirmed the finding of the trial court

regarding this lawsuit and the liability of the county to pay

Armor $3.3 million?

Question: Who made the decision not to pay Armor?

Question: Who was aware that Armor was not paid?

Question: Was the board of county commissioners aware that Armor was

not paid?

Question: In October of 2016, an audit had been conducted regarding

expenditures by the sheriff’s office and you specifically. Is that

correct?

Question: Did the investigation or audit or combined audit and

investigation ever conclude?

Question: Was there ever a determination of fact one way or another

regarding the audit and investigation?

Question: Did the county seek additional funding to meet the required

staffing levels?

See Whetsel’s Dep. Tr. at 49, 51, 56–58, 74–77, 90 [Doc. No. 119-1].

Plaintiff’s production requests and the Board’s responses are attached to Plaintiff’s

motion at Exhibit 9. [Doc. No. 120-9 at 4–7]. The Board asserts that Production Request

Nos. 62–66 are overly broad and not relevant or proportional to any party’s claims or

defenses. Additionally, the Board asserts that—aside from the allegation that Defendants

“failed[ed] and refus[ed] to pay the Jail’s contracted medical care provider millions of

dollars”—Plaintiff made no other allegations in her Second Amended Complaint about

funding issues at the Oklahoma County Jail.

DISCUSSION

Pursuant to FED. R. CIV. P. 26(c)(1)(D), the Court “may, for good cause shown,

issue an order to protect a party or person from annoyance, embarrassment, [or] oppression

. . . [by] forbidding inquiry into certain matters, or limiting the scope of disclosure or

discovery to certain matters.” The party seeking the protective order has the burden of

demonstrating good cause. Landry v. Swire Oilfield Services, L.L.C., 323 F.R.D. 360, 383

(D.N.M. 2018). Broad or conclusory statements are insufficient; the movant must point to

specific facts to support the assertion that a protective order is necessary. Velasquez v.

Frontier Med. Equip. Inc., 229 F.R.D. 197, 200 (D.N.M. 2005) (denying the defendants’

request for a protective order where no specific harm was asserted); see also Gulf Oil Co.

v. Bernard, 452 U.S. 89, 102 n.16 (1981) (internal quotation marks omitted) (to establish

good cause for a protective order, courts require “a particular and specific demonstration

of fact, as distinguished from stereotyped and conclusory statements”). The decision to

grant a protective order under FED. R. CIV. P. 26(c) is discretionary. Thomas v. Int’l Bus.

Machines, 48 F.3d 478, 482 (10th Cir. 1995); McBride v. Medicalodges, Inc., 250 F.R.D.

581, 583 (D. Kan. 2008).

Relevance, however, does “bear[] on the protective order analysis.” Landry, 323

F.R.D. at 398. The burden of demonstrating relevance is on the party seeking discovery.

Id. at 381. Pursuant to Rule 26(b)(1), “[p]arties may obtain discovery regarding any

nonprivileged matter that is relevant to any party’s claim or defense and proportional to the

needs of the case . . . .” FED. R. CIV. P. 26(b)(1). The considerations that bear on

proportionality include: “the importance of the issues at stake in the action, the amount in

controversy, the parties’ relative access to relevant information, the parties’ resources, the

importance of the discovery in resolving the issues, and whether the burden or expense of

the proposed discovery outweighs its likely benefit.” Id. “Information within this scope

of discovery need not be admissible in evidence to be discoverable.” Id.

Following the 2015 Amendment to Rule 26, “relevance is still to be construed

broadly to encompass any matter that bears on, or that reasonably could lead to other matter

that could bear on any party’s claim or defense.” Tanner v. McMurray, 405 F. Supp. 3d

1115, 1183 (D.N.M. 2019) (internal quotation marks and citations omitted). Thus,

relevance for purposes of discovery remains broader than relevance for purposes of trial

admissibility. Reibert v. CSAA Fire & Cas. Ins. Co., No. 17-CV-350-CVE-JFJ, 2018 WL

279348, at *3 (N.D. Okla. Jan. 3, 2018). While the scope of discovery is broad, it is not

unlimited and is further defined by proportionality considerations. Ramos v. Banner

Health, No. 15-CV-2556-WJM-MJW, 2018 WL 4700707, at *3 (D. Colo. Aug. 8, 2018).

A plaintiff’s broad theory of the case does not necessarily justify broad discovery. Reibert,

2018 WL 279348, at *4. Further, courts should thwart fishing expeditions. Id.

Accordingly, Defendants must demonstrate good cause for a protective order, and

Plaintiff must demonstrate that the deposition inquiries of Whetsel and the production

requests are relevant.

A. Certified Deposition Questions

As discussed supra, Plaintiff’s counsel certified several questions for the Court’s

review. The questions involve four topics of inquiry: (1) funding and staffing issues at the

jail; (2) the DOJ report; (3) the Armor lawsuit; and (4) an investigation of the sheriff’s

office in 2016 and 2017. Pursuant to FED. R. CIV. P. 30(c)(2), counsel may instruct a

deposition witness “not to answer only when necessary to preserve a privilege, to enforce

a limitation on evidence directed by the court, or to suspend a deposition in order to present

a motion under Rule 30(d)(3).” Resol. Tr. Corp. v. Dabney, 73 F.3d 262, 266 (10th Cir.

1995). “It is inappropriate to instruct a witness not to answer a question on the basis of

relevance.” Id.

Here, counsel instructed Whetsel not to answer, citing relevance objections. For

example, when Plaintiff’s counsel asked Whetsel what led him to retire, Whetsel’s counsel

asserted the inquiry was “irrelevant” and had “nothing to do with the lawsuit.” See

Whetsel’s Dep. Tr. at 49 [Doc. No. 119-1 at 13]. Further, Whetsel’s counsel instructed

him not to answer, and advised he would move for a protective order when Plaintiff’s

counsel asked if “the sheriff’s office was under investigation” at the time of Whetsel’s

retirement. Id. Likewise, when Whetsel was asked about the reference in his retirement

letter to problems with overall funding, his counsel instructed him not to answer, advised

he would move for a protective order, and stated all questions regarding funding were

irrelevant. Id. at 51. Counsel gave the same instructions when Whetsel was questioned

about the Armor lawsuit and the investigation of the sheriff’s office in 2016 and 2017. Id.

at 74–77.

Whetsel’s refusal to answer violates his obligation to submit to discovery, and

interferes with Plaintiff’s right to discovery. See, e.g., Harley-Davison Credit Corp. v.

Flint, No. 13-CV-2026-KHV-TJJ, 2014 WL 958715, at *4 (D. Kan. Mar. 12, 2014)

(concluding that the witness’s “refusal to answer violated his obligation to submit to

discovery, and interfered with [the plaintiff’s] right to discovery”). The rules “are clear”—

“[a] witness may state an objection, which will be noted on the record, but the witness must

then answer the question. A witness may not refuse to answer a question . . . on the basis

of relevance.” Id.

Defendants assert that funding issues are not relevant to Plaintiff’s claims because

Plaintiff’s only allegation in her Second Amended Complaint related to funding is

Defendants “failed[ed] and refus[ed] to pay the Jail’s contracted medical care provider

millions of dollars.” Second Am. Compl. at ¶ 63(H) [Doc. No. 45 at 16]. Further,

Defendants assert that, if Plaintiff had made additional allegations about funding, “they

would have likely been subject to dismissal akin to those dismissed by this Court in Willis

v. Oklahoma County Detention Center.” [Doc. No. 138 at 16]; see also Willis v. Okla.

Cnty. Det. Ctr., No. CIV-18-323-D, 2019 WL 4397338, at *5 (W.D. Okla. Sept. 13, 2019).

Rule 30, however, “provides no basis to refuse to answer a question on a belief that the

plaintiff has failed to state a claim under Rule 12(c) or Rule 12(b)(6).” Flint, 2014 WL

958715, at *4.

Pursuant to Rule 37(a)(3)(B)(i), a party seeking discovery may move for an order

compelling an answer if a deponent fails to answer a question asked at an oral deposition.

FED. R. CIV. P. 37(a)(3)(B)(i). Concurrently, under Rule 30(d)(3)(A), a deponent or party

can move to terminate or limit a deposition if the questions are designed to harass or

embarrass a deponent or party. See FED. R. CIV. P. 30(d)(3)(A).4 Defendants did not move

to terminate or limit Whetsel’s deposition, but rather counsel instructed Whetsel not to

answer on the basis of relevance. No assertion was made during the deposition that

counsel’s questions were designed to harass or embarrass Whetsel.

Nevertheless, relevance does bear on the protective order analysis. Defendants

assert that “the relevance of funding questions is at best not ‘readily apparent.’” [Doc. No.

138 at 17]. Plaintiff, as the party seeking the discovery, has the burden of demonstrating

relevance here because relevance “is not readily apparent.” Design Basics, L.L.C. v.

Strawn, 271 F.R.D. 513, 523 (D. Kan. 2010). The Court agrees with Defendants’ assertion

that the allegations offered by Plaintiff in her motion to compel are more appropriate for a

motion to amend. The Court has reviewed Plaintiff’s Second Amended Complaint, and

there are no failure-to-fund allegations included. Likewise, Plaintiff does not allege that

4 “If the objecting deponent or party so demands, the deposition must be suspended for the

time necessary to obtain an order.” FED. R. CIV. P. 30(d)(3)(A). Pursuant to Rule

30(d)(3)(B), the Court “may order that the deposition be terminated or may limit its scope

and manner as provided in Rule 26(c).” FED. R. CIV. P. 30(d)(3)(B).

unqualified persons were hired at low pay, that the jail was grossly understaffed, that jail

funds were misappropriated, or that a lack of funding contributed to the county’s failure to

attract qualified personnel. Plaintiff’s broad theory of the case, offered in her motion to

compel, does not justify broad discovery. Reibert, 2018 WL 279348, at *4.

Plaintiff’s excessive force claim against the Board and Whetsel is based on the

theory that Whetsel failed to train the S.E.R.T. team in the use of excessive force against

prisoners, or allowed them to self-train. She asserts that the Board created an environment

at the jail that included “ignoring and failing to attend to the medical, emotional, mental

and/or psychological needs and/or conditions of [j]ail prisoners.” Pl.’s Second Am. Compl.

[Doc. No. 45 at ¶ 63(G)]. Consequently, Plaintiff does not allege that unqualified medical

personnel were hired or that the jail was understaffed.

The amendments to Rule 26 “signal[] to the [C]ourt that it has the authority to

confine discovery to the claims and defenses asserted in the pleadings, and signal[] to the

parties that they have no entitlement to discovery to develop new claims or defenses that

are not already identified in the pleadings.” Bhasker v. Kemper Cas. Ins. Co., 361 F. Supp.

3d 1045, 1113 (D.N.M. 2019). Plaintiff’s allegation that the Board and/or Whetsel

deliberately refused to pay the jail’s contracted medical care provider millions of dollars

could imply that someone misappropriated funds, but there is no reference in the Second

Amended Complaint to the investigation of the sheriff’s office or Whetsel’s abrupt

retirement after re-election. Nor is there an allegation that a lack of funding caused or

contributed to Chrisman’s death. Further, there is no allegation that the Board’s reported

failure to pay Armor resulted in Chrisman receiving inadequate medical care.

Additionally, the Armor lawsuit predates Chrisman’s death by two-to-three years.

It was filed on October 14, 2015; Chrisman died on April 19, 2017. Although Plaintiff

asserts the commencement of the lawsuit does not equate to the life of the lawsuit, the

opinion from the Oklahoma Supreme Court clearly states that the medical services in

question were for the period January 1, 2014 through June 30, 2015. [Doc. No. 139-6 at

2]. Again, there is no allegation that the Armor lawsuit contributed to or caused Chrisman’s

death or that the Board and/or Whetsel were withholding payment from the medical

provider in April 2017.

Plaintiff also seeks to compel deposition testimony from Whetsel concerning the

2008 DOJ report. This area of inquiry was not included in the certified questions to the

Court, and it was only briefly covered in the deposition. See Whetsel’s Dep. Tr. at 61, 112

[Doc. No. 119-1]. Further, there is no reference to the 2008 DOJ report in Plaintiff’s

Second Amended Complaint. Consequently, Plaintiff has failed to demonstrate how a

report describing conditions at the jail in 2007 would be relevant to Plaintiff’s claims

involving Chrisman’s death in 2017. There is no allegation that “the same conditions

noted in the 2008 DOJ Report still existed more than [ten] years later in [2017].” Turner

v. Bd. of Cnty. Comm’rs of Cnty. of Okla., No. CIV-18-36-SLP, 2019 WL 1997473, at *3

(W.D. Okla. May 6, 2019).

B. Production Requests

Discovery in this case concluded on August 14, 2020, with the exception of the

completion of Whetsel’s deposition. [Doc. No. 117]. Plaintiff filed her motion to compel

on August 14, 2020. [Doc. No. 120]. However, Plaintiff received Defendants’ responses

and objections to the production requests on March 30, 2020. [Doc. No. 120-9 at 8–9].

Although Rule 37 does not specify a time limit, a party seeking to compel discovery must

do so in a timely manner. See, e.g., Buttler v. Benson, 193 F.R.D. 664, 666 (D. Colo. 2000)

(concluding that a “party cannot ignore available discovery remedies for months”); Cont’l

Indus., Inc. v. Integrated Logistics Solutions, LLC, 211 F.R.D. 442, 444 (N.D. Okla. 2002)

(concluding that a motion to compel filed after the discovery cutoff was untimely and

resulted in a waiver of any discovery violations); Barnes v. United States, No. 11-CV-582-

HE-PJC, 2013 WL 12425651, at *2 (N.D. Okla. Oct. 15, 2013) (denying a motion to

compel that was filed on the day discovery closed).

Although trial is not imminent in this case, dispositive motions are pending. The

granting of Plaintiff’s motion to compel would require discovery to be re-opened. This

Court has already allowed nineteen months for discovery. [Doc. Nos. 62, 117]. Moreover,

Plaintiff has not provided an adequate explanation for the delay, or a compelling reason to

extend discovery. See Barnes, 2013 WL 12425651, at *2 (timeliness depends on the

factual circumstances, including the amount of time allotted for discovery; the posture of

the case; the reasons for the delay; whether discovery would have to be re-opened; and

whether dispositive motions are pending); see also FED. R. CIV. P. 16(b)(4) (“A schedule

may be modified only for good cause and with the judge’s consent.”).

Further, as discussed supra, Plaintiff has not made any failure-to-fund allegations

in her Second Amended Complaint; thus, the documents requested are not relevant to

Plaintiff’s claims.

CONCLUSION

Based on the foregoing, Defendants’ Motion for Protective Order [Doc. No. 119] is

GRANTED. Plaintiff's Combined Second Motion to Compel Production of Documents

from Defendant Board of County Commissioners and Motion to Compel Deposition

Testimony of Defendant John Whetsel [Doc. No. 120] is DENIED.”

IT IS SO ORDERED this 30" day of November 2020.

Q.Oyht

TIMOTHY D. DeGIUSTI

Chief United States District Judge

> The Court noted, supra, counsel’s improper instructions not to answer deposition

questions. Counsel is warned not to repeat such conduct in future depositions.

12