Sheppheard v. Justice

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

BECKLEY DIVISION

THOMAS SHEPPHEARD,

TYLER RANDALL, and

ADAM PERRY, next friend and guardian

of Minor child J.P., on their own behalf

and on behalf of all others similarly situated,

Plaintiffs,

v. Case No.: 5:23-cv-00530

JAMES C. JUSTICE, his official capacity

as Governor of the State of West Virginia, and

MARK SORSAIA, in his official capacity as

The Cabinet Secretary of the West Virginia

Department of Homeland Security,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending are Plaintiffs’ Motions to Compel, (ECF Nos. 53, 54); Plaintiffs’ Motions

to Deem Admitted Responses to Requests for Admission, (ECF Nos. 55, 56); and

Defendant Sorsaia’s Motion for Protective Order Regarding Amended Notices of

Videotaped Deposition Duces Tecum, (ECF No. 84). Defendants have filed responses in

opposition to the Motions to Compel and to Deem Requests for Admission Admitted,

(ECF Nos. 70, 71, 72, 73); Plaintiffs have responded in opposition to the Motion for

Protective Order, (ECF No. 117); and Defendant Sorsaia has replied to Plaintiffs’ response,

(ECF No. 119). The undersigned has reviewed all of the briefing and conducted two

hearings related to the motions—one on May 31, 2024, and the other on June 20, 2024.

Counsel for the parties have met and conferred extensively to resolve as many of their

discovery disputes as possible; their diligence is much appreciated by the Court. Having

considered the written materials and the oral arguments of counsel, the Court GRANTS,

in part, and DENIES, in part, the Motions to Compel, (ECF Nos. 53, 54); DENIES the

Motions to Deem Requests for Admission Admitted, (ECF No. 55, 56); and GRANTS the

Motion for Protective Order, (ECF No. 84), as set forth below.

I. Relevant Background Information

This is a putative class action filed by Plaintiffs, who were inmates housed in

facilities owned and operated by the West Virginia Division of Corrections and

Rehabilitation (“DCR”). At all relevant times, Plaintiff Sheppheard was incarcerated in

the Mount Olive Correctional Complex (“MOCC”); Plaintiff Randall was incarcerated in

the Southwestern Regional Jail (“SWRJ”); and Plaintiff J.P. was incarcerated in the

Donald R. Kuhn Juvenile Center (“KJC”). (ECF No. 9 at 2-3). Plaintiffs complain that

West Virginia’s correctional facilities—including its prisons, jails, and juvenile centers—

have been chronically overcrowded, understaffed, and improperly maintained for more

than a decade. (Id. at 4-5). As a result, West Virginia inmates have suffered inhumane

conditions of confinement and deliberate indifference to their health and safety in

violation of the Eighth and Fourteenth Amendments to the United States Constitution.

(Id. at 5-6). Plaintiffs sue Governor Jim Justice and Cabinet Secretary Mark Sorsaia in

their official capacities, allegedly as the state officials with ultimate authority over the

maintenance and operation of West Virginia’s correctional facilities. Plaintiffs seek

declaratory and prospective injunctive relief, as well as attorneys’ fees. (Id. at 26-27).

On January 25, 2024, Plaintiffs served Defendants with nearly identical

interrogatories, requests for production of documents, and requests for admission. (ECF

Nos. 33, 34, 53-3 at 1). Defendants responded to the discovery requests and admissions,

but Plaintiffs found the answers to be insufficient. (ECF Nos. 45, 46, 53, 54, 55, 56). After

some effort to resolve their discovery dispute, Plaintiffs filed the Motions currently before

the Court. Defendant Sorsaia filed his motion after receiving deposition notices, which

required the deponents to make a substantial document production in conjunction with

their deposition appearances.

During the first discovery hearing, the parties explained their positions at length.

(ECF No. 102). The undersigned made suggestions on how to resolve many of the issues

and ordered counsel to meet and confer further. Counsel for the parties abided by the

order and, after much work, compromised their positions and reached agreements

concerning the majority of their differences. (ECF Nos. 121, 122). At the second hearing,

the Court addressed the remaining unresolved issues. (ECF No. 123).

II. Motions to Compel

A. Governor Justice

With respect to Defendant Justice’s responses to discovery requests, Plaintiffs

assert the following arguments in support of a motion to compel. Plaintiffs contend that

Justice provided improper general objections to all of the requests; unilaterally limited

his answers to the correctional facilities at which the Plaintiffs were housed despite this

being a class action involving thirty-five correctional facilities in the State of West

Virginia; and failed to fully respond to the requests on the ground that Defendant Sorsaia

received the same discovery requests, making the requests to Justice cumulative. (ECF

No. 53). Plaintiffs set forth specific grounds to compel Requests for Production of

Documents Nos. 14, 15, 21, 25, 29, 31, 44, 45, 46, 54, and 76.

In response, Justice argues that Plaintiffs’ requests to him are identical to the

requests served on Sorsaia, and both state officials should not be compelled to produce

the same documents and answer the same questions. (ECF No. 70). Justice asserts that

the Court should limit the cumulative and duplicative requests as required by the Federal

Rules of Civil Procedure. As Sorsaia is the official responsible for West Virginia’s

Department of Homeland Security, which oversees the DCR, Justice believes that Sorsaia

is in the best position to respond to the discovery. Justice disagrees that his general

objections are improper and claims that the requests are overly broad as they seek seven

years’ worth of information about thirty-five facilities, as well as numerous

unconstitutional conditions of confinement that are not part of the allegations in the

complaint. He adds that the specific requests for production addressed by Plaintiffs in

their motion to compel have not been answered, because they uniformly seek information

that is irrelevant to the claims and defenses in the case, making them disproportionate to

the needs of the case.

B. Secretary Sorsaia

Plaintiffs argue that Sorsaia improperly limited his responses to the three facilities

at which the Plaintiffs are housed, although the complaint very clearly is a putative class

action involving all thirty-five of West Virginia’s correctional facilities. (ECF No. 54).

Plaintiffs point out that these prison, jails, and juvenile centers are explicitly identified in

the complaint, and the allegations concern the failure of the State as a whole to maintain

and operate its correctional facilities in keeping with constitutional mandates. Plaintiffs

complain that Sorsaia asserted unfounded and “boilerplate” objections. Plaintiffs set out

specific grounds to compel complete answers to Interrogatory Nos. 11 and 12 and

Requests for Production of Documents Nos. 8, 14, 21, 25, 29, 31, 39, and 54.

In response, Sorsaia contends that Plaintiffs specified certain alleged

unconstitutional conditions of confinement experienced by them, and the case should be

limited to those conditions. (ECF No. 72). Instead, Plaintiffs have posed broad, sweeping,

requests about conditions and correctional facilities not included in the complaint.

Sorsaia argues that these requests place an extraordinary burden on him and West

Virginia’s taxpayers and are not proportional to the needs of the case. According to

Sorsaia, he applied a protocol to search for electronically stored information (“ESI”)

responsive to the requests—which he limited to the conditions and facilities addressed in

the complaint—and that search returned 170,000 documents, which Sorsaia is reviewing

for relevance and privilege. Sorsaia also responds to Plaintiffs’ argument regarding the

specific requests and interrogatories.

III. Requests for Admissions

A. Governor Justice

Plaintiffs complain that Justice attached paragraph-long objections and qualifiers

to every response he made to requests for admission, and he failed to make a reasonable

inquiry to support his answers, as required by Fed R. Civ. P. 26. (ECF No. 57). Plaintiffs

provide examples of the objectionable responses, arguing that the requests were simple

and direct and did not merit the long-winded objections and qualifiers. Plaintiffs argue

that Justice’s objections based upon overbreadth, vagueness, and ambiguity are simply

“boilerplate” and thus improper. (Id. at 5).

Defendant Justice responds that the requests for admission all share the same

fundamental problems, which made them virtually impossible to answer. (ECF No. 71).

Specifically, the requests sought admissions applying to all thirty-five correctional

facilities over a span of seven years. Justice contends that he tried to answer these

unwieldy and voluminous requests, but to do so required objections and qualifiers. After

meeting and conferring, Plaintiffs made no corrections to the requests; instead, Plaintiffs

suggested that Justice treat every year and each facility mentioned in the requests as a

separate request for admission, requiring Justice to gather voluminous information and

ballooning the number of requests from 82 to 17,796. (Id. at 3). Justice points out that

many of the requests seek a legal conclusion without any accompanying factual context,

and the remaining requests are so broadly written, they cannot be fairly answered.

According to Justice, Plaintiffs attempt to circumvent the limitation on interrogatories by

using requests for admission as a device to discover facts and evidence, rather than for

their intended purpose, which is to narrow issues for trial.

B. Secretary Sorsaia

Plaintiffs lodge the same complaints against the answers supplied by Defendant

Sorsaia as against Defendant Justice. (ECF No. 58). Plaintiffs claim that Sorsaia denied

most, if not all, of the requests for admission and included boilerplate objections and

qualifiers. Once again, Plaintiffs assert that the requests are “simple and direct,” making

them easy to answer if Sorsaia would just perform the mandatory reasonable inquiry.

Plaintiffs specifically object to Sorsaia’s habit of denying requests “as characterized.”

Plaintiffs argue that this qualifier is not adequately explained, rendering it a boilerplate

response.

In opposition, Sorsaia alleges that many of the requests seek purely legal

conclusions, which are improper. (ECF No. 73). Many of the other requests, in Sorsaia’s

view, seek admissions of broad generalizations and ambiguous statements. Despite the

overwhelming breadth and scope of the requests for admission, Sorsaia contends that he

has responded to each request, providing appropriate objections and admitting or

denying portions of the request to the extent possible. Sorsaia additionally argues that

Plaintiffs only complain in their motion about four individual responses, yet ask to have

all 131 requests admitted. Sorsaia asserts that Plaintiffs’ failure to raise specific concerns

about the remaining responses constitutes a waiver of any argument Plaintiffs have

relating to the other 127 requests.

IV. Motion for Protective Order

In the Motion for Protective Order, Defendant Sorsaia objects to a document

production list attached to Plaintiffs’ notice to take his deposition and their notice to take

the deposition of William Marshall, Commissioner of the DCR. Sorsaia indicates that the

documents included on the list are the same ones already requested and produced

pursuant to Requests for Production of Documents; thus, forcing Sorsaia and Marshall to

engage in significant duplicative, cumulative, and unnecessary discovery. (ECF No. 85).

Sorsaia notes that district courts are required under Fed. R. Civ. P. 26(b)(2)(C) to issue a

protective order when discovery requests are unreasonably cumulative or duplicative, and

further, courts must issue orders as necessary to protect a deponent from annoyance,

embarrassment, oppression, or undue burden or expense.

In response, Plaintiffs argue that the motion is moot, because the depositions have

been cancelled, and the parties have agreed on many issues that will narrow the scope of

discovery and modify Plaintiffs’ needs. (ECF No. 117). Plaintiffs add that they do not

expect the witnesses to reproduce documents that have already been provided, but want

the witnesses to confirm, under oath, that the previous productions are complete.

Sorsaia disagrees that the motion is moot, because new notices will issue in the

future. (ECF No. 119). Sorsaia wants the Court to determine whether Marshall has an

obligation to attest to the completeness of the prior document productions. In addition,

Sorsaia wants a ruling from the Court regarding the propriety of any document request

attached to the notices of deposition.

V. Discussion

A. Discovery Requests

1. Standard of Review

Rule 26(b)(1) of the Federal Rules of Civil Procedure defines the scope of discovery

in this action. It states, in relevant part:

[U]nless otherwise limited by court order, the scope of discovery is as

follows: Parties 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, considering 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. Information within this

scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1). “Relevancy under this rule has been broadly construed to

encompass any possibility that the information sought may be relevant to the claim or

defense of any party.” Becton, Dickinson & Co. v. BioMedomics, Inc., No. 5:20-CV-536-

FL, 2021 WL 3864476, at *3 (E.D.N.C. Aug. 30, 2021) (citations omitted). “Relevance is

not, on its own, a high bar.” Ceresini v. Gonzales, No. 3:21-CV-40 (GROH), 2022 WL

628520, at *3 (N.D.W. Va. Mar. 3, 2022) (citation omitted). As stated in the rule,

information “need not be admissible in evidence to be discoverable.” Id. (quoting Fed. R.

Civ. P. 26(b)(1)). “Federal courts have long understood that relevancy for discovery

purposes is defined more broadly than relevancy for evidentiary purposes.” Id.

Even when seeking relevant information, however, the discovery request must be

proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). “The parties and the court

have a collective responsibility to consider the proportionality of all discovery and

consider it in resolving discovery disputes.” Fed. R. Civ. P. 26 advisory committee's notes,

2015 Amendment. “Although Rule 26(b)(1)’s relevance inquiry does not, itself, pose a

‘high bar,’ its proportionality requirement mandates consideration of multiple factors in

determining whether to allow discovery of even relevant information.” Ceresini, 2022 WL

628520, at *3. The factors 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 discovery in resolving the issues, and whether the burden or

expense of the proposed discovery outweighs its likely benefit.” Id. (quoting Fed. R. Civ.

P. 26(b)(1)).

A party dissatisfied with a discovery response or lack of response can move for an

order compelling disclosure or discovery after attempting to confer with the party that

submitted the response or failed to respond. Fed. R. Civ. P. 37(a). The party resisting

discovery, not the party seeking discovery, bears the burden of persuasion. Jonathan R.

v. Just., No. 3:19-CV-00710, 2023 WL 8629147, at *2 (S.D.W. Va. Dec. 13, 2023); McEvoy

v. Diversified Energy Co. Plc, No. 5:22CV171, 2023 WL 6192769, at *1 (N.D.W. Va. May

15, 2023); Fine v. Bowl Am., Inc., No. CV SAG-21-1967, 2023 WL 8479250, at *2 (D. Md.

Dec. 7, 2023); Perez v. Huneycutt, No. 5:22-CV-00120-MR, 2023 WL 8813553, at *2

(W.D.N.C. Dec. 20, 2023); Doe v. Mast, No. 3:22CV00049, 2023 WL 8481049, at *2

(W.D. Va. Dec. 7, 2023); United States v. White, No. 2:23-CV-00001-BO, 2023 WL

8451744, at *7 (E.D.N.C. Dec. 6, 2023). As such, conclusory and unsubstantiated

allegations are simply insufficient to support discovery objections based on the grounds

of annoyance, burdensomeness, oppression, or expense. Id.

2. General Objections and Cumulative Requests

Plaintiffs complain that Defendants asserted improper general and boilerplate

objections. Courts in this circuit disfavor general objections. See, e.g., Mainstreet

Collection, Inc. v. Kirkland's, Inc., 270 F.R.D. 238, 240 (E.D.N.C. 2010) (mere recitation

of the familiar litany that a request is overly broad, burdensome, oppressive, and

irrelevant does not constitute a specific objection); Hager v. Graham, 267 F.R.D. 486,

492 (N.D.W. Va. 2010) (“general objections to discovery, without more, do not satisfy the

burden of the responding party ... because they cannot be applied with sufficient

specificity to enable courts to evaluate their merits.”); Mills v. East Gulf Coal Preparation

Co., LLC, 259 F.R.D. 118, 132 (S.D.W. Va. 2009) (“boilerplate objections regurgitating

words and phrases from Rule 26 are completely unacceptable.”); Mancia v. Mayflower

Textile Services Co., 253 F.R.D. 354, 358–59 (D. Md. 2008) (court disapproves of a

general objection asserted “to the extent” that it applies). By raising non-particularized

objections, Defendants run the risk of waiving any valid objections that may exist. Id. at

359; see also Mezu v. Morgan State University, 269 F.R.D. 565, 573 (D. Md. 2010).

Justice asserts three general objections: (1) he is not a proper party to the lawsuit;

(2) the discovery requests are unreasonably cumulative and duplicative because the exact

same set was served on Sorsaia, and Sorsaia is the proper official to answer the requests;

and (3) he should not have to provide information about all correctional facilities when

the three plaintiffs have identified their own facilities and only those facilities are at issue.

While Justice identifies these objections as “general” because they apply to every

discovery request, the only inappropriate objection is the one based upon him not being

a proper party to the case. See Hager, 267 F.R.D. at 492 (holding that general objections

are compliant when they are accompanied by specific grounds which allow the Court to

evaluate the merits of the objections and assess whether the request was proper). Until

the Court determines that Justice is not a proper party, he is a party to the lawsuit

governed by the discovery scheduling order and rules of civil procedure. Therefore, he is

obligated to participate in discovery like any other party. Accordingly, the Court

GRANTS Plaintiffs’ motion to strike general objection number 1 in Justice’s responses,

but DENIES the motion to strike the other two general objections. These objections very

plainly express the specific basis for their inclusion and, from that standpoint, they are

not merely boilerplate.

Sorsaia also objected based on the breadth of the requests in that they included

every correctional facility and a multitude of conditions of confinement that were not

discussed in the complaint. (ECF No. 54-2 1-2). He further objected to numerous requests

for admission that he perceived as asking for pure legal opinions. Finally, he refuses to

produce documents that are protected from disclosure by statute or “are not approved for

inmate viewing.” Although Sorsaia lodged these objections to all of the discovery requests,

he reiterated them, when applicable, in his answers to individual discovery requests.

Consequently, the undersigned does not find them improper (albeit somewhat

duplicative) and DENIES any request to strike them.

With respect to boilerplate objections, Plaintiffs contend that both Defendants

objected to nearly every discovery request on the grounds that they were overly broad,

unduly burdensome, and disproportional to the needs of the case. Plaintiffs assert that

these objections are improper because Defendants did not explain the factual basis for the

objections and did not support them with affidavits or other evidence. A review of the

objections shows that most of them are based upon the overbreadth of the requests on

their face—for example, requests that ask for all internal communications regarding any

investigation of any correctional facility for any reason. Defendants explain that they

consider a request which seeks “all” information about every correctional facility in West

Virginia to be facially overly broad and burdensome, because only MOCC, SWRJ, and KJC

are the facilities at issue and only the allegedly unconstitutional conditions of

confinement identified by Plaintiffs are relevant to the claims and defenses in the case.

As earlier stated, typically, a party moving to resist discovery on the grounds of

burdensomeness and oppression must do more to carry its burden than make conclusory

and unsubstantiated allegations. An exception to that general rule is when the discovery

request is overly broad on its face. See e.g., Green v. Jones, No. 7:21CV00165, 2022 WL

4109514, at *1 (W.D. Va. Sept. 8, 2022) (“Where a discovery request is overly broad or

unduly burdensome on its face, the proponent of discovery bears the burden of

establishing its relevance.”) (internal markings and citations omitted); Wellen v. Farce,

No. C/A 2:16-cv-00414-DCN, 2018 WL 11474062, at *9 (D.S.C. Sept. 5, 2018) (“As

previously noted, mere objections to discovery requests on the grounds that the requests

are unduly burdensome or overbroad, without more, are insufficient. However, such is

not the case when a discovery request is overly broad on its face.”) (citations omitted);

Twigg v. Pilgrim's Pride Corp., No. 3:05-CV-40, 2007 WL 676208, at *5 (N.D.W. Va.

Mar. 1, 2007) (explaining that, while a party opposing discovery normally has the burden

of showing why the discovery is inappropriate, the burden shifts where the request is

overly broad and unduly burdensome on its face.).

As explained below, the undersigned agrees that the discovery requests, for the

most part, are overly broad because they seek information about all facilities and a litany

of unconstitutional conditions of confinement, including many not experienced by

Plaintiffs. More importantly, they are disproportional to the current needs of the case.

Consequently, the Court DENIES Plaintiffs’ motion to overrule the overly broad, unduly

burdensome, and disproportional objections except as specifically indicated.

Next, the Court considers the “cumulative and duplicative” nature of serving

identical sets of discovery on Defendants. Plaintiffs do not seek money damages in this

case and do not claim individual liability on the part of the defendants; rather, Plaintiffs

request declaratory and prospective injunctive relief. Defendants have been sued only in

their official capacities pursuant to the Ex parte Young exception to sovereign immunity.

See Doyle v. Hogan, 1 F.4th 249, 254 (4th Cir. 2021) (Ex parte Young allows a suit against

a state officer to enjoin him from enforcing an state unconstitutional act, as long as the

officer sued has “some connection with the enforcement of the act.”) (quoting Ex parte

Young, 290 U.S. 123, 157 (1908)). The United States Court of Appeals for the Fourth

Circuit has concluded that the Governor of a state cannot be enjoined under Ex parte

Young simply because the Governor has “general authority” over the state’s affairs. Id. at

255. Rather, the proper party is the state official with direct enforcement authority over

the act in question. Id. Justice contends that Sorsaia is the Cabinet Secretary for the

Department of Homeland Security, which oversees the DCR, making Sorsaia “the more

appropriate party” to supply the information requested. Sorsaia does not dispute this

contention. The undesigned agrees that both state officials should not be compelled to

answer the same discovery requests or provide the same documents, as that is duplicative

discovery; particularly, in a class action seeking only declaratory and prospective

injunctive relief. Accordingly, the Court DENIES Plaintiffs’ motion to compel Justice to

provide the same answers and produce the same documents as those given by Sorsaia.

Instead, Justice may adopt those answers as his own. Justice has already agreed to

provide his own ESI in addition to the information provided by Sorsaia. (See, e.g. ECF

No. 70-1 at 10). Therefore, to the extent Justice has responsive information not known to,

or in the possession of Sorsaia, that information should be supplied to Plaintiffs as part

of Justice’s ESI search.

3. Adequacy of Defendants’ Responses

As stated, this is a putative class action in which Plaintiffs request the certification

of three classes: (1) Class A includes all inmates housed at MOCC and other West Virginia

prisons; (2) Class B includes all inmates housed at SWRJ and the State’s other regional

jails; and (3) Class C includes all minor inmates housed at KJC and the other West

Virginia juvenile detention centers. The concept of proportionality is difficult in a putative

class action, because class actions are, for the most part, document and witness-heavy.

However, if class certification is denied, the claims and defenses that remain usually

involve much less documentation and witness testimony. Therefore, tension exists

between the plaintiffs’ right to obtain enough information through pre-certification

discovery to establish the prerequisites for class certification and the defendant’s right to

limit discovery to specific plaintiffs and their complaints. Recognizing this tension, courts

have placed some limitations on discovery in putative class actions. Deakin v. Magellan

Health, Inc., 340 F.R.D. 424, 432 (D.N.M. Feb. 1, 2022). One approach taken by courts is

to use “sampling.” See, e.g., Seabron v. Am. Family Mut. Ins. Co., 862 F. Supp. 2d 1149,

1166 (D. Colo. 2012) (allowing discovery on a sample of claims from potential class

members); Solo v. UPS Co., No. 14-12719, 2017 WL 85832, at *4 (E.D. Mich. Jan. 10, 2017)

(ordering parties to meet and confer and determine a “mutually agreeable methodology

for obtaining a sampling”). This approach allows the plaintiffs “a realistic opportunity to

meet the requirements of class certification” while at the same time limiting pre-

certification discovery to “what is necessary to permit the Court to make an informed

decision on class certification.” Miner v. Gov't Payment Serv., Inc., 2017 WL 3909508,

*4 (N.D. Ill. 2017). As courts have broad discretion in their resolution of discovery

disputes, Carefirst of Maryland, Inc. v. Carefirst Pregnancy Centers, Inc., 334 F.3d 390,

402 (4th Cir. 2003) (citation and internal markings omitted), the undersigned finds that

using sampling to limit some of the discovery requests will assist in achieving

proportionality.

As previously indicated, counsel for the parties met and conferred after the first

discovery hearing and reached an agreement on most of the discovery disputes. Counsels’

work resulted in two versions of a Joint Stipulation Regarding Certain Discovery Issues.

(ECF Nos. 121-1, 121-4). Using the Joint Stipulation found at ECF No. 121-1, the parties

agree to paragraphs 1, 2, 3, 6, 8, 9, 10, and 11. The remaining paragraphs are in dispute,

or outline continuing discovery issues. Therefore, the Court GRANTS, in part, and

DENIES, in part, the Motions to Compel and ORDERS the parties to file within seven

days a joint stipulation containing the paragraphs to which they have agreed, as set forth

above.

Now addressing the matters in dispute, the undersigned finds and ORDERS as

follows:

a. Document Production Related to Five “Big Topics”

Plaintiffs have identified five categories of “harm” they allege resulted from the

unconstitutional overcrowding, understaffing, and delayed maintenance allegedly

present at every correctional facility in the State of West Virginia. Those five “big topics”

include inmate deaths, beatings/assaults, overdoses, food-related issues, and

inadequate/delayed medical care. Plaintiffs seek any and all documents pertaining to

these topics. Defendants argue that a request for “any and all” documents is too broad.

Defendants propose that the document production be limited to critical incident reports

and CID investigation reports from the nine selected facilities pertaining to the five topics.

The undersigned agrees with Defendants. This documentation should provide most of the

information sought by Plaintiffs; particularly, in the pre-certification stage of the

litigation.

The parties also disagree as to how the production should occur. Defendants argue

that many of the reports involving the five big topics will document incidents that were

not the result of overcrowding, understaffing, or delayed maintenance, and are therefore

irrelevant. Because these reports are private, Defendants want to sift through the reports

for relevancy and redact personal identifiers of the involved inmates before producing any

of them to Plaintiffs. Plaintiffs object to this process on the ground that the DCR has not

been honest or forthcoming in the past. Plaintiffs’ counsel advised the Court that, because

of the DCR’s prior actions, another Magistrate Judge in this District ordered in similar

litigation that counsel for all of the parties be present for a review of all of the reports

touching on the topics at issue, and Plaintiffs’ counsel could then flag reports he wanted

Defendants to produce. After much discussion the Court ORDERS that the following

process will be used in producing the reports. Defendant Sorsaia will collect all of the

critical incident reports and CID investigation reports concerning any of the five big topics

and will redact from each report the involved inmate’s personal identifiers before showing

the reports to Plaintiffs’ counsel. Counsel for the parties shall meet and review the reports

together. Plaintiffs’ counsel shall flag the reports he believes are relevant. Sorsaia’s

counsel will produce to Plaintiffs copies of the flagged reports, unless Sorsaia disagrees

with Plaintiffs that one or more reports are relevant. In that event, Sorsaia shall produce

the reports that he agrees are relevant and, if the parties cannot agree on any report after

meeting and conferring, shall file a Motion for Protective Order asking that the Court

determine the relevancy. Because this is a somewhat arduous and time-consuming

process, Defendant Sorsaia shall have up to sixty days to collect and redact all of the

responsive reports. However, Defendant Sorsaia shall begin to collect and redact the

reports immediately, and the parties shall engage in their record reviews on a rolling

basis. Grievance reports are being supplied separately.

b. Documents Pertaining to Food and Inadequate/Delayed

Medical Care

Plaintiffs want any and all documents relating to these topics. Defendants argue

that this request is overly broad and burdensome. Defendants are supplying grievances

from the nine selected facilities, and ask that the only other documents produced be the

specific reports identified by Plaintiffs from the DCR’s medical and food vendors, which

reports were provided to the DCR during the identified time frame. The undersigned

agrees with Defendants that this additional documentation suffices for these topics.

Therefore, the Court ORDERS that the document production on these topics be limited

to the critical incident reports, CID reports, grievances as agreed upon by the parties, and

the reports identified by Plaintiffs that the DCR’s medical and food vendors are required

to supply to the DCR.

c. ESI Relating to Robert Cunningham, Brad Douglas, Paul

Simmons, and Betty Slack

The parties have spent a great deal of time negotiating an ESI protocol. At one

point, Plaintiffs and Defendants agreed that the ESI protocol would be limited to three

terms and their derivatives to be run on the files of the following records custodians:

Betsy Jividen, Jeff Sandy, William Marshall, Mark Sorsaia, and the nine superintendents

at the identified facilities. After making this agreement, Plaintiffs added four more

custodians: Robert Cunningham, Brad Douglas, Paul Simmons, and Betty Slack.

Defendants argue that this violates the agreement and is not proportional to the needs of

the case. Again, the undersigned agrees with Defendants. At this stage of the litigation,

the Court must balance the need for Plaintiffs to collect sufficient information to meet

class certification requirements against the expense and burden to Defendants involved

in providing the voluminous discovery requested. Applying the proportionality analysis,

the undersigned finds that limiting the ESI protocol to the thirteen individuals originally

agreed upon by the parties meets the current needs of the case. Therefore, the Court

ORDERS that the ESI protocols may be limited to those thirteen custodians.

d. Requests for Production Nos. 15 and 25 and Discovery

Regarding Funding; Depositions of Justice and Abraham

These issues are currently being briefed and will be addressed separately.

e. Requests for Production Nos. 21, 29, 44, 45, and 46 and

Discovery Regarding Spoliation of Evidence

These requests have to do with the storing, shredding, burning, deleting, or

destroying of documents. There has been no showing, or even an articulated concern

pertinent to the discovery in this case, to merit additional discovery about the

management of documents and evidence. If Plaintiffs have some factual basis to believe

that material information is missing, then that should be presented to the Court and

parties. Until then, the Court finds that these discovery requests are premature and

disproportional to the needs of the case. Therefore, Plaintiffs’ motion to compel additional

responses is DENIED at this time.

f. Request for Production No. 39

This request asks for “all communications” supporting Defendants’ denial of any

of the requests for admission served by Plaintiffs. This request is obsolete given the

problems identified with the requests for admission. Moreover, it is not proportional to

the needs of the case. Because of the sheer volume of information that is tangentially

relevant in this case, some narrowing of the universe of documents must occur in order

for discovery to progress and ultimately conclude in a timely fashion. The parties have

taken steps to limit the boundaries of discovery; this broad discovery request likewise

requires reasonable restrictions. Accordingly, Plaintiffs motion to compel an additional

response is DENIED.

B. Requests for Admission

1. Standard of Review

Rule 36 of the Federal Rules of Civil Procedure allows a party to serve on another

party written requests to admit the truth of any matters within the scope of Rule 26(b)(1)

relating to (A) “facts, the application of law to fact, or opinions about either;” and (B) “the

genuineness of any described documents.” Fed. R. Civ. P. 36(a). When responding to a

request for admission, the answering party must either admit the request, or specifically

deny it, or state in detail why the requests cannot be specifically admitted or denied. The

answering party may, when good faith requires, qualify the answer or deny only part of it.

Id. When that is done, the answering party must specify any part admitted, any part

denied, and any part qualified. Lack of knowledge or information may be a reason for not

admitting or denying a request, but should only be claimed after the answering party has

made a reasonable inquiry, and the information it knows or can readily obtain is

insufficient to enable it admit or deny the request. Id. A party may object to a request for

admission, stating the ground for the objection, but may not object solely on the ground

that the request presents a genuine issue for trial.

The requesting party may move the court to determine the sufficiency of an answer

or objection. Id. If the court does not find the answer or objection sufficient, it must order

that an answer be served. If the court finds that the answer does not comply with the rule,

it may deem the matter admitted or order the answering party to serve an amended

answer. The court may also allow an answering party to withdraw or amend an answer “if

it would promote the presentation of the merits of the action” and if the court concludes

that the requesting party would not be prejudiced. Fed. R. Civ. P. 36(b). According to the

Advisory Committee, the purpose of requests for admission are to “facilitate proof with

respect to issues that cannot be eliminated from the case,” and “to narrow issues by

eliminating those than can be.” Fed. R. Civ. P. 36 advisory committee's note to 1970

amendment. However, as the District Court explained in CDS Fam. Tr. v. Martin:

In short, requests for admission are intended to streamline trials by

“obviating the need to adduce testimony and documents as to matters that

are not really in controversy.” US v. Petroff-Kline, 557 F.3d 285, 293 (6th

Cir. 2009). They are not, therefore, intended as a weapon to short cut the

need for a party to prove the central issues of a case simply by relying on an

opponent's untimeliness, inattention, or, in the case of pro se litigants such

as the Martins, unfamiliarity with civil procedure. Moreover, Rule 36

explicitly limits itself to “admissions regarding purely factual matters or the

application of law to facts, but not matters of law.” Adventis, Inc. v. Consol.

Prop. Holdings, Inc., 124 Fed. Appx. 169, 172 (4th Cir. 2005).

CDS Fam. Tr. v. Martin, No. 1:15-CV-02584-JMC, 2019 WL 2477358, at *2 (D. Md. June

13, 2019). It is not always easy to distinguish between a request seeking the application of

facts to law and one seeking a legal conclusion. Gross v. Guzman, No. 11-23028-CIV, 2013

WL 12091159, at *10 (S.D. Fla. Jan. 25, 2013) (“Admittedly, the distinction between a

request that impermissibly seeks the admission of an issue requiring the application of

the law to the facts of a case and a request that impermissibly seeks the admission of a

pure issue of law is not easy to draw.”) (internal markings and citation omitted).

Generally, if the request calls for a legal conclusion, even when applied to the operative

facts in the case, it is improper; particularly, when the facts are in dispute. Lakehead Pipe

Line Co. v. Amer. Home Assur. Co., 177 F.R.D. 454, 458 (D. Minn. 1997) (“Of course,

requests for admission are not to be employed as a means ‘to establish facts which are

obviously in dispute or to answer questions of law.’”) (quoting Kosta v. Connolly, 709 F.

Supp. 592, 594 (E.D. Pa. 1989)). Similarly, a request that asks for a pure opinion of law,

devoid of relevant facts, is improper. Id. (finding improper Defendants' attempt to “have

the Plaintiff ratify what are, in essence, the legal conclusions that the Defendants have

attached to the operative facts of the case.”).

2. Discussion

As the Court explained at the discovery hearings, the requests for admission posed

by Plaintiffs contain numerous requests for legal opinions independent of any factual

context. While Fed. R. Civ. P. 36 allows requests about facts and law applied to facts, it

does not permit requests about the law standing alone. Moreover, many of the remaining

requests for admission were so broadly worded, without reference to any specific event,

that they were facially inappropriate. Because of the breadth of the requests, Defendants

acted within the rule to state objections, qualifiers, and partial admissions and denials.

The purpose of Rule 36 is to narrow the issues and resolve straightforward evidentiary

matters to streamline dispositive motions and trial. These requests for admission did not

achieve that goal. Therefore, the Court DENIES Plaintiffs’ Motions to Deem Admitted

Defendants’ Responses to Requests for Admission, (ECF Nos. 55, 56).

C. Motion for Protective Order

1. Standard of Review

Federal Rule of Civil Procedure 26(b) provides that “[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). However, simply because

information is discoverable under Federal Rule of Civil Procedure 26(b)(1) “does not

mean that discovery must be had.” Schaaf v. SmithKline Beecham Corp, 233 F.R.D. 451,

453 (E.D.N.C. 2005) (citing Nicholas v. Wyndham Int'l, Inc., 373 F.3d 537, 543 (4th Cir.

2004)). Federal Rule of Civil Procedure 26(b)(2)(C) requires the court, with or without a

motion, to limit the frequency and extent of discovery when (1) “the discovery sought is

unreasonably cumulative or duplicative;” (2) the discovery “can be obtained from some

other source that is more convenient, less burdensome, or less expensive;” (3) the party

seeking the discovery has already had ample opportunity to collect the requested

information; or (4) the proposed discovery “is outside the scope permitted by Rule

26(b)(1)”. Fed. R. Civ. P. 26(b)(2)(C)(i)-(iii). This rule “cautions that all permissible

discovery must be measured against the yardstick of proportionality.” Lynn v. Monarch

Recovery Management, Inc., 285 F.R.D. 350, 355 (D. Md. 2012) (quoting Victor Stanley,

Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 523 (D. Md. 2010)).

In addition, under Federal Rule of Civil Procedure 26(c), the court may restrict or

prohibit discovery when necessary to protect a person or party from annoyance,

embarrassment, oppression, or undue burden or expense. An order under Rule 26(c)

issues upon a showing of good cause made in relation to a motion asserted by the person

or party opposing the discovery. The moving party carries the burden of demonstrating

the need for protection. To prevail on the grounds of burdensomeness, oppression, or

breadth, the opposing party must do more to carry its burden than simply make

conclusory and unsubstantiated arguments. Convertino v. United States Department of

Justice, 565 F. Supp.2d 10, 14 (D.D.C. 2008) (the court will only consider an unduly

burdensome objection when the objecting party demonstrates how discovery is overly

broad, burdensome, and oppressive by submitting affidavits or other evidence revealing

the nature of the burden); Cory v. Aztec Steel Building, Inc., 225 F.R.D. 667, 672 (D. Kan.

2005) (the party opposing discovery on the ground of burdensomeness must submit

detailed facts regarding the anticipated time and expense involved in responding to the

discovery which justifies the objection); Bank of Mongolia v. M & P Global Financial

Services, Inc., 258 F.R.D. 514, 519 (S.D. Fla. 2009) (“A party objecting must explain the

specific and particular way in which a request is vague, overly broad, or unduly

burdensome. In addition, claims of undue burden should be supported by a statement

(generally an affidavit) with specific information demonstrating how the request is overly

burdensome”).

Under Rules 26(b)(2)(C) and 26(c), “the court has broad authority to limit

discovery and prescribe alternative discovery mechanisms,” Minter v. Wells Fargo Bank,

N.A., 258 F.R.D. 118, 124 (D. Md. 2009); in other words, to determine “when a protective

order is appropriate and what degree of protection is required.” Furlow v. United States,

55 F.Supp.2d 360, 366 (D. Md. 1999) (quoting Seattle Times Co. v. Rhinehart, 467 U.S.

20, 36, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984)). Nevertheless, protective orders “should be

sparingly used and cautiously granted.” Baron Fin. Corp. v. Natanzon, 240 F.R.D. 200,

202 (D. Md. 2006) (quoting Medlin v. Andrew, 113 F.R.D. 650, 653 (M.D.N.C. 1987)).

2. Discussion

Plaintiffs’ document requests, attached to the deposition notices of Sorsaia and

Marshall, request materials already produced in discovery. Plaintiffs clarify that they are

not interested in receiving duplicate documentation. They simply want to make sure that

all relevant information has been supplied by Defendants. Given the agreements and

orders pertaining to discovery, the undersigned finds the document requests to be

cumulative and duplicative, and Plaintiffs have already had ample opportunity to collect

the requested information. Therefore, the Court GRANTS the Motion for Protective

Order under Fed. R. Civ. P. 26(b)(2)(C)(@), (ii). As discussed at the hearing, Plaintiffs may

ask Sorsaia if he believes the document production made pursuant to requests for

production of documents is substantially complete, but Marshall is not a defendant and

has no responsibility, or personal knowledge, to comment on the thoroughness and

completeness of Defendants’ discovery responses. Therefore, that question is not

appropriate for a non-party fact witness.

Wherefore, for the reasons stated, , the Court GRANTS, in part, and DENIES, in

part, the Motions to Compel, (ECF Nos. 53, 54); DENIES the Motions to Deem Requests

for Admission Admitted, (ECF No. 55, 56); and GRANTS the Motion for Protective

Order, (ECF No. 84).

The Clerk is directed to provide a copy of this Memorandum Opinion and Order to

counsel of record and any unrepresented party.

ENTERED: June 25, 2024

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Uni ates Magistrate Judge

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