United States District Court, W.D. North Carolina, Charlotte Division
GENGER POOLE, as Administrator of the Estate of William Dean Poole, Plaintiff,
GASTON COUNTY; T.R. EARL; J.E. KNUPP; A.O. HOLDER; and W.P. DOWNEY, Defendants.
C. Keesler United States Magistrate Judge
MATTER IS BEFORE THE COURT on “Defendants' Motion
To Compel” (Document No. 84). The parties have
consented to Magistrate Judge jurisdiction pursuant to 28
U.S.C §636(c), and this motion is ripe for disposition.
Having carefully considered the motion and the record, the
undersigned will grant the motion.
March 16, 2015, William Dean Poole (“Poole”)
called the Veteran's Crisis Line and expressed an
intention to commit suicide. (Document No. 2, p.3; Document
No. 26, pp.4-7). The Veteran's Crisis Line then called
911. Id. Gaston County Police were dispatched to the
scene and observed Mr. Poole on a lawn mower alone in the
yard. (Document No. 2, p.4; Document No. 22-11, p.2; Document
No. 26, pp.7-8). Police approached Mr. Poole, and after a
brief confrontation, Poole was shot by multiple officers and
killed. (Document No. 2, p.4; Document No. 26, p.8).
Plaintiff does not dispute these facts, and these facts
mirror the alleged facts in the Complaint. (Document No. 2).
are factual disputes about the actual confrontation.
Defendants have submitted affidavits from the responding
officers that say that Poole, upon seeing police, drew a
firearm from a holster, raised the firearm in the air, and
lowered the firearm towards the police officers. (Document.
Nos. 20-10, 20-11, 20-12, and 20-13). The officers responded
to this action by discharging their weapons and killing
Poole. Id. However, Plaintiff alleges that Mr. Poole
did not brandish a weapon and complied with police orders.
(Document. No. 2, p.5; Document No. 26, p.8).
March 17, 2015, attorneys Charles Ali Everage and S. Juwaun
Seegars met with Genger Poole, regarding the March 16, 2015
shooting death of her husband, William Dean Poole. (Document
No. 88, pp.1-2). That same day, Mr. Everage and Mr. Seegars
(“Plaintiff's counsel”) met with J.C. Dowell,
Jr. (“Dowell”), a neighbor and witness to the
shooting. (Document No. 88, p.2). Plaintiff's counsel
immediately took a written statement of Mr. Dowell, who
appeared to be of advanced age and in poor health.
Id.; see also, (Document No. 26-4).
previously submitted Mr. Dowell's statement in responding
to “Defendant Gaston County's Rule 12 Motion To
Dismiss.” See (Document No. 26-4). Dowell
stated he was an eyewitness to the confrontation and that
Poole appeared to cooperate with police requests to raise his
hands in the air. Id. Dowell also alleges that Poole
did not have a gun in his hand when he raised his hands in
the air, but instead may have been holding something square
and flat, like a wallet. Id.
Mr. Dowell's advanced age and poor health,
Plaintiff's attorneys contracted with private
investigator Charles Williams (“Williams”) to
take a recorded statement of Mr. Dowell in the presence of a
videographer on May 19, 2015. Id. Also on that date,
Williams took statements from additional witnesses and others
in the immediate neighborhood of where the shooting occurred,
as well as statements from Genger Poole and her family
members, including Robert Hinson and Tabitha Hinson.
Poole (“Plaintiff”), as Administratrix of the
Estate of William Dean Poole, initiated this action with the
filing of her “Complaint” (Document No. 2) on
July 17, 2015. The Complaint asserts a wrongful death action
based on the alleged shooting of Poole on March 16, 2015, by
Sergeant J.E. Knupp (“Knupp”), Sergeant W.P.
Downey (“Downey”), Officer T.R. Earl
(“Earl”), and/or Officer A.O. Holder
(“Holder”) of the Gaston County, North Carolina
Police Department. (Document No. 2). Specifically, Plaintiff
asserts causes of action for: (1) excessive force in
violation of 42 U.S.C. § 1983 and the Fourth Amendment
against Gaston County; (2) excessive force in violation of 42
U.S.C. § 1983 and the Fourth Amendment against Knupp,
Downey, Earl, and Holder; (3) public entity liability,
pursuant to 42 U.S.C. § 1983, against Gaston County; (4)
assault and battery against all Defendants; and (5) violation
of Title II of the Americans with Disabilities Act, 42 U.S.C.
§ 12101, against Gaston County. Id.
J.E. Knupp, W.P. Downey, T.R. Earl, And A.O. Holder's
Rule 12 Motions To Dismiss” (Document 22) and
“Defendant Gaston County's Rule 12 Motion To
Dismiss” (Document No. 24) were filed on September 28,
2015. On August 11, 2016, the Honorable Frank D. Whitney, Jr.
issued an “Order” (Document No. 32) granting the
motions in part, and denying the motions without prejudice in
part. Chief Judge Whitney stated that “the state law
claims against Gaston County and its employees in their
public capacities are DISMISSED due to governmental immunity.
Dismissal of Plaintiffs' other claims are not appropriate
at this time based on the limited record before the
Court.” (Document No. 32, p.13).
September 1, 2016, the parties filed their
“Certification And Report Of F.R.C.P. 26(f) Conference
And Discovery Plan” (Document No. 38). In that filing,
the parties indicated that they consent to the jurisdiction
of a U.S. Magistrate Judge in this case. (Document No. 38,
p.2). The parties' “Joint Stipulation Of Consent To
Exercise Jurisdiction By A United States Magistrate
Judge” (Document No. 52) was then filed on September 7,
2016, and this matter was immediately assigned to Magistrate
Judge David C. Keesler as the presiding judge.
undersigned issued a “Pretrial Order And Case
Management Plan” (Document No. 58) on September 9,
2016. The “…Case Management Plan” includes
the following deadlines: discovery completion - June 16,
2017; mediation report - July 1, 2017; dispositive motions -
July 14, 2017; and trial- January 2, 2018. (Document No. 58).
The trial of this case, if necessary, has since been re-set
for the undersigned's civil term beginning October 30,
2017. (Document No. 73).
contend that Plaintiff submitted initial disclosures on
October 17, 2016, but failed to identify witness statements
given by several individuals. (Document No. 85, p.2). After
receiving a letter addressing allegedly deficient discovery
responses, Plaintiff provided the video statement of J.C.
Dowell, Jr., on or about March 8, 2017, but asserted
attorney-work privilege regarding the other video statements.
pending before the Court is “Defendants' Motion To
Compel” (Document No. 84) and “…Memorandum
Of Law In Support…” (Document No. 85), filed on
March 17, 2017. “Plaintiff's Response In Opposition
To Defendants' Motion To Compel” (Document No. 88)
was filed on March 31, 2017; and “Defendants'
Reply…” (Document No. 90) was filed on April 11,
2017. The pending motion is ripe for review and disposition.
of the Federal Rules of Civil Procedure provides that:
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). The rules of discovery are to be
accorded broad and liberal construction. See Herbert v.
Lando, 441 U.S. 153, 177 (1979); and Hickman v.
Taylor, 329 U.S. 495, 507 (1947). However, “[t]he
court may, for good cause, issue an order to protect a party
or person from annoyance, embarrassment, oppression or undue
burden or expense.” Fed.R.Civ.P. 26(c)(1).
to grant or deny a motion to compel is generally left within
a district court's broad discretion. See Lone Star
Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43
F.3d 922, 929 (4th Cir. 1995) (denial of motions to compel
reviewed on appeal for abuse of discretion); Erdmann v.
Preferred Research Inc., 852 F.2d 788, 792 (4th Cir.
1988) (noting District Court's substantial discretion in
resolving motions to compel); and LaRouche v. National
Broadcasting Co., 780 F.2d 1134, 1139 (4th Cir. 1986)
(same). A party's failure to provide or permit discovery
may result in sanctions including the following: reasonable
expenses caused by the failure; default judgment against the
disobedient party; or treating as contempt of court the
failure to obey any order. See Fed.R.Civ.P. 37(a) -
pending motion, Defendants request that the Court compel
Plaintiff to provide all the video witness statements
reviewed by Plaintiff's expert witness, Roy G. Taylor
(“Taylor”), and compel Plaintiff to provide full
and complete answers to Defendants' interrogatories and
request for production of documents. (Document No. 84;
Document No. 85, pp.1-2).
Video Witness Statements
Defendants note that Mr. Taylor reviewed several video
witness statements when formulating his opinion in this
matter, but despite being served with a subpoena commanding
the production of all materials Taylor reviewed, Plaintiff
has objected and asserted that all but one of the video
statements are protected pursuant to attorney-work product
privilege. (Document No. 85, p.4) (citing Document Nos. 84-6,
84-7 and 84-10). Defendants contend that Taylor reviewed
video statements of J.C. Dowell, Lorrie Martin, Dwayne Moore,
Genger Poole, Bill Flanders, Mrs. Hinson, and Robert Hinson.
(Document No. 85, p.2) (citing Document No. 84-11) (citing
Document No. 84-7, p.14). To date, only the video statement of
Dowell, who is now deceased, has been provided to Plaintiffs.
(Document No. 85, p.2; Document No. 88, p.6).
argue that “[i]t is axiomatic that if one party's
expert reviews certain material in forming their opinions
then the other party's expert is entitled to the same. A
litigant is required to disclose to his opponent any
information ‘considered' by the litigant's
testifying expert.” (Document No. 85, pp.4) (citing
Nutrasweet Co. v. X-L Engineering Co., 227 F.3d 776,
785-86 (7th Cir. 2000)). Defendants contend that an
overwhelming majority of courts addressing the issue before
this Court have concluded pursuant to Fed.R.Civ.P.
26(a)(2)(B), a party must disclose all information provided
to its testifying expert for consideration in the expert
report, including information otherwise protected by
attorney-client privilege or the work product privilege.
Id. (citations omitted).
among Defendants' numerous citations is an instructive
decision from the United States District Court for the
District of South Carolina. (Document No. 85, pp.4-5). In
AmericanFidelity Assurance Co. v. Boyer,
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