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Poole v. Gaston County

United States District Court, W.D. North Carolina, Charlotte Division

May 12, 2017

GENGER POOLE, as Administrator of the Estate of William Dean Poole, Plaintiff,


          David C. Keesler United States Magistrate Judge

         THIS 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.


         On 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).

         There 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).

         On 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).

         Plaintiff 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.

         Due to 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. Id.


         Genger 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.

         “Defendants 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).

         On 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.

         The 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).

         Defendants 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. Id.

         Now 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.


         Rule 26 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).

         Whether 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) - (d).


         By the 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).

         A. Video Witness Statements

         First, 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).[1] 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).

         Defendants 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).

         Included 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, 225 F.R.D. 520 (D.S.C. 2004) the South Carolina court ...

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