United States District Court, E.D. North Carolina, Southern Division
B. Jones, Jr. United States Magistrate Judge
matter is before the court on the (1) motion of Plaintiff
George Evans ("Evans") to compel discovery from
Defendant Christopher Capps ("Capps") [DE-120], and
(2) motion of nonparty movants William T. Evans and the North
Carolina State Bureau of Investigation (altogether
"Movants") to quash a subpoena duces tecum Evans
has served upon each of them [DE-135]. All responsive
briefing is complete,  and Capps has provided to the court his
responses to Evans' discovery requests as ordered.
[DE-147 through -151]. All issues raised in the briefing are
ripe for decision and are referred to the undersigned
pursuant to 28 U.S.C. § 636(b)(1)(A). For the reasons
that follow, Evans' motion to compel [DE-120] is allowed
in part and denied in part and Movants' motion to quash
[DE-135] is allowed in part and denied in part.
March 30, 2014, Evans was sitting in his vehicle in South
Carolina when he was surrounded and subsequently pursued by
South Carolina authorities in a vehicle chase. After he
crossed into North Carolina he was pursued by approximately
forty law enforcement vehicles, including members of the
Columbus County Sheriffs Office and the North Carolina State
Highway Patrol. Evans ran out of gas and exited the vehicle
with his hands raised holding a weapon clearly visible to the
officers. Evans was in the process of putting his weapon down
when he was shot by law enforcement officers and was hit by
approximately forty-three rounds. Evans sustained serious
injuries. Evans filed his complaint under 42 U.S.C.
§§ 1983, 1985, 1988, alleging that the officer
defendants violated Evans' civil rights by using
excessive force and discriminating against him based on his
race. Compl. [DE-1]. The claims raised in this action are for
supervisory liability, pattern or practice of disregard of
constitutional rights, and failure to properly
train/deliberate indifference against Sheriff Hatcher,
excessive force, equal protection violation, due process
violations, cruel and unusual punishment and racial
profiling. [DE-1, -129]. Evans further cites to claims under
the North Carolina Constitution and North Carolina General
Statutes in his complaint. Id.
order filed June 26, 2017, the court consolidated the instant
case with a subsequent complaint plaintiff filed in state
court that was ultimately removed to this court. [DE-129].
Each of Evans' complaints makes similar claims arising
out of the March 30, 2014 incident with law enforcement. In
the second case, Evans alleges state law claims for
negligence, gross negligence, intentional torts, excessive
force, intentional infliction of emotional distress,
unconstitutional policy or customs, failure to properly
screen, train, and supervise deputies, deliberate
indifference to continuing constitutional violations by
deputies, and supervisory liability. The court directed that
all claims raised by Evans shall be adjudicated in the
first-filed case and instructed Evans to file an amended
complaint by July 14, 2017, alleging all claims raised in the
two complaints. Id.
has alleged the following against Capps. Capps is an employee
of the North Carolina Highway Patrol. During the encounter
with law enforcement on March 30, 2014, Evans was in the
process of lowering his weapon when Capps was the first to
fire his weapon, causing other officers to fire their weapons
at Evans. Capps fired a total of 13 rounds at Evans.
According to Evans, Capps conspired with several deputies to
make it appear as if Evans was attempting to shoot another
law enforcement officer (Sergeant Gore) in order to justify
the use of force against Evans. Officer Capps told the North
Carolina State Bureau of Investigation that he was trained to
take the target out and continue firing his weapon until the
target is no longer a threat. Capps used excessive force
against Evans violating his rights under due process, state
law, and the Eighth Amendment. According to Evans, all
defendants failed to follow standard protocol for a felony
stop by not surrounding the vehicle and failed to follow
proper procedure and policy by shooting him when he was
attempting to surrender to law enforcement. As a result of
Capps' behavior and training he violated Evans' civil
rights under North Carolina General Statutes and the North
Carolina Constitution. [DE-1].
February 14, 2017, Evans served written discovery requests on
Capps including a request for the production of documents.
[DE-127] at 2. Capps provided his responses on May 26, 2017,
and supplemented his responses on June 15, 2017. Id.
On June 8, 2017, Evans filed his motion to compel Capps to
respond to his Requests for Production of Documents Nos. 4-5,
7-10, 12, 16, and 21-25. [DE-120].
Motion to Compel
Standard of Review
Federal Rules of Civil Procedure enable parties to obtain
information by serving requests for discovery on each other,
including interrogatories, requests for production of
documents, and requests for admission. See generally
Fed. R. Civ. P. 26-37. Rule 26 provides for a broad scope of
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 district court has broad
discretion in determining relevance for discovery purposes.
Seaside Farm, Inc. v. United States, 842 F.3d 853,
860 (4th Cir. 2016); Watson v. Lowcountry Red
Cross, 974 F.2d 482, 489 (4th Cir. 1992). The party
seeking the court's protection from responding to
discovery "must make a particularized showing of why
discovery should be denied, and conclusory or generalized
statements fail to satisfy this burden as a matter of
law." Mainstreet Collection, Inc., v.
Kirkland's, Inc., 270 F.R.D.238, 240(E.D. N.C.
governs requests for production of documents. A party seeking
discovery may serve a request on another party asking him to
permit the requesting party "to inspect, copy, test, or
sample ... any designated documents or electronically stored
information... or... any designated tangible things"
that constitute or contain matters within the scope of Rule
26(b) and which are in the possession, custody or control of
the party upon whom the request is served. Fed.R.Civ.P.
34(a). A party asserting an objection to a particular request
"must specify the part [to which it objects] and permit
inspection of the rest." Fed.R.Civ.P. 34(b)(2)(C).
"While Rule 34 of the Federal Rules of Civil Procedure
does not contain the same specificity and waiver provisions
as Rule 33 of the Federal Rules of Civil Procedure, the
Advisory Committee notes to Rule 34 state that '[t]he
procedure provided in Rule 34 is essentially the same as that
in Rule 33.'" Mainstreet Collection, 270
F.R.D. at 240-41 (quoting Fed.R.Civ.P. 34 advisory committee
notes (1970 Amend.)).
allows for the filing of a motion to compel discovery
responses. See Fed. R. Civ. P. 37(a)(3)(B). The
motion to compel must "include a certification that the
movant has in good faith conferred or attempted to confer
with the person or party failing to make disclosure or
discovery in an effort to obtain it without court
action." Fed.R.Civ.P. 37(a)(1). Similarly, Local Civil
Rule 7.1(c) requires that "[c]ounsel must also certify
that there has been a good faith effort to resolve discovery
disputes prior to the filing of any discovery motions."
See Jones v. Broadwell, No. 5:10-CT-3223-FL, 2013 WL
1909985, at *1 (E.D. N.C. May 8, 2013) (denying motion to
compel which did not state that party complied with Rule
37(a) or Local Civil Rule 7.1(c)).
claims that Capps has failed to answer Requests for
Production Nos. 4-5, 7-10, 12, 16, and 21-25. Capps responds
that he has produced all documents and items of which he has
possession, custody or control or has properly asserted an
objection. [DE-127]; [DE-147] at 3. Each of Evans'
disputed discovery requests is addressed in turn below.
No. 4. All training manual [sic] used for his training
including test scores.
objected to this request on the grounds that it is vague,
overly broad, unduly burdensome, and not reasonably
calculated to lead to the discovery of admissible
evidence. [DE-150] at 2. Capps responds further that
"all training manuals" used in the training of a
North Carolina State Highway Patrol ("SHP") trooper
would be voluminous and address numerous issues, most of
which have nothing to do with Evans' allegations.
[DE-127] at 3. However, in his supplementation, Capps
provided Evans with a complete copy of the SHP Policy Manual,
which addresses, among many other subjects, the use of deadly
force and high speed pursuits. Id. Capps explains
further that SHP does not conduct diversity/race/national
origin training, but that this training is provided by the NC
Justice Academy to SHP Troopers. Id. Capps further
provided Evans with the outline and training material the NC
Justice Academy used to train SHP troopers on
diversity/race/national origin issues. Id.
request is overly broad, extending to documents not relevant
to the claims or defenses at issue. The request fails to
define the types of manuals sought and leaves it to Capps or
the court to speculate what manuals there may be that are
relevant to Evans' claims. Nonetheless, judging from the
nature of Evans' claims, SHP manuals corresponding to
training Capps received on the use of deadly force and high
speed pursuits are relevant. Accordingly, and unless
previously produced, within 14 days of this order, Capps is
directed to produce all formal training manuals in his
possession custody or control related to training he received
on the use of deadly force and high speed pursuits.
No. 5. Policy and procedure on excessive force ...