United States District Court, D. Colorado
WYATT T. HANDY, JR., ASHLEE M. HANDY, Plaintiffs,
TERA L. FISHER, AND BRANDON H. JOHNSON Defendants.
ORDER RE: PLAINTIFFS' SECOND MOTION TO COMPEL
Kato Crews U.S. Magistrate Judge.
order address pro se Plaintiffs Wyatt and Ashlee
Handy's Second Motion to Compel Discovery
(“Motion”) [#76]. The Motion was referred to this
Court. The Court has considered the Motion, Defendants'
response [#79], and Plaintiffs' reply
[#82]. No hearing is necessary to resolve the
FACTS PERTINENT TO THE MOTION
Court summarizes the facts using Judge Jackson's
description from his prior order [#47]: Plaintiffs were
driving along Highway 285 to visit a friend in Conifer,
Colorado in the early morning of April 14, 2016 when the
alleged incident occurred. Three people were in the vehicle:
Mrs. Handy, who is white, was driving; Mr. Handy, who is
black, was the front seat passenger; and an unidentified
white female passenger sat in the backseat behind Mrs. Handy.
At approximately 12:43 a.m. Plaintiffs stopped in the parking
lot of the 24-hour Kum and Go convenience store in Conifer to
reprogram their GPS navigational unit. As Plaintiffs pulled
into the Kum and Go located off Highway 285, they noticed
Deputy Fisher's (“Fisher”) patrol vehicle
parked in the convenience store's parking lot. Mr. Handy
alleges that he made eye contact with Fisher as
Plaintiffs' vehicle pulled into the Kum and Go parking
one minute of parking, Plaintiffs allege that Fisher
repositioned her patrol car behind Plaintiffs' vehicle
and activated her emergency lights. Because Plaintiffs'
car faced the Kum and Go building, Plaintiffs were boxed in
and unable to move their car. Apparently, Fisher radioed for
backup because within “seconds, ” several
additional officers arrived. Deputy Johnson
(“Johnson”) was one of those officers. With
backup in place and their weapons drawn, Fisher approached
the driver's side of the vehicle and Johnson approached
the passenger's side. Fisher asked Mrs. Handy for her
license, insurance, and registration. Mrs. Handy complied
with the request, and then she explained that she pulled over
to reprogram her GPS. Fisher then asked Mr. Handy for his
identification “in a hostile manner.” Mr. Handy
initially refused to produce identification, but he
eventually complied after Defendants made clear that he would
be arrested if he did not produce identification. Defendants
did not request identification from the backseat passenger.
Defendants released Plaintiffs after verifying there were no
outstanding warrants pending against them.
brought this action alleging two 42 U.S.C. § 1983 claims
against Defendants. First, Plaintiffs alleged an unlawful
seizure in violation of the Fourth Amendment. Second, they
asserted that Defendants racially profiled Mr. Handy in
violation of the Equal Protection Clause of the Fourteenth
Amendment. The Court dismissed Plaintiffs' Equal
Protection Clause claim for failure to state a claim upon
which relief can be granted and dismissed all official
capacity claims. [#47.] Only Plaintiffs' claim for
unlawful seizure in violation of the Fourth Amendment remains
against the Defendants in their individual capacities.
written discovery requests at issue include: Interrogatory
Nos. 2, 3, 4, 5, and 14, to Fisher; and Requests for
Production of Documents 15, 16, and 23, to Fisher and
Johnson. They are addressed, in turn, below.
scope of discovery in federal court is broad:
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
Fed. R. Civ. P. 26(b)(1) (emphasis added). Rule 26 permits
discovery regarding any nonprivileged matter that is relevant
to any party's claim or defense, while the proportional
needs of the case serve as guardrails for further reasonably
tailoring the scope of discovery. Id. The Court may
limit the scope of discovery to protect a party from undue
burden or expense. Fed.R.Civ.P. 26(c)(1).
of the Federal Rules of Civil Procedure provides that
“[a] party seeking discovery may move for an order
compelling . . . production” if the other party fails
to produce requested information. Fed.R.Civ.P. 37(a)(3)(B).
The moving party bears the burden of proof. EchoStar
Commc'ns. Corp. v. News Corp., 180 F.R.D. 391, 394
(D. Colo. 1998). The moving party must prove the opposing
party's responses are incomplete. Daiflon Inc. v.
Allied Chem. Corp., 534 F.2d 221, 227 (10th Cir. 1976);
Equal Rights Ctr. v. Post Props., 246 F.R.D. 29, 32
(D.D.C. 2007). Additionally, when the relevance of a
discovery request is not apparent on the face of the request,
the proponent of that discovery bears the burden of making an
initial showing of relevance. See Thompson v. Jiffy Lube
Int'l, Inc., No. 05-1203-WEB, 2007 WL 608343, at *8
n.20 (D. Kan. Feb. 22, 2007).
Interrogatory Nos. 2 and 3
interrogatories ask Fisher to:
• No. 2: Please explain where and how Plaintiffs'
car was positioned when it was parked.
• No. 3: Please explain where and how your car was
positioned when you pulled up to stop Plaintiffs' car.
raised objections to these interrogatories and then answered
them “subject to and without waiving” her
objections. In response to No. 2, she answered: “When I
saw Plaintiffs' vehicle it was parked nose-in facing the
empty building at 30403 Kings Valley Drive, in Conifer,
Colorado. Plaintiffs' vehicle was on the north side of
Kum and Go, closest to Kings Valley Drive, in a spot towards
the end of the parking row.” [#76-2 at p.3.] In
response to No. 3, she answered:
Plaintiffs' vehicle was already parked when I contacted
them, so I did not stop them or pull them over. I parked my
Sheriff's Office vehicle at an angle towards the back
passenger-side bumper so that Plaintiffs' vehicle was
closer to Kings Valley Drive than my vehicle. I was trying to
shine my vehicle's bright lights into Plaintiffs'