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Howell v. Earl

United States District Court, D. Montana, Butte Division

May 2, 2014

MARION I. HOWELL, and FRANCIS L. HOWELL, Plaintiffs,
v.
TRAVIS EARL, individually and as agent of Gallatin County Sheriff's Department, State of Montana, KELLI MUNTER, individually and as agent of Gallatin County Sheriffs Department, State of Montana, SCOTT SECOR, individually and as agent of Gallatin County Sheriffs Department, State of Montana, JAMES ANDERSON, individually and as agent of Gallatin County Sheriffs Department, State of Montana, DAVID JOHNSTON, individually and as agent of Gallatin County Sheriff's Department, State of Montana, JAMES CASHELL, individually and as agent of Gallatin County Sheriff's Department, State of Montana, GALLATIN COUNTY, a political subdivision of the State of Montana, MICHAEL WALRATH, individually and as agent of Montana Highway Patrol, State of Montana, JAMES SULAGES, individually and as agent of the Montana Highway Patrol, State of Montana, JUSTIN BRAUN, individually and as agent of Montana Highway Patrol, MIKE TOOLEY, individually and as agent of Montana Highway Patrol, State of Montana, STATE OF MONTANA, and JOHN DOES 1-X, Defendants.

ORDER

JEREMIAH C. LYNCH, Magistrate Judge.

Before the Court is the motion of Defendants State of Montana, Justin Braun, James Sulages, and Michael Walrath ("State Defendants") requesting the Court to compel discovery from, and impose sanctions against Plaintiffs Marion and Francis Howell. For the reasons discussed, the State Defendants' motion is granted in part and denied in part.

I. Background

The facts of this case are well known to the parties and need not be repeated in great detail here. A brief summary will suffice. On June 26, 2011, the Howells' son, Shapleigh Howell, was allegedly involved in a single motor vehicle accident which occurred on a road in the area between Belgrade and Manhattan, Montana. The vehicle involved in the accident - which was owned by Francis and Marion Howell - left the roadway and collided with a trailer located in the road right-of-way.

Several law enforcement officers from the Gallatin County Sheriff's Department and the Montana Highway Patrol ("MHP") - many of the individuals named as Defendants in this action - responded to a 911 call regarding the accident. The responding officers converged at the scene of the accident to investigate.

The Howells' house was approximately a quarter of a mile from the location of the accident. The law enforcement officers' investigation apparently led them to the Howells' house where they had an encounter with Francis and Marion. This lawsuit has its genesis in that encounter. Francis and Marion advance civil rights claims under 42 U.S.C. ยง 1983, and pendant state law claims.

II. Discussion

A. Testimony of Shapleigh Howell

Shapleigh Howell, who law enforcement believed was driving his parents' car at the time of the underlying single motor vehicle accident, was charged criminally. When the State Defendants deposed Shapleigh as to his knowledge of the events which give rise to his parents' claims, he invoked his Fifth Amendment privilege against self incrimination. (Doc. 46-5, at 15-16). Although cast as a motion to compel, the State Defendants move in limine to preclude Shapleigh from testifying at trial based upon his refusal to answer questions at his deposition pertaining to his knowledge of those underlying events. The motion is well-taken.

A witness who invokes his privilege against self-incrimination with respect to questions asked in the course of discovery will not be allowed to later testify about the same subject matter at trial, if allowing the witness to do so would place a party to the civil litigation at a disadvantage. See Nationwide Life Ins. Co. v. Richards , 541 F.3d 903, 910-11 (9th Cir. 2008) (citations omitted). Shapleigh was a percipient witness to some phases of the June 26, 2011, encounter between law enforcement and the Howell family. To allow Shapleigh to selectively testify about those events would unfairly disadvantage the State Defendants, who were precluded from legitimately cross-examining Shapleigh regarding those events at his deposition.

B. Plaintiffs' Initial Disclosure

The State Defendants assert the Howells' Federal Rule of Civil Procedure 26(a)(1)(A) initial disclosure was neither complete nor timely supplemented. Specifically, the State Defendants complain the Howells failed: (1) to disclose the names and contact information of two individuals likely to have discoverable information; and (2) to provide a computation of their alleged damages, together with supporting evidentiary materials. The State Defendants request sanctions - in the form of costs and attorneys fees incurred in pursuing this aspect of their motion - be imposed against the Howells under authority of Fed.R.Civ.P. 37(a)(3)(A). And they request a sanction precluding the Howells from presenting evidence with respect to several categories of claimed damages.

1. Identities of Individuals

The State Defendants argue the Howells violated the mandatory disclosure requirement of Rule 26(a)(1)(A)(i) by failing to disclose the names and contact information of a minor identified as C.C. and Mike Wade. The State Defendants claim they first became aware of these two potential witnesses to the ...


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