An alleged victim of police brutality was awarded a new trial due to a defendant police officer’s failure to disclose discoverable information prior to trial. Specifically, a federal appellate court held that the officer’s withholding of prior lawsuits involving similar allegations was enough to relieve the plaintiff from an adverse jury verdict. ABA Litigation Section leaders agree with the decision and view it as a reminder to both attorneys and their clients to supplement responses to discovery requests.
In Morgan v. Tincher, the plaintiff sued a West Virginia police officer in the U.S. District Court for the Southern District of West Virginia, accusing him of using excessive force during an arrest. The plaintiff claimed the officer struck him with a baton in public then beat him with a metal pipe while he was handcuffed in a private room at the station.
Ten days after the discovery deadline, the plaintiff requested disclosure of any similar allegations against the officer during his employment as well as all litigation in which the officer was a named party. The officer responded without objection, referencing only one prior “allegation” of excessive force.
Before trial, the plaintiff learned of a lawsuit filed against the officer prior to the plaintiff’s discovery request. The trial then began, and following the plaintiff’s case-in-chief, the plaintiff discovered yet another undisclosed lawsuit against the officer.
The plaintiff sought permission to recall the officer to testify and motioned for sanctions based on the officer’s failure to supplement discovery in violation of Federal Rule of Civil Procedure 26(e). But before the district court addressed the plaintiff’s request to recall or motion for sanctions, the jury had reached a verdict in the defendant’s favor.
Following the district court’s entry of judgment in favor of the officer, the plaintiff filed a motion for relief under Federal Rule of Civil Procedure 60(b)(3), arguing “fraud…, misrepresentation, or misconduct by an opposing party.” The district court denied the plaintiff’s motions for sanctions and a new trial.
On appeal, the U.S. Court of Appeals for the Fourth Circuit considered whether the plaintiff satisfied the factors necessary to obtain relief under Rule 60(b)(3), including a showing: “(1) by clear and convincing evidence that Officer Tincher had engaged in misconduct, (2) that [the plaintiff] had a meritorious claim, (3) that [the plaintiff] was unable to fully present his case, and (4) that the interest of justice outweighed the interest in finality of judgments.”
The officer argued that he did not commit “misconduct” because he was relieved of any duty to supplement his disclosures due to the plaintiff’s untimely request. The court disagreed and held that the officer forfeited his objection by failing to raise it in his response to the discovery request. Finding that the plaintiff’s requests clearly sought disclosure of any lawsuit in which the officer was a named party, the court found that the plaintiff satisfied the standard in showing that the officer’s failure to disclose established misconduct.
As to whether the plaintiff presented a meritorious claim, the court clarified that the proper inquiry is whether the judgment was “unfairly procured” based on the withholding of discoverable material and not whether the undisclosed material would have changed the outcome of the trial. Finding that the allegations in the withheld lawsuit were “strikingly similar” to the plaintiff’s claims, the court “easily conclude[d]” that evidence of the withheld lawsuit would have strengthened the plaintiff’s case before the jury.
Comparing the claims in each lawsuit, namely allegations of serious physical assault of handcuffed individuals both in public and private, the court concluded that the plaintiff was denied the ability to fully present his case.
The court had “little trouble” in concluding that the balancing of the consideration of finality of judgments versus ensuring fairness and integrity in the fact-finding process weighed in the plaintiff’s favor. The court further stated, “not only did Officer Tincher’s failure to produce evidence of the Fortune lawsuit impede the pursuit of ‘justice,’ but his misconduct may have led to the presentation of false testimony as well.”
The court reversed the district court’s denial of the plaintiff’s motion for relief under Rule 60(b)(3), vacated the final judgment, and remanded the case to the district court for a new trial.
On remand in the district court, the plaintiff brought a renewed motion for sanctions under Federal Rules of Civil Procedure 11 and 37. Finding that a discovery violation had occurred and that sanctions were proper, the court granted the motion and awarded the plaintiff attorney fees and expenses totaling $86,326.48.
“No good deed goes unpunished—had the defendant not answered discovery after the cutoff and objected instead, the defense verdict might have stood,” observes Joseph V. Schaeffer, Pittsburgh, PA, Co-Chair of the Litigation Section’s Pretrial Practice & Discovery Committee. “If you do not object to an untimely discovery request, you forever have waived that argument,” explains Schaeffer.
“The court was correct to focus on the unfairness of the process rather than on whether the undisclosed lawsuit would have changed the outcome,” says Daniel P. Elms, Dallas, TX, Co-Chair of Division II Publications for the Section. “Without question,” continues Elms, “evidence of yet another instance of violent abuse of an arrestee by Officer Tincher might well have changed the jury’s mind in Morgan’s case.” “Morgan should have had the opportunity to present that evidence, and the jury had the right to hear it,” he adds.
