United States' Memorandum in Support of Motion to Compel Production

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF LOUISIANA

HEEBE, ET AL. * CIVIL ACTION NO: 10-3452 v. * SECTION “C” (5)

UNITED STATES OF AMERICA *

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UNITED STATES’ MOTION TO COMPEL PRODUCTION

NOW INTO COURT comes the United States of America, appearing through the

undersigned Assistant United States Attorney, and, pursuant to Rule 37(a) of the Federal Rules of

Civil Procedure, seeks an order compelling the plaintiffs to provide a copy of a surveillance video

taken at the time of the execution of the search warrant at issue in this matter or for the Court to

hold an evidentiary hearing under Rule 37(a) of the Federal Rules of Civil Procedure

WHEREFORE, in view of the foregoing and for the reasons more fully set forth in its

Memorandum in Support of Motion to Compel, the government respectfully requests that the

Case 2:10-cv-03452-HGB-ALC Document 55 Filed 02/22/11 of 2

Court grant the government’s motion to compel or grant an evidentiary hearing as contemplated

by Rule 37(a).

Respectfully submitted,

JIM LETTEN UNITED STATES ATTORNEY

s/Gregory M. Kennedy GREGORY M. KENNEDY Assistant United States Attorney500 Poydras Street, Second FloorNew Orleans, Louisiana 70130Telephone: (504) 680-3102Email: [email protected]

CERTIFICATE OF SERVICE

I hereby certify that on February 22, 2011, I electronically filed the foregoing withthe Clerk of Court by using the CM/ECF system which will send a notice ofelectronic filing to all counsel of record.

s/Gregory M. Kennedy GREGORY M. KENNEDYAssistant United States Attorney

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Case 2:10-cv-03452-HGB-ALC Document 55 Filed 02/22/11 of 2

mailto:[email protected]




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UNITED STATES’ MEMORANDUM INSUPPORT OF MOTION TO COMPEL PRODUCTION

MAY IT PLEASE THE COURT:

I. RELEVANT FACTS AND PROCEDURAL BACKGROUND

On February 17, 2011, the defendant, the United States of America, served a letter requesting

production of certain items on plaintiffs’ counsel. See Exhibit 1. The government specifically

requested a copy of a surveillance video referenced in the plaintiffs’ prior filings in this matter. Id.,

See Rec. Doc. 44, p. 3 and Rec. Doc. 51, p. 9. The government requested that the plaintiffs provide

the copy by February 18, 2011, due to the fast approaching hearing date of February 24, 2011. On

February 21, 2011, plaintiffs served a response to the request for production and indicated in the

letter that the plaintiffs were willing to exchange exhibits but that they would not provide a copy of

the surveillance video because they considered it to be “impeachment evidence.” See Exhibit 2. This

matter is currently set for an evidentiary hearing before this Court on Thursday, February 24, 2011.

Case 2:10-cv-03452-HGB-ALC Document 55-1 Filed 02/22/11 Page 1 of 4

Because the video is subject to discovery under the Federal Civil Rules of Procedure, regardless of

whether the plaintiffs intend to introduce it as impeachment evidence at the hearing, and due to the

time constraints involved, the government is requesting that this Court order the plaintiffs to provide

a copy of the surveillance video.

II. ARGUMENT

1. The Court should compel the production of the surveillance videos.

Federal Rules of Civil Procedure 37(a)(3)(B)(iii) & (iv) provide:

A party seeking discovery may move for an order compelling ananswer,...production, or inspection. This motion may be made if: aparty fails to answer an interrogatory submitted under Rule 33; or aparty fails to respond that inspection will be permitted or fails topermit inspection as requested under Rule 34.

Rule 37(a)(3) addresses the failure to provide “an answer” to “an interrogatory” which

implies that some written responses were filed, but the respondent refused to provide sufficient

responses to all requests. See GRIMM, PAUL W., CHARLES S. FAX & PAUL MARK SANDLER,

DISCOVERY PROBLEMS AND THEIR SOLUTIONS 257-58 (ABA Publishing 2005) & 7 JAMES

WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 37.90 (Matthew Bender 3d ed.) (“The first

subdivision of Rule 37 does not address a party’s complete failure to respond to discovery, but rather

it addresses only inadequate responses or questionable objections. Rule 37(a)(3) adds that “[f]or

purposes of this subdivision an evasive or incomplete disclosure, answer, or response is to be treated

as a failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(3). The Rule finally provides that

“[a] party, upon reasonable notice to other parties ... may apply for an order compelling disclosure

or discovery ...” Id.

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https://web2.westlaw.com/find/default.wl?tc=-1&docname=USFRCPR37&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.01&db=1004365&tf=-1&findtype=L&fn=_top&mt=27&vr=2.0&pbc=E5238A3B&ordoc=2007446916

https://web2.westlaw.com/find/default.wl?tc=-1&docname=USFRCPR37&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.01&db=1004365&tf=-1&findtype=L&fn=_top&mt=27&vr=2.0&pbc=E5238A3B&ordoc=2007446916

Here, the plaintiffs responded to government’s request but failed to provide the item

requested. Should the plaintiffs decide to use the video only for impeachment, it is still subject to

discovery.

Rule 26(b)(1) provides that the scope of discovery includes “any nonprivileged matter that

is relevant to any party’s claim or defense.” “[D]iscovery should ordinarily be allowed under the

concept of relevancy unless it is clear that the information sought has no possible bearing on claims

and defenses of the parties.” JAMES WM. MOORE, ET AL, 7 MOORE’S FEDERAL PRACTICE §

26.41[6][c] (Matthew Bender 3d ed.). “A court’s determination whether a discovery request is

‘relevant to any party’s claim or defense’ must look beyond the allegation of a claim or defense to

the controlling substantive law.” Id.

The video is a real-time recording of the agents at the time of the execution of the search

warrant. As such, it is relevant to the hearing to be held before this Court. The intended use of the

video by the plaintiffs does not alter the fact that it is subject to discovery by the government.

In sum, the United States presently seeks from the Court an order requiring the plaintiffs to

provide the relevant video to the government in time to allow its review before the scheduled hearing

on February 24, 2011.

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III. CONCLUSION

For the above reasons, the Court should grant the United States’ motion to compel production

of the surveillance video.

Respectfully submitted,

JIM LETTEN UNITED STATES ATTORNEY





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* * *

NOTICE OF SUBMISSION

PLEASE TAKE NOTICE that the undersigned will bring the attached motion to compel for

hearing at the Courtroom of the Honorable Judge Helen G. Berrigan, Hale Boggs Federal Building

at 500 Poydras St., Room C552, New Orleans, Louisiana 70130 on March 16, 2011, at 9:30 a.m., or

as soon thereafter as counsel can be heard, and that the motion will be submitted upon the pleadings

and admissions on file.

Respectfully submitted,JIM LETTEN UNITED STATES ATTORNEY







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United States' Memorandum in Support of Motion to Compel Production

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