Failure to Object to Untimely Interrogatories Coupled With a Discovery Violation Leads to Reversal

[EDRM Editor’s Note: EDRM is proud to publish Michael Berman’s advocacy and analysis. The opinions and positions are those of Michael Berman.]

In Discovery Violation Requires New Civil Rights Trial Against Cop (bloomberglaw.com)(Jan. 3, 2024), Mr. Bernie Pazanowski reported on Morgan v. Tincher, No. 21-2060, __ F.4^th __ (4^th Cir. Jan. 3, 2024).  In short, plaintiff filed untimely interrogatories.  Defendant responded without objecting that they were untimely.  That omission waived the objection.  However, defendant contended that, because the requests were untimely, defendant was relieved of the duty to supplement the response with relevant, requested information.  That information came out a trial.  Defendant was wrong and a defense verdict was reversed with a remand for additional discovery.

Morgan demonstrates: (1) the need for timely discovery requests; (2) the importance of specific and timely objections to discovery; and, (3) that “hide the ball” tactics won’t work.

Plaintiff, Mr. Morgan, alleged that he was battered by a police officer while he was handcuffed.  He sued pursuant to 42 U.S.C. §1983.  The police officer denied the allegations. The Fourth Circuit wrote:

The central issue in this appeal involves a discovery violation that was not revealed to the requesting party until near the end of trial. A jury found in favor of a police officer on allegations of excessive force and other claims. We consider whether the district court erred in denying the plaintiff’s post-trial motion for relief from judgment under Federal Rule of Civil Procedure 60(b)(3), based on the officer’s failure to disclose another, similar excessive-force lawsuit that had been filed against him. 

Upon our review, we conclude that this discovery violation was misconduct under Rule 60(b)(3), and that the plaintiff satisfied the other factors required for relief under that Rule. We therefore hold that the district court abused its discretion in denying the plaintiff’s request for relief under Rule 60(b)(3). We reverse the district court’s ruling, vacate the court’s entry of final judgment against the plaintiff, and remand the case to the district court with instructions to award the plaintiff a new trial.

Morgan v. Tincher, No. 21-2060, __ F.4^th __ (4^th Cir. Jan. 3, 2024).

The Court further explained that:

Well before trial, but ten days after the deadline established by the district court’s scheduling order, Morgan submitted discovery requests to Officer Tincher. As relevant to the present appeal, Morgan asked Officer Tincher in the interrogatories to disclose any allegation that had been made against Tincher “by any person” while Tincher was employed with the police department, as well as “all litigation,” excluding domestic matters, in which Tincher was a named party, including “the allegations, the nature of the case and the outcome.”  Morgan also requested any documents relating to “any lawsuits” against Officer Tincher or “claims of excessive physical abuse” or “physical assault” while he was employed by the police department. [emphasis added].

Morgan v. Tincher, No. 21-2060, __ F.4^th __ (4^th Cir. Jan. 3, 2024).

The Fourth Circuit wrote:

Without objecting to the untimeliness of Morgan’s discovery requests, Officer Tincher responded to the interrogatories and other requests. In his response, he disclosed one prior “allegation” of excessive force made against him by a suspect named Anthony Meade, who had alleged that Officer Tincher unjustifiably kicked Meade in the head while arresting him. Officer Tincher did not disclose that any lawsuits had been filed against him. [emphasis added].

Morgan v. Tincher, No. 21-2060, __ F.4^th __ (4^th Cir. Jan. 3, 2024).

That response was incomplete.  Before trial, Morgan learned that Mr. Meade had filed suit “before Morgan served his discovery requests….”

At trial, the officer testified: “I’m not a trouble maker” and said that the Meade lawsuit had been “dropped.”  

The Court wrote: “After Morgan finished presenting his evidence, he learned from a third party about yet another lawsuit against Officer Tincher, which was filed two months before Morgan’s trial, that Tincher had not disclosed.”  In that suit, Mr. Travis Fortune alleged assault by Officer Tincher.  The same attorney who represented Tincher in Meade represented him in Fortune.  Mr. Fortune’s allegations against Officer Tincher were described as similar to those of Mr. Morgan.

Morgan sought sanctions.  The District Court did not rule and, instead, after a jury verdict, entered a final judgment for Officer Tincher.  Morgan moved for a new trial under Rule 60(b). The District Court later denied both motions.

The Fourth Circuit reversed and held that relief under Rule 60(b)(3) was justified. It wrote that the Rule provides that a court “may relieve a party” from a “final judgment, order, or proceeding” for “fraud . . . , misrepresentation, or misconduct by an opposing party.” 

The Fourth Circuit noted that the trial court had found “misconduct” by Officer Tincher but “the [trial] court held that because Morgan submitted his discovery requests after the district court’s deadline, Morgan had not submitted a ‘proper’ discovery request. Thus, the court concluded that Officer Tincher was relieved from the duty to supplement his discovery responses under Rule 26(e) and had not engaged in ‘misconduct’ under Rule 60(b)(3).” 

On appeal, Morgan argued that Tincher had responded to the untimely discovery request without objecting to it as untimely.  He argued that a failure to object waives the objection.  Officer Tincher’s response was that the discovery was untimely and “without citation to any authority,” according to the Court, he argued that he was relieved of any duty to supplement his responses.

Both parties raised other Rule 60 issues, including whether the undisclosed information would have swayed the jury.

The Fourth Circuit cited precedent that a failure to produce requested, clearly pertinent discovery material was misconduct under Rule 60(b)(3).  It reiterated that “the fairness and integrity” of the “fact-finding process” is “of greater concern and a party’s failure to produce the requested document so favorable to [another party] impedes that process and requires redress in the form of a new trial.”  It added: “And, critically, we explained that the undisclosed evidence need not be ‘result altering’ to warrant a new trial under Rule 60(b)(3).”

The Court found “clear and  convincing evidence” of misconduct by Officer Tincher’s failure to disclose evidence of the Fortune lawsuit.  It held that Officer Tincher was required to supplement his responses under Rule 26(e)(1).  Fortune was filed six months after the initial discovery response and two months before Morgan’s trial.

The Fourth Circuit added:

Nothing in Rule 26(e) relieves a party from the obligation to supplement that party’s discovery responses on the basis that the original discovery request was untimely. Here, Officer Tincher forfeited any timeliness objection regarding Morgan’s discovery request by failing to raise such an objection before responding to the request. Under Rule 33(b)(4), “[t]he grounds for objecting to an interrogatory must be stated with specificity,” and “[a]ny ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.” Fed. R. Civ. P. 33(b)(4). Although Officer Tincher raised other objections to Morgan’s interrogatories, he did not assert that the requests were untimely. Further, the district court did not make a finding of good cause that would have excused Officer Tincher’s failure to raise this objection. Thus, we conclude that Officer Tincher’s failure to disclose evidence of the Fortune lawsuit, irrespective whether that failure was inadvertent or intentional, was misconduct under Rule 60(b)(3). [emphasis added].

Morgan v. Tincher, No. 21-2060, __ F.4^th __ (4^th Cir. Jan. 3, 2024).

The Court rejected the argument that Morgan had not presented a meritorious claim. Evidence of the Fortune lawsuit “would have helped” because it was a third claim of excessive force against Officer Tincher and “the allegations regarding Tincher’s actions against Fortune were strikingly similar to Morgan’s own allegations against Tincher.”  The Court added:

Finally, we have little trouble concluding that the last step in the Rule 60(b)(3) analysis, balancing the consideration of finality of judgments against the consideration of fairness and integrity of the fact-finding process, weighed in Morgan’s favor. Not only did Officer Tincher’s failure to produce evidence of the Fortune lawsuit impede the pursuit of “justice,” see Square Constr., 657 F.2d at 71, but his misconduct may have led to the presentation of false testimony as well. After assuring the jury that he was not a “trouble maker,” Officer Tincher stated that he was not a defendant in a lawsuit, even though the Fortune lawsuit was pending at that time. [emphasis added].

Morgan v. Tincher, No. 21-2060, __ F.4^th __ (4^th Cir. Jan. 3, 2024).

The Court concluded:

In sum, we hold that Officer Tincher forfeited any objection to Morgan’s untimely discovery request and that, therefore, the district court erred in holding that Morgan failed to show by clear and convincing evidence that Tincher’s discovery violation qualified as misconduct. We further hold that the district court erred in requiring Morgan to show that the undisclosed evidence would have changed the trial outcome in order to demonstrate the meritorious nature of his claim and his inability to fully present his case. See Schultz, 24 F.3d at 628-31. Finally, we hold that the district court abused its discretion in concluding that the consideration of finality outweighed the consideration of the interests of justice, and in denying Morgan’s motion for relief from judgment under Rule 60(b)(3). See id. at 630-31.

Morgan v. Tincher, No. 21-2060, __ F.4^th __ (4^th Cir. Jan. 3, 2024).

The Court reversed, remanded for additional discovery, and vacated the final judgment. Thanks to Mr. Pazanowski and Bloomberg for reporting on this case, which as of this writing is not posted on Westlaw.