Motion To Compel DART 4-7-17

Case 3:16-cv-02579-B Document 16 Filed 04/07/17 Page 1 of 18 PageID 156
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
AVI S. ADELMAN,

Plaintiff,

v. CIVIL ACTION NO. 3:16-cv-2579

DALLAS AREA RAPID TRANSIT and
STEPHANIE BRANCH, individually and in
her official capacity as a Dallas Area Rapid
Transit Police Officer,

Defendants.
PLAINTIFFS MOTION TO COMPEL DOCUMENTS AND DISCOVERY

RESPONSES FROM DEFENDANT DALLAS AREA RAPID TRANSIT
TABLE OF CONTENTS
Page
SUMMARY ...................................................................................................................... 1
ARGUMENT ................................................................................................................... 2
A. RFP No. 10: Documents relating to complaints and investigations

involving Officer Branch ............................................................................. 3
B. RFP Nos. 11-14: Documents relating to communications between

DART and the media .................................................................................. 5
C. RFP No. 18: DARTs current and historical photography policies .............. 6
D. Requests for Admission Nos. 6, 12, 13, 15-18, 22, 23, 26-29, 36,
38, 39, and 51 ............................................................................................. 7
1. RFA Nos. 12, 13, 15-18, and 51: Improper deposition objections .... 7
2. RFA No. 36: Evasive answer .......................................................... 10
3. RFA Nos. 22, 23, 26-29, 38, and 39: Improper denials of
mutually exclusive requests ............................................................ 10
E. Interrogatory Nos. 4-7 .............................................................................. 11
REQUEST FOR ATTORNEYS FEES ............................................................................ 13
CONCLUSION .............................................................................................................. 13
i
TABLE OF AUTHORITIES
Page(s)
Cases
Carnaby v. City of Houston,

C.A. No. 4:08-cv-1366, 2008 WL 4546606 (S.D. Tex. Oct. 10, 2008) .................. 5
Heller v. City of Dallas,

303 F.R.D. 466 (N.D. Tex. 2014) ................................................ 3, 5, 6, 7, 8, 9, 12
Interland, Inc. v. Bunting,

No. 1:04-CV-444-ODE, 2005 WL 2414990 (N.D. Ga. Mar. 31, 2005) .............. 11
Keycorp v. Holland,
No. 3:16-cv-1948-D, 2016 WL 6277813 (N.D. Tex. Oct. 26, 2016) ................... 10
Layne Christensen Co. v. Purolite Co.,

C.A. No. 09-2381-JWL-GLR, 2011 WL 381611 (D. Kan. Jan. 25, 2011) ........... 10
Marchand v. Mercy Med. Ctr.,

22 F.3d 933 (9th Cir. 1994) ....................................................................... 8, 10, 12
McLeod, Alexander, Powel & Apffel, P.C. v. Quarles,

894 F.2d 1482 (5th Cir. 1990) ............................................................................. 12
Merrill v. Waffle House, Inc.,

227 F.R.D. 467 (N.D. Tex. 2005) ...................................................................... 4, 7
Monell v. N.Y. City Dept. of Soc. Servs.,

436 U.S. 658 (1978) ......................................................................................... 4, 12
Orchestrate HR, Inc. v. Trombetta,

No. 3-13-cv-2110-P, 2014 WL 884742 (N.D. Tex. Feb. 27, 2014) ........................ 2
T.R. Hoover Cmty. Dev. Corp. v. City of Dallas,

C.A. No. 3:06-CV-2148-O, 2009 WL 2001442 (N.D. Tex. July 9, 2009) ............. 4
Tyner v. City of Jackson, Miss.,

105 F.R.D. 564 (S.D. Miss. 1985) ....................................................................... 4-5
Statutes
FED. R. CIV. P. 26(b)(1) ..................................................................................................... 2
ii
FED. R. CIV. P. 36(a)(4) ................................................................................................. 8, 9
FED. R. CIV. P. 37(a)(5)(A) .............................................................................................. 13
iii
Plaintiff Avi S. Adelman files this motion to compel seeking the following
documents and discovery responses from Defendant Dallas Area Rapid Transit (DART):
(1) documents relating to complaints against and investigations of Officer Branch (RFP
No. 10); (2) documents relating to communications between DARTs public relations
office and the media (RFP Nos. 11-14); (3) DARTs current and historical photography
policies (RFP No. 18); (4) responses to Requests for Admission Nos. 12, 13, 15-18, 22,
23, 26-29, 36, 38, 39, and 51; and (5) responses to Interrogatory Nos. 4-7.1
SUMMARY
This case is about the violation of fundamental constitutional rights by DART and
one of its officers, Defendant Stephanie Branch. Officer Branch arrested Adelman
without probable cause, simply for taking photographs of a medical scene at a DART
station, in direct violation of Adelmans First and Fourth Amendment rights. DARTs
own internal investigation confirmed Officer Branchs unlawful arrest and also found that
she made 23 false statements in her report to justify the unconstitutional arrest.
After filing this lawsuit under 42 U.S.C. 1983, Adelman sought discovery from
DART and Officer Branch. Although DART provided some documents and answered
some discovery requests, it is withholding plainly relevant documents and refusing to
answer certain interrogatories and requests for admission. Adelman has made extensive
efforts to obtain complete discovery from DART without court intervention, but DART
has, to date, failed to comply with its discovery obligations. Adelmans efforts include the
following:
1
To assist the Court in deciding this motion, Adelman has prepared a summary containing all of the
discovery requests at issue and DARTs responses and objections to each, which is attached hereto as
Exhibit 1. Adelman also includes the complete discovery requests and responses in the Appendix.
1
On February 13, 2017, Adelmans counsel emailed DARTs counsel to request

a conference regarding issues with DARTs discovery responses. (App. 43.)
On February 17, 2017, counsel for the parties conferred by phone for
approximately one hour. (Id. at 42.) Counsel for the parties discussed several
requests for production and requests for admission during that call, and
DARTs counsel agreed to follow up regarding several issues. (Id. at 44.)
On March 14, 2017, having not heard from DARTs counsel, Adelmans
counsel sent a follow-up email summarizing the discovery issues from the
parties phone call and identifying additional issues with DARTs discovery
responses and objections. (Id. at 44-45.) DARTs counsel responded by
telephone addressing one of the issues raised but did not respond to the other
issues. (Id. at 47.)
Adelmans counsel sent another follow-up email on March 27, 2017, and
DARTs counsel responded that he was in trial and would have to address these
issues later. (Id. at 46-47.)
Adelmans counsel sent another reminder email to DARTs counsel on April 4,

2017 and again on April 5, 2017. (Id. at 46.) To date, DARTs counsel has
not responded to these emails.
Nearly two months after Adelmans counsel raised numerous discovery issues for
DART to address, DART has not produced a single additional document or supplemented
its discovery responses in any way, other than to amend its Privilege Log. With
depositions and other deadlines approaching, Adelman now seeks relief from this Court
to order DART to produce responsive documents and fully answer discovery.
ARGUMENT
Federal Rule of Civil Procedure 26 provides that [p]arties may obtain discovery
regarding any nonprivileged matter that is relevant to any partys claim or defense. FED.
R. CIV. P. 26(b)(1). The party resisting discovery must show specifically how each
request is not relevant or otherwise objectionable. Orchestrate HR, Inc. v. Trombetta,
No. 3-13-cv-2110-P, 2014 WL 884742, at *1 (N.D. Tex. Feb. 27, 2014) (Horan, M.J.).
So-called boilerplate or unsupported objections . . . [are] improper and ineffective and
2
may rise (or fall) to the level of what the Fifth Circuit has described as an all-to-common
example of the sort of Rambo tactics that have brought disrepute upon attorneys and
the legal system. Heller v. City of Dallas, 303 F.R.D. 466, 483 (N.D. Tex. 2014)
(Horan, M.J.) (citation and internal quotation marks omitted).
DART asserted unfounded objections to Adelmans discovery requests, withheld
responsive documents, and failed to provide proper answers to requests for admission and
interrogatories. The Court should order DART to produce all responsive documents and
provide complete answers to Adelmans discovery requests.
A. RFP No. 10: Documents relating to complaints and investigations involving

Officer Branch.
RFP No. 10 seeks [a]ll documents relating to any complaints against Officer
Branch and any investigations of Officer Branch. (App. 4, RFP No. 10.) DART does
not object to this request but states that it has submitted a Privilege Log briefly
describing any withheld documents. (Id.) On the document that DART calls a
Privilege Log, DART includes several documents responsive to RFP No. 10 that it is
withholding on relevance grounds. (App. 29.) Adelman requests that the Court overrule
DARTs relevance claims and order DART to produce document numbers 2 through 9 on
the Privilege Log.2
As an initial matter, Adelman is not aware of any procedure whereby a party logs
relevance claims on a Privilege Log. Further, a request for discovery should be
considered relevant if there is any possibility that the information sought may be
2
DART did not number the documents on its Privilege Log, so Adelman added numbers for ease of
reference. Additionally, DART served an Amended Privilege Log to provide more detail about the withheld
documents. In this motion, Adelman references this Amended Privilege Log rather than the original log.
3
relevant to the claim or defense of any party. Merrill v. Waffle House, Inc., 227 F.R.D.
467, 470 (N.D. Tex. 2005) (Ramirez, M.J.) (citation and internal quotation marks
omitted). Under this broad standard, DART cannot credibly claim a lack of relevance of
incident reports and investigations involving the police officer whose conduct is at issue in
this litigation. These documents are especially relevant since this is a section 1983 case
against DART, which requires Adelman to show that Officer Branchs violations of his
constitutional rights were pursuant to a DART policy or custom. Monell v. N.Y. City
Dept. of Soc. Servs., 436 U.S. 658 690-91 (1978). A pattern of conduct by Officer
Branch, combined with DARTs failure to discipline or take corrective action, is directly
relevant to the Monell requirements in a section 1983 claim. See T.R. Hoover Cmty.
Dev. Corp. v. City of Dallas, C.A. No. 3:06-CV-2148-O, 2009 WL 2001442, at *4 (N.D.
Tex. July 9, 2009) (OConnor, J.) (citing Supreme Court case law for the proposition that
a section 1983 claim against a municipal entity may be based on, among other things,
inadequate training, supervision, [or] discipline . . .).
Courts consistently reject attempts by municipalities to shield complaints and
investigative reports from plaintiffs in section 1983 cases. For example, one court in this
circuit noted that [t]he apparent trend in this country is to permit disclosure of law
enforcement departments internal affairs investigative reports and files. Tyner v. City of
Jackson, Miss., 105 F.R.D. 564, 566 (S.D. Miss. 1985) (collecting cases). The court
explained:
[T]his Court is of the opinion that as a general rule a plaintiff alleging

unconstitutional misconduct by police officers and a municipal policy
condoning such alleged misconduct is entitled to discovery of the internal
affairs investigations conducted by the police department regarding the
4
incident of which he complains and regarding other similar incidents

involving the police department or the individual police officers about
whom plaintiff complains.
Id. Other courts are in accord. See, e.g., Carnaby v. City of Houston, C.A. No. 4:08-cv-
1366, 2008 WL 4546606, at *3 (S.D. Tex. Oct. 10, 2008) (ordering defendant to produce
internal affairs and personnel files of police officers and finding that such IAD and
personnel files are highly relevant to the case at hand (collecting cases)).3 This Court
should follow those decisions and compel DART to produce the withheld documents.
B. RFP Nos. 11-14: Documents relating to communications between DART and the
media.
RFP Nos. 11 and 12 seek documents relating to communications between DARTs
spokesperson, Morgan Lyons, and DART police as well as communications between
DART and members of the press. (App. 4-5, RFP Nos. 11-12.) RFP Nos. 13 and 14 seek
documents on which Lyons relied in making statements to the media. (App. 5, RFP Nos.
13-14.) DART objects to each of these requests as overly broad, vague, and ambiguous
and on the grounds that the requests are best responded to in the questions [sic] and
answer format of a deposition. (App. 4-5, RFP Nos. 11-14.)
In conferring on these objections, DARTs counsel claimed that DART was not
withholding documents based on its objections and had produced all responsive
documents. (App. 44.) If that is, in fact, the case, the Court should overrule the
objections as prophylactic and improper. Heller, 303 F.R.D. at 486-87. And if DART is
relying on its objections to withhold documents, the Court should overrule them as
3
The Carnaby court also held that federal common law privilege applies to federal claims and rejected
the defendants attempt to shield these documents under state-law confidentiality claims. Carnaby, 2008
WL 4546606, at *2-3. As in that case, the Court here should reject DARTs attempt to withhold
documents under the Texas Government Code. This is particularly true given that Adelmans counsel
offered to agree to a protective order maintaining the confidentiality of the documents. (App. 44.)
5
boilerplate and unsupported. See id. at 483-84, 491-92 (overruling improper boilerplate
objections and rejecting vagueness objections where party did not make any effort to
attribute ordinary definitions to the terms used). Adelmans counsel asked DART to
confirm that DART had produced not only email communications but also (a) any text
messages or notes memorializing meetings; and (b) any documents Lyons relied upon, as
requested in RFP Nos. 13 and 14. (App. 44.) To date, DARTs counsel has not
responded to this request. Adelman requests that the Court order DART to produce these
documents or confirm that they do not exist.
C. RFP No. 18: DARTs current and historical photography policies.
RFP No. 18 seeks [a]ll documents relating to any prior DART policies and
procedures regarding photography and the right to photograph on DART property,
including but not limited to any policy that was in effect prior to July 1, 2014. (App. 5-
6, RFP No. 18.) DART objects on relevance grounds and on the grounds that the request
is overly broad, vague and ambiguous. (Id.)
In conferring on this objection, DARTs counsel indicated that he did not believe
DART was withholding its historical photography policies, but he would confirm. (App.
44.) To date, he has not confirmed this issue. If DART has, in fact, produced all
historical policies and is not withholding documents based on this objection, the Court
should overrule the objection as unnecessary and prophylactic. Heller, 303 F.R.D. at
486-87. If DART is standing on its objections, the Court should overrule them. DARTs
historical policies are plainly relevant, particularly given that there is evidence that DART
police officersincluding Officer Branchwere not trained on the current photography
6
policies (and thus, may have been acting under old policies in arresting Adelman). (See
App. 40 (statement from Officer Branch that DART Police Officers, including myself,
were not made aware of the photography policy and/or trained until after this incident).)
Under the broad standards of relevance, DARTs objection is not proper. Merrill, 227
F.R.D. at 470. Nor is this request vague or ambiguous, as it plainly specifies the
historical policy documents Adelman is seeking. DARTs boilerplate objection does not
specify anything in particular that is vague or ambiguous in this request, and the objection
should be overruled. Heller, 303 F.R.D. at 486-87.
D. Requests for Admission Nos. 6, 12, 13, 15-18, 22, 23, 26-29, 36, 38, 39, and 51.
With respect to Adelmans requests for admission, DART asserted various
objections and also provided evasive and incomplete responses. DARTs responses at
issue in this motion fall into three categories: (1) improper objections asserting that the
requests should be made through depositions (RFA Nos. 12, 13, 15-18, and 51); (2) an
evasive and non-responsive answer (RFA Nos. 36); and (3) improper denials of mutually
exclusive requests (RFA Nos. 22, 23, 26-29, 38, and 39). The Court should order DART
to provide complete and accurate answers to each of these requests.
1. RFA Nos. 12, 13, 15-18, and 51: Improper deposition objections.
RFA Nos. 12 and 13 ask DART to admit whether Officer Branch acted properly
or improperly in connection with the arrest of Adelman. (App. 12-13, RFA Nos. 12-13.)
DART responded as follows:
This admission cannot be admitted or denied because taking the incident as

a whole there maybe aspects of the incident where Officer Branch acted
properly and there maybe aspects of the incident where Officer Branch may
not have acted properly. This type of Admission is best responded to or
7
inquired into through a deposition. Officer Branchs deposition is in the

process of being scheduled.
(Id.) The Court should reject DARTs attempt to use a deposition to obtain this
responsive information because [a]bsent a court order providing otherwise or a binding
stipulation, Rule 26(d)(2)(A) generally dictates that Plaintiffs may seek information
through an interrogatory even if Defendant believes the subject matter would be better
explored through a deposition. Heller, 303 F.R.D. at 493. Further, DART cannot avoid
answering the request with its evasive response. See Marchand v. Mercy Med. Ctr., 22
F.3d 933, 938 (9th Cir. 1994) (holding that in answering requests for admission, parties
should not seek to evade disclosure by quibbling and objection); see generally FED. R.
CIV. P. 36(a)(4). DART is free to qualify its answer, as necessary, but it cannot simply
refuse to answer the request.
RFA Nos. 15 through 18 seek admissions relating to statements by Dallas Fire
Rescue personnel at the scene of the incident. (App. 13-14, RFA Nos. 15-18.) DART
responds that it does not have sufficient information or knowledge to admit or deny
the requests and that the information is better obtained through a deposition. (Id.) The
Court should, again, follow Heller and reject DARTs improper objection regarding the
discovery device Adelman has opted to use to obtain this information. Nor can DART
credibly claim that it lacks sufficient information to admit or deny the request. DARTs
own internal records reflect that it reviewed audio and video of the unlawful arrest of
Adelman, interviewed officers who were present at the scene, and determined what
statements Dallas Fire Rescue did and did not make. In fact, DARTs Internal Affairs
Report confirms that the statements that are the subject of RFA Nos. 15 through 18
8
ha[ve] been denied by DFR personnel and by Officers Craig and Cannon and [are] not
heard or viewed on any video or audio recordings taken from the scene. (App. 32.)
DART cannot now claim lack of knowledge about information that is plainly reflected in
its own records. See FED. R. CIV. P. 36(a)(4) (The answering party may assert lack of
knowledge or information as a reason for failing to admit or deny only if the party states
that it has made reasonable inquiry and that the information that it knows or can readily
obtain is insufficient to enable it to admit or deny. (emphasis added)). DARTs response
ignores the requirements of Rule 36, and the Court should order DART to answer RFA
Nos. 15-18.
RFA No. 51 asks DART to [a]dmit that Lieutenant R. Lindsey recommended that
Officer Branch be terminated as a result of the incident. (App. 20, RFA No. 51.) DART
responded as follows:
DART admits Lt. R. Lindsey, as part of the DART Police Department

Command Staff, can make recommendations after reviewing Internal
Affairs reports, however such recommendations are not final. DART further
asserts that this type of Request is best responded to in an answer and
question format of the witness. Lt. R. Lindseys deposition is scheduled for
April 14, 2017.
(Id.) DART again relies on an improper deposition objection, which the Court should
reject under Heller and similar cases. And DARTs response does not answer the question
asked, but instead answers a question Adelman did not ask. DART cannot rewrite
Adelmans requests for admission merely because it does not like the question posed. The
Court should reject DARTs evasive answer and order DART to properly respond.
9
2. RFA No. 36: Evasive answer
RFA No. 36 asks DART to [a]dmit that DART policy permits its police officers
to issue a criminal trespass warning to a person who is on DARTs property for purposes
other than to utilize public transportation services. (App. 17, RFA No. 36.) DART
responds that it admits its police officers are given discretion to enforce DARTs Code of
Conduct and any offense under the Texas Penal Code. (Id.) This answer simply is not
responsive to the request. DART cannot rewrite the request to one that it would prefer to
answer, but instead must answer the question actually asked. See Keycorp v. Holland,
No. 3:16-cv-1948-D, 2016 WL 6277813, at *14 (N.D. Tex. Oct. 26, 2016) (Horan, M.J.)
(holding that it was improper for party to refuse to answer a request for admission as
asked, particularly where the request was a simple declarative statement); accord
Marchand, 22 F.3d at 938. The Court should order DART to answer the request as
phrased.
3. RFA Nos. 22, 23, 26-29, 38, and 39: Improper denials of mutually
exclusive requests.
The remaining requests for admission at issue are converse requests, where one
request asks DART to admit a fact and the next request asks DART to admit the converse
of that fact. Such requests for admission are permissible and provide a useful way for a
party to determine the other sides position on a given fact or issue. Layne Christensen
Co. v. Purolite Co., C.A. No. 09-2381-JWL-GLR, 2011 WL 381611, at *7 (D. Kan. Jan.
25, 2011). Converse requests for admission are, by their very nature, mutually exclusive,
such that the answer cannot be the same for both requests. For example, RFA No. 38
asks DART to [a]dmit that Officer Branchs arrest of Adelman was inconsistent with
10
DART policy; No. 39 asks DART to [a]dmit that Officer Branchs arrest of Adelman
was consistent with DART policy. (App. 17-18, RFA Nos. 38-39 (emphasis added).)
Without any explanation or qualification, DART denied both requests. (Id.) It simply
defies logic that the answer to both of these requests is denied. See Interland, Inc. v.
Bunting, No. 1:04-CV-444-ODE, 2005 WL 2414990, at *9 (N.D. Ga. Mar. 31, 2005)
([T]he Court admits its skepticism that both sides of Buntings denials [to converse
requests] could be made in good faith. Bunting is advised to reconsider his position, as
this conduct is sanctionable if Bunting requires Interland to undertake unnecessary efforts
to prepare for and present evidence at trial.). Although DART may not like the fact that
one of the sides of the converse requests must be true, it must answer the requests in
good faith, which it has not done. The Court should order DART to provide accurate
responses to RFA Nos. 22, 23, 26-29, 38, and 39.
E. Interrogatory Nos. 4-7.
Interrogatory No. 4 asks DART to [i]dentify all DART police officers and
personnel who had not received training on photography and the right to photograph as
of February 9, 2016. (App. 24, Interrog. No. 4.) DART responded as follows:
Defendant DART has offered photography training to its all officers and/or
has made the Photography Policy available to all its officers. Defendant
DART will continue to provide photography training as part of the new
hire orientation meetings.
(Id.) DARTs response does not answer the question asked. The question is not whether
DART offered training but whether there are any officers who had not received the
training. At a recent deposition, DARTs counsel pressed Adelman on whether he could
name any officers who had not been properly trained, indicating the relevance and
11
importance of this request. The Court should order DART to provide a non-evasive
response that answers the interrogatory. See Marchand, 22 F.3d at 938.
Interrogatory No. 5 asked DART to [i]dentify any DART policies that Officer
Branch violated in connection with the Incident. (App. 24, Interrog. No. 5.) DART
responded by simply referencing its policy documents. (Id.) Again, DARTs answer is
not responsive. The text of DARTs policies is insufficient to identify the specific policies
DART believes Officer Branch violated. This is a critical issue, given the policy
component of a section 1983 claim against a municipality. See Monell, 436 U.S. at 690-
91. The Court should reject DARTs evasive response and order DART to answer the
interrogatory. See Marchand, 22 F.3d at 938.
Interrogatory Nos. 6 and 7 ask DART to explain the bases for statements and
actions of its employees, Morgan Lyons and James Spiller. (App. at 24-25, Interrog. Nos.
6-7.) DART objects to the interrogatories as unduly burdensome and overly broad
because they seek information that would be better requested through depositions. (Id.)
As the party resisting discovery, DART has the burden to show specifically how . . . each
interrogatory is not relevant or how each question is overly broad, burdensome or
oppressive. McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482,
1484-85 (5th Cir. 1990) (citation and internal quotation marks omitted). In addition,
DARTs objection that this information is better sought through a deposition is improper
and does not provide a basis for DART to avoid answering. See Heller, 303 F.R.D. at
493 (Absent a court order providing otherwise or a binding stipulation, Rule 26(d)(2)(A)
generally dictates that Plaintiffs may seek information through an interrogatory even if
12
Defendant believes the subject matter would be better explored through a deposition.).
The Court should overrule DARTs objections and order DART to answer these
interrogatories.
REQUEST FOR ATTORNEYS FEES
As detailed above, Adelman undertook extensive efforts to resolve each of these
issues without Court intervention. To date, DART has not addressed any of these issues.
Adelman therefore requests that the Court order DART to pay his reasonable and
necessary attorneys fees incurred in connection with this discovery dispute. See FED. R.
CIV. P. 37(a)(5)(A) (If the motion is granted . . . the Court must, after giving an
opportunity to be heard, require the party . . . whose conduct necessitated the motion . . .
to pay the movants reasonable expenses incurred in making the motion, including
attorneys fees. (emphasis added)).
CONCLUSION
DART is withholding plainly relevant documents relating to complaints and
investigations of Officer Branch, its policies and customs relating to the right to
photograph, and media communications about the arrest of Adelman. There is no basis
to withhold these documents, and the Court should order them produced. DART also
has failed to answer relevant and important requests for admission and interrogatories.
Adelman respectfully requests that the Court overrule DARTs objections and order
DART to answer this discovery. Finally, Adelman respectfully requests that the Court
order DART to pay his reasonable and necessary attorneys fees pursuant to Rule 37.
13
Respectfully submitted,
REESE GORDON MARKETOS LLP
By: /s/ Tyler J. Bexley

Tyler J. Bexley
State Bar No. 24073923
750 N. Saint Paul St., Suite 610
Dallas, Texas 75201-3202
214.382.9810 telephone
214.501.0731 facsimile
tyler.bexley@rgmfirm.com
ATTORNEY FOR PLAINTIFF
CERTIFICATE OF CONFERENCE
I hereby certify that I conferred with Gene Gamez, counsel for DART, on multiple
occasions, as set forth in the Summary. The parties discussed each matter presented in
this motion during the course of their conferences, and DART is opposed to the relief that
Plaintiff is requesting in this motion.
s/ Tyler J. Bexley
CERTIFICATE OF SERVICE
The undersigned certifies that, on April 7, 2017, the foregoing document was
submitted to the clerk of the U.S. District Court, Northern District of Texas, using the
electronic case filing system (CM/ECF) of the court. I certify that the document was
served on all known counsel of record electronically as authorized by Federal Rule of
Civil Procedure 5(b)(2).
s/ Tyler J. Bexley
14
Case 3:16-cv-02579-B Document 16-1 Filed 04/07/17 Page 1 of 6 PageID 174
EXHIBIT 1: SUMMARY OF DISCOVERY AT ISSUE
Requests for Production
10. All documents relating to any complaints against Officer Branch and any
investigations of Officer Branch.
RESPONSE: Defendant DART refers Plaintiff to Defendant DARTs bates

labeled documents, DART000001DART0000162, DART000020A and
DART000215-DART000216. DART has submitted a Privilege Log briefly
describing any withheld documents.
11. All communications between DART and members of the media relating to
Adelman or the Incident, including but not limited to any formal statement
issued by DART and Morgan Lyonss e-mails with members of the media.
RESPONSE: DART objects to this request as overly broad, vague and

ambiguous as it does not define who or what ...members of the media...
this Request is referring to. Subject to the forgoing objections, DART refers
Plaintiff to Defendant DARTs bates labeled documents, DART001081
DART001117 and Email Communications DART001296 DART001475.
12. All communications between Morgan Lyons and any DART Police
personnel relating to Adelman or the Incident.

ambiguous, especially when the plain meaning of All communications....
may refer to phone or oral communications. DART believes this request is
best responded to in the questions and answer format of a deposition.
Morgan Lyons deposition is scheduled for April 19, 2017. Subject to the
foregoing objection, DART refers Plaintiff to Defendant DARTs bates
labeled documents, DART001081 DART001117.
13. All documents provided to or relied upon by Morgan Lyons in making the
statement to the news media that DART had reviewed the exchange and
believes the officers acted properly.

ambiguous. DART further objects as the above quote is incorrect or
misquoted. DART believes this request is best responded to in the questions
and answer format of a deposition. Morgan Lyons deposition is scheduled
for April 19, 2017. Subject to the foregoing objection, DART refers Plaintiff
to Defendant DARTs bates labeled documents, DART001081
DART001117.
1
14. All documents provided to or relied upon by Morgan Lyons in making the
statement to the news media that Adelman was arrested for failing to
comply with instructions from Dallas Fire/Rescue personnel.

ambiguous. DART further objects as the above quote is incorrect or
misquoted. DART believes this request is best responded to in the questions
and answer format of a deposition. Morgan Lyons deposition is scheduled
for April 19, 2017. Subject to the foregoing objection, DART refers Plaintiff
to Defendant DARTs bates labeled documents, DART001081
DART001117 and DART000001- DART000012, internal affairs report.
18. All documents relating to any prior DART policies and procedures
regarding photography and the right to photograph on DART property,
including but not limited to any policy that was in effect prior to July 1,
2014.

ambiguous. DART also objects as any policy that was in effect prior to July
1, 2014 is not relevant and has no tendency to make a fact more or less
probable that it would be without the evidence and such information or
facts is of no consequence to determining the action. Subject to the forgoing
objections DART refers Plaintiff to Defendant DARTs bates labeled
documents, DART000539- DART00541 DARTs Commercial Photography
and filming guidelines; DART 000542- DART000543 -Administrative
Policy/Procedure, ADM 34.
Requests for Admission
RFA Nos. 12, 13, 15-18, and 51: Improper deposition objections
12. Admit that Officer Branch did not act properly in connection with the
Incident.
RESPONSE: This admission cannot be admitted or denied because taking

the incident as a whole there maybe aspects of the incident where Officer
Branch acted properly and there maybe aspects of the incident where
Officer Branch may not have acted properly. This type of Admission is best
responded to or inquired into through a deposition. Officer Branchs
deposition is in the process of being scheduled.
2
13. Admit that Officer Branch acted properly in connection with the Incident.
RESPONSE: This admission cannot be admitted or denied because taking

the incident as a whole there maybe aspects of the incident where Officer
Branch acted properly and there maybe aspects of the incident where
Officer Branch may not have acted properly. This type of Admission is best
responded to or inquired into through a deposition. Officer Branchs
deposition is in the process of being scheduled.
15. Admit that Dallas Fire Rescue did not ask Adelman to move.
RESPONSE: DART does not have sufficient knowledge or information to

admit or deny this request.
16. Admit that Adelman did not refuse to move in response to a request from
Dallas Fire Rescue.

admit or deny this request. This type of Admission is best responded to or
inquired into through a deposition. Mr. Adelmans deposition is in the
process of being scheduled.
17. Admit that paramedics did not ask DART police to move Adelman.

inquired into through a deposition. The deposition of Officer E. Cannon,
who was at the scene is scheduled for April 13, 2017.
18. Admit that Adelman did not fail to comply with any request from
paramedics to move.

inquired into through a deposition. The deposition of Officer E. Cannon,
who was at the scene is scheduled for April 13, 2017.
51. Admit that Lieutenant R. Lindsey recommended that Officer Branch be

terminated as a result of the incident.
RESPONSE: DART admits Lt. R. Lindsey, as part of the DART Police

Department Command Staff, can make recommendations after reviewing
Internal Affairs reports, however such recommendations are not final.
DART further asserts that this type of Request is best responded to in an
3
answer and question format of the witness. Lt. R. Lindseys deposition is

scheduled for April 14, 2017.
RFA No. 36: Evasive answer
36. Admit that DART policy permits its police officers to issue a criminal
trespass warning to a person who is on DARTs property for purposes
other than to utilize public transportation services.
RESPONSE: DART admits its police officers are given discretion to enforce
DARTs Code of Conduct and any offense under the Texas Penal Code.
RFA Nos. 22, 23, 26-29, 38, 39: Improper denials of mutually exclusive requests
22. Admit that DART determined that the arrest was in accordance with the
guidance published for dealing with photographers.
RESPONSE: Deny.
23. Admit that DART determined that the arrest was not in accordance with
the guidance published for dealing with photographers.
RESPONSE: Deny.
26. Admit that DART trained its police officers before February 9, 2016 that
individuals had a First Amendment right to take photographs of a person
receiving medical treatment.
RESPONSE: Deny.
27. Admit that DART did not train its police officers before February 9, 2016
that individuals had a First Amendment right to take photographs of a
person receiving medical treatment.
RESPONSE: Deny. DART has produced its Photography Policy dated June
4, 2014.
28. Admit that DART trained its police officers before February 9, 2016 that
individuals had a First Amendment right to take photographs on DART
property.
4, 2014.
4
29. Admit that DART did not train its police officers before February 9, 2016
that individuals had a First Amendment right to take photographs on
DART property.
4, 2014.
38. Admit that Officer Branchs arrest of Adelman was inconsistent with DART
policy.
RESPONSE: Deny.
39. Admit that Officer Branchs arrest of Adelman was consistent with DART
policy.
RESPONSE: Deny.
Interrogatories
4. Identify all DART police officers and personnel who had not received
training on photography and the right to photograph as of February 9,
2016.
ANSWER: Defendant DART has offered photography training to its all

officers and/or has made the Photography Policy available to all its officers.
Defendant DART will continue to provide photography training as part of
the new hire orientation meetings.
5. Identify any DART policies that Officer Branch violated in connection with
the Incident.
ANSWER: Please see DART Police Office of Professional Standards, IA 16-

05 report under DART000001-000012 and attachments under
DART000013-000162. The attached copies are sufficient for the Plaintiff to
ascertain and afford him the opportunity to inspect and derive to the
answer this interrogatory.
6. Explain the basis for Morgan Lyons statement that DART believes the
officers acted appropriately in connection with the Incident, including to
whom Mr. Lyons spoke and what materials he relied upon in reaching that
conclusion.
ANSWER: Defendant DART objects to this interrogatory as overbroad and

unduly burdensome to the extent it calls for Defendant DART to reproduce,
5
in narrative answer format, material that has already been produced to

Plaintiff in the form of emails from Morgan Lyon. This kind of
interrogatory is best suited for a question and answer format with the
relevant witness. The deposition of Morgan Lyons is scheduled for April 19,
2017.
7. Explain the basis for Chief James Spillers determination that a three-day
suspension was an appropriate disciplinary action for Officer Branchs role
in the Incident.
ANSWER: Defendant DART objects to this interrogatory as overbroad and

unduly burdensome to the extent it calls for Defendant DART to reproduce,
in narrative answer format, material that has already been produced to
Plaintiff in the Internal Affairs and Notice of Suspension letter to Officer
Branch. This kind of interrogatory is best suited for a question and answer
format with the relevant witness. The deposition of Chief James Spiller is
scheduled for May 11, 2017.

Motion To Compel DART 4-7-17

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Case 3:16-cv-02579-B Document 16 Filed 04/07/17 Page 1 of 18 PageID 156

UNITED STATES DISTRICT COURT

PLAINTIFFS MOTION TO COMPEL DOCUMENTS AND DISCOVERY

A. RFP No. 10: Documents relating to complaints and investigations

B. RFP Nos. 11-14: Documents relating to communications between

2. RFA No. 36: Evasive answer .......................................................... 10

E. Interrogatory Nos. 4-7 .............................................................................. 11

REQUEST FOR ATTORNEYS FEES ............................................................................ 13

Carnaby v. City of Houston,

Heller v. City of Dallas,

Interland, Inc. v. Bunting,

Layne Christensen Co. v. Purolite Co.,

Marchand v. Mercy Med. Ctr.,

McLeod, Alexander, Powel & Apffel, P.C. v. Quarles,

Merrill v. Waffle House, Inc.,

Monell v. N.Y. City Dept. of Soc. Servs.,

Orchestrate HR, Inc. v. Trombetta,

T.R. Hoover Cmty. Dev. Corp. v. City of Dallas,

Tyner v. City of Jackson, Miss.,

FED. R. CIV. P. 26(b)(1) ..................................................................................................... 2

FED. R. CIV. P. 36(a)(4) ................................................................................................. 8, 9

FED. R. CIV. P. 37(a)(5)(A) .............................................................................................. 13

some discovery requests, it is withholding plainly relevant documents and refusing to

On February 13, 2017, Adelmans counsel emailed DARTs counsel to request

Adelmans counsel sent another reminder email to DARTs counsel on April 4,

to order DART to produce responsive documents and fully answer discovery.

request is not relevant or otherwise objectionable. Orchestrate HR, Inc. v. Trombetta,

So-called boilerplate or unsupported objections . . . [are] improper and ineffective and

(Horan, M.J.) (citation and internal quotation marks omitted).

DART asserted unfounded objections to Adelmans discovery requests, withheld

provide complete answers to Adelmans discovery requests.

A. RFP No. 10: Documents relating to complaints and investigations involving

the Privilege Log.2

relevance claims on a Privilege Log. Further, a request for discovery should be

inadequate training, supervision, [or] discipline . . .).

Courts consistently reject attempts by municipalities to shield complaints and

[T]his Court is of the opinion that as a general rule a plaintiff alleging

incident of which he complains and regarding other similar incidents

RFP Nos. 11 and 12 seek documents relating to communications between DARTs

spokesperson, Morgan Lyons, and DART police as well as communications between

answer format of a deposition. (App. 4-5, RFP Nos. 11-14.)

documents or confirm that they do not exist.

C. RFP No. 18: DARTs current and historical photography policies.

procedures regarding photography and the right to photograph on DART property,

is overly broad, vague and ambiguous. (Id.)

police officersincluding Officer Branchwere not trained on the current photography

should be overruled. Heller, 303 F.R.D. at 486-87.

With respect to Adelmans requests for admission, DART asserted various

to provide complete and accurate answers to each of these requests.

DART responded as follows:

This admission cannot be admitted or denied because taking the incident as

inquired into through a deposition. Officer Branchs deposition is in the

responsive information because [a]bsent a court order providing otherwise or a binding

refuse to answer the request.

RFA Nos. 15 through 18 seek admissions relating to statements by Dallas Fire

obtain is insufficient to enable it to admit or deny. (emphasis added)). DARTs response

DART admits Lt. R. Lindsey, as part of the DART Police Department

2. RFA No. 36: Evasive answer

this conduct is sanctionable if Bunting requires Interland to undertake unnecessary efforts

responses to RFA Nos. 22, 23, 26-29, 38, and 39.

E. Interrogatory Nos. 4-7.

training. At a recent deposition, DARTs counsel pressed Adelman on whether he could

response that answers the interrogatory. See Marchand, 22 F.3d at 938.