UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Robert J. Camm, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 85-3844
)
Ralph E. Kennickell, Jr., et al., )
)
Defendants. )
____________________________________)
OPINION OF CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
Now before the Court is plaintiffs' motion to compel defendants
to comply with their discovery requests. Upon consideration of
the motion, the supporting and opposing legal memoranda, and the
underlying law, the Court will grant plaintiffs' motion.
Plaintiffs filed this suit charging defendants with several
common law torts and violations of their rights under the First
and Fifth Amendments as a result of their suspension and
disbarment from doing business with the Government Printing
Office. Thereafter, Anthony McMahon, one of the defendants,
filed a counterclaim against plaintiffs, charging them with abuse
of process, intentional infliction of emotional distress, and
malicious prosecution.
Very soon after the filing of this suit, the Court granted a
motion filed by defendants for a protective order prohibiting all
discovery in this case until the Court ruled on their immunity
from suit. Thereafter, the Court dismissed all of the common law
and constitutional tort claims against defendants on the ground
that defendants were entitled to immunity. In addition, the
Court dismissed McMahon's counterclaim for malicious prosecution
because of his failure to plead special injury. As such,
McMahon's counterclaims for abuse of process and intentional
infliction of emotional distress are the only remaining live
issues in this suit. The Court modified the protective order it
had entered at the beginning of the case so as to allow discovery
relevant to McMahon's counterclaim.
On May 4, 1988, plaintiff served interrogatories on Charlie Peel,
Jr., one of the defendants to this suit, and requested that he
produce certain documents. Defendants did not comply with these
discovery requests for several reasons. First, defendants
contend that they need not respond to these discovery requests as
the Court has already dismissed them from the suit. Second,
defendants maintain that they are not obligated to respond to
plaintiffs' discovery requests because they pertain to a
counterclaim arising out of a Bivens action that was dismissed
because of their immunity from suit. Finally, defendants assert
that the discovery requests at issue are not relevant to
McMahon's counterclaims and are, therefore, in violation of the
Court's protective order. The Court will address each of these
arguments in turn.
To determine whether defendants are still parties to this suit,
it is necessary to turn to Fed. R. Civ. P. 54(b) which
provides:
When more than one claim for relief is presented in an action,
whether as a claim, counterclaim, cross-claim, or third-party
claim, or when multiple parties are involved, the court may
direct the entry of a final judgment as to one or more but fewer
than all of the claims or parties only upon an express
determination that there is no just reason for delay and upon an
express direction for entry of judgment. In the absence of such
determination and direction, any order or other form of decision,
however, designated, which adjudicates fewer than all the claims
or the rights and liabilities of fewer than all the parties shall
not terminate the action as to any of the claims or parties, and
the order or other form of decision is subject to revision at any
time before the entry of judgment adjudicating all the claims and
the rights and liabilities of the parties.
Fed. R. Civ. P. 54(b)(emphasis added).
The language of Rule 54 explicitly covers the scenario which is
presently before the Court, namely whether a defendant remains a
party to a suit even though all the claims against that defendant
have been dismissed. The Rule clearly answers that question in
the affirmative with one exception-the Court's express
determination that there is no reason for delay in entering a
judgment as to those claims. The Court has previously determined
that several factors counsel against the entry of a judgment as
to these claims at this juncture; these factors include the
absence of economic injury to defendants, an appeal's inevitable
interruption of the counterclaim proceedings, and the preference
against piecemeal appeals.1 Accordingly, the Court concludes
that defendants remain parties to this suit.
As another ground for noncompliance with plaintiffs' discovery
request, defendants assert that the reasoning underpinning the
Court's protective order prohibiting discovery prior to the
Court's determination of defendants' immunity from suit is
equally applicable to the discovery that plaintiffs are now
seeking. The Court disagrees.
In general, qualified immunity shields "government officials
performing discretionary functions...from liability for civil
damages insofar as their conduct does not violate clearly
established statutory or constitutional standards of which a
reasonable person would have known." Harlow v. Fitzgerald. 457
U.S. 800, 818 (1982). As a matter of general practice, courts
should not allow the parties to engage in discovery prior to the
resolution of the immunity question. Id. This is because
deferral of discovery prior to the resolution of the immunity
question "avoid[s] excessive interruption of government and
permit[s] the resolution of many insubstantial claims on summary
judgment." Id.
The Court entered a protective order in the very early stages of
this case in order to avoid potentially needless discovery prior
to the Court's resolution of whether defendants were immune from
suit. Immunity from suit is not a relevant consideration in
examining the permissibility of the discovery plaintiffs are
seeking in defending against McMahon's counterclaim; this is
because the counterclaim is, in effect, a suit brought by a
public official rather than a suit against a public official.
The language in Harlow and its progeny explaining that "broad-
ranging discovery" could be "peculiarly disruptive of effective
government" does not suggest that public officials should be
immune from discovery in all instances. Instead, Harlow and its
progeny stand for the proposition that subjecting public
officials to discovery on claims brought against them should be
avoided when these claims can be resolved on summary judgment.
Harlow's admonition against unnecessary discovery was not
directed to instances where a public official is suing rather
than being sued. Accordingly, the Court finds that the
protective order in this case does not preclude the discovery
that is being sought by plaintiffs.
Finally, defendants assert that the discovery that plaintiffs are
seeking is not relevant to the counterclaim and is, therefore, in
violation of the Court's amended protective order. The Court is
without a basis to evaluate defendants' concerns as to the
relevancy of the requested discovery because defendants have only
make a bald assertion that plaintiffs' discovery is not relevant.
It has occurred to the Court that the amended protective order
now in effect, which limits discovery to matters relevant to the
counterclaim, is superfluous. The protective order does nothing
more than give effect to the commands of Rule 26 of the Federal
Rules of Civil Procedure which limits parties' discovery to
matters that are relevant to the claims at issue.2 Accordingly,
the Court will lift the protective order which is currently in
effect.
The Court will issue an Order of even date herewith memorializing
these findings.
February 24, 1989
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
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1 See Court's Order of June 6, 1988.
2 Rule 26 provides in pertinent part:
Parties may obtain discovery regarding any matter, no privileged,
which is relevant to the subject matter involved in the pending
action, whether it relates to the claim or defense of the
party...
Fed. R. Civ. P. 26(b)(1) (emphasis added).
Case law interpreting the meaning of the term "relevant," as used
in Rule 26, will govern any disputes between the parties over
whether particular discovery requests are relevant to McMahon's
counterclaim.