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Dallas Fallen Officer Foundation v. Frazier

United States District Court, E.D. Texas, Sherman Division

September 9, 2019

DALLAS FALLEN OFFICER FOUNDATION Plaintiff,
v.
FREDERICK FRAZIER, DPA's ASSIST THE OFFICER FOUNDATION, INC. and DALLAS POLICE ASSOCIATION, Defendants.

          MEMORANDUM OPINION AND ORDER

          AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE.

         Pending before the Court is Plaintiffs' Motion to Sanction Defendant Dallas Police Association for Discovery Abuses Pursuant to Rule 37(b)(2)(A) (Dkt. #43). Having considered the motion and the relevant pleadings, the Court finds that Plaintiffs' Motion is GRANTED in part & DENIED in part.

         BACKGROUND

         Dallas Fallen Officer Foundation (the “FOF”) is a Texas nonprofit corporation that provides support and assistance to “the families of police officers killed or seriously injured in the line of duty” (Dkt. #1). While the FOF often responds to the tragic circumstances that surround a fallen officer, the FOF is not alone (Dkt. #1; Dkt. #25). For instance, after the July 7, 2016 sniper attack in downtown Dallas, Texas, the FOF was one of “three charitable organizations to whom the Dallas Police Department directed the public to donate” (Dkt. #1). One of the other charitable organizations designated to receive donations was the Assist the Officer Foundation (the “ATO”) (Dkt. #1; Dkt. #25). The ATO, unlike the FOF, serves as a separate entity of the Dallas Police Association (the “DPA”) (Dkt. #1). Although both the FOF and ATO exist to provide charitable services, such charity clearly does not extend to one another.

         The FOF and ATO are entangled in what can be described as nothing short of a turf war. On July 6, 2018, that turf war reached its height when the FOF filed the present action against the ATO, DPA, and Frederick Frazier-the Chairman of the ATO and First Vice President of the DPA (Dkt. #1). The FOF claims that the ATO, DPA, and Frazier have “embarked on a scheme to expand their power within and outside Texas by affiliating the DPA and the ATO with an organization known as the Fraternal Order of Police (“FOP”) . . .” (Dkt. #1). Put simply, the FOF claims that it has become the ATO's mission to “annihilate” the FOF and create a “monopoly over charitable fundraising for fallen officers” (Dkt. #1). To succeed in this purported scheme, the FOF maintains that Frazier, the ATO, and the DPA engaged in a number of illegal acts (Dkt. #1).

         The FOF points to four alleged incidents-or illegal acts-to substantiate its allegations. First, the FOF asserts that the City of Dallas and the ATO entered into an unlawful Donations Management Agreement (Dkt. #1). Under the alleged agreement, the City would intercept and deliver mail to the ATO so that the ATO could deposit the funds into its bank account, regardless of who the donations were for. The agreement occurred only after the DPA was unsuccessful in an attempted merger between the DPA and the FOP-another alleged attempt to “annihilate” the FOF according to the Complaint (Dkt. #1). Second, the FOF asserts that the ATO removed donations from the seized mail, some of which had originally been directed to the FOF, and then deposited those donations into the ATO's account without the FOF's consent (Dkt. #1). This resulted in the alleged misappropriation of over $5, 000 belonging to the FOF (Dkt. #1). Third, the FOF asserts that the ATO concealed its theft for over 18 months, despite knowing that each donation was made payable to a party other than the ATO (Dkt. #1). Finally, the FOF asserts that the ATO lied to “at least one third party using wires for the purpose of diverting donations to the ATO from the [FOF]” (Dkt. #1). The DPA, ATO, and Frazier deny all of the FOF's assertions (Dkt. #25) and further maintain that the FOF simply has “no evidence of its claims” (Dkt. #47). As a result of the FOF's assertions, the FOF brought six claims against the various defendants. Those claims include: (1) Civil RICO under 18 U.S.C. § 1962(c), (d);[1] (2) violations of the Texas Theft Liability Act;[2] (3) tortious interference; (4) money had and received; (5) unjust enrichment; and (6) civil conspiracy (Dkt. #1).

         On September 6, 2018, the Court issued the Order Governing Proceedings (Dkt. #12). In the Order, the Court instructed the parties to produce “[a] copy of all documents, electronically stored information, witness statements, and tangible things in the possession, custody, or control of the disclosing party that are relevant to the claim or defense of any party” (Dkt. #12). Such production was to be accomplished not later than 10 days after the deadline for the Rule 26(f) conference (Dkt. #12). The Order, pursuant to Local Rule CV-26(d), defined “relevant” as including:

(1) information that would not support the disclosing parties' contentions; (2) those persons who, if their potential testimony were known, might reasonably be expected to be deposed or called as a witness by any of the parties; (3) information that is likely to have an influence on or affect the outcome of a claim or defense; (4) information that deserves to be considered in the preparation, evaluation, or trial of a claim or defense; and (5) information that reasonable and competent counsel would consider reasonably necessary to prepare, evaluate, or try a claim or defense

(Local Rule CV-26(d)). The Court then entered its Scheduling Order (Dkt. #18) on November 2, 2018. In the Scheduling Order, the Court stated:

If the parties are unable to resolve the dispute without court intervention, the parties must then call the Court's chambers to schedule a telephone conference regarding the subject matter of the dispute prior to filing any motion to compel. After reviewing the dispute, the Court will resolve the dispute, order the parties to file an appropriate motion, or direct the parties to call the discovery hotline

(Dkt. #18). Despite the Courts entry of both Orders, the turf war has only escalated.

         On May 29, 2019, the FOF “served notice on the DPA that it intended to depose the DPA pursuant to Rule 30(b)(6). The notice set forth 12 discreet topics . . . .” (Dkt. #43) (citation omitted). Of those topics, Topic 2 stated that the DPA's Rule 30(b)(6) representative should be ready to testify about the efforts undertaken by the DPA to produce all documents relevant to the lawsuit (Dkt. #43).[3] Up to this time, the DPA had produced 148 pages of documents (Dkt. #43; Dkt. #47). Further, no discovery disputes had occurred (Dkt. #47). On June 26, 2019, the FOF amended its notice and moved the deposition to accommodate schedules (Dkt. #43). Topic 2 remained the same (Dkt. #43). The DPA then served the FOF with 1, 079 documents between June 28, 2019 and July 3, 2019 (Dkt. #43). Those documents included, among other things: (1) 91 pages of non-party meeting transcripts; (2) 269 pages of the DPA's Executive Board GroupMe screenshots-which, according to the DPA, are irrelevant and/or duplicates that had been requested by the FOF; and (3) an undisclosed number of screenshots of the DPA's entire public Facebook page which had also been requested by the FOF (Dkt. #47). This occurred after the FOF initiated “its first communication regarding the DPA's document production, demanding native files of the GroupMe posts and the entire Facebook page . . . .” (Dkt. #47). After receiving these documents, the FOF amended its notice a second time, added four new topics based on the new documents produced by the DPA, and set the deposition date for July 8, 2019 (Dkt. #43). Consequently, the DPA designated Michael Mata (“Mata”), DPA's President, to serve as its Rule 30(b)(6) representative (Dkt. #43; Dkt. #47).

         Mata's deposition lasted for one hour and twenty-two minutes (Dkt. #43; Dkt. #47). Despite having notice of the deposition, Mata was unable to conclusively answer many of the FOF's questions regarding Topic 2 (Dkt. #43). As a result of the FOF's perception that Mata was unprepared, the FOF and DPA agreed to suspend the deposition (Dkt. #43; Dkt. #47). Only Topic 2 had been addressed (Dkt. #43; Dkt. # 47). Further, the FOF had not called “the Court's Chambers or the discovery hotline” (Dkt. #47). After the deposition, the DPA produced over 1, 000 pages of documents, photos, and video files (Dkt. #43). The documents consisted of screenshots of the “entire DPA public Facebook and Twitter pages (open to the public)” which were “downloaded and provided to all parties at the DPA's cost as a courtesy” (Dkt. #47). This was the second time the DPA provided the Facebook screenshots (Dkt. #47). On July 12, 2019, “the FOF's counsel and the DPA's counsel engaged in an extensive tele-conference to discuss the DPA's document production and how to proceed . . . .” (Dkt. #43). Yet again, the FOF did not call the Court's Chambers or the discovery hotline (Dkt. #47). Rather, on July 17, 2019, two days prior to discovery closing, the FOF filed its Motion to Sanction Defendant Dallas Police Association for Discovery Abuse Pursuant to Rule 37(b)(2)(A) (Dkt. #43; Dkt. #47).

         In its Motion, the FOF requests that the Court stay the case pursuant to Rule 37(b)(2)(A), order the DPA to certify that it has complied with the Court's Order Governing Proceedings, grant the FOF its full seven hours to depose the DPA's Rule 30(b)(6) representative(s) once the DPA certifies it has complied with the Court's Order, ” and require the parties to jointly file a proposed amended scheduling order (Dkt. #43). The DPA, unsurprisingly, opposes this Motion. The Court now considers the FOF's Motion to Sanction Defendant Dallas Police Association for Discovery Abuse Pursuant to Rule 37(b)(2)(A).

         LEGAL ...


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