Plaintiff's Motion to Compel Production of Documents; First Request for Documents; Defendant's Response and Objection

    U li MiHseKittiMMlii mmitk

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TENNESSEE

CLEAMTEE GARNER,
Plaintiff,

vs.

MEMPHIS POLICE DEPARTMENT, et al..
Defendants.

CIVIL ACTION 
No. C-75-145

PLAINTIFF'S MOTION TO COMPEL 
PRODUCTION OF DOCUMENTS 
PURSUANT TO RULE 37(a) F.R.C.P.

Plaintiff, by and through his undersigned attorneys, hereby 
moves this Court for an order compelling defendants to produce 
certain documents requested by plaintiff under Rule 34, F.R.C.P. 
in October, 1975. Defendant, in November, 1975, categorically 
refused to provide plaintiff with any documents so requested on 
the grounds that the material requested "is priveleged and 
further that it is immaterial and irrelevant to this cause of 
action." Copies of plaintiff's request and defendants' response 
and objections are appended hereto as appendices A and B 
respectively.

Plaintiff is of the position that an order compelling pro­
duction is warranted, in light of defendants' refusal and 
objections, on three grounds. First, the Federal Rules of Civil 
Procedure with respect to discovery do not require that requests 
for production of documents seek matter that would constitute 
"admissible evidence" if introduced at trial. All that the re­
questing party must show is that the matter is "relevant to the 
subject matter involved in the pending action" and "appears 
.xeasofiwbly calculated to Lead to the discovery of admissible



evidence." Rule 26(b), F.R.C.P. Plaintiff submits that these 
standards are, indeed met with respect to his request for pro- 
^^^tion. In brief, plaintiff souqht the following documents:

1. Documents relating to the Police Department's 
investigation of Garner's death;

2. Documents relating to employment record of defendant 
Hymon including citizen complaints and disciplinary 
action involving him;

3. Documents setting forth positions of defendants Chandler 
and Hubbard on the training of police officers in using 
lethal force and on actual use of lethal force;
Police Department documents relating to the investigation 
of, selection of and testing of service revolvers and 
ammunition used at the time of Garner's death;

5. Documents relating to incidents in which lethal force 
was used by Memphis police officers during approximately 
a year and a half period prior to Garner's death;

6, Organizational charts, rules and regulations and opera­
tion manual of the Memphis Police Department.

Since the complaint is filed on behalf of the deceased 
alleging misconduct by Hymon and other police and City officials. 
Department investigation files are clearly relevant and material.j 
The complaint also alleges that police officials and the Mayor 
were negligent in several respects, including selection, train­
ing and directions as to how lethal force should be used. Docu­
ments relating to their actions in this regard are relevant and ' 
material. Documents on Hymon's service record, including ;
history of citizen complaints against him and disciplinary actions 
related to his fitness at the time of Garner's death and the |
extent to which higher officials might have been negligent in !

I
keeping Hymon on patrol. The complaint alleges, moreover, 
that the Department issued arms and ammunition and directed

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their use, with the knowledge that death or grievous bodily 
injury would definitely result, even in non-life threatening 
situations. Hence, documents relating to the selection and 
testing of such revolvers and ammunition are relevant and 
material. Documents as to incidents in which lethal force was 
used relate to allegations in the complaint that lethal force 
was used in a racially-discriminatory manner. If the percentage 
of blacks shot at and shot is far above that of whites subjected 
to lethal force, such evidence may be probative on this point.
The organizational chart, rules and regulations and operations 
manual are needed by plaintiff to identify responsibilities of 
lower level personnel for training and supervision in the use 
of lethal force and for overall Department views on the use of 
such force. In sum, these documents are eminently relevant 
and material.

Secondly, defendants claim of privilege is broad, unselec- 
tive and clearly contrary to the spirit of the Federal Rules of 
Civil Procedure on discovery and applicable case law. As the 
cases listed in the accompanying memorandum indicate, federal 
courts ruling on production of documents requests must seek to 
balance two overriding congressional policies against generalized 
claims by police departments of privilege and confidentiality.
The first policy is that federal civil litigation should not be 
relegated to the level of a "sporting contest." Open discovery. 
Congress decided, would serve the interests of justice more fully 
than a procedure that engrafted numerous, vague limitations upon I 
the scope of discovery. The second policy is that 42 U.S.C.

i
§ 1983 be interpreted by courts to permit plaintiffs suing -
governmental officials full latitude. For such suits are designed 
to serve the public-at-large by bringing officials who engage in  ̂
illegal conduct to task. Plaintiff respectfully submits that both

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policies would be served by compelling the production of docu­
ments sought herein.

And,finally, any privilege enjoyed by defendants must fall 
within those recognized as consonant with the terms of Federal 
Rules of Evidence, Rule 501. There is no indication that 
defendants are so protected. State privileges are generally 
inapplicable.

For the foregoing reasons, plaintiff submits that an order 
compelling production of dociiments is appropriate.

Respectfully submitted.

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
DREW S. DAYS, III 

10 Columbus Circle 
New York, New York 10019

WALTER LEE BAILEY, JR.D'ARMY BAILEY
Suite 901, Tenoke Building 
151 Jefferson Avenue 
Memphis, Tennessee 38103

Attorneys for Plaintiff

CERTIFICATE OF SERVICE
This is to certify that on this _____ day of January, 1975,

I I served a copy of the foregoing "Plaintiff's Motion to Compel
'1:! Production of Documents" upon counsel for defendants, Henry L. 
Klein, Esq., City of Memphis, Suite 3500, 100 North Main Bldg.,
Memphis, Tennessee 38103, by placing same in the United States

i

j mail, postage prepaid.

Attorney for Plaintiff

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IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TENNESSEE 

WESTERN DIVISION

CLEAMTEE GARNER, father and next of kin 
of EDWARD EUGENE GARNER, a deceased minor.

Plaintiff,
vs.

MEMPHIS POLICE DEPARTMENT; CITY OF 
MEMPHIS, Tennessee; WYETH .CHANDLER, Mayor 
of Memphis, JAY W. HUBBARD, Director of 
'Police of Memphis, and E. R. HYMON,
Police Officer of the City of Memphis,

Defendants.

CIVIL ACTION 
No. C-75-145

PLAINTIFF'S FIRST REQUEST FOR 
PRODUCTION OF DOCUMENTS

Pursuant to Rule 34 of the Federal Rules of Civil Procedure, 
plaintiff hereby requests that the Memphis Police Department, 
the City of Memphis, V7yeth Chandler, Jay W. Hubbard, and E. R. 
Hymon, each a defendant in this action, produce and permit 
plaintiff and his representatives to inspect and copy the 
documents specified below which are within their possession, 
custody or control or in that of any of their affiliates or 
representatives.

Ihe documents requested are to be produced at the offices of !
I

Drew S. Days, III, Esq., one of the attorneys for plaintiffs.
Suite 2030, 10 Columbus Circle, New York, New York 10019, within 
thirty (30) days after the date of this request, if the production 
of any document, or any part of a document is objected to on grounds 
of privilege or otherwise, each such document should be specifi­
cally Identified, with a description of the document (e.g.,letter,



memorandum. Report, etc.), the general topic, the title and date, 
the number of pages, the name, and position of the author and of 
each addressee or recipient, the location of each copy of such 
document and the grounds for refusing to produce such document, 

term "Document" as used herein has the same meaning 
as in Rule 34 (a), Federal Rules of Civil Procedure, and includes 
without limitation, all case records, incident reports, investi­
gating officers' reports, witnesses' statements, police log book 
entries, photographs, papers, correspondence, memoranda, notes, 
recordings, transcripts of recordings, transcripts, films, 
communications and other records. The documents requested are 
those in the possession or control of defendants, their attorneys 
or agents. In any case where duplicate copies of the same 
document exist, all copies should be produced which contain any 
writing or notes which do not appear on all other copies of the 
document. In each case where a document is called for, all 
drafts of the document are also called for.

Documents to be Produced

1. All documents regarding, involving, or referring to any 
any City of Memphis police officer's contact, investigation 
of, or charges against Edward Eugene Garner on or about 

October 3, 1974;
2. The City of Memphis Police Department personnel file on 

defendant E. R. Hymon;
3. All documents relating to the directives of Wyeth Chandler 

and Jay W. Hubbard with respect to the training of Memphis 
police officers in the use of lethal force;

4. All documents relating to the .directives of Wyeth Chandler 
and Jay W. Hubbard -with respect to the training of Memphis 
police officers in the use of lethal force;

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- \

8,

9.

1 0 .

11.

12.

13,

All documents relating to Wyeth Chandler's or Jay Hubbard's
expressions with respect to the use of lethal force in the
apprehension of criminal suspects or the prevention of 
crime;

All documents relating to the selection of the type of 
service revolver and service revolver ammunition issued
by the Memphis Police Department for its officers as of 
October 3, 1974;

All documents relating to the promulgation of regulations
on the use of lethal force by the city of Memphis Police 
Department;

All documents relating to any studies conducted by or at 
the request of the City of Memphis Police Departpient on 
the effects of various ammunition used by its officers as 
of October 3, 1974 on the human body;

All correspondence, memoranda, reports and other records 
of the Memphis Police Department relating to citizen or 
departmental complaints against E. R. Hymon prior to 
October 3, 1974;

All records relating to disciplinary action taken by the
Memphis Police Department against E. R. Hymon prior to 
October 3, 1974;

All documents relating to any disciplinary action taken
against E. R. Hymon by the Memphis Police Department as a
result of the death of Edward Eugene Garner on October 3,
1974;

All documents setting out the official policies regarding 
promotion of police officers of the Memphis Police Department; 
All documents relating to the training of Memphis police 
officers, generally and to the training of the officers in 
the use of lethal and non-lethal weapons, specifically;

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‘ I



14,

15.

16,

17

All documents relating to incidents in which lethal force 
was resorted to by officers of the Memphis Police Depart­
ment from January, 1973 to October 3, 1974 including but 
not limited to:

a. Official investigation reports
b. Citizen complaints
c. Disciplinary proceedings instituted against

officers resorting to lethal force.
An organizational chart of the Memphis Police Department, 
showing the names of all supervisory officers and their 
respective duties as of October 3, 1974
All rules and regulations governing the conduct of police
officers of the Memphis Police Department as of October 3, 
1974

The operations manual of the Memphis Police Department as 
of October 3, 1974.

Dated October 1975

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
DREW S. DAYS, III 
10 Columbus Circle 
New York, New York 10019

WALTER LEE BAILEY, JR. 
D'ARMY BAILEY 
Suite 901, Tenoke Building 
151 Jefferson Avenue 
Memphis, Tennessee 38103

Attorneys for Plaintiff.

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IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TENNESSEE 

WESTERN DIVISION

CLEAMTEE GARNER, father and 
next of kin of EDWARD EUGENE 
GARNER, a deceased minor.

Plaintiff,
VS.
MEMPHIS POLICE DEPARTMENT;
CITY OF MEMPHIS, Tennessee; 
WYETH CHANDLER, Mayor of 
Memphis; JAY W. HUBBARD, 
Director of Police of Memphis, 
and E. R. HYMON, Police Officer 
of the City of Memphis,

Defendants.

X
X
X
X
X
X
X
X
X

CIVIL ACTION 
No. C-75-145

DEFENDANT'S RESPONSE AND OBJECTION TO 
PLAINTIFF'S FIRST REQUEST FOR 

PRODUCTION OF DOCUMENTS

COME NOW the Defendants, Memphis Police Department, City 
of Memphis, Tennessee, Wyeth Chandler, Mayor of Memphis, Jay W. 
Hubbard, Director of Police of Memphis, and E. R. Hymon, Police 
Offj.cer of the City of Memphis, and in response and in objection 
to Plaintiff's First Request For Production Of Documents, state 
as follows:

1. Defendants object to producing material requested 
in Item 1, Page 2 of Plaintiff's Request on the grounds that 
the investigation of the Memphis Police Department on or about 
October 3, 1974, is privileged.

2. Defendants object to producing the material requested 
in Item 2, Page 2 of Plaintiff's Request on the grounds that the 
personnel file on Defendant, E. R. Hymon, is privileged and further 
that said rile is immaterial and irrelevant to this cause of 
action.



3. Defendants object to producing the material requested 
in Item 3, Page 2 of Plaintiff's Request on the grounds that the 
directives referred to are privileged and further that they are 
not material or relevant to this cause of action.

4. Defendants object to producing the material requested 
in Item 4, Page 2 of Plaintiff's Request on the grounds that the 
directives referred to are privileged and further that they are 
immaterial and irrelevant to this cause of action.

5. Defendants object to producing the material requested 
in Item 5, Page 3 of Plaintiff's Request on the grounds that it
is too vague, too broad, privileged and further that it is irrelevant 
and immaterial to this cause of action.

6. Defendants object to producing the material requested 
in Item 6, Page 3 of Plaintiff's Request on the grounds that this 
information is privileged and the request is too broad.

7. Defendants object to producing the material set out 
in Item.7, Page 3 of Plaintiff's Request on the grounds that it 
is too broad.

8. Defendants object to producing the material requested 
in Item 8, Page 3 of Plaintiff's Request on the grounds that it
is too broad and further that it is immaterial and irrelevant in 
this cause of action.

9. Defendants object to producing the material set out 
in Item 9, Page 3 of Plaintiff's Request on the grounds that it 
is privileged and further that it is immaterial and irrelevant 
to this cause of action.

10. Defendants object to producing the material set out 
in Item 10, Page 3 of Plaintiff's Request on the grounds that it is 
privileged and further that it is immaterial and irrelevant to this 
cause of action.

11. Defendants object to producing the material set out



privileged and that it is immaterial and irrelevant to this cause 

of action.

12. Defendants object to producing the material set out 
in Item 12, Page 3 of Plaintiff's Request on the grounds that it 

pifivileged, too broad, and further that it is irrelevant and 

immaterial to this cause of action.

13. Defendants object to producing the material set out 
in Item 13, Page 3 of Plaintiff's Request on the grounds that it 
is privileged, too broad, and further that it is irrelevant and 
immaterial to this cause of action.

14. Defendants object to producing the material set out 
in Item 14, Page 4 of Plaintiff's Request on the grounds that it 
is too broad, it is privileged, and further that it is immaterial 
and irrelevant to this cause of action.

15. Defendants object to producing the material set out 
in Item 15, Page 4 of Plaintiff's Request on the grounds that it 
is immaterial and irrelevant to this cause of action.

16. Defendants object to producing the material set out 
in Item 16, Page 4 of Plaintiff's Request on the grounds that it 
Ig pifivileged, too broad, and further that it is immaterial and 

irrelevant to this cause of action.

17. Defendants object to producing the material set out 
in Item 17, Page 4 of Plaintiff's Request on the grounds that it 
is privileged, and immaterial and irrelevant to this cause of 

action.

-N ^Dated the / 7 day of November, 1975.

, 4 .
Henry L. Klein

Staff Attorney, City of ^3emphis 
Attorney for Defendants 

Suite 3500, 100 North'Main Bldg. 
Mcmchis. Tennessee 38103



CERTIFICATE OF SERVICE

I, Henry L. Klein, Attorney, hereby certify that a copy 
of the foregoing Defendant's Response and Objection To Plaintiff's 
First Request For Production Of Documents has been mailed to 
Drew S. Days, III, Esquire, 10 Columbus Circle, New York, New York 
10019, and Walter L. Bailey, Jr., Esquire, Suite 901, Tenoke Building, 
161 Jefferson Avenue, Memphis, Tennessee 38103, on this f > day 
of November, 1975.

M/  /
Henryk L. Klein