In Morgan v. Tincher, No. 21-2060 (4th Cir. Jan. 3, 2024), the Fourth Circuit Court of Appeals ruled that appellee Officer J. D. Tincher forfeited any objection to appellant Morgan’s untimely discovery request when he failed to object to that request; “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.” As a result, the verdict was reversed over the discovery violation and remanded with instructions the district court’s decision.

Case Background

In this case involving claims of excessive force by Officer Tincher of the Logan Police Department in West Virginia, Morgan submitted discovery requests to Officer Tincher well before trial, but ten days after the deadline established by the district court’s scheduling order. 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.

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. However, Meade had filed a civil lawsuit against Officer Tincher before Morgan served his discovery requests (Officer Tincher testified during this trial that his lawyers dropped the suit).

After Morgan finished presenting his evidence, he learned from a third party about yet another lawsuit claiming excessive force against Officer Tincher, which was filed two months before Morgan’s trial, that Tincher had not disclosed from an individual named Travis Fortune. The next morning, Morgan filed a motion for sanctions based on Officer Tincher’s failure to supplement discovery with information about the Fortune lawsuit. However, the district court did not address the sanctions motion or Morgan’s request to question Officer Tincher about the Fortune lawsuit before the jury reached its verdict in favor of Tincher. Subsequently, in March 2021, the district court denied Morgan’s motion for sanctions. Six months later, in September 2021, the district court denied Morgan’s motion filed under Rule 60(b) for the verdict to be reversed over the discovery violation.

Circuit Court Ruling

In the ruling, the Court stated: “We first conclude that Morgan established misconduct by clear and convincing evidence based on Officer Tincher’s failure to disclose evidence of the Fortune lawsuit. Morgan’s interrogatories and request for documents made clear that he was seeking disclosure of any lawsuit in which Officer Tincher was a named party. As explained above, Rule 26(e) requires a party who has responded to a discovery request to ‘supplement or correct’ its response in ‘a timely manner … if the additional or corrective information has not otherwise been made known to the other parties during the discovery process.’…Thus, Officer Tincher was required to supplement his discovery responses when, six months after his initial discovery response and two months before Morgan’s trial, the Fortune lawsuit was filed against Officer Tincher.”

The Court also stated: “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.’…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).”

As a result, the Court ruled: “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…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).”

As a result, the verdict was reversed over the discovery violation and remanded with instructions the district court’s decision.

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