Frankhouse v. Jobe

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
Chambers of
Douglas R. Miller
United States Magistrate Judge
101 West Lombard Street
Baltimore, Maryland 21201
MDD_DRMChambers@mdd.uscourts.gov
(410) 962-7770
February 20, 2026
To: Counsel of Record
Subject: Frankhouse v. Jobe
Civil No. 1:23-cv-02664-DRM
Re: ECF No. 48, Joint Letter Requesting Resolution of a Discovery Dispute
LETTER OPINION & ORDER
Dear Counsel:
This Letter Opinion & Order, issued pursuant to my informal discovery dispute procedure,
see ECF No. 38-1, addresses Plaintiff’s request to compel production of certain video recordings
(“the video”). For the reasons discussed below, I will order production of the video prior to
Plaintiff’s deposition by defense counsel. I will also grant Defendant’s motion to depose the
Plaintiff, who is incarcerated, by remote means. But I will defer doing so until the video has been
produced, the parties have agreed on a date, and Defendant has submitted an updated proposed
order with the agreed date and location.
I am in receipt of the parties’ joint letter, ECF No. 48, and letter briefs, ECF Nos. 50
(Defendant) & 51 (Plaintiff). Because Plaintiff’s Motion to Compel Production of Video Footage,
ECF No. 47, was filed in contravention of my Standing Order on Discovery, ECF No. 38-1, I did
not consider that filing. Rather, I will construe ECF No. 51 as Plaintiff’s motion to compel.1 I find
that no hearing is necessary.
Plaintiff describes the video as follows:
The incident that forms the basis of Plaintiff’s complaint . . . involves
injuries sustained by Plaintiff during his cell extraction and escort through [areas
of the Harford County Detention Center]. The Plaintiff has alleged an assault
committed by Defendant Deputy Jobe. The footage at issue shows most, if not all,
of the relevant events and participants.
1 I find that this remedy cures any prejudice to Defendant from Plaintiff’s non-compliance with my Standing Order.
Defendant also objects that Plaintiff failed to follow Local Rule 104.8(a) by delaying action for over 30 days and by not
serving a draft Motion to Compel and accompanying Memorandum. ECF No. 50 at 4. However, I find that (1) my
Standing Order implicitly replaces Local Rule 104.8(a); and (2) even if it did not, any prejudice was cured through the
parties subsequently following the informal discovery dispute resolution procedure.
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. . . Plaintiff’s counsel also filed a Request for the Production of
Documents in which request number 2 specifically requested “[a]ll video and
audio recordings of the incident, including surveillance footage of the hallway or
corridor where the incident occurred.”
ECF No. 51 at 1.
Defendant does not appear to dispute this characterization, nor does he appear to dispute
that the video is subject to discovery. Rather, he contends that (1) he has already complied with his
discovery obligations by allowing Plaintiff’s counsel to view the video and take notes; or
alternatively (2) he is permitted to delay delivery of a copy of the video until after he takes Plaintiff’s
deposition. ECF No. 50 at 2-4.
I disagree with Defendant’s contention that he has already complied with Fed. R. Civ. P.
34(a)(1)(A) because “[t]he Video at issue here has been produced to Mr. Frankhouse’s
representative for inspection.” ECF No. 50 at 2. Rule 34(a)(1)(A) states in relevant part:
(a) In General. A party may serve on any other party a request within the scope of
Rule 26(b):
(1) to produce and permit the requesting party or its representative to
inspect, copy, test, or sample the following items in the responding party’s
possession, custody, or control:
(A) any designated documents or electronically stored information
. . .
(Emphasis added.)
Defendant does not contend that Plaintiff’s request for production of the video disclaimed
his right to undertake any or all of the four italicized actions. Although Defendant produced the
video for Plaintiff’s representative to inspect, he did not permit Plaintiff’s representative to copy it,
as the Rule entitles Plaintiff to do. Accordingly, Defendant’s obligations under Rule 34(a)(1)(A)
have not been satisfied.
Defendant’s second contention touches on an area in which the available authority is
somewhat contradictory and not entirely grounded in the text of the Rules: whether audio and video
recordings may be withheld until after a party’s deposition to preserve their impeachment value,
when those recordings also have a substantive use. Although not cited by either party, Lively v.
Reed, No. 1:20-CV-119-MOC-WCM, 2021 WL 11691709 (W.D.N.C. Feb. 1, 2021) surveys some
case law in the Fourth Circuit and elsewhere on this question. While the rule is by no means
absolute, courts appear more inclined to permit temporarily withholding evidence whose
impeachment purpose predominates, and less likely to permit withholding evidence whose
substantive purpose predominates. An example of the former would be investigative video of a
plaintiff engaging in post-accident activities inconsistent with her claimed injuries; an example of
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the latter would be store security video showing the accident itself. See Lively, 2021 WL 11691709,
at *2-3 (citing cases).
Having reviewed the cases cited by both parties, I am ultimately persuaded by Magistrate
Judge Coulson’s logic in Ghazzaoui v. Anne Arundel County, Maryland, No. ELH-14-1410, 2015
WL 13845451 (D. Md. Jan. 15, 2015), as well as the principal case he relies on, DeHart v. Wal-
Mart Stores, East, L.P., No. 4:05CV00061, 2006 WL 83405, at *1 (W.D. Va. Jan. 6, 2006).
Ghazzaoui involved a civil rights action stemming from the plaintiff’s arrest at his home. The
plaintiff sought to withhold, until after the defendant police officers’ depositions, home security
video showing “some preliminary interaction between the [p]laintiff and the officers though not the
alleged excessive force itself.” Id. at *1.
In holding that the home security video should be produced prior to deposition, Judge
Coulson considered the similar facts in DeHart.2 The DeHart court held:
The videotape in this instance documents the series of events that led to
the alleged injury of the plaintiff on the date in question. It is certainly evidence
that would be offered to establish the underlying facts surrounding the incident
that occurred at the Martinsville Wal-Mart store. The impeachment value of this
surveillance video appears minimal compared to its substantive value as what
actually occurred on the date of the incident.
DeHart, 2006 WL 83405, at *2.
Judge Coulson held in Ghazzaoui that:
The tape in this case is similar. While it apparently does not capture the
core conduct at issue, it does show a preliminary interaction between the Plaintiff
and officers which presumably will be relied upon by one side or the other as a
relevant fact in the case. In that sense, it constitutes substantive evidence. The
Court recognizes it also may have impeachment value, however it is not “pure”
impeachment evidence and whatever element of “surprise” remains does not
outweigh the Defendant’s right to have a valid discovery request that has been
outstanding for some time complied with in advance of the depositions.
Accordingly, this Court orders its production prior to the depositions of the
officers.
Ghazzaoui, 2015 WL 13845451, at *2.
2 Judge Coulson noted that DeHart was among the cases cited in Magistrate Judge Day’s comprehensive opinion in
Newsome v. Penske Truck Leasing Corp., 437 F. Supp.2d 431 (D. Md. 2006), on which Plaintiff also relies. In Newsome,
however, the principal question was whether the evidence at issue was discoverable at all, an issue not in contention
here. Because the Plaintiff in Newsome had already been deposed, Judge Day did not reach the issue of whether
production could be delayed, although the opinion notes some case law on the topic. Id. at 438-39.
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The video in the present case is, if anything, even more “substantive” than those in
Ghazzaoui and DeHart. According to Plaintiff, and not here disputed by Defendant, it “shows most,
if not all, of the relevant events and participants” surrounding the alleged assault. As such, I find
that its “impeachment value . . . appears minimal compared to its substantive value as what actually
occurred on the date of the incident,” DeHart, 2006 WL 83405, at *2, and that “whatever element
of ‘surprise’ remains does not outweigh the [Plaintiff’s] right to have a valid discovery request that
has been outstanding for some time complied with in advance of the depositions.” Ghazzaoui, 2015
WL 13845451, at *2.
As a final matter, I note that Plaintiff does not substantively oppose the relief requested in
ECF No. 45, Defendant’s Motion for Leave to Depose Deponent Confined in Prison by Remote
Means.3 Rather, Plaintiff has refused to schedule the deposition until the present dispute over
production of the video is resolved. Because I find that granting leave to depose Plaintiff is
consistent with Fed. R. Civ. P. 26(b)(1) and (2), I must grant the motion to depose Plaintiff, who is
“confined in prison.” Fed. R. Civ. P. 30(a)(2)(B). I further find that there is good cause to take the
deposition by remote means, and I will grant that relief as well. Fed. R. Civ. P. 30(b)(4).
For the foregoing reasons, it is hereby ORDERED that ECF No. 51, construed as Plaintiff’s
motion to compel discovery of the video, is GRANTED. ECF No. 47 is DENIED AS MOOT. It is
further ORDERED that Defendant shall produce to Plaintiff copies of all materials responsive to
Plaintiff’s Request for Production of Documents No. 2 within 10 days. And it is further ORDERED
that, following production of these materials, the parties shall promptly meet and confer to schedule
the remote deposition of Plaintiff at his place of confinement. Defendant is then DIRECTED to
submit an updated version of the proposed order accompanying ECF No. 45, reflecting the agreed-
upon date and location of the deposition.
Despite the informal nature of this letter, it will constitute a Memorandum Opinion and
Order of the Court and should be docketed accordingly.
Sincerely,
/s/
Douglas R. Miller
United States Magistrate Judge
3 I do not find that the filing of ECF No. 45 contravened my Standing Order, although I subsequently directed the parties
to use my informal discovery dispute resolution procedure in the event Plaintiff opposed the motion. Because leave of
court is required to take the deposition of an incarcerated person, there is no alternative to filing a formal motion even
where the parties are in agreement.
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