Defendants’ Motion for Protective Order and Brief in Support – Page 1 

Poat v. Scroggins, et al.; Civil Action No. 3:05-CV- 2516-G 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

BRET POAT, § 

 § 

 Plaintiff, § 

 § CIVIL ACTION NO. 

v. § 

 § 3:05-CV-2516-G 

JASON SCROGGINS, et al., § ECF

 § 

 Defendants. § 

DEFENDANTS’ MOTION FOR PROTECTIVE ORDER AND BRIEF IN SUPPORT

TO THE HONORABLE JUDGE OF SAID COURT: 

Defendants Jason Scoggins, Matthew Kobe, Kenneth Francis and Roger Andrew Rudloff 

(collectively “Defendants”), pursuant to Fed. R. Civ. P. 26(c), file this Motion for Protective 

Order and Brief in Support, seeking protection from the court’s Status Report Order, dated 

March 1, 2006, requiring them to make initial disclosures in accordance with Fed. R. Civ. P. 

26(a)(1), until after their qualified immunity defense has been resolved. In support of this 

motion, Defendants respectfully show the court as follows. 

I. 

FACTUAL AND PROCEDURAL BACKGROUND 

On December 28, 2005, Plaintiff Bret Poat (“Plaintiff”) filed this civil rights action 

against Defendants, who are police officers for the City of Dallas, alleging that they violated his 

rights when they used excessive force to arrest him on December 29, 2003. Plaintiff asserts 

federal and state causes of action against Defendants pursuant to 42 U.S.C. §§ 1983 and 1988, 

the Fourth and Fourteenth Amendments to the United States Constitution, and Texas state law. 

See Plaintiff’s Original Complaint for Damages. In response to Plaintiff’s Complaint, 

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Defendants’ Motion for Protective Order and Brief in Support – Page 2 

Poat v. Scroggins, et al.; Civil Action No. 3:05-CV- 2516-G 

Defendants have asserted the defense of qualified immunity. See Defendants Jason Scoggins and 

Matthew Kobe’s Answer to Plaintiff’s Original Complaint for Damages, and Defendants 

Kenneth Francis and Roger Rudloff’s Answer to Plaintiff’s Original Complaint for Damages, 

both filed on February 28, 2006. 

On March 1, 2006, the court issued a Status Report Order, directing the parties to make 

the initial disclosures required by Fed. R. Civ. P. 26(a)(1) within thirty days of the date of the 

order or, more specifically, by March 31, 2006. Defendants now seek an order relieving them of 

any obligation to make the Rule 26(a)(1) initial disclosures pending determination of their 

qualified immunity defense. 

II. 

ARGUMENT AND AUTHORITIES

Public officials who act within the scope of their discretionary authority and in the course 

of their official responsibilities are entitled to the defense of qualified immunity, which shields 

them from suit as well as from liability for civil damages, where their conduct does not violate 

“clearly established statutory or constitutional rights of which a reasonable person would have 

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Police officers are government 

officials specifically entitled to assert this qualified immunity defense. See Gagne v. City of 

Galveston, 805 F.2d 558, 559 (5th Cir. 1986), cert. denied, 483 U.S. 1021 (1987). 

 The protection of the qualified immunity defense means not only immunity from 

monetary liability, but immunity from suit. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1982); 

see also Geter v. Fortenberry, 849 F.2d 1550, 1552 (5th Cir. 1988). To this end, a defendant 

entitled to claim qualified immunity should be shielded as much as possible from “the burdens of 

broad-reaching discovery.” Gaines v. Davis, 928 F.2d 705, 707 (5th Cir. 1991) (quoting Harlow,

457 U.S. at 817-18). Because qualified immunity is a defense to the burdens of litigation, 

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Poat v. Scroggins, et al.; Civil Action No. 3:05-CV- 2516-G 

including pretrial matters like discovery, it should be treated as a threshold issue which acts as a 

bar to a court’s ability to hear the plaintiff’s claim. See Sutton v. United States, 819 F.2d 1289, 

1299 (5th Cir. 1987). 

The Fifth Circuit has stated that no discovery should be allowed against a party asserting 

qualified immunity until the court first finds that the plaintiff’s pleadings assert facts sufficient to 

overcome the qualified immunity defense. See Wicks v. Mississippi State Employment Servs., 41 

F.3d 991, 994 (5th Cir. 1995). In Lion Boulos v. Wilson, 834 F.2d 504 (5th Cir. 1987), the Fifth 

Circuit scrutinized a district court’s order compelling limited discovery before ruling upon 

qualified immunity claims. Relying on the Supreme Court’s holdings in Harlow v. Fitzgerald, 

supra, and Mitchell v. Forsyth, supra, the Lion Boulos court reiterated that an official’s claim of 

qualified immunity also embraces immunity from general discovery: 

In Mitchell v. Forsyth, supra, the Supreme Court addressed an official’s 

right to claim immunity from discovery. It stated:

“Indeed, Harlow emphasizes that even such pretrial matters such 

as discovery are to be avoided if possible, as ‘inquiries of this kind 

can be particularly disruptive of effective government.’ . . . Unless 

the plaintiff’s allegations state a claim of clearly established law, a 

defendant pleading qualified immunity is entitled to dismissal 

before commencement of discovery.” 

Lion Boulos, 834 F.2d at 507 (quoting Mitchell v. Forsyth, 472 U.S. at 526). 

 While it is true that a party asserting the defense of qualified immunity is not immune 

from all discovery, see Lion Boulos 834 F.2d at 507, any discovery permitted before the

immunity question is resolved should be limited to that which is necessary for the court to rule 

on the immunity claim. See id. at 507-08. Broad-ranging or overly broad or avoidable discovery 

against a government official asserting qualified immunity remains improper because such 

discovery would negate the public official’s entitlement to be free from suit. 

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Defendants’ Motion for Protective Order and Brief in Support – Page 4 

Poat v. Scroggins, et al.; Civil Action No. 3:05-CV- 2516-G 

Rule 26(a)(1) initial disclosures are undeniably a broad form of discovery and are, 

therefore, presumptively inapplicable as to Defendants in light of their assertions of entitlement 

to qualified immunity. The wide-ranging disclosures required under Rule 26(a)(1) far exceed 

that which is necessary for this court to determine Defendants’ entitlement to qualified 

immunity. Rule 26(a)(1)(A), for example, requires disclosure of each individual likely to have 

discoverable information that may be used to support all defenses, and Rule 26(a)(1)(B) requires 

similar disclosure of all documents that may be used to support all defenses. The breadth of the 

required witness and document disclosures under Rule 26(a)(1) far exceed the narrow qualified 

immunity inquiry. Furthermore, disclosure of insurance agreements (see Rule 26(a)(1)(D)) has 

no bearing whatsoever on Defendants’ immunity defense. Clearly, the Rule 26(a)(1) disclosure 

requirements exceed the limitations imposed by the Fifth Circuit in Wicks, Lion Boulos, and their 

progeny. 

Defendants are mindful that entitlement to qualified immunity should be determined at 

the earliest stages of litigation. See Saucier v. Katz, 533 U.S. 194, 201 (2001). Defendants 

anticipate seeking leave to file amended answers asserting their immunity defenses in greater 

factual detail, to be followed by a motion seeking a reply from Plaintiff under Fed. R. Civ. P. 

7(a) as a prelude to possible motions for judgment on the pleadings under Fed. R. Civ. P. 12(c) 

or summary judgment motions on the immunity issue under Fed. R. Civ. P. 56(c). Regardless of 

Defendants’ course of action, it is apparent that, at this very early stage of the litigation, their 

entitlement to immunity has not yet been placed before the court for determination, and that the 

initial disclosures required by Rule 26(a)(1) are overly broad or avoidable, rather than narrowly 

tailored to uncover only those facts needed to rule on Defendants’ immunity claim. Indeed, 

requiring Defendants to make Rule 26(a)(1) disclosures concerning actions for which they may 

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Poat v. Scroggins, et al.; Civil Action No. 3:05-CV- 2516-G 

enjoy immunity would subject them to the very type of avoidable or overly broad discovery from 

which immunity seeks to shield them. 

WHEREFORE, PREMISES CONSIDERED, Defendants Jason Scoggins, Matthew 

Kobe, Kenneth Francis and Roger Andrew Rudloff pray that this Court grant their motion for 

protective order and issue an order relieving them of any obligation to make the initial 

disclosures required by Fed. R. Civ. P. 26(a)(1) pending the determination of their qualified 

immunity defense. Defendants also pray for such other and further relief, both general and 

specific, to which they may be justly entitled. 

Respectfully submitted, 

By: s/ Tatia R. Randolph 

 TATIA R. RANDOLPH 

 Assistant City Attorney 

 State Bar No. 00795793 

 JASON G. SCHUETTE 

 Assistant City Attorney 

 State Bar No. 17827020 

OFFICE OF THE CITY ATTORNEY 

CITY OF DALLAS 

 City Hall 

1500 Marilla Street, 7CN 

Dallas, Texas 75201 

Telephone: (214) 670-3519 

Facsimile: (214) 670-0622 

ATTORNEYS FOR DEFENDANTS JASON 

SCOGGINS, MATTHEW KOBE, KENNETH 

FRANCIS AND ROGER ANDREW RUDLOFF 

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Defendants’ Motion for Protective Order and Brief in Support – Page 6 

Poat v. Scroggins, et al.; Civil Action No. 3:05-CV- 2516-G 

CERTIFICATE OF CONFERENCE

The undersigned hereby certifies that a conference was held on March 29, 2006, with 

counsel for Plaintiff regarding the merits of this motion and Plaintiff opposes the motion. As a 

result, this matter is presented to the Court for determination. 

s/ Tatia R. Randolph 

 Tatia R. Randolph 

 Assistant City Attorney 

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on March 31, 2006, the foregoing document was 

electronically filed with the Clerk of the Court for the United States District Court, Northern 

District of Texas, using the electronic case filing system of the Court. The electronic case filing 

system sent a “Notice of Electronic Filing” to the following attorney of record who has 

consented in writing to accept this Notice as service of this document by electronic means: Mr. 

Jody G. Sheets, Glast, Phillips & Murray, P.C., 2200 One Galleria Tower, 13355 Noel Road, 

Dallas, Texas 75240, counsel for Plaintiff. 

s/ Tatia R. Randolph 

 Tatia R. Randolph 

 Assistant City Attorney 

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