By Leo Hendges
Civil rights litigation pursuant to Section 1983 can take many forms including claims against local municipal agencies (Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978)), individual state employees for monetary damages based on their personal actions (Hafer v. Melo, 502 U.S. 21 (1991)), or state employees in their official capacities for prospective injunctive relief only (Kentucky v. Graham, 473 U.S. 159 (1985)).
When conducting discovery in a Section 1983 case it is important to think about the type of suit at issue and the proportionality of the request as outlined in Nev. R. Civ. P. 26(b)(1) and Fed. R. Civ. P. 26(b)(1).
With a Monell claim, policies and procedures of a local governmental agency are at issue, but there is no respondeat superior liability; rather, the claim is against the municipality itself. Monell, 436 U.S. at 690-95. This could make portions of the agencies’ employment files relevant to establish, for instance, a failure to train or supervise employees. However requests for employment files need to be proportional to the needs of the case. Requests for the entirety of a non-party municipal employee’s employment file will generally lack proportionality because that file likely contains irrelevant information about the employee, such as his or her salary, any family support obligations, FMLA requests, etc.
When requesting employment files for a Monell claim, or responding to a request, the parties can help avoid discovery motion practice by proactively entering into a stipulated protective order providing confidentiality for any documents that are eventually produced. Nev. R. Civ. P. 26(c) and Fed. R. Civ. P. 26(c). It is also helpful to limit production requests to specific portions of an employment file which might produce records relevant to the issue in the case, and when declining to produce records on relevance and proportionality grounds providing specific context explaining why any information has been withheld.
A claim against an individual state employee in their personal capacity often brings requests for production of that employee’s prior disciplinary history. Any such request must be limited, however, because evidence of prior bad acts is generally inadmissible to prove that a person acted in a particular way on a particular occasion. Fed. R. Evid. 404(b); Hirst v. Gertzen, 676 F.2d 1252, 1262 (9th Cir. 1982). In this circuit, there is a narrow construction of the “modus operandi” exception for prior bad acts with a very close similarity to the conduct sought to be established. Hirst, 676 F.2d at 1262. Making sure the parties are clear about limitations of what is being requested, and produced, helps to avoid disputes about information that goes outside the scope of this limited exception.
Finally, when seeking prospective injunctive relief, a party must establish standing by showing they are likely to suffer future injury in the absence of the requested injunctive relief. City of Los Angelos v. Lyons, 461 U.S. 95 (1983). To maintain proportionality, discovery requests need to be tightly focused on specific policy manuals and records of past complaints to establish a clear pattern of practice.
Placing an emphasis on proportionality when drafting discovery requests or responses will help to avoid discovery motion practice and allow the parties to focus on the merits of the claims being raised in any specific civil rights case filed pursuant to Section 1983.
About the author
Leo Hendges is of counsel at Cooper Levenson. He focuses his practice on defense litigation. Leo handles civil defense matters, including employment-related disputes, premises liability, wrongful death claims, and other complex personal or professional liability cases. He graduated from Albany Law School and is admitted to practice law in New York, Michigan, and Nevada.
About the article
This article was originally published in the Communiqué (Sep 2026), the official publication of the Clark County Bar Association.
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