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Friday, February 23, 2024 | Back issues
Courthouse News Service Courthouse News Service

No Attorney’s Fees for Delays in Discovery

RICHMOND, Va. (CN) - A tobacco shop owner investigated for the sale of synthetic marijuana was denied attorney's fees for the extended discovery in the case.

Jayson Mickle, owner of Hampton Pipe & Tobacco, a retailer with multiple locations in Virginia, and Blazin' Herbs, a wholesale firm, was one of 10 people arrested after the Virginia Drug Control Act of 2011 criminalized the sale synthetic cannabinoid chemicals found in herbal incense and other products.

Mickle makes no bones about the fact that he sells incense through his businesses, but maintains his products don't run afoul of the law.

He sued Newport News Sheriff Gabe Morgan and seven of his deputies in June 2012, not only challenging the validity of his arrest, but also claiming the officers helped themselves to more than $611,300 from his bank accounts -- and his Ford Mustang -- during their investigation.

In his lawsuit, Mickle charges the Newport News Sheriff's Office carried out over a dozen illegal searches and seizures of his buildings, damaging Mickle's business and his reputation.

"From June 2011 through August 2011, Defendants harassed and terrorized Plaintiffs by entering and searching Plaintiffs' homes and businesses and seizing hundreds of thousands of dollars of Plaintiffs' money and property, knowing that they had no lawful authority to do so," Mickle claims.

He also contends authorities waited nearly three months to test the herbal incense he sold under the names "Head Trip Blueberry," "Megabitch Potpurri," "Super Kush," and "Bayou Blaster," and in some cases, did not test them at all.

Mickle claims the only synthetic cannabinoid was found in his shops was a trade show sample of "Cloud 10 Storm," which, he says was not for sale, and predated the Virginia Drug Control Act by several months.

So far, however, court decisions have generally gone against him.

In January, U.S. District Judge Arenda Wright Allen denied Mickle's motion for summary judgment, dismissing some of his claims against the sheriff and his deputies in the process.

The most recent chapter in the case was written on Dec. 4, when U.S. Magistrate Judge Lawrence Leonard sought to put an end to a months-long dispute over discovery.

At issue was Mickle's request for three categories of documents: personal information about the defendants; reports and paperwork generated in the course of other synthetic marijuana investigation carried out by the sheriff and his deputies; and training manuals and assorted other material used or generated by the department.

The defendants responded with a motion requesting permission to disclose plaintiff's discovery material to law enforcement agencies that were not party to the action.

Thereafter, both plaintiff and defendants filed competing motions for protective orders.

The court sorted out the controversy and issued an order that narrowed the scope of discovery, permitted the redaction of certain material, and allowed the defendants to designate certain discovery material as either "confidential" or "confidential - attorneys eyes only."

Mickle then requested the payment of attorney's fees and court costs to cover the period when discovery matters were in dispute, but U.S. Magistrate Judge Lawrence Leonard said there was simply no way such payments were justified.

"Defendants were substantially justified in their position in declining to turn over the requested information until the protective order was in place and the scope of the discovery requests was narrowed by the court ... therefore ... plaintiffs motion for attorneys' fees ... is denied."

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