IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
November 22, 2010
CHARLES CHISLER, PLAINTIFF,
SGT. EDWARD P. JOHNSTON IN HIS INDIVIDUAL CAPACITY, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Nora Barry Fischer United States District Judge
Presently before the Court is a motion to compel filed by Plaintiff relating to a subpoena served on the Pennsylvania Department of Corrections ("DOC"), a non-party to this action. (Docket No. 114). The subpoena requests the production of documents relating to incidents of workplace violence, horseplay, hazing or other inappropriate contact and behavior among Corrections Officers at correctional institutions other than the State Correctional Facility at Fayette ("SCI-Fayette").*fn1 (See Docket No. 99-9).*fn2 The DOC objects to the search for and production of said documents. (Docket No. 117). Specifically, it argues that the discovery sought is overbroad, imposes an undue burden, and is likely to be subject to the attorney-client privilege. (Id.). Notably, this particular conflict formed part of a larger discovery dispute that was the basis for a separate motion to compel filed by Plaintiff. (See Docket No. 99). However, after a motion hearing and a status conference, (see Docket Nos. 108, 113), Plaintiff and third party, the DOC, submitted an amended joint status report, which refined the parties' discovery disagreement solely to the present dispute, (see Docket No. 112).*fn3 Upon consideration of the respective arguments, and for the following reasons, the Court finds that the DOC shall produce responsive documents from select additional correctional institutions, for a limited time period.
Under Federal Rule of Civil Procedure 26(b), "[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense.. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). Because it is well recognized that the federal rules allow broad and liberal discovery, Pacitti v. Macy's, 193 F.3d 766, 777 (3d Cir. 1999), district courts, in interpreting Rule 26(b)(1), must be mindful that relevance is a broader inquiry at the discovery stage than at the trial stage, Gateway Eng'rs, Inc. v. Edward T. Sitarik Contracting, Inc., Misc. No. 09-209, 2009 U.S. Dist. LEXIS 94351, at *5 (W.D. Pa. Oct. 9, 2009). However, a district court must limit "the frequency or extent of discovery" if it determines that "the burden or expense of the proposed discovery outweighs its likely benefit." Fed. R. Civ. P. 26(b)(2)(C); see also 7 James W. Moore, Moore's Federal Practice § 37.22[d] (3d ed. 2010) (stating that when determining motions to compel discovery in which proportionality is at issue, courts should consider the totality of the specific circumstances presented in the particular case). The party resisting discovery must show specifically how the discovery request is burdensome. See Rhoades v. YWCA, Civ. No. 09-261, 2009 U.S. Dist. LEXIS 95486, at *27 (W.D. Pa. Oct. 14, 2009) (citing Josephs v. Harris Corp., 677 F.2d 985, 992 (3d Cir. 1982)).
As part of his claims, Plaintiff has alleged that an informal custom and policy of horseplay and hazing exists among Corrections Officers at all of the state's correctional institutions and that said policy contributed to the events in question. (Docket No. 114 at 2). Within the broad scope of discovery, documentation of Corrections Officers' inappropriate physical conduct with each other, regardless of location,*fn4 is certainly relevant to demonstrate the existence of such an alleged policy and is potentially illustrative of the named Defendants' understanding of institutionally acceptable behavior. See Fed. R. Civ. P. 26(b). Significantly, the deposition testimony of named defendants appears to indicate that they did not consider acts of horseplay to be in violation of any formal rules. (See Docket Nos. 114-4, 114-6). Thus, the Court overrules the DOC's relevance objection.
However, given the professed declarations from certain administrators*fn5 that both outline the department's record keeping policies and detail the potential costs associated with the desired production, the Court acknowledges that the DOC has demonstrated undue burden in complying with the entirety of Plaintiff's request. (See Docket Nos. 117 at 7-10, 117-1, 117-2, 117-3). Accordingly, the Court finds that the burden of full compliance with Plaintiff's request outweighs its likely benefit and, as a result, the ordered production shall be limited, as identified below. See Fed. R. Civ. P. 26(b)(2)(C). In making this determination, the Court is mindful that the specific correctional institute in question, SCI-Fayette, is a relatively new facility*fn6 and that a majority of the named Defendants worked at other state correctional institutions prior to their employment at SCI-Fayette.*fn7
The DOC has further contested that the information requested is likely to be subject to the attorney-client privilege. (Docket No. 117 at 10). "The party resisting discovery . bears the burden of demonstrating the applicability of . the attorney-client privilege . as a bar to discovery." Kraus Indus., Inc. v. Moore, Civ. No. 06-542, 2008 U.S. Dist. LEXIS 10065, at *9 (W.D. Pa. Feb. 11, 2008) (quoting McCrink v. Peoples Benefit Life Ins. Co., Civ. No. 04-1068, 2004 U.S. Dist. LEXIS 23990, at *3 (E.D. Pa. Nov. 30, 2004)). Indeed, the Federal Rules require a party who withholds otherwise discoverable information on the grounds of privilege to "describe the nature of the documents, communications, or tangible things not produced or disclosed . in a manner that . will enable other parties to asses the claim." Fed. R. Civ. P. 26(b)(5)(A). In this Court's estimation, Rule 26(b)(5)(A)(ii) requires that a party raising a privilege as a defense to production do so in a privilege log. Pritchard v. Dow Agro Scis, 263 F.R.D. 277, 293 (W.D. Pa. 2009). In this Court's understanding, this has yet to be done. In fact, the DOC acknowledges that it has not even begun to identify any specific documents for the purpose of preparing a privilege log. (Docket No. 117 at 10). Consequently, the DOC has not satisfied the requirements of Rule 26(b)(5).*fn8
Therefore, for the reasons stated, IT IS HEREBY ORDERED that Plaintiff's Motion to Compel  is GRANTED, in part and DENIED, in part;
IT IS FURTHER ORDERED that the DOC shall search its records for SCI-Waynesburg, SCI-Pittsburgh, SCI-Camp Hill, SCI-Somerset, SCI-Greene, SCI-Forest, SCI-Greensburg, and SCI-Graterford and shall produce the responsive documents found for the time period of January 1, 2004*fn9 to the present by December 23, 2010 at 5:00 p.m.;
FINALLY, IT IS ORDERED that, pursuant to Fed. R. Civ. P. 37(a)(5)(C), each party shall bear its own costs and fees incurred with respect to Plaintiff's motion. s/Nora Barry Fischer