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Charles Chisler v. Sgt. Edward P. Johnston

June 16, 2011


The opinion of the court was delivered by: Judge Nora Barry Fischer



Charles Chisler ("Chisler") initially filed the pending motion to compel production of certain documents against the Pennsylvania Department of Corrections ("DOC") on April 7, 2011. (See Docket No. 138). At oral arguments on May 3, 2011, Chisler orally moved to withdraw his motion to compel, and the motion to compel was withdrawn on May 4, 2011. (See Docket No. 150). Pursuant to a Consent Order filed May 24, 2011, (see Docket No. 158), the motion to compel was reopened by the Court. The Consent Order limited arguments on the motion to compel to those already made by the parties. (See id.). The motion is therefore ripe. Based on the following discussion, Chisler's "Motion to Compel Production of a Copy of Certain Documents Produced by the Dept. of Corrections with Limited Redactions" (Docket No. [138]) is GRANTED, with the limitations set forth below.


Chisler brings this action pursuant to 42 U.S.C. § 1983 against several current and former employees of the DOC. (Docket No. 21 at ¶ 5). On October 7, 2007, Chisler was employed as a Corrections Officer Trainee ("COT") at SCI-Fayette. (Id. at ¶ 2). Because Chisler was still in his first year of employment, he was required to receive regular training from various superior officers, including Defendant Sergeant Edward Johnston ("Johnston"). (Id.). Chisler alleges that, during this required "training," Defendants Johnston, Lieutenant Timothy Wentroble ("Wentroble"), Sergeant Clayton Stoner ("Stoner"), and Corrections Officer ("CO") Erik Keller ("Keller") "violently attacked and hog-tied" Chisler. (Id. at ¶ 3). Chisler claims that Defendants' conduct violated his civil rights and caused him severe and permanent injuries, pain, and psychological and emotional injuries. (Id.).

Chisler also claims that Defendants Lieutenant Howard Sutton ("Sutton"), Lieutenant Donald Hockenberry ("Hockenberry"), Sergeant Daniel Lynch ("Lynch"), and Sergeant Joseph Palanchar ("Palanchar") (all together "Supervisory Defendants") were aware of the "assault" on Chisler. (Id. at ¶ 4). Chisler claims that the Supervisory Defendants threatened him with punishment and "loss of his career" if Chisler filed a truthful incident report of the attack. (Id.).

During discovery, on November 22, 2010, the Court ordered the DOC to produce documents responsive to Chisler's requests for information relating to "incidents of workplace violence, horseplay, hazing or other inappropriate contact and behavior" at several state correctional institutions. (Docket No. 118). The Court based this order on its finding that "individual Defendants worked at state correctional facilities other than SCI-Fayette.", (Id. at 4 n.7), and that Chisler had alleged that the claimed custom of hazing and violence occurred at all of the state's correctional institutions. (See id. at 3).

After the parties conferred on December 1, 2010, they entered into an agreement for preliminary production of DOC documents. (Docket No. 121). The agreement made clear that documents would be produced subject to "attorneys eyes only" protection, a confidentiality agreement, and a clawback agreement. (See Docket No. 140 at 4-5). The DOC then released a multitude of responsive documents, but asserted the government documents and deliberative process privileges over all or large portions of many of the documents. (Id. at 5; see also Docket No. 138-1)).

In his instant motion, (Docket No. 138), Chisler seeks to compel production of the executive summary and investigative file for the DOC's Office of Professional Responsibility ("OPR") investigation of the suicide of COT A.H., who was stationed at SCI-Graterford. (Docket No. 139 at 2). Chisler claims that the OPR conducted an investigation in which twenty-one (21) employees were interviewed and a report of approximately one hundred and ninety (190) pages was produced. (Id.).

Chisler claims that the document he seeks to have produced will prove valuable in establishing that there is an "informal custom and policy permitting horseplay/workplace violence," (Docket No. 138 at ¶ 2), and that the requested documents are "relevant and significant to the case at bar." (Id. at ¶ 15). The DOC claims that the documents are not only irrelevant, but also subject to the "government document" and deliberative process privileges. (Docket No. 140 at 6).

The Court has reviewed the requested report in camera. The manner in which the Court came into possession of the report is worthy of note. The report was filed by Chisler, unsealed, as an appendix to the present motion. (See Docket No. 138-2). The DOC moved for sanctions based on the disclosure of this document, which was subject to the "attorneys eyes only" and confidentiality restrictions. (See Docket No. 141 at ¶ 19; Docket No. 138-2 (showing the document with a "Confidential -- Attorneys Eyes Only" stamp)). Consequently, the Court reviewed the document when it was filed with the present motion.


Rule 26 describes the scope of discovery as follows:

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense-including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. 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). "Although the scope of discovery under the Federal Rules is unquestionably broad, this right is not unlimited and may be circumscribed." Bayer AG v. Betachem, Inc., 173 F.3d 188, 191 (3d Cir. 1999) (citing Micro Motion, Inc. v. Kane Steel Co., 894 F.2d 1318, 1322 (Fed. Cir. 1990)). This Rule places two relevant limitations upon the instant motion: privilege and relevance. A party may "obtain discovery ...

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