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Smith v. Rogers

United States District Court, W.D. Pennsylvania

July 10, 2017

HARRY G. SMITH, JR., Plaintiff,
v.
LLOYD GENE ROGERS, JR., MARK YINGLING, RAY BAKER, BROOKE ECHARD, JOSEPH FOX, JUSTIN SHRIVER, PAUL KIFER, MICHAEL M. JOHNSTON, and BLAIR COUNTY, PENNSYLVANIA, Defendants.

          MEMORANDUM OPINION

          KIM R. GIBSON, JUDGE

         Pending in this civil-rights case is a residual discovery issue that was originally raised in Plaintiff Harry G. Smith, Jr.'s motion to compel dated December 28, 2016 (ECF No. 25). The Court, in ruling on that motion, ordered Defendant Blair County to provide the Court with certain documents for in camera review so that it could determine whether they should be produced to Smith in unredacted form. The Court has now completed its review and, for the reasons below, will order Blair County to produce portions of the documents in unredacted form.

         I. Background

         On October 12, 2015, Smith filed this case against Blair County, Pennsylvania, several Blair County corrections officers, and the warden of Blair County's prison. Smith's suit stems from an incident that occurred on November 11, 2014, at the Blair County prison, where Smith was incarcerated at the time. He alleges that during that incident (1) corrections officer Rogers used excessive force against Smith, (2) that the other corrections officers named as defendants were present and failed to intervene, (3) that the warden acted with deliberate indifference to Smith's personal safety by allowing the excessive force to occur and continuing to assign Rogers to Smith's prison block, and (4) that the warden and corrections officers acted pursuant to a custom or policy of Blair County. Smith alleges further that the actions of the warden and corrections officers “[were] normal, routine and/or predictable conduct that was encouraged, approved, accepted and/or acknowledged by Defendant Blair County.” (ECF No. 1 ¶¶ 93-97.) Smith thus asserts civil-rights claims under 42 U.S.C. § 1983 and 42 Pa. Cons. Stat. § 8850; he argues that Defendants' actions violated his rights under the Eighth and Fourteenth Amendments to the United States Constitution.

         During discovery-on December 28, 2016-Smith moved for an order compelling Blair County to produce certain surveillance videos as well as the unredacted version of an investigative report about Blair County's prison that was prepared by the Pennsylvania Department of Corrections (“PADOC”). Blair County had refused to produce these materials on relevance and privilege grounds. This Court granted in part Smith's motion to compel. (ECF No. 27, Smith v. Rogers, No. 15-cv-264, 2017 WL 544598, at *6-7 (W.D. Pa. Feb. 9, 2017).) Regarding the surveillance videos, the Court held that these were relevant to Smith's claims and ordered Blair County to produce them-subject to some limitations-to Smith. But the Court deferred ruling on Smith's request for the unredacted PADOC report. Instead, the Court ordered Blair County to provide the unredacted report to the Court for in camera review and to file a supplemental brief identifying with specificity any privilege that it was asserting regarding the report. Blair County did so and the Court has now completed its review of the unredacted report.

         As is explained in (even the unredacted) PADOC report, the underlying investigation was prompted by a request from a judge of the Blair County Court of Common Pleas based on possible misconduct involving prison employees. (See BLAIR1330.[1]) The report explains further that the investigation was conducted by the PADOC Office of Special Investigations and Intelligence and that, as part of that investigation, staff from that office interviewed prison employees, toured the prison, and “examined polic[ies] and procedures that affect the orderly operation of the prison.” (BLAIR1331.) The report spans 12 pages, but also at issue here are 42 pages of records regarding Blair County's internal investigation into prison-employee misconduct.[2] Most of these 42 pages appear to have been prepared by the prison's HR director.

         II. Legal Standard

         Federal Rule of Civil Procedure 26(b)(1) defines the scope of discovery as “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” This scope formerly included matters that were “reasonably calculated” to lead to the discovery of relevant evidence, but Rule 26 as amended no longer includes this language. Whether evidence is admissible does not affect whether it is discoverable. Fed.R.Civ.P. 26(b)(1). And although the scope of discovery under the Rules is broad, a party's right to discovery “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)).

         III. Discussion & Analysis

         The scope of discovery contains two limitations that are pertinent here: relevance and privilege. See Fed. R. Civ. P. 26(b)(1) (“any nonprivileged matter that is relevant to any party's claim or defense” (emphasis added)). A matter is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence; and . . . the fact is of consequence in determining the action.” See Fed. R. Evid. 401. But “[r]elevance is a low bar.” Phila. Workforce Dev. Corp. v. KRA Corp., 673 F. App'x 183, 190 (3d Cir. 2016). As for privilege, Blair County asserts that the PADOC report is exempt from discovery under a broad “governmental privilege.” (ECF No. 30 at 1.) The Court discusses relevance and privilege in turn below, and holds that production of portions of the PADOC report in unredacted form is warranted.

         A. Relevance

         Relevance is no bar to the discovery of the PADOC report, and Blair County does not really argue otherwise. Among other things, Smith alleges that Blair County had a custom or policy of approving or accepting Defendant Rogers's use of excessive force on inmates and of approving or accepting the other named corrections officers' deliberate indifference to the constitutional rights of inmates. (See ECF No. 1 ¶¶ 94, 95.) The PADOC report-including some of the redacted material-addresses matters like the training of corrections officers and the supervision offered by the warden, Defendant Johnston. The report therefore has a “tendency to make a fact” of consequence in this case-namely whether Blair County was aware of its corrections officers' alleged conduct and accepted that conduct-“more or less probable than it would be without the evidence.” Fed.R.Evid. 401. A factfinder can draw inferences from the report regarding what Blair County knew about its corrections officers and their conduct and when Blair County knew these things. By extension, a factfinder can draw inferences from the report regarding whether Blair County acted with deliberate indifference toward the rights of Smith. The report is thus relevant.

         B. Privilege

         Blair County's main argument against disclosure is that the redacted portions of the PADOC report are exempt from discovery under a governmental privilege. Blair County blurs the lines somewhat as to the exact privilege it is asserting; it invokes “the governmental privilege” and states that this privilege “has been called by several names, including, inter alia, the deliberative process privilege, the executive privilege, the official information privilege, the confidential intra-agency privilege, and predecisional privilege.” (ECF No. 30 at 1-2.) But an examination of the cases Blair County cites suggests that it is actually asserting two distinct privileges: the so-called deliberative-process privilege, which shields predecisional governmental deliberations, as well as the law-enforcement investigatory privilege, which is sometimes asserted in civil-rights cases involving executive actors or institutions and shields investigative materials. The Court will address each below.

         i. Deliberative-Process Privilege

          The principal Supreme Court case on the deliberative-process privilege is N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132 (1975).[3] The Court did not call the privilege the “deliberative-process privilege” in Sears-subsequent cases appear to have coined that term-but discussed the contours and purpose of the privilege. The Court explained that the privilege is derived from the government's executive privilege and that it protects the deliberative and decisionmaking processes of government. Sears, 421 U.S. at 150. The privilege is animated by the recognition that the candid discussion of legal and policy issues by government officials would be deterred if those discussions were subject to public disclosure, and that the quality of any resulting decisions would thereby suffer. Id. at 150-51; cf. United States v. Nixon, 418 U.S. 683, 705 (1974) (“Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.” (footnote omitted)). Although the Court in Sears described the privilege as an executive one, courts have recognized that it may be asserted by decisionmakers of all three branches of government. See In re Grand Jury, 821 F.2d 946, 957-59 (3d Cir. 1987) (citing cases); Harris v. City of Philadelphia, No. 82-cv-1847, 1995 WL 350296, at *7 (E.D. Pa. June 6, 1995) (same).

         The deliberative-process privilege allows the government to withhold “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Sears, 421 U.S. at 150 (internal quotation marks omitted) (quoting Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C. 1966)). Implicit in the privilege's scope is the requirement that the communications must be predecisional. Id. at 151-52 (citing cases); Redland, 55 F.3d at 854 (“[the privilege] does not protect communications made subsequent to an agency decision” (internal quotation marks and brackets omitted) (quoting United States v. Farley, 11 F.3d 1385, 1389 (7th Cir. 1993))). That is so because the disclosure of deliberations about decisions that have already been made typically does not impair the quality of those decisions. See Sears, 421 U.S. at 151-52 n.9 (disclosure of postdecisional discussions “poses a negligible risk of denying to agency decisionmakers the uninhibited advice which is so important to agency decision”).

         As the deliberative-process privilege's name suggests, the material sought to be withheld must be deliberative; purely factual material usually does not reveal anything that would prompt officials to watch their words out of a concern for possible disclosure. See Paisley v. CIA., 712 F.2d 686, 699 (D.C. Cir. 1983) (“in most situations factual summaries prepared for informational purposes will not reveal deliberative processes and hence should be disclosed” (citing cases)), unrelated parts vacated, 724 F.2d 201 (D.C. Cir. 1984). Even if documents contain material that is both deliberative and factual, factual material that can be severed from the deliberative material is not covered by the privilege. EPA v. Mink, 410 U.S. 73, 87-88 (1973) (“memoranda consisting only of compiled factual material or purely factual material contained in deliberative memoranda and severable from its context would generally be available for discovery”); Redland, 55 F.3d at 854 (“The deliberative[-]process privilege does not protect factual information, even if such information is contained in an otherwise protectable document, as long as the information is severable.” (citing In re Grand Jury, 821 F.2d at 959).

         As the foregoing citations illustrate, in many of the cases where the deliberative-process privilege was asserted it was a federal department or agency asserting the privilege. But the Court sees no persuasive reason why states or local governments-like Blair County-would not also be entitled to assert the privilege. Generally speaking, the privilege's motivating rationale is implicated regardless of whether the deliberations occurred at the federal, state, or local level; if the communications are part of “a process by which governmental decisions and ...


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