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Klein v. Madison

United States District Court, E.D. Pennsylvania

July 20, 2018

CHARLENE KLEIN, Plaintiff,
v.
OFFICER STEPHEN MADISON, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          MARILYN HEFFLEY UNITED STATES MAGISTRATE JUDGE

         This case has been referred to the undersigned for the resolution of discovery disputes by the Honorable Edward G. Smith. The disputes currently before this Court involve Defendants' responses to Plaintiff's First Set of Interrogatories and First Set of Document Requests and various discovery-related matters raised by the Defendants.[1] Having considered Plaintiff's submissions to the Court dated May 18, 2018, June 29, 2018 and July 3, 2018, and Defendants' submissions dated May 23, 2018 and July 2, 2018, the Court will grant in part and deny in part the relief sought by the parties for the reasons that follow.

         1. ISSUES RELATING TO MULTIPLE DISCOVERY REQUESTS

         Defendants expend considerable effort on arguing the benefits of bifurcating discovery between the Plaintiff's claim relating to her individual arrest and her claims pursuant to Monell v. Dept. of Soc. Servs. of New York, 436 U.S. 658 (1978), as well as on the alleged weaknesses of Plaintiff's claims. See Letter of David J. MacMain, Esquire to the Honorable Marilyn Heffley at 4-5 (May 23, 2018) (“Letter to Court”). Defendants ask this Court to order that discovery be bifurcated. Id. As Defendants clearly are aware, however, despite the fact that they conducted a “fulsome discussion with [the Honorable] Judge [Edward G.] Smith at the Rule 16 Conference as to whether discovery should be bifurcated, ” id. at 2, Judge Smith issued a Scheduling Order that denied their proposed bifurcation and directed single deadlines for fact and expert discovery. Doc. No. 15. It is not within the purview of this Court to reconsider or alter the Scheduling Order issued by Judge Smith to whom this case is assigned. Any such request can only properly be directed to Judge Smith. Defendants' “respectful[] submi[ssion]” that the Court accept “the proposal made in Defendants' discovery responses, ” Letter to Court at 2, which purport to limit their responses to Plaintiff's individual claims and to the specifically-named police officer Defendants, is merely a thinly-veiled attempt to achieve the previously denied bifurcation through an order relating to specific discovery requests. Not only is that effort inappropriate, but it has unnecessarily delayed the progress of discovery in this action.

         Judge Smith has denied Defendants' bifurcation proposal and has directed that fact and expert discovery on all claims proceed together. Accordingly, Plaintiff is entitled to conduct full discovery on her Monell claim at this time, and the proportionality of her requests must be measured against the exacting burden of proof a plaintiff faces to establish municipal liability under Monell. See Beck v. City of Pittsburgh, 89 F.3d 966, 971-72 (3d Cir. 1996) (discussing what a plaintiff must prove to establish liability under Monell). Under that standard, Defendants' argument that discovery should be limited to matters relating to the Plaintiff's arrest and to the named Defendant officers is utterly meritless.[2] Consequently, Defendants' requests for bifurcated discovery and to limit discovery to the particular incident involving Plaintiff and the named Defendant officers are denied.

         Defendants have responded to a number of interrogatories by asserting that “relevant portions” of various documents “will be produced after the execution of the enclosed Confidentiality Stipulation” drafted unilaterally by them.[3] This response raises two issues.

         First, the responses are to interrogatories and not to document requests. Federal Rule of Civil Procedure 33(d) permits a party to respond to an interrogatory by producing documents but only if its production meets all of the conditions set out in the Rule:

(d) Option to Produce Business Records. If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party's business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by:
(1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and
(2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries.

         Moreover, “a responding party has the duty to specify by category and location the records from which answers to interrogatories can be derived.” Id. advisory committee's notes (1980).

         In addition, Defendants are required to provide all responsive, non-privileged information or documents within their knowledge, custody or control unless they state a valid objection to doing so. A response that “relevant” information or documents will be produced is inadequate unless the response specifies what categories of responsive information or documents will be withheld and a valid basis for withholding the information or documents. If Defendants can comply with Rule 33(d) through the production of documents, they may do so; however, to the extent Defendants possess responsive information not contained in the documents produced, they are obligated to provide that information in the form of an interrogatory response. Defendants shall provide amended responses to each interrogatory for which they previously stated that relevant documents or relevant portions of files would be produced, confirming that they have produced all responsive non-privileged documents or shall specify what documents have been withheld and the basis for their withholding.

         Second, the Court will not issue a blanket, case-wide confidentiality order. The Court has applied the balancing test governing protective orders set forth in Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994), and Glenmede Trust Co. v. Thompson, 56 F.3d 476 (3d Cir. 1995). This Court has determined that the public interest in the proper use of force by police officers, the investigation of complaints regarding excessive force and in alleged false reporting by police officers and the efforts taken to resolve such complaints by police officials and other public officials is exceptionally strong. See Shingara v. Skiles, 420 F.3d 301, 307 (3d Cir. 2005). The purposes for which Plaintiff seeks to utilize the discovery materials is legitimate, both for use in this litigation or for use in subsequent other litigation. “Federal courts should not provide a shield to potential claims by entering broad protective orders that prevent public disclosure of relevant information.” Glenmede, 56 F.3d at 485 (citing Pansy, 23 F.3d at 787); see also Carter v. City of Philadelphia, No. 97-4499, 2000 WL 420625, at *4 (E.D. Pa. Apr. 10, 2000). Moreover, “privacy interests are diminished when the party seeking protection is a public person subject to legitimate public scrutiny.” Pansy, 23 F.3d at 787. Here, as a general matter, the public's interest in disclosure outweighs the privacy interests of the police officers and the City of Allentown (the “City”) officials. However, as to certain categories of information and documents, the balance shifts in favor of the Defendants' privacy interests, and the City's law-enforcement interests.

         With respect to certain financial, medical and familial information, psychological or psychiatric evaluations of the individual Defendants and files regarding internal investigations by the Allentown Police Department, the following protective provisions shall apply: (1) Defendants shall not produce any records reflecting information relating to the named Defendants' family members; (2) Defendants shall disclose the home addresses of the individual named Defendants, but Plaintiff's counsel shall not disclose the information to any individual, including his client, other than consultants engaged to perform background checks on the Defendants; (3) any such consultants shall use the addresses solely for the purpose of performing such background checks and shall disclose the addresses in court filings or in evidence only with the prior consent of the Defendants or an order of the Court; and (4) Defendants shall not be required to produce payroll or other financial records or records relating to Social Security and shall not be required to produce health records except as provided below.

         With respect to psychiatric or psychological evaluations, Defendants shall produce documents only as follows: (1) Defendants shall produce documents reflecting the psychiatric or psychological examination of only the named police officers involved in the altercation described in the Complaint[4] and such documents shall be confidential and shall be used only for the purposes of this litigation; (2) to the extent either party wishes to submit such documents to the Court in connection with pretrial filings in this case, they shall redact information from, or references to, such documents from their submissions and shall file unredacted versions of those submissions under seal, and the admissibility of such documents at trial, and any confidentiality provision regarding such documents that may be admitted, shall be determined by the trial court; (3) such documents shall not be disclosed to any person other than the person evaluated or to consultants engaged by the parties for the purposes of this litigation and any such consultants must be made aware of this Order and agree not to disclose or use such documents for any purpose other than this litigation before such documents may be disclosed to them; (4) at the conclusion of the litigation, all consultants to whom counsel have disclosed such documents shall be required to return them to counsel; and (5) at the close of the litigation, Plaintiff's counsel shall destroy all such documents and shall certify to Defendants' counsel in writing that all such documents have been destroyed.

         Furthermore, Defendants shall produce all responsive Internal Affairs documents and reports subject to the following conditions: (1) Defendants shall not be required to produce investigative files regarding currently pending investigations, but shall produce complaints that are the subject of such investigations; (2) Internal Affairs documents shall be treated as confidential and shall be used only for the purposes of this litigation; (3) Defendants shall be permitted to redact identifying information regarding any third-party witness (i.e. non-police witnesses) and confidential informants from Internal Affairs files and reports;[5] (4) Defendants shall not redact other information from such files including any information that is publicly available, any information that would be subject to disclosure under Pennsylvania's Right to Know Law, the names of arrested parties, incident numbers, the names and identifying information (other than Social Security numbers) for members of the Allentown Police Department, including such officers who are witnesses or sources in any internal investigation, the home addresses of any such police-employee witnesses shall be subject to the same provisions set out above with respect to the addresses of the officer defendants; (5) to the extent either party wishes to submit such documents to the Court in connection with pretrial filings in this case or to use them in questioning or as exhibits at a deposition, such documents shall be subject to the same treatment described above with respect to documents reflecting psychological examinations and the admissibility of, and any confidentiality provision regarding such documents shall be determined by the trial court; (6) Plaintiff's counsel shall not disclose any Internal Affairs files or reports to his client with the exception of any such information or report related to her individual arrest and subsequent treatment; (7) such documents shall not be disclosed to any person other than the parties or consultants engaged by them for the purposes of this litigation and any such consultants must be made aware of this Order and agree not to disclose or use such documents for any purpose other than this litigation before such documents may be disclosed to them; (8) at the conclusion of the litigation, all parties to whom counsel have disclosed such documents shall be required to return them to counsel; and (9) at the close of the litigation, Plaintiff's counsel shall destroy all such documents and shall certify to Defendants' counsel in writing that all such documents have been destroyed.

         Defendants shall not withhold production of any documents or information, other than as provided in this Order, on the grounds that it is “personal and confidential.” To the extent Defendants contend that any document reflects privileged communications, they shall provide Plaintiff with a privilege log, pursuant to Federal Rule of Civil Procedure 26(b)(5), which shall contain sufficient information to enable Plaintiff and the Court (if necessary) to determine whether the privilege claim is valid. Moreover, for all of Plaintiff's discovery requests, Defendants shall produce documents or provide interrogatory responses covering a period of 10 years from the date the discovery request was served.

         Defendants have objected to certain discovery requests based on their assertion of the self-evaluative privilege. The standard for application of the self-evaluative privilege in this Court is set out in In re Petition of McAllister Towing & Transp. Co., No. 02-858, 2004 WL 887375, at *2 (E.D. Pa. Apr. 22, 2004) and Melhorn v. New Jersey Transit Rail Operations, Inc., 203 F.R.D. 176, 178 (E.D. Pa. 2001). If Defendants assert that any specific documents meet that standard, they may submit those documents to the Court for in camera review. Defendants shall indicate on their privilege log any documents that have been so submitted.

         II. ADDITIONAL ISSUES REGARDING INDIVIDUAL DISCOVERY REQUESTS

         A. Plaintiff's First Set of Interrogatories

         Regarding Plaintiff's First Set of Interrogatories, the Court rules as follows:

         Interrogatory No. 1

         To the extent they have not already done so, the individual Defendants shall provide the addresses and job titles of the named Defendants and shall state whether their employer is an entity other than the City. Defendants need not provide a response regarding their job descriptions or general duties.

         Interrogatory No. 3

         The Court finds that Defendants' response, as supplemented by their counsel's May 23, 2018 letter to Plaintiff's counsel is sufficient.

         Interrogatory No. 4

         Plaintiff has not enlightened the Court as to what an insurance policy form UTS-sp-2 (12-95) may be or of how it may be relevant to this case. The parties shall meet and confer regarding those issues. However, in light of the general discoverability of liability insurance coverage and the minimal burden entailed in producing such a form, the parties should be aware that, to the extent such a form exists and contains any relevant information, the Court would be inclined to order it be produced.

         Interrogatory No. 5

         To the extent the insurance policy produced may provide coverage to the named individual Defendants for the claims asserted in this action, the response is sufficient. However, if Defendants possess any other document or information reflecting that an additional or alternative source of insurance may be available to any of them, they shall disclose the responsive documents or information relating to that source.

         Interrogatory No. 6

         Defendants shall identify the custodian(s) of records and shall state whether other files or electronically stored information exist that may contain copies of documents that are not included in the City's ...


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