Davis v. Carmel Clay Schools

282 F.R.D. 201, 2012 WL 1098643, 2012 U.S. Dist. LEXIS 45070
CourtDistrict Court, S.D. Indiana
DecidedMarch 30, 2012
DocketNo. 1:11-cv-00771-SEB-MJD
StatusPublished
Cited by9 cases

This text of 282 F.R.D. 201 (Davis v. Carmel Clay Schools) is published on Counsel Stack Legal Research, covering District Court, S.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. Carmel Clay Schools, 282 F.R.D. 201, 2012 WL 1098643, 2012 U.S. Dist. LEXIS 45070 (S.D. Ind. 2012).

Opinion

DISCOVERY ORDER

MARK J. DINSMORE, United States Magistrate Judge.

This matter comes before the Court on Interested Party the Office of the Prosecuting Attorney for the 24th Judicial District’s (the “Prosecutor”) Motion to Quash Subpoena [Dkt. 22] and Plaintiffs’ Motion to Compel Production of Documents from Non-Parties, The Hamilton County Prosecutor’s Office and the City of Carmel Police Department, Pursuant to Plaintiffs’ Non-Party Subpoena Duces Tecum [Dkt. 68].

I. BACKGROUND

On October 7, 2011, Plaintiffs served a non-party subpoena on the Prosecutor requesting production of “[a]ll documents in the Prosecutor’s file, including the entire report, photos, and any and all statements that related to the incident that took place on January 22, 2012, involving [M.D.] and the 4 Carmel High School Basketball Players as well as any reports of bullying and harassment reported between 2009 and 2010”1 among other documents and things, including grand jury transcripts, reports, records, videos and statements obtained from Carmel High School officials, teachers, coaches and/or students concerning the investigation of the alleged acts of bullying from which this case stems. Plaintiffs also requested statements that the Prosecutor obtained from Hamilton County Child Protective Services and communications between the Prosecutor and defense attorneys representing any and all defendants in the incident involving M.D. A similar subpoena duces tecum was also served on the City of Carmel Police Department (the “City”) on November 16, 2011.

The Prosecutor responded to the subpoena by asserting blanket privileges on its entire file, primarily relying upon the law enforcement investigatory privilege, attorney work product privilege, deliberative process privilege, and various statutory privileges as the basis for its refusal to comply with the subpoena. The Prosecutor has also asserted that these documents are available from other sources and that producing them would be unduly burdensome. The City responded to the subpoena by asserting a blanket law enforcement investigatory privilege and statutory privileges.

II. DISCUSSION

Federal Rule of Civil Procedure 45 requires the Court to quash a subpoena that “requires disclosure of privileged or other protected matter, if no exception or waiver applies.” Fed.R.Civ.P. 45(c)(3)(A)(iii) (emphasis added). Generally, privileges are disfavored because they are in derogation of the search for truth; thus, courts have been historically cautious about their application. See United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). The party (or non-party as the case may be) asserting the privilege bears the burden of justifying application of a privilege. Jones v. City of Indianapolis, 216 F.R.D. 440, 443-44 (S.D.Ind.2003); Anderson v. Marion Cty. Sheriffs Dept., 220 F.R.D. 555, 561 (S.D.Ind. 2004).

A. Attorney Work Product Privilege

One basis for the Prosecutor’s refusal to comply with the subpoena is its claim that the documents requested are protected by the attorney work product privilege. Feder[205]*205al Rule of Civil Procedure 26(b)(3)(A) provides that “a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative____” (emphasis added). A third party who is neither a party to nor interested in the action may not assert the work product doctrine to protect its files or documents, even if the person is a party to a closely related lawsuit. Galambus v. Consolidated Freightways Corp., 64 F.R.D. 468, 473 (N.D.Ind.1974); 8 Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d § 2024, at 354. Several courts have also found specifically that the work product privilege is unavailable when a prosecutor in a prior criminal investigation later objects to discovery by a litigant in a subsequent and related civil lawsuit. See Ostrowski v. Holem, No. 02 C 50281, 2002 WL 31956039 at *4 (N.D.Ill. January 21, 2002); Hernandez v. Longini, No. 96 C 6203, 1997 WL 754041 at *2 (N.D.Ill. November 13, 1997); Doubleday v. Ruh, 149 F.R.D. 601, 605-06 (E.D.Cal.1993); Gomez v. City of Nashua, 126 F.R.D. 432, 434 n. 1 (D.N.H. 1989).

The Prosecutor repeatedly characterizes itself as being an adversary or opponent of the Plaintiffs2 and argues that the policy behind the work product privilege of preventing a litigant from “taking a free ride on the research and thinking of his opponent’s lawyer” should prohibit disclosure. [Dkt. 22 at 8 (quoting Hobley v. Burge, 433 F.3d 946, 949 (7th Cir.2006)) ]. However, the Prosecutor is not a party to this lawsuit, nor has it ever been a representative of any party to this lawsuit, as expressly required under the language of Federal Rule of Civil Procedure 26(b)(3).

The Hobley case cited by the Prosecutor is distinguishable from this case. In Hobley, the non-party attorney asserting the work product privilege was a former counsel of the city of Chicago, which was a party in the civil lawsuit. Hobley, 433 F.3d at 949. The attorney in Hobley was a representative of a party, which is entirely different from the situation in this ease. The Prosecutor was never a representative for Carmel Clay Schools, and the materials in its file were never prepared for any litigation involving the Defendant herein.

The Prosecutor’s argument that its files are protected by work product privilege is even more problematic considering that the Prosecutor admitted that it disclosed a number of documents that would be responsive to Plaintiffs’ discovery request to the criminal Defendants’ attorneys during the criminal case, and that these documents were omitted from the privilege log filed with the Court. [Dkt. 69 at 10-12]. The victim of the crime that the Prosecutor was responsible for protecting is not an adversary, and the fact that the Prosecutor was willing to turn over documents that it now claims are privileged work product to a party who was a true adversary in the underlying criminal case does not support the Prosecutor’s argument that their files are now entitled to attorney work product protection in the civil lawsuit. Thus the Prosecutor is unable to assert the work product privilege to avoid discovery of its files.

B. Law Enforcement Investigatory Privilege3

Both the Prosecutor and the City claim that their files are protected from disclosure by the law enforcement investigatory privilege. The law enforcement investigatory privilege is a qualified common law privilege that protects civil and criminal law enforcement investigatory files from civil discovery and is incorporated under Rule 26(b). Jones, 216 F.R.D. at 443-44.

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282 F.R.D. 201, 2012 WL 1098643, 2012 U.S. Dist. LEXIS 45070, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-carmel-clay-schools-insd-2012.