Ellis v. City of Anniston Alabama
MEMORANDUM OPINION AND ORDER DENYING 21 MOTION for Protective Order. The City is hereby ORDERED to produce to Plaintiff, within twenty-one (21) days of the date of this Order, all the things listed on its privilege log attached to doc. 31. Signed by Judge Virginia Emerson Hopkins on 1/28/2013. (JLC)
2013 Jan-28 PM 04:29
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
GRACE ELLIS, as personal
representative of the estate of Regina )
) Case No.: 1:12-CV-1999-VEH
CITY OF ANNISTON, ALABAMA, )
MEMORANDUM OPINION AND ORDER
This lawsuit was initiated by Plaintiff, the duly appointed representative of the
Estate of Regina Ezell, deceased, on May 29, 2012. (Complaint, doc. 1). Ms. Ezell
died on September 19, 2010, while she was incarcerated as a pretrial detainee in the
Anniston City Jail. (Id.). Plaintiff alleges that the City of Anniston and certain of its
employees were deliberately indifferent to Ms. Ezell’s serious medical needs, in
violation of her rights as a pretrial detainee under the Fourteenth Amendment to the
United States Constitution, by and through 42 U.S.C. § 1983, and Alabama law.
Now pending before the court is the Motion for Protective Order (“Motion”,
doc. 21) filed by the City of Anniston (“City”).1 There are two categories of
disclosures that the City is willing to produce, but only subject to an order from this
court limiting disclosure to Plaintiff’s “legal team.” Those categories are: (1) the
results of any City investigation of Ms. Ezell’s death, which the City claims are due
to be protected under the “self-critical analysis” privilege; and (2) documents
“reflecting or discussing the need for or the use or possible use of video monitoring
and/or recording equipment at an Anniston Jail facility” and “diagrams of the jail
buildings,” which the City claims are privileged as “jail security materials.” (Id.).
Plaintiff initially responded that: (1) the City has not shown good cause for the
requested limitation on Plaintiff’s use of these items; (2) any interest in nondisclosure is outweighed by the harm to Plaintiff, as the limitation proposed by the
City would significantly hamper Plaintiff’s ability to interview and depose witnesses;
and (3) by its prior production, the City has waived any right to the protective order
it now seeks. (Plaintiff’s Response, doc. 23).2 The court finds that, for the reasons
The Motion has been fully briefed (docs. 21, 23, 31, and 35).
Plaintiff also objected that the City had failed to provide a privilege log. The court
ordered the City to do so. (Order, doc. 30). The City then filed a Response (doc. 31), to which it
attached a privilege log. As to all reports, diagrams, or pictures listed on the privilege log, the
City claimed the following privileges: self-critical analysis; attorney-client privilege; and
privileged because prepared in anticipation of litigation. As to video from the Jail for the eight
days that Ms. Ezell was incarcerated, including the date she died, the City’s privilege log seems
not to claim a privilege because it instead asserts that production would be “massive/unduly
burdensome.” However, in its pleading (doc. 31), the City clarifies that, as to that video, it is
set out below, the Motion is due to be DENIED.
The Federal Rules of Civil Procedure allow parties to
[o]btain discovery regarding any matter, not privileged, that is relevant
to the claim or defense of any party, including the existence, description,
nature, custody, condition, and location of any books, documents, or
other tangible things and the identity and location of persons having
knowledge 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. All discovery is subject to the limitations imposed
by Rule 26(b)(2)(I), (ii), and (iii).
FED.R.CIV.P. 26(b)(1) (emphasis supplied). The privileges noted in Rule 26(b)(1) are
encompassed in Rule 501 of the Federal Rules of Evidence. Rule 501 provides:
The common law — as interpreted by United States courts in the light
of reason and experience — governs a claim of privilege unless any of
the following provides otherwise:
the United States Constitution;
a federal statute; or
rules prescribed by the Supreme Court.
But in a civil case, state law governs privilege regarding a claim or
defense for which state law supplies the rule of decision.
The Conference Committee Notes to Rule 501, as amended effective December
asserting “privilege, not undue burden.” (Doc. 31).
1, 2011, set out the tension that can exist between federal and state law regarding
privilege. Ultimately, however, Rule 501's changes were“stylistic” only. “There is
no intent to change any result in any ruling on evidence admissibility.” Committee
Notes to Rule 501.
Rule 501 deals with the privilege of a witness not to testify. Both
the House and Senate bills provide that federal privilege law applies in
criminal cases. In civil actions and proceedings, the House bill provides
that state privilege law applies “to an element of a claim or defense as
to which State law supplies the rule of decision.” The Senate bill
provides that “in civil actions and proceedings arising under 28 U.S.C.
§1332 or 28 U.S.C. §1335, or between citizens of different States and
removed under 28 U.S.C. §1441(b) the privilege of a witness, person,
government, State or political subdivision thereof is determined in
accordance with State law, unless with respect to the particular claim or
defense, Federal law supplies the rule of decision.”
The wording of the House and Senate bills differs in the treatment
of civil actions and proceedings. The rule in the House bill applies to
evidence that relates to “an element of a claim or defense.” If an item of
proof tends to support or defeat a claim or defense, or an element of a
claim or defense, and if state law supplies the rule of decision for that
claim or defense, then state privilege law applies to that item of proof.
Under the provision in the House bill, therefore, state privilege
law will usually apply in diversity cases. There may be diversity cases,
however, where a claim or defense is based upon federal law. In such
instances, Federal privilege law will apply to evidence relevant to the
federal claim or defense. See Sola Electric Co. v. Jefferson Electric Co.,
317 U.S. 173 (1942).
In nondiversity jurisdiction civil cases, federal privilege law will
generally apply. In those situations where a federal court adopts or
incorporates state law to fill interstices or gaps in federal statutory
phrases, the court generally will apply federal privilege law. As Justice
Jackson has said:
A federal court sitting in a non-diversity case such as
this does not sit as a local tribunal. In some cases it may
see fit for special reasons to give the law of a particular
state highly persuasive or even controlling effect, but in the
last analysis its decision turns upon the law of the United
States, not that of any state.
D'Oench, Duhme & Co. v. Federal Deposit Insurance Corp., 315 U.S.
447, 471 (1942) (Jackson, J., concurring). When a federal court chooses
to absorb state law, it is applying the state law as a matter of federal
common law. Thus, state law does not supply the rule of decision (even
though the federal court may apply a rule derived from state decisions),
and state privilege law would not apply. See C. A. Wright, Federal
Courts 251–252 (2d ed. 1970); Holmberg v. Armbrecht, 327 U.S. 392
(1946); DeSylva v. Ballentine, 351 U.S. 570, 581 (1956); 9 Wright &
Miller, Federal Rules and Procedure §2408.
In civil actions and proceedings, where the rule of decision as to
a claim or defense or as to an element of a claim or defense is supplied
by state law, the House provision requires that state privilege law apply.
The Conference adopts the House provision. House Report No. 931597.
Committee Notes on Rules —2011 Amendment.
The decision to enter a protective order is within the court's
discretion and does not depend on a legal privilege. Farnsworth v.
Procter & Gamble Co., 758 F.2d 1545, 1548 (11th Cir.1985). Rule
26(c) provides that upon a showing of good cause, a court “may make
any order which justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense.”
The party seeking a protective order has the burden to demonstrate good
cause, and must make “a particular and specific demonstration of fact as
distinguished from stereotyped and conclusory statements” supporting
the need for a protective order. U.S. v. Garrett, 571 F.2d 1323, 1326 n.
3 (5th Cir.1978).
Auto-Owners Ins. Co. v. Se. Floating Docks, Inc., 231 F.R.D. 426, 429-430 (M.D.Fla.
The City has invoked two “privileges” in support of its Motion. The court
addresses each of those privileges below.4
The “Self-Critical Analysis” Privilege
The City argues that everything on its privilege log, except the “diagrams of
the jail buildings” and the jail video during the eight days that Ms. Ezell was
detained, is “subject to self-critical law enforcement privilege.” The City states that
The court recognizes that Plaintiff’s claims and the City’s defenses both invoke both
federal and state law. However, the parties have cited only federal law; the court therefore has
limited its analysis to federal law. Given the nature of this case, the court anticipates that federal
law would be controlling in any event.
To the extent that the Privilege Log that is attached to the City’s Response to Order
(doc. 35) differs from or goes beyond the arguments asserted in that Response to Order, the court
declines to consider such different or additional arguments on the basis that they either have been
disavowed by the City (“Although the privilege log states that the Jail video is ‘Massive/Unduly
Burdensome,’ it also states that it “will be made available for Plaintiff to review subject to a
protective order (based on grounds of privilege, not undue burden) (doc. 35) (emphasis
supplied)) or that the argument is underdeveloped. An issue must be “fairly presented” in order
to trigger consideration, and a glancing reference without discussion or legal authority does not
meet that standard. Smith v. Secretary, Department of Corrections, 572 F.3d 1327, 1352 (11th
While the federal courts have almost universally rejected a wholesale
privilege, they have just as universally held that law enforcement
agencies are entitled to a protective order that precludes an injured
plaintiff from disseminating any part of the investigation outside her
legal team. Montoya v. Sheldon, 2012 WL 2383822 (D. N.M. 2012);
Dorsett v. County of Nassau, 762 F.Supp.2d 500, 537, aff'd, 800
F.Supp.2d 453 (E.D.N.Y. 2011); Foley v. Boag, 2006 WL 6830911,
**2-3 (D. N.J 2006); Soto v. City of Concord, 162 F.R.D. 603, 614
(N.D. Cal. 1995); Kelly v. City of San Jose, 114 F.R.D. 653, 662, 666,
671 (N.D. Cal. 1987); Chism v. County of San Bernardino, 159 F.R.D.
531, 534-535 (C.D. Cal.1994); Hampton v. City of San Diego, 147
F.R.D. 227, 231 (S.D. Cal. 1993); Miller v. Pancucci, 141 F.R.D. 292,
301 (C.D. Cal. 1992). In other words, while the policy reasons
underlying the privilege have [been] found to be insufficient to prevent
a plaintiff from discovering the contents of an internal affairs
investigation, those same policy reasons [universally] have been held to
be sufficient basis for entry of a protective order.
(Motion, doc. 21, p.4)(emphasis by italics in original; emphasis by underlining
supplied)(alteration in brackets supplied).
This is a very strong statement. In it, the City tells this court that all federal
courts that have considered the self-critical analysis privilege have required the
contents of internal affairs investigations by law enforcement to be disclosed to
plaintiffs, but only pursuant to a protective order. In the context of the protective
order sought here, that is, one limited to the Plaintiff’s “legal team,” the undersigned
expected the protective orders in the cases cited by the City to be similarly limited,
especially given Plaintiff’s repeated argument that she must be able to show the
documents to witnesses in order to depose them and to otherwise discover the facts
of this case.
The undersigned has found very little, if anything, that is both discretionary and
universal in the law. Naturally, the court’s interest was piqued. Unfortunately, the
cases cited by the City show that the City has over-stated their holdings. Indeed,
these cases persuade the undersigned that the City is not only not entitled to a
protective order as to these investigatory materials, but that public policy weighs
against such an order in this case.
Specifically, none of the cited cases set out above involve a law enforcement
agency-defendant that (1) successfully cites the self-critical analysis privilege (2) in
order to obtain a protective order limiting disclosure (3) to the plaintiff’s legal team.
Some of the cases do not involve the self-critical analysis privilege at all. Others do,
but the court decided to issue a protective order that is not as restrictive as the one
sought here. There are two cases where the court appears to limit disclosure of the
requested documents to “the plaintiff’s lawyer and his consultant and staffs.” But the
documents protected were internal police department documents like training manuals
and guidelines that illustrated law enforcement techniques in detail. They were not
internal investigative reports and/or witness statements specific to an underlying
incident, as is the case here. Also, the court in those cases justified the limited
protective order on the basis of the “official information” privilege, rather than the
“self-critical analysis” privilege relied on by the City.
Out of the eight cases cited by the City, the self-critical analysis privilege is
only claimed by the defendants in Soto and in Hampton; it is exclusively addressed
by the court at any length in the former. And, in Soto, the court expressed deep
skepticism about the applicability of the privilege to the law enforcement context. It
contested the notion, advanced here by the City, that law enforcement officials would
be less candid and cooperative in post-incident investigations if they knew that the
fruits of such investigations would be openly disclosed. The Soto court did leave
open the possibility of a protective order, although it did not state the terms of any
such possible order.
Neither Hampton nor Montoya involved a privilege claim whatsoever. And the
remaining five decisions cited by the City involve the “official information” privilege,
not the “self-critical law enforcement” privilege. Even in the cases — Montoya,
Dorsett, and Foley --- in which protective orders were issued, those orders limited
disclosure to the parties involved in the lawsuit, thus permitting disclosure to
third-party witnesses, experts, and support staff – all individuals beyond the
Plaintiff’s "legal team," which is the limitation sought by the City. The courts in
Chism and Hampton did not issue protective orders at all, much less define what their
terms might be. Likewise, the court did not issue such an order in Miller; instead it
required production of the requested documents seemingly without any limitations
on further disclosure. In Kelly, the court issued a protective order that limited
disclosure of the documents at issue to "lawyers and their consultants and staffs."
However, it is unclear whether the court in Kelly meant this order to apply to the
types of documents at issue in the City’s Motion – post-incident investigation records
and accompanying witness statements. The Kelly court appeared more focused on
preventing exposure of law enforcement policy documents and guidelines that
described internal procedures. General dissemination of such documents – even to
possible witnesses – could potentially compromise legitimate law enforcement
interests. But such a rationale does not apply to post-incident investigation records.
Such documents simply do not implicate sensitive government interests in the same
manner as policy documents and guidelines – certainly not to the degree that they
cannot be shown to or referenced by witnesses in a deposition or trial setting.
For all these reasons, the court declines to enter a protective order as to these
documents and things on the basis of the “self-critical law enforcement” privilege.
The “Jail Security” Privilege
The City states that, “as for the jail security materials” (presumably the
diagrams of jail buildings and, for purposes of completeness only, the jail videos
identified on the City’s privilege log), “it is obvious that jail security procedures and
maps of the jail, if allowed to get in the wrong hands, not only jeopardize the
security of the facility but also unnecessarily endanger the employees who work
there, the detainees and inmates incarcerated there, and the general public who live
and work in the community outside the facility.” (Motion, doc. 21, pp. 4-5).
However, it is not at all clear to the undersigned that diagrams of the jail, or the
eight days of video, are the types of information that the cases cited by the City (in
this portion of its Motion) are intended to protect. As the Plaintiff points out, anyone
who is detained in the jail sees it. Although conceivably there are areas that are
“secret,” or at least not widely known, the City has failed to state, much less
demonstrate, that that is the case as to any portion of the jail or the videos, and
certainly not as to them in their entireties. The City has simply failed to carry its
burden. Therefore, the court declines to enter a protective order as to these materials
based on the asserted “jail security” privilege.
Accordingly, the City Motion for Protective Order (doc. 21) is due to be, and
hereby is, DENIED. The City is hereby ORDERED to produce to Plaintiff, within
twenty-one (21) days of the date of this Order, all the things listed on its privilege log
attached to doc. 31. Relatedly, any item not listed on the City’s privilege log and
which is responsive to Plaintiff’s Request for Production is hereby ORDERED to be
produced within twenty-one (21) days of the date of this Order. See Order, doc. 30.
(“Defendant’s motion, as well as any assertion of privilege by it as to any document
or thing, will thus be denied (or deemed waived) in the absence of a privilege log that
satisfies the requirements of the Federal Rules of Civil Procedure.”)
DONE and ORDERED this the 28th day of January, 2013.
VIRGINIA EMERSON HOPKINS
United States District Judge
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