Swanson v. Griebel et al

Filing 30

WRITTEN Opinion entered by the Honorable Jeffrey T. Gilbert on 2/1/2012: Motion hearing held on 1/31/12. For the reasons stated in open court and as explained more fully in the statement below, Defendant Weiffenbach's Motion to Quash 24 is denied as moot because the subpoena to which it was directed has been withdrawn by Plaintiff, and Defendant Griebel's Motion to Quash 22 is granted in part and denied in part. See Order for further details. Mailed notice(ep, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Ronald A. Guzman

CASE NUMBER

11 C 7768

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

Jeffrey Gilbert
2/1/2012

Swanson vs. Griebel et al

DOCKET ENTRY TEXT

Motion hearing held on 1/31/12. For the reasons stated in open court and as explained more fully in the
statement below, Defendant Weiffenbach’s Motion to Quash [24] is denied as moot because the subpoena to
which it was directed has been withdrawn by Plaintiff, and Defendant Griebel’s Motion to Quash [22] is
granted in part and denied in part. See Statement for further details.

O[ For further details see text below.]

Notices mailed by Judicial staff.

00:30

STATEMENT
Plaintiff’s subpoena served upon the Shorewood Police Department seeking documents relating to
Defendant Weiffenbach’s prior employment is withdrawn without prejudice based upon the representation of
Defendant Weiffenbach’s counsel that Defendant Weiffenbach has been employed by the Will County
Sheriff’s Department for approximately ten years. Accordingly, Defendant’ Weiffenbach’s Motion to Quash
[24] is denied as moot. Plaintiff’s counsel shall promptly notify the Shorewood Police Department that it
need not respond to the subpoena.
Defendant Griebel’s Motion to Quash [22] is granted with respect to Plaintiff’s subpoena served upon
the Indianapolis Colts. Plaintiff failed to make a plausible showing that the subpoena served upon the Colts,
a professional football team for which Defendant Griebel played in or about 2004, is likely to yield
information that is relevant to, or likely to lead to the discovery of admissible evidence in, this case.
Defendant Griebel’s Motion to Quash [22] is granted without prejudice with respect to Plaintiff’s
subpoena served upon the DuPage County Sheriff’s Office based upon Defendant Griebel’s counsel’s
representation that Defendant Griebel was a civilian employee of that office and not a sworn law enforcement
officer. As such, the subpoena – which, for example, asks for records relating to Defendant Griebel’s
“training, duties, performance, firearm discharge or use of force . . . and any report regarding injuries to
persons arrested by Griebel” – is extremely overbroad. Further, Plaintiff failed to make a plausible showing
at this juncture that the subpoena is likely to yield information that is relevant to, or likely to lead to the
discovery of admissible evidence in, this case.
Defendant Griebel’s Motion to Quash [22] is granted in part and denied in part with respect to
Plaintiff’s subpoenas served upon the Auditor of Newton County, Indiana, and the Willowbrook, Illinois,
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STATEMENT
Police Department. Defendant Griebel was employed as a sworn law enforcement officer by those police
departments within five years of the incident that gave rise to Plaintiff’s claims. Those subpoenas are
quashed except to the extent they seek (a) documents relating to formal or informal complaints received by
those two police departments about Defendant Griebel, (b) disciplinary records relating to Defendant Griebel,
and (c) any report regarding injuries to persons arrested by Defendant Griebel, during the time period he was
employed by those police departments.
Plaintiff shall promptly serve new or amended subpoenas that direct the recipients of those subpoenas
to produce to Defendant Griebel’s counsel, rather than Plaintiff’s counsel, any documents that are responsive
to those subpoenas and then only pursuant to a protective order entered by this Court that protects those
documents as confidential materials. The parties shall submit as soon as possible an appropriate protective
order to Magistrate Judge Gilbert’s proposed order inbox (instructions can be found on the website at
www.ilnd.uscourts.gov). Defendant Griebel’s counsel shall be responsible for stamping or labeling any
documents produced in response to the subpoenas as confidential in accordance with the protective order.
Defendant Griebel’s counsel shall promptly review any documents produced by the Newton County,
Indiana, or the Willowbrook, Illinois, police departments and determine, in the first instance, whether any of
those documents contain information that is relevant to, or likely to lead to the discovery of admissible
evidence in, this case. If counsel concludes that any documents produced by the Newton County or
Willowbrook police departments contain such information, then counsel shall produce those documents to
Plaintiff’s counsel forthwith subject to the protective order.
If Defendant Griebel’s counsel is uncertain about the relevance of any documents ultimately produced
by the Newton County or Willowbrook police departments within the meaning of Rule 26(b)(1), then
Defendant Griebel’s counsel and Plaintiff’s counsel first shall meet and confer about that issue. If necessary,
however, Defendant Griebel’s counsel should bring any dispute back to me in the form of a motion for a
protective order or for in camera review of a limited number of documents. The Court then can determine
whether any of the disputed documents should be produced to Plaintiff with a better understanding of what
those documents actually contain than the Court has at present.
The Court is cognizant of the balance that must be struck here between allowing legitimate discovery
to proceed and putting a stop to what Defendant Griebel characterizes as a fishing expedition. Defendant
Griebel apparently was employed as a law enforcement officer by three different police departments,
including his present employer, the Will County Sheriff’s Office, in the five years before the occurrence that
gave rise to Plaintiff’s complaint. Plaintiff’s counsel characterizes this as “job hopping” and says it may
indicate that Defendant Griebel is (in the Court’s words, not Plaintiff’s) a bad apple. Of course, it also may
indicate that Defendant Griebel was alert to more attractive employment opportunities and was able to obtain
new jobs because he had an exemplary record. The procedures ordered above are intended to strike a balance
between an unreasonable intrusion upon Defendant Griebel’s privacy, the interests of third-party subpoena
recipients, and the potential production of information that may be relevant to, or likely to lead to the
discovery of admissible evidence in, this case including without limitation evidence that might be admissible
under Federal Rules of Evidence 404(b) or 608.
To be clear, it is not the Court’s intent that all documents that relate to any discipline of or complaint
about Defendant Griebel be produced to Plaintiff’s counsel as a result of the procedure outlined above. For
example, if Defendant Griebel was disciplined because his uniform shirt was not tucked in or even because
he failed to come to the assistance of a fellow officer, those documents are not subject to production because
they are not relevant to, or likely to lead to the discovery of admissible evidence in, this case. But documents
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STATEMENT
relating to a complaint about or discipline of Defendant Griebel for using excessive force or acting
inappropriately during an arrest or encounter with a civilian potentially could be relevant to, or lead to
discovery of admissible evidence in, this case.
This is not intended to be an exhaustive catalogue of potentially relevant documents. It is simply
meant to say that some documents produced pursuant to the now limited subpoenas served upon the Newton
County and Willowbrook police departments may be subject to production while others may not. Defendant
Griebel’s counsel shall make that call in the first instance, and the Court will resolve any disputes about close
calls. Further, nothing contained herein is intended to prevent Plaintiff from bringing an issue relating to the
two active subpoenas back to this Court if he feels that is necessary based upon his discussion with
Defendant Griebel’s counsel about any documents received pursuant to the subpoenas.
It is so ordered.

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