Sowell v. Dominguez et al

Filing 132

OPINION AND ORDER granting 116 Motion to Compel Discovery; granting in part and denying in part 118 Motion to Determine Sufficiency of Plaintiffs responses to Defendant Dominguezs First Request for Admissions. Signed by Magistrate Judge Andrew P Rodovich on 10/30/13. (mc)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
TAMARRA SOWELL, as personal representative,
administrator for the Estate, and on behalf of the heirs
of ADEKUNLE ODUMABO,

)
)
)
)
Plaintiff,
)
)
v.
)
)
ROY DOMINGUEZ, individually and in his
)
official capacity as sheriff of Lake County, Indiana;
)
BENNIE FREEMAN, individually and in his official
)
capacity as warden of Lake County Jail;
)
SOUTHLAKE CENTER FOR MENTAL HEALTH
)
Southlake Center employees DR. LEE PERIOLAT and
)
MANUEL BARRAGAN; Lake County Jail employees
)
OFFICER JANICE HATTON, OFFICER LINDA RILEY, )
SERGEANT R. STARKEY, and SERGEANT HUBNER; )
and UNKNOWN EMPLOYEES AND SUPERVISORS
)
OF LAKE COUNTY JAIL; AND SOUTHLAKE CENTER )
FOR MENTAL HEALTH,
)
)
Defendants.
)

2:09-cv-0047

OPINION AND ORDER
This matter is before the court on the Motion to Compel Discovery [DE 116] filed by the
plaintiff, Tamarra Sowell, on May 31, 2013, and the Motion to Determine Sufficiency of
Plaintiff’s Responses to Defendant Dominguez’s First Request for Admissions [DE 118] filed by
Roy Dominguez, on June 1, 2013. For the following reasons, the Motion to Compel Discovery
[DE 116] is GRANTED, and the Motion to Determine Sufficiency of Plaintiff’s responses to
Defendant Dominguez’s First Request for Admissions [DE 118] is GRANTED IN PART and
DENIED IN PART.

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Background
The plaintiff, Tamarra Sowell, brought this action against the Sheriff of Lake County, the
Warden of the Lake County Jail, Southlake Center for Mental Health, and various employees
and
supervisors of Lake County Jail and Southlake after Adekunle Odumabo hanged himself on
April 30, 2007, while an inmate at the Lake County Jail. Sowell brought suit under 42 U.S.C.
§1983 for violations of Odumabo’s constitutional rights; the Indiana Wrongful Death Statute,
Ind. Code §34-23-1-1; and Indiana’s Personal Civil Liability Under Civil Rights Laws of
Employee Acting Within Scope of Employment, Ind. Code §34-13-4-1. Sowell alleges that
Odumabo died because the Lake County Jail staff knew Odumabo should be monitored as a
suicide risk but failed to have him under suicide watch.
Over the course of discovery Sowell served several document requests and
interrogatories on the Sheriff and Southlake. Specifically, Sowell asked Southlake to turnover:
1. All records regarding detainees who were released from Lake County Jail due
to death, including all records surrounding those detainees’ incarcerations at the
Jail.
2. All records regarding detainees who were discovered non-responsive at Lake
County Jail and were pronounced dead at the hospital to which they were
transferred from the Jail. This request includes all records surrounding those
detainees’ incarcerations at the Jail.
3. All records related to suicide and suicide attempts at the Lake County Jail.
Sowell later limited her request to the records prepared between 2002 and when
Southlake ended its services at the Lake County Jail. Southlake objected to these requests on
various grounds, including that producing the information would violate Health Insurance
Portability & Accountability Act of 1996 (HIPAA). After reviewing this objection, Sowell
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proposed a protective order.
Sowell also requested that the Sheriff produce:
16. All Documents relating to all suicides and attempted suicides that took place in
Lake County Jail since January 1, 2000, including but not limited to: a) complaints;
b) internal reviews and investigations of these events; and c) external reviews and
investigations of these events.
17. All Documents relating to deaths that took place in Lake County Jail since
January 1, 2000, including but not limited to: a) complaints; b) internal reviews and
investigations of these events; and c) external reviews and investigations of these
events.

The Sheriff argues that the requests were overbroad and vague and that producing the
information would violate HIPAA and Indiana Code §§ 16-39-1-1 et seq. and Ind. Code §§
16-39-2-1 et seq., which prohibits the release of mental health records.
Sowell also asked the Sheriff to identify and describe all changes made to the jail’s
policies, practices, and training related to the evaluation and monitoring of detainees for suicide
potential. Sowell specifically inquired into how the employees were made aware of the changes
and complains that the Sheriff did not respond. Likewise, Sowell stated that the Sheriff did not
provide a complete response to her interrogatory concerning every instance in the last ten years
that a policymaker reviewed or investigated a potential, attempted, or actual suicide by a jail
detainee. The Sheriff responded that the request was ambiguous and that he could not discern
what was meant by potential or attempted suicide.
Southlake’s representative, Sherry Oman, stated at her deposition that she had learned
through other employees that a mortality review was conducted following Odumabo’s suicide
but that she was not part of the review and had not seen any documents related to the review.
Sowell asked Southlake to produce any documents prepared in connection with the mortality

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review it conducted and to admit or deny the following statements:
1. Southlake Center performed no mortality review of the death of Adekunle
Odumabo.
2. Southlake Center performed no psychological autopsy of the death of Adekunle
Odumabo.
3. No employee of Southlake Center performed a mortality review of the death of
Adekunle Odumabo.
4. No employee of Southlake Center performed a psychological autopsy of the
death of Adekunle Odumabo.
5. Southlake Center did not direct any person to perform a mortality review of the
death of Adekunle Odumabo.
6. Southlake Center did not direct any person to perform a psychological autopsy
of the death of Adekunle Odumabo.
7. Southlake Center possesses no documents of a mortality review of the death of
Adekunle Odumabo.
8. Southlake Center possesses no documents of a psychological autopsy of the
death of Adekunle Odumabo.
Southlake stated that it did not understand what the terms “mortality review” and “psychological
autopsy” encompassed and that it did not have knowledge of whether any such review was
conducted because its representative had not viewed or been a part of any such review.
Sowell asked Southlake for a variety of other documents, including monthly reports, a
notebook kept by Patria Kerr, time sheets on which the Southlake defendants recorded the
inmates they saw, the research and writing of Dr. Lee Periolat, the tabulated sheets that recorded
the number of visits by each Southlake doctor per patient, and invoices Dr. Periolat gave to
Southlake for his work. Southlake agreed to turnover some of these documents, but the parties
continue to dispute whether Southlake must produce the reports that documented monthly and

4

yearly statistics regarding suicides and attempted suicides, the time sheets on which the
Southlake defendants recorded which inmates they saw, and the tabulated sheets that recorded
the number of visits by each Southlake doctor per patient. Southlake stated that it no longer
possessed some of the documents Sowell requested because they were left behind when
Southlake’s relationship with the jail was terminated.
Finally, Sowell moves to compel the Sheriff to produce Odumabo’s original file. The
Sheriff has agreed to make the file available to Sowell at the jail for inspection.
The Sheriff, Roy Dominguez, served a request for admissions on Sowell, asking that she
admit or deny the following statements:
Admission No. 3. On April 26, 2007, Adekunle Odumabo was arrested and placed
in the custody of the United States Marshal's Service.
Admission No. 8. Adekunle Odumabo was born in Nigeria.
Admission No. 9. Adekunle Odumabo was a citizen of Nigeria.
Admission No. 10. Adekunle Odumabo was not born in the United States.
Admission No. 11. Adekunle Odumabo was not a naturalized citizen of the
United States.
Sowell objected to Admission Nos. 8-11 as irrelevant. The Sheriff responded that this
information may shed light on Odumabo and Sowell’s credibility because at a hearing before
Magistrate Judge Paul Cherry, Odumabo stated that he was born in Nigeria and was not a citizen
of the United States. In response to Admission No. 3, Sowell stated:
Admit that Mr. Odumabo was arrested. To the extent that this Request is seeking
to know whether the United States Marshal’s Service was responsible for the care
and custody of Mr. Odumabo during his incarceration at Lake County Jail,
denied. To the extent this request is seeking to know whether Mr. Odumabo was
held by the United States Marshal’s Service at some point on or after April 26,
2007 - during times that he was not detained at Lake County Jail - admit.
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The Sheriff complains that this response is insufficient and non-responsive. The Sheriff moves to
compel complete responses or for the court to deem these statements admitted.

Discussion
A party may “obtain 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.” Federal Rule of Civil Procedure
26(b)(1). For discovery purposes, relevancy is construed broadly to encompass “any matter that
bears on, or that reasonably could lead to other matter[s] that could bear on, any issue that is or
may be in the case.” Chavez v. DaimlerChrysler Corp., 206 F.R.D. 615, 619 (S.D. Ind.
2002)(quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380, 2389, 57
L.Ed.2d 253 (1978)). Even when information is not directly related to the claims or defenses
identified in the pleadings, the information still may be relevant to the broader subject matter at
hand and meet the rule’s good cause standard. Borom v. Town of Merrillville, 2009 WL
1617085, *1 (N.D. Ind. June 8, 2009) (citing Sanyo Laser Prods., Inc. v. Arista Records, Inc.,
214 F.R.D. 496, 502 (S.D. Ind. 2003)); see also Adams v. Target, 2001 WL 987853, *1 (S.D.
Ind. July 30, 2001)(“For good cause, the court may order discovery of any matter relevant to the
subject matter involved in the action.”); Shapo v. Engle, 2001 WL 629303, *2 (N.D. Ill. May 25,
2001)(“Discovery is a search for the truth.”).
A party may seek an order to compel discovery when an opposing party fails to respond
to discovery requests or has provided evasive or incomplete responses. Federal Rule of Civil
Procedure 37(a)(2)-(3). The burden “rests upon the objecting party to show why a particular
discovery request is improper.” Gregg v. Local 305 Ibew, 2009 WL 1325103, *8 (N.D. Ind.
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May 13, 2009)(citing Kodish v. Oakbrook Terrace Fire Protection Dist., 235 F.R.D. 447, 44950 (N.D. Ill. 2006)); McGrath v. Everest Nat. Ins. Co., 2009 WL 1325405, *3 (N.D. Ind. May
13, 2009)(internal citations omitted); Carlson Restaurants Worldwide, Inc. v. Hammond
Professional Cleaning Services, 2009 WL 692224, *5 (N.D. Ind. March 12, 2009)(internal
citations omitted). The objecting party must show with specificity that the request is improper.
Cunningham v. Smithkline Beecham, 255 F.R.D. 474, 478 (N.D. Ind. 2009)(citing Graham v.
Casey’s General Stores, 206 F.R.D. 253, 254 (S.D. Ind. 2002)). That burden cannot be met by
“a reflexive invocation of the same baseless, often abused litany that the requested discovery is
vague, ambiguous, overly broad, unduly burdensome or that it is neither relevant nor reasonably
calculated to lead to the discovery of admissible evidence.” Cunningham, 255 F.R.D. at 478
(citing Burkybile v. Mitsubishi Motors Corp., 2006 WL 2325506, *6 (N.D. Ill. Aug. 2,
2006))(internal quotations and citations omitted). Rather, the court, under its broad discretion,
considers “the totality of the circumstances, weighing the value of material sought against the
burden of providing it, and taking into account society’s interest in furthering the truth-seeking
function in the particular case before the court.” Berning v. UAW Local 2209, 242 F.R.D. 510,
512 (N.D. Ind. 2007)(examining Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th
Cir. 2002))(internal quotations and citations omitted). See also, Hunt v. DaVita, Inc., 680 F.3d
775, 780 (7th Cir. 2012)(explaining that the district court has broad discretion in supervising
discovery).
Sowell asked Southlake to provide all records from detainees who were released from
Lake County Jail due to death, all records of detainees who were discovered non-responsive at
the Lake County Jail and pronounced dead at the hospital, and all records related to suicide and

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suicide attempts in the Lake County Jail. Similarly, Sowell sought all documents related to all
suicides and attempted suicides and all documents related to all deaths that took place in the
Lake County Jail since January 2000 from the Sheriff. Neither defendant produced the requested
documents. The defendants raised several objections to Sowell’s requests.
First, the defendants argue that the information is irrelevant because Sowell did not allege
substandard treatment of others and would not have standing to do so. However, the defendants
overlook the elements Sowell must prove to succeed at her claim. Sowell’s complaint alleges
violations of Odumabo’s constitutional rights under 42 U.S.C. § 1983. Section 1983 imposes
municipal liability for deprivations pursuant to an official policy or practice but bars liability
under a respondeat superior theory. City of Canton v. Harris, 489 U.S. 378, 387, 109 S.Ct. 1197,
1203, 103 L.Ed.2d 412 (1989). The Supreme Court has determined that a plaintiff must plead a
policy, custom, or practice of the municipality which has caused the alleged constitutional
deprivation before the municipality may be held liable for the employee's conduct. Canton, 489
U.S. at 389, 109 S.Ct. at 1203; Monell v. Department of Social Services, 436 U.S. 658, 690–91,
98 S.Ct. 2018, 2035–36, 56 L.Ed.2d 611 (1978); and Gibson v. City of Chicago, 910 F.2d 1510,
1519 (7th Cir. 1990). In addition, although a municipality may be held liable for failing to train
its officers adequately, no municipal liability can be imposed unless the lack of training amounts
to “deliberate indifference” to the individual's constitutional rights. Canton, 489 U.S. at 390, 109
S.Ct. at 1205–06. In Canton, the Supreme Court stated:
It may seem contrary to common sense to assert that a municipality will actually
have a policy of not taking reasonable steps to train its employees. But it may
happen that in light of the duties assigned to specific officers or employees the
need for more or different training is so obvious, and the inadequacy so likely to
result in the violation of constitutional rights, that the policymakers of the city can
reasonably have been said to have been deliberately indifferent to the need.
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(footnotes omitted)
489 U.S. at 390, 109 S.Ct. at 1205
In a municipal liability claim, the policy or custom must be the cause of the constitutional
deprivation.
To succeed, Sowell will need to prove that the defendants had a policy or practice that
led to the deprivation of Odumabo’s constitutional rights or that they failed to train their
employees. In order to prove this, Sowell will need evidence of the defendants’ past practices.
Therefore, the information sought is clearly relevant to this task.
The Sheriff further challenges the language in requests 16 and 17 as overbroad, arguing
that it is not clear what was meant by “all documents related to”, “attempted suicide”, and
“complaint”. The Sheriff argues that a request for “all documents related to” generally is too
broad and ambiguous to identify to specific documents sought. However, the court does not find
that to be the case here. In both requests, Sowell narrowed the scope of documents, identifying
the type of documents sought, such as complaints, internal reviews and investigations, and
external reviews. Although the sheriff complains that this does not shed any further light on
what is sought because it is not clear what was meant by “complaint” or “attempted suicide”, the
Sheriff should apply the common definitions to provide the documents sought.
The Sheriff also complains about the temporal scope of the discovery, but Sowell has
since limited it. Sowell further informs the court that to her knowledge there were only ten
suicides within the time period for which she seeks information, and therefore, the burden would
not be as onerous as the defendants state.
The defendants’ primary argument is that the request violates HIPAA. Under HIPAA

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and its regulations, an entity to which HIPAA applies (a “covered entity”) may not disclose
protected health information (“PHI”) of an individual except as permitted or required by
HIPAA’s implementing regulations, which are set forth at 45 C.F.R. §160.101 et seq. HIPAA
requires a party seeking PHI by discovery to: (1) provide the health care provider or other
covered entity from which it seeks the PHI with satisfactory assurance, in the manner specified
in the regulations, that it has made reasonable efforts to ensure that the individuals whose PHI is
sought are given notice of the request; or (2) provide the health care provider or other covered
entity with satisfactory assurance that it has made reasonable efforts to secure a qualified
protective order that meets the requirements of the regulations. See 45 C.F.R. §160.512(e)(1).
The defendants argue that Sowell did not take either step required under 45 C.F.R. §
150.101 et seq. for release of non-party records until March 13, 2013, when her counsel mailed a
request for a HIPAA protective order. This was sent after the defendants raised their objection
in response to Sowell’s request for production. After acknowledging that Sowell’s counsel did
send a proposed protective order, the Sheriff’s counsel was quick to change the topic and argued
that Indiana law restricts the release of medical and mental health records.
Federal Rule of Evidence 501 provides that “the privilege of a witness, person,
government, State, or political subdivision thereof shall be governed by the principles of the
common law as they may be interpreted by the courts of the United States in the light of reason
and experience.” When the basis of federal jurisdiction is diversity, the court applies the state
law of privilege. Federal Rule of Evidence 501; Country Life Ins. Co. v. St. Paul Surplus
Lines Ins. Co., 2005 WL 3690565, *4 (C.D.Ill. Jan.31, 2005) (where the basis of federal
jurisdiction is diversity, the court is to apply the state law of attorney client privilege); Lorenz v.

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Valley Forge Ins. Co., 815 F.2d 1095, 1097 (7th Cir.1987) (applying the state law of privilege to
a diversity claim in federal court). In cases where the principal claim in federal court arises under
a federal law, with the information also relevant to pendent state claims, the federal common law
of privileges apply. Memorial Hospital v. Shadur, 664 F.2d 1058, 1061 (7th Cir. 1981). See also
Kodish v. Oakbrook Terrace Fire Protection Dist., 235 F.R.D. 447, 450 (N.D. Ill. 2006). The
court determines the principal claim by asking whether state or federal law supplies the rule of
decision. Memorial Hospital, 664 F.2d at 1061. Otherwise, it would be meaningless to hold the
same information privileged for the state claims and not for the federal claims. Memorial
Hospital, 664 F.2d at 1061 n. 3.
Sowell's principal claim is brought pursuant to § 1983 with allegations of constitutional
violations. Because federal law supplies the rule of decision for this claim, federal common law
rules of privilege govern this claim. In a similar matter, the plaintiff sought the medical records
of third-parties to help prove their federal claim. Judge Roger Cosbey summarily rejected the
defendants’ motion for a protective order, stating that “the Indiana Access to Medical Records
Act is ‘void and of no effect’ to the extent that it can be construed to exclude evidence relevant
to a claim based on federal law brought in federal court.” U.S. ex rel. Roberts v. QHG of
Indiana, Inc., 1998 WL 1756728, *8 (N.D. Ind. Oct. 8, 1998). Therefore, the Indiana Access to
Medical Records Act does not govern whether the defendants must turnover the third-party
medical records, and the court instead must consider whether Sowell complied with the federal
requirements.
It is immaterial that Sowell’s proposed protective order came after the defendants raised
their objections. Rule 37 states that parties should try to resolve their discovery disputes

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independently, and Sowell took appropriate steps by reacting to the defendants’ objections and
preparing the proposed protective order. The defendants have not criticized or objected to the
terms of the protective order proposed by Sowell. Although Sowell had yet to notify the
individuals whose PHI she seeks, it is logical that Sowell would not notify the individuals until
the parties agreed on the terms of the protective order and resolved the defendants’ additional
objections. Provided Sowell files the unopposed protective order and notifies the third-parties of
the information sought in compliance with HIPAA, she is entitled to the information.
The defendants also raise the psychotherapist privilege. The psychotherapist privilege
applies to confidential statements made between a patient and his psychotherapist, which
encompasses licensed psychiatrists, psychotherapists, social workers, or other like counselor.
Await v. Marketti, 287 F.R.D. 409, 423 (N.D. Ill. 2012) (citing United States v. Schwensow, 151
F.3d 650, 654 (7th Cir. 1998)). The rationale underlying the psychotherapist-patient privilege is
that a patient must have complete confidence in a psychotherapist to ensure effective therapy.
Await, 287 F.R.D. at 414(citing Jaffe v. Redmond, 518 U.S. 1, 10, 116 S.Ct. 1923, 1928-1929,
135 L.Ed.2d 337 (1996)). The psychotherapist-patient relationship has been compared to that of
the lawyer-client. Jaffe, 518 U.S. at 10, 116 S.Ct. at 1928. Because a threat to secrecy would
block successful treatment, the need for such a privilege is evident.
The privilege may be raised by the patient, his guardian, or his estate. See Await, 287
F.R.D. at 415 (explaining that the estate can raise the psychotherapist privilege on behalf of
patient). A psychotherapist also may raise the defense on his patient’s behalf. In re Hospital
Subpoena, 854 F.Supp. 1380, 1391 (S.D. Ind. 1994). “His authority so to do is presumed in the
absence of evidence to the contrary.” Hospital Subpoena, 854 F.Supp. at 1391 (citing Proposed

12

Rule of Federal Evidence 504). However, an entity, even one that maintains the patient’s
records, such as a hospital, does not have standing to raise the privilege on the patient’s behalf.
Hospital Subpoena, 854 F.Supp. at 1392.
The party raising the privilege must show that it is applicable. The privilege only extends
to statements made for the purpose of receiving psychiatric treatment. Await, 287 F.R.D. at 423.
It does not extend to information about visits or medications, nor does it apply to statements
made to third-parties, such as insurance carriers. Goh v. CRE Aquisition, 2004 WL 765238,
*1–2 (N.D.Ill. April 6, 2004). The privilege also can be waived. See, e.g., Jaffee, 518 U.S. at 18
n. 9, 116 S.Ct. at 1932 n. 9 (considering waiver to have occurred if disclosure is made “by the
therapist” ) (emphasis added); Beard v. City of Chicago, 2005 WL 66074, at *7 (N.D.Ill. Jan.10,
2005); Boudreau v. Ryan, 2001 WL 1001156, at *3–4 (N.D.Ill. Aug. 24, 2001). This occurs
when the statements are shared with any party beyond the therapist, his employer, and his client.
See Jaffee, 518 U.S. at 18, 116 S.Ct. at 1932.
It is not clear that any of the defendants have standing to raise the psychotherapist
privilege on behalf of the patients’ whose records Sowell requested. Clearly, the Lake County
Sheriff was not a psychotherapist and could not assert the privilege. Similarly, Southlake may
have maintained the records, but a record-maintaining entity does not have standing to raise the
privilege either. This leaves Dr. Lee Periolat and Manuel Barragan. However, it is not clear
what role these individuals played in the treatment of the patients whose records are sought. The
defendants have not argued that these individuals treated the patients whose records are sought,
nor is it evident that the records sought contain confidential statements made for the purpose of
treating the patients. Because information, such as medications prescribed, is excluded from the

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privilege, even if the defendants have standing to assert the privilege, they cannot make a blanket
claim of privilege without explaining what the records encompass.
Moreover, ordering production of the records does not leave the patients without a means
of protecting their records from disclosure. Rather, as explained above, HIPAA requires the
patient whose information will be disclosed to be provided with an “[a]dequate notice in a
manner which will not disclose patient identifying information to other persons” and an
“opportunity to file a written response to the application, or to appear in person, for the limited
purpose of providing evidence on the statutory and regulatory criteria for the issuance of the
court order.” 42 C.F.R. § 2.64(b). See also Cook County, 277 F.3d at 982.
Once notice has been given, the court next must determine whether good cause is shown
by finding that “(1) other ways of obtaining the information are not available or would not be
effective; and (2) the public interest and need for disclosure outweigh the potential injury to the
patient, the physician-patient relationship and the treatment services.” Cook County, 277 F.3d at
982–83 (quoting 42 C.F.R. § 2.64(d)). If this test is met, the court may order disclosure of nonconfidential information, with or without patient consent. See Hospital Subpoena, 854 F.Supp.
at 1384. However, to disclose confidential communications in the absence of patient consent, the
court must further consider if, among other circumstances, “the disclosure is necessary in
connection with investigation or prosecution of an extremely serious crime, such as one which
directly threatens loss of life or serious bodily injury, including . . . rape.” See 42 C.F.R. §
2.63(a). If this condition is satisfied, then confidential communications also may be disclosed.
See Hospital Subpoena, 854 F.Supp. at 1384.
For these reasons, the court GRANTS Sowell’s motion to compel responses to

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Document Requests 1-3 served on the Southlake defendants and Requests 16-17 served on the
Sheriff. However, this is not to say that the defendants must turn the information over
immediately. First, Sowell must submit a protective order and provide notice to the patients as
required by HIPAA. Once the conditions of HIPAA are fulfilled, the defendants must turnover
the information.
Sowell further asks about the steps the Sheriff’s Department took to identify and fix
problems with preventing inmate suicide. With respect to Interrogatory No. 4, Sowell stated that
the Sheriff responded to whether changes were made to the jail’s policies, but he did not explain
how the jail staff was informed of the changes. In Interrogatory No. 5, Sowell asked the Sheriff
to describe every instance in the last ten years in which a policy-maker reviewed or investigated
any problem related to potential, attempted, or actual suicides by Lake County Jail detainees, and
what steps were taken in response. Sowell explained that she needs this information to prove
that policymakers knew that there was a problem with regard to suicide prevention at the jail and
that they failed to fix it.
The Sheriff responded that he did in fact provide a response, explaining that Southlake,
the Warden, and their supervisory staffs were responsible for reviewing, modifying, updating,
and improving policies, practices, and training programs related to the evaluation and monitoring
of detainees for suicide potential. The Sheriff clarified that from 2000-2002, staff was made
aware of policy changes through orders handed down by the Sheriff and other jail command staff
persons. After Sheriff John Bunich left office, the staff was informed of polices and changes as
the Sheriff set forth in his discovery response.
The court agrees that the Sheriff’s response is not specific and that his attempt to clarify

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his response in his brief in response to Sowell’s Motion to Compel is not sufficient. Although
his response, as clarified in his response brief, may shed light on who the policy changes came
from, it does not explain how the changes were communicated to the staff or what training took
place. The Sheriff must provide a more specific response.
The Sheriff also argues that he provided a sufficient response to Interrogatory No. 5,
which inquired about the steps policymakers took to review and prevent problems related to
suicide. The Sheriff explained that problems were assessed by the Wardens and Deputy
Wardens, who had meetings with their shift supervisors and staff every day to address the
problems. The problems traveled up the chain of command to the Sheriff. This answer appears
to be more responsive to Interrogatory No. 4, which sought information on the communications
within the jail, than to Interrogatory No. 5. The Sheriff’s response does not provide any insight
on what he or any other policymaker did with the information.
The Sheriff raised a myriad of objections in his response to the Interrogatory, stating that
the request was overbroad, vague, and unduly burdensome. The only detail the Sheriff provides
to support his objections is that he would have to review approximately 500 or more employee
files to respond. However, the information sought is pertinent to Sowell’s claim, as she may be
required to prove that the constitutional violation was the result of an official policy or practice
or the direct result of a decision by a policy maker. See Pembauer v. City of Cincinnati, 475
U.S. 469, 481, 106 S.Ct. 1292, 1299, 89 L.Ed.2d 452 (1986). Nor has he proposed alternatives,
such as making the files available for inspection. Moreover, Sowell stated that there were
approximately ten suicides within the time period for which the documents are sought, thereby
limiting the scope. The Sheriff, who carries the burden of proof, has not demonstrated that the

16

burden outweighs Sowell’s need for the information. For these reasons, the Sheriff must provide
a more specific response to Interrogatory No. 5.
Sowell also asks Southlake to produce the mortality review it conducted. At her
deposition, Sherry Oman, a representative of Southlake, stated that she believed that Southlake
performed a mortality review of Odumabo’s death. However, Oman never saw the review, and
she testified that she only knew of it because she was told my former Southlake employees that
some type of review had been conducted. Southlake responded that it does not possess a
mortality review. The court cannot compel a party to produce something that does not exist, and
based solely on Oman’s testimony, it is not certain that the requested report does in fact exist.
See Hagemeyer N. Am., Inc. v. Gateway Data Scis. Corp., 222 F.R.D. 594, 598 (E.D.Wis. 2004)
(“A party need not produce documents or tangible things that are not in existence or within its
control. It is sufficient that the discovered party respond by saying that a document or tangible
thing is not in existence.”). If, however, Southlake prepared any report, regardless of its name, it
must turn over the report.
Sowell tendered requests to admit on Southlake, inquiring about its review of Odumabo’s
death. In response to several of the requests, Southlake stated that the terms “mortality review”
and “psychological autopsy” were ambiguous and subject to multiple reasonable interpretations.
However, Southlake’s own expert used the term “mortality review” in her deposition, and a
defense expert presented by the Sheriff for a deposition stated that he had performed many
“psychological autopsies”. Southlake further argues that through its representative, it did not
have any personal knowledge of the contents of any review that was performed.
Because Southlake’s own representative used the term “mortality review”, the court is

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not convinced that Southlake did not understand the term. Southlake later turned the tables and
stated that it did not have knowledge of whether any kind of review actually was conducted
because its representative was not present and had not seen a copy of the review. The court finds
it interesting that Southlake relies on its expert’s lack of knowledge of whether a review was
conducted, but not her knowledge of what was meant by “mortality review”.
Turning to Southlake’s objection that it cannot respond because its representative does
not have personal knowledge of whether any review was performed, Federal Rule of Civil
Procedure 36(a)(4) states that “[i]f a matter is not admitted, the answer must specifically deny it
or state in detail why the answering party cannot truthfully admit or deny it. . . . The answering
party may assert lack of knowledge or information as a reason for failing to admit or deny only if
the party states that it has made reasonable inquiry and that the information it knows or can
readily obtain is insufficient to enable it to admit or deny.”
Southlake did not satisfy the requirements of Rule 36(a)(4) in its response to Sowell’s
Request for Admission. Southlake stated only that the terms were ambiguous and did not assert
that it lacked knowledge to answer at the time it responded. However, it is not clear from its
response that Southlake made a reasonable effort to obtain the information. Moreover, the
information is entirely within Southlake’s control. As it stands, Southlake’s responses are
insufficient. Southlake must admit or deny the statements, and if after a reasonable inquiry, it
cannot respond, it must explain the basis of its inability to admit or deny the statements.
Sowell also requested numerous documents she learned of through the depositions she
took, including monthly reports kept by Southlake that recorded mortalities at the jail, a
notebook kept by Patricia Kerr related to her work at the jail, time sheets on which Southlake

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recorded the inmates its employees saw, the research and writing Dr. Periolat testified about at
his depsoition, the tabulated sheets that recorded the number of visits by each Southlake doctor
per patient, and invoices that Dr. Periolat gave to Southlake for his work. When the parties
conferred, they reached an agreement on some of the document requests. The parties continue to
dispute whether Southlake must produce the reports that documented monthly and yearly
statistics regarding suicides and attempted suicides, the timesheets on which the Southlake
defendants recorded which inmates they saw, and the tabulated sheets that recorded the number
of visits by each Southlake doctor per patient. Southlake states that it no longer possesses some
of the documents Sowell seeks because they were left behind when Southlake’s relationship with
the jail was terminated. The court cannot compel Southlake to produce documents that no longer
exist. See Hagemeyer, 222 F.R.D. at 598. However, it is not clear that all of these documents
are outside of Southlake’s possession at this time. The court DIRECTS Southlake to produce an
affidavit stating that it no longer has access to these files and to describe where, if anywhere,
Sowell could gain access to the materials.
Finally, Sowell asked the Sheriff to produce its original file on Odumabo. In response,
the Sheriff agreed to make the file available at the Sheriff’s Department. Sowell agrees that this
is an acceptable solution.
Dominguez also filed a motion to determine the sufficiency of Sowell’s responses to his
first request for admissions. Dominguez first complained that Sowell’s response to his third
request to admit, which asks whether Odumabo was placed in the custody of the U.S. Marshal’s
Service, was inadequate and evasive. However, the court disagrees. Sowell admitted that
Odumabo was placed into the Marshal’s custody on April 26, 2007. However, she gave more

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information than requested and clarified that Odumabo was in their custody during the time he
was not detained at the Lake County Jail. The court finds this response sufficient as it admits
what Dominguez asked but provides clarification on the timing. Dominguez even stated in his
brief that “when Odumabo was arrested, who arrested him, and whose custody he was in
following his arrest are relevant and material to the issues of the case.” (Dft’s Br. p. 6).
Dominguez also requested that Sowell admit or deny that Odumabo was born in Nigeria,
was a citizen of Nigeria, was not born in the United States, and was not a naturalized citizen of
the United States. Sowell objected on the issue of relevance. Dominguez contests that the
information is relevant to show both that Odumabo lied when he appeared in front of Judge
Cherry and to contest Sowell’s credibility that she did not know that Odumabo was a citizen of
Nigeria. Sowell argues that this information would not help on either front because it is
irrelevant whether Odumabo lied to Judge Cherry about his citizenship because it provides no
insight on whether the defendants failed to provide the appropriate attention to Odumabo when
he was in their care. Furthermore, the information could not discredit Sowell because she did
not testify that Odumabo was a citizen of Nigeria or the United States. Rather, she stated that
she was unsure of his citizenship.
Although the likelihood that Odumabo’s citizenship may shed light on either his
credibility or Sowell’s appears somewhat attenuated, the scope of discovery is intended to be
construed broadly. It is possible that the information could help prove that Odumabo’s
statements concerning his intent to commit suicide could not be taken seriously or perhaps, with
other evidence, that Sowell was aware of Odumabo’s citizenship, which may affect her
credibility. Sowell has not demonstrated that there is no conceivable correlation, and due to the

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broad scope of discovery, the court ORDERS Sowell to respond.
Based on the foregoing, the Motion to Compel Discovery [DE 116] is GRANTED and
the Motion to Determine Sufficiency of Plaintiff’s responses to Defendant Dominguez’s First
Request for Admissions [DE 118] is GRANTED IN PART and DENIED IN PART.
ENTERED this 30th day of October, 2013

/s/ Andrew P. Rodovich
United States Magistrate Judge

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