Szany v. Garcia et al

Filing 96

OPINION AND ORDER: The Court hereby TAKES UNDER ADVISEMENT the Defendant City of Hammond's Motion for Protective Order DE 77 . The Court ORDERS the City of Hammond to submit to the Court on or before 12/17/18, for in camera review, any documents and information in the internal affairs file as outlines in the Order and ORDERS the City of Hammond to file a notice of that fact on or before 12/17/18. Signed by Magistrate Judge Paul R Cherry on 12/4/18. (nal)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DENISE SZANY
Plaintiff,

)
)
)
v.
)
)
JAIME GARCIA and CITY OF HAMMOND, )
Defendants.
)

CAUSE NO.: 2:17-CV-74-JTM-PRC

OPINION AND ORDER
This matter is before the Court on Defendant City of Hammond’s Motion for Protective
Order [DE 77], filed on October 18, 2018. Plaintiff Denise Szany filed a response on October 28,
2018, and the City of Hammond (the “City”) filed a reply on November 5, 2018. For the reasons
stated below, the Court takes the motion under advisement and orders the City to submit portions
of the internal affairs file for in camera review.
BACKGROUND
In this action, Szany alleges that she and Garcia were both employees of the City and that
Garcia physically attacked Szany on the City’s property at their place of work. Szany also alleges
that the City fosters a work environment in which misconduct toward women is tolerated and that
the City has failed to prevent sex-based harassment and sexual harassment. In light of these
allegations, Szany brings claims under 42 U.S.C. § 1983 and Title VII of the Civil Rights Act of
1964 against the City and state law tort claims against Garcia.
This litigation is currently in the discovery phase. Szany seeks discovery of the City’s
personnel and internal affairs files for Garcia. The City objects and has filed the Motion for
Protective Order seeking (1) permission to redact certain information, (2) an order that it need not
produce investigative and disciplinary information for matters other than the event giving rise to

this litigation because those other matters are irrelevant and privileged, and (3) a protective order
foreclosing disseminating investigative and disciplinary information to anyone outside of this
litigation. The whole motion is taken under advisement, but this Order primarily addresses the
City’s request regarding the production of investigative and disciplinary information.
ANALYSIS
The City argues that Szany’s request for Garcia’s complete personnel and internal affairs
files is overly broad and encompasses irrelevant, disproportional, and privileged information. The
scope of discovery is set forth in Federal Rule of Civil Procedure 26(b)(1) and permits a party to
seek information
regarding any nonprivileged matter that is relevant to any party’s claim or defense
and proportional to the needs of the case, considering the importance of the issues
at stake in the action, the amount in controversy, the parties’ relative access to
relevant information, the parties’ resources, the importance of the discovery in
resolving issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.
The City argues that Szany’s broad request for Garcia’s entire personnel and internal affairs
files is disproportionate to the needs of the case and requests irrelevant information. The City
asserts that discovery of the internal affairs file should be limited to only “complaints against
Corporal Garcia related to sexual harassment of co-workers in the workplace.” (Br. Supp. Mot.
Prot. Order, 6, ECF No. 78). The City represents that Szany’s complaint against Garcia is the only
such complaint in Garcia’s files. Szany, on the other hand, argues that “violence and interpersonal
conflicts with other officers and citizens” are relevant to her claims. (Resp. 9, ECF No. 84).
The City cites the case of Ripberger v. Corizon, Inc., No. 1:11-cv-01394-TWP-MJD, 2012
WL 4340716, *6 (S.D. Ind. Sept. 20, 2012). In Ripberger, the requesting party had agreed to limit
her request to complaints of sex discrimination, age discrimination, or retaliation against the

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decision-maker who did not hire the requesting party. Though the requesting party sought
complaints against the decision-maker’s supervisor, the court ruled those complaints irrelevant.
The City also presents Braud v. Geo Heat Exchangers, LLC., 314 F.R.D. 386 (M.D. La.
2016), as instructive. In Braud, production of the alleged bad actor’s personnel file was limited to
performance evaluations, complaints, disciplinary records, and job duties. However, the City
maintains that fewer documents should be found relevant here because of factual dissimilarities.
The Braud court cites McCoo v. Denny’s Inc., 192 F.R.D. 675 (D. Kan. 2000), which held
that if the employee whose personnel file is sought “is alleged to have engaged in the
discrimination or harassment at issue or played an important role in the employment decision or
incident that gives rise to the lawsuit, the personnel file will be considered relevant and/or
reasonably calculated to lead to the discovery of admissible evidence, and therefore discoverable.”
McCoo v. Denny's Inc., 192 F.R.D. 675, 687 (D. Kan. 2000).
Szany states that the City’s position is not meritorious, and she underscores that Garcia is
not a comparator in this litigation but instead the alleged bad actor. Szany cites only an unpublished
1996 opinion from outside of this judicial circuit in support.
The City has not argued that the personnel file is irrelevant, arguing only that portions of
the internal affairs file are irrelevant. Accordingly, and in light of McCoo, the Court finds that the
personnel file is relevant. Regarding the internal affairs file, the Court finds a middle path between
the two extremes presented to it to be appropriate. Documents and information in the internal
affairs file pertaining to any of the following are relevant and proportional to the needs of the case:
complaints against or investigations of Garcia for sexual harassment, sexual misconduct, or
sexually-motivated violence toward any person; complaints against or investigations of Garcia for
violence toward coworkers; and complaints against or investigations of Garcia for any matter

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complained of by Szany. Though the City asks the Court to set a time period that documents must
fall within in order to be relevant, the Court finds that no such temporal restriction should be made.
The Court’s analysis does not end here, however, because relevant information may be
withheld from discovery if it is privileged. See Baldridge v. Shapiro, 455 U.S. 345, 360 (1982).
Federal Rule of Evidence 501 provides that claims of privilege are governed by federal common
law unless state law supplies the rule of decision, in which case state law applies. If the discovery
at issue pertains to both federal and state claims or defenses, federal law applies. Mem’l Hosp. for
McHenry Cty. v. Shadur, 664 F.2d 1058, 1061 n.3 (7th Cir. 1981). Here, the discovery pertains to
the federal claims, so federal common law supplies the rule of decision regarding privilege. “A
party declining to produce discovery on the grounds that it is privileged has the burden of
establishing the existence of the privilege as well as its applicability in the particular situation.”
Scott v. City of Peoria, 280 F.R.D. 419, 421-22 (C.D. Ill. 2011). Further,
[p]rivileges are construed narrowly and the requirements for establishing privilege
are strictly enforced, because privileges are viewed as being in derogation of the
search for truth. A privilege is therefore applied only where necessary to achieve
its purpose and only where it has a public good transcending the normally
predominant principle of utilizing all rational means for ascertaining truth.
Id. (citations and quotation marks omitted).
The City asserts that the documents in Garcia’s internal affairs file, other than Szany’s
complaint and the investigation thereof, are protected under a privilege known as the “official
information,” “law enforcement investigatory,” “executive,” or “deliberative process” privilege.
As an initial matter, the Court addresses whether all of these titles refer to the same
privilege. Though the privileges were united under proposed Federal Rule of Evidence 509 as
“official information,” see Rules of Evidence for United States Courts and Magistrates, 56 F.R.D.
183, 251 (1972), the text of the proposed rule and subsequent case law separate the law
enforcement investigatory privilege from the executive or deliberative process privilege, see id.
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(separating “intragovernmental opinions or recommendations submitted for consideration in the
performance of decisional or policymaking functions” in 509(a)(2)(A) from “investigatory files
compiled for law enforcement purposes” in 509(a)(2)(B)); Davis v. Carmel Clay Schs., 282 F.R.D.
201, 205 n.3 (S.D. Ind. 2012), reconsidered in part on other grounds, 286 F.R.D. 411 (S.D. Ind.
2012); U.S. v. Delatorre, 438 F. Supp. 2d 892, 902 (N.D. Ill. 2006); Anderson v. Marion Cty.
Sheriff’s Dept., 220 F.R.D. 555, 560-68 (S.D. Ind. 2004); Jones v. City of Indianapolis, 216 F.R.D.
440, 444-50 (S.D. Ind. 2003). “Official information privilege,” “executive privilege,” and
“deliberative process privilege” have come to be used synonymously in this circuit. See, Holmes
v. Hernandez, 221 F. Supp. 3d 1011, 1014 n.2 (N.D. Ill. 2016); Scott, 280 F.R.D. at 427 n.1; Evans
v. City of Chicago, 231 F.R.D. 302, 310 (N.D. Ill. 2005); Scott v. Edinburg, 101 F. Supp. 2d 1017,
1021 (N.D. Ill. 2000); cf. Moorhead v. Lane, 125 F.R.D. 680, 681 (C.D. Ill. 1989) (“Executive
Predecisional Deliberative Process Privilege”); but see Griffin v. City of Milwaukee, 74 F.3d 824,
829 (7th Cir. 1996) (affirming trial court’s conclusion that an investigatory file was protected by
the “executive privilege”).
Regardless of nomenclature used by other courts, there is a privilege that protects predecisional, deliberative documents or communications which “has no place in a Title VII action
or in a constitutional claim for discrimination,” Anderson, 220 F.R.D. at 560 (quoting In re
Subpoena Duces Tecum Served on the Office of the Comptroller of the Currency, 145 F.3d 1422,
1424 (D.C. Cir. 1998)), and a privilege that protects law enforcement investigatory files from civil
discovery. Id. at 563. The City’s arguments reveal that it intends to claim protection of its
investigatory file under the law enforcement investigatory privilege. The City has not put forth an
argument for protection under the deliberative privilege, which, in any event, would be improperly
asserted in this case, per Anderson.

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The law enforcement investigatory privilege is qualified, not absolute, and exists “to
prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality
of sources, to protect witnesses and law enforcement personnel, to safeguard the privacy of
individuals involved in an investigation, and otherwise prevent interference in an investigation.”
Id. (quoting In re Polypropylene Carpet Antitrust Litigation, 181 F.R.D. 680, 686-87 (N.D. Ga.
1998)). Courts weigh ten factors when determining whether the law enforcement investigatory
privilege applies:
(1)
The extent to which disclosure will thwart governmental processes by
discouraging citizens from giving the government information;
(2)
The impact upon persons who have given information of having their
identities disclosed;
(3)
The degree to which governmental self evaluations and consequent program
improvement will be chilled by disclosure;
(4)

Whether the information sought is factual data or evaluative summary;

(5)
Whether the party seeking discovery is an actual or potential defendant in
any criminal proceeding either pending or reasonably likely to follow from the
incident in question;
(6)

Whether the investigation has been completed;

(7)
Whether any interdepartmental disciplinary proceedings have arisen or may
arise from the investigation;
(8)

Whether the plaintiff's suit is nonfrivolous and brought in good faith;

(9)
Whether the information sought is available through other discovery or
from other sources; and
(10)

The importance of the information sought to the plaintiff's case.

Davis, 282 F.R.D. at 206; accord Anderson, 220 F.R.D. at 563-64; Jones, 216 F.R.D. at 444. The
Court is unable to evaluate whether the privilege applies to the relevant portions of Garcia’s

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internal affairs file without first viewing those documents. Therefore, the Court orders submission
of the documents for in camera review.
CONCLUSION
Based on the foregoing, the Court hereby TAKES UNDER ADVISEMENT the
Defendant City of Hammond’s Motion for Protective Order [DE 77].
The Court ORDERS the City of Hammond to submit to the Court on or before December
17, 2018, for in camera review, any documents and information in the internal affairs file that the
City claims as privileged and that pertain to any of the following: complaints against or
investigations of Garcia for sexual harassment, sexual misconduct, or sexually-motivated violence
toward any person; complaints against or investigations of Garcia for violence toward coworkers;
and complaints against or investigations of Garcia for any matter complained of by Szany. In the
event that there are no such documents or information that are claimed as privileged, the Court
ORDERS the City of Hammond to file a notice of that fact on or before December 17, 2018.
So ORDERED this 4th day of December, 2018.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

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