DAVIS et al v. CARMEL CLAY SCHOOLS

Filing 77

DISCOVERY ORDER: The motion to quash 22 is DENIED and the motion to compel 68 is GRANTED with respect to the remaining documents on the Prosecutor's privilege log, as well as any other documents or other materials responsive to Plaintiffs' subpoena that have been omitted from the privilege log. The Plaintiffs' Motion to Compel is GRANTED with respect to all evidence reque sted in its subpoena duces tecum served on the City, with the exception of the documents discussed and specified above. The City shall file an am ended privilege log under seal within seven days of this order listing these documents and designate, by initials, which indivi dual (s) the document references so that the Court can make a determination as to which, if any, of these documents are confidential and exempt from disclosu re. In order to protect the identity of the minor witnesses, the parties shall move the Court for entry of a protective order with the Prosecutor and the City within seven days of the date of this Order (see Order for additional information). Signed by Magistrate Judge Mark J. Dinsmore on 3/30/2012. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

RICKEY L. DAVIS,
SHERONDA DAVIS,

)
)
)
)
) NO. 1:11-cv-00771-SEB-MJD
)
)
)
)

Plaintiffs,
vs.
CARMEL CLAY SCHOOLS,
Defendant.

DISCOVERY ORDER
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’ NonParty 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

1

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.

1
The original request asked for information related to alleged acts of bullying
involving any other Carmel High School Student for the past ten years; however,
Plaintiffs later limited that request to two years.

2

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.
683, 710 (1974).

See United States v. Nixon, 418 U.S.

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.
Sheriff’s 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.

Federal 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.
3

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 Otrowski 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).

2
This is an interesting position in light of the fact that the Plaintiffs are
the parents and representatives of the alleged victim in the matter at issue being
prosecuted by the Prosecutor.

4

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.
F.3d at 949.

Hobley, 433

The attorney in Hobley was a representative of a

party, which is entirely different from the situation in this
case.

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.
5

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).
216 F.R.D. at 443-44.

Jones,

The purpose of the privilege is to

“prevent disclosure of law enforcement techniques and
procedures, to preserve the confidentiality of sources, to
protect witness and law enforcement personnel, to safeguard
privacy of individuals involved in an investigation, and
otherwise prevent interference with an investigation.”
444.

Id. at

The law enforcement investigatory privilege is not

absolute; rather, it may be overridden in appropriate cases by
the need for the privileged materials. Id.

Indiana Code § 5-14-

3-4(a) allows for the disclosure of these records as required by
state or federal statute, or upon order of the court under the
rules of discovery.

Courts must balance the public interest in

protecting police investigations against the needs of plaintiffs
in civil matters.

To do so, the Court will consider a ten

factor balancing test first articulated in Frankenhauser v.

3
Closely related to the law enforcement investigatory privilege, the Prosecutor
lists some documents in its privilege log as being protected by the deliberative
process privilege. However, the Prosecutor does not address this argument in any of

6

Rizzo, 59 F.R.D. 339, 344 (E.D. Pa. 1973). Jones, 216 F.R.D. at
444.

These factors include:
(1)

(2)

(3)

(4)
(5)

(6)
(7)

(8)
(9)

(10)

Id.
1973)).

The extent to which disclosure will thwart
governmental processes by discouraging
citizens from giving the government
information;
The impact upon persons who have given
information of having their identities
disclosed;
The degree to which governmental self
evaluations and consequent program
improvement will be chilled by disclosure;
Whether the information sought is factual
data or evaluative summary;
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;
Whether the investigation has been
completed;
Whether any interdepartmental disciplinary
proceedings have arisen or may arise from
the investigation;
Whether the plaintiff’s suit is nonfrivolous and brought in good faith;
Whether the information sought is
available through other discovery or from
other sources; and
The importance of the information sought
to the plaintiff’s case.

(citing Tuite v. Henry, 181 F.R.D. 175, 177 (E.D. Pa.
The Court has considerable leeway in evaluating these

factors, and the determination as to whether the privilege
applies is within the discretion of the district court.
Anderson, 220 F.R.D. at 563.
1. The extent to which disclosure will thwart governmental
its briefs, so the issue is therefore waived.

7

processes by discouraging citizens from giving the
government information.
The Prosecutor and the City argue that disclosure of
information obtained from high school students with regard to a
sexual assault criminal investigation would have an impact on
the likelihood of students coming forward with information in
the future due to the “realities of high school life and
potential effect on witnesses.”

[Dkt. 30 at 10].

However, the

Prosecutor has not identified any statements from students that
it seeks to keep confidential, nor does it explain what negative
impact could result from the disclosure aside from a generalized
assertion that disclosure of all of the witness statements will
have a chilling effect.

The Prosecutor also fails to explain

how disclosure of the other documents requested by Plaintiffs
will discourage citizens from providing the government with
information.

As noted by the Jones court, an attempt to shield

an entire investigatory file without specifically stating which
statements ought to be protected is an approach that is
unavailing because it is overbroad.

Jones, 216 F.R.D. at 449.

The City also makes an insufficient blanket assertion that
disclosure of information about witness statements will
discourage cooperation.

Thus, this factor weighs in favor of

disclosure.
2. The impact upon persons who have given information of
having their identities disclosed.
8

The Prosecutor argues that “the impact on a high school
community should not be underestimated” when determining whether
to disclose the identities of students and employees of
Defendant who provided witness statements, again without
providing any detail as to what harmful impact might occur and
to which witnesses [Dkt. 30 at 10].

The City argues that

disclosure of witness identities will create distrust of the
government and law enforcement.

[Dkt. 64 at 7].

This is not a

situation where witnesses provided statements anonymously, nor
is it a situation where witnesses’ lives could potentially be at
risk if their names are disclosed to the victim of a sexual
assault.

The Court cannot accept the bald assertion that these

employees and students will be subjected to harm at the hands of
the “high school community” that outweighs the Plaintiffs’ need
to have a fair opportunity to pursue their case effectively.
The alleged harm in the form of distrust of the government
resulting from disclosure of the identities of the witnesses in
a related civil case also does not outweigh Plaintiffs’ need in
this case. Thus, this factor weighs in favor of disclosure.
3. The degree to which governmental self-evaluation and
consequent program improvement will be chilled by
disclosure.
The Prosecutor argues that it should be able to freely
gather elements of its investigatory file without “fear that the

9

opposing parties may come back on a related civil suit seeking
disclosure of the methods and processes used by the office.”
[Dkt. 30 at 11].

Again, the Plaintiffs in this case are not

“opposing parties” to the Prosecutor, and the methods of the
Prosecutor and the City are not of concern to these Plaintiffs.
Plaintiffs have not alleged any wrongdoing by the Prosecutor or
the City, thus there is no implication of the Prosecutor’s or
City’s programs or methods.

Plaintiffs merely seek this

information to identify facts and witnesses and determine
whether there was any wrongdoing on the part of the Defendant.
This factor weighs in favor of disclosure.
4. Whether the information sought is factual data or
evaluative summary.
Plaintiffs are seeking factual data in the custody of the
Prosecutor and City regarding the bullying and sexual assault
incident, not evaluative summaries of the decisions that were
made by the Prosecutor and City with respect to its handling of
the related criminal matters.

Plaintiffs’ subpoena requests

communications between the Prosecutor and criminal defense
attorneys, and between the City police department and the
Hamilton County Prosecutor and police department, not internal
communications regarding how the investigation was handled.
This factor weighs in favor of disclosure.
5. Whether the party seeking discovery is an actual or
potential defendant in any criminal proceeding either
10

pending or reasonably likely to follow from the incident in
question.
The Prosecutor and City acknowledge that Plaintiffs are not
actual or potential defendants in a criminal proceeding based
upon the incident at issue.

Accordingly, this factor weighs in

favor of disclosure.
6. Whether the investigation has been completed.
The individuals at issue are not involved in any ongoing
investigations and the criminal proceedings, including
sentencing of criminal defendants, have been completed.

As

discussed above, the attorney work product privilege does not
apply under these circumstances.

This factor weighs in favor of

disclosure.
7. Whether any interdepartmental disciplinary proceedings have
arisen or may arise from the investigation.
Neither the Plaintiffs nor the Prosecutor and City have
pointed to any existing or potential interdepartmental
disciplinary actions arising from the investigation.

Again, the

focus of Plaintiffs’ claims is not upon the actions of the
Prosecutor or City, but rather on the Defendant.

This factor

weighs in favor of disclosure.
8. Whether the Plaintiff’s suit is non-frivolous and brought
in good faith.
There is no indication or allegation that the Plaintiffs’
claims against Defendant are frivolous or brought in bad faith;

11

therefore this factor weighs in favor of disclosure.
9. Whether the information sought is available through other
discovery or from other sources.
The Prosecutor argues that Plaintiffs should obtain the
requested information from other sources and that it does not
have a number of the documents requested.

The City also argues

that the Plaintiffs should obtain the documents from other
sources.

However, the Plaintiffs have requested only those

documents that are within the Prosecutor’s and City’s possession
and are not asking the Prosecutor to seek out documents in the
hands of other people or agencies.

There has also been

confusion as to what evidence was turned over to Prosecutor by
the City, and who is in possession of originals and copies of
evidence. [Dkt. 69 at 11-13]. The Prosecutor and the City will
not be permitted to “hide the ball” by each claiming that the
evidence is in possession of the other.
In addition, Plaintiffs cannot obtain witness statements
provided to the Prosecutor and City shortly after the incident
in question through any other means, particularly considering
that one of the allegations against the Defendant is that
witnesses were encouraged to change their statements and
testimony.

Witnesses may not accurately recall what they told

investigators, and decision makers may not accurately recall the
bases for their actions taken at the time of the incident.

12

See

Anderson, 220 F.R.D. at 567.

Thus, this factor weighs in favor

of disclosure.
10.
The importance of the information sought to the
Plaintiffs’ case.
The information sought by Plaintiffs is quite critical to
their case.

Plaintiffs need to know what information

Defendant’s students and employees initially provided to law
enforcement and what information was before the Defendants at
the time that decisions were made.

Being able to question

witnesses about alleged discrepancies in witnesses’ statements
and the factual basis for Defendant’s decisions is key to
Plaintiffs’ case.

As such, this factor weighs in favor of

disclosure.
The Court concludes that, based upon an analysis of the
Frankenhauser factors, the law enforcement investigatory
privilege does not apply in this case.
C. Documents Protected From Disclosure by Statute
The Prosecutor claims that several documents are protected
from disclosure by statute under Indiana law.

These include

grand jury transcripts and proceedings (Ind. Code § 35-34-2-10),
reports of child abuse and neglect (Ind. Code § 31-33-18-2), and
presentence reports or memoranda (Ind. Code § 35-1-13). The City
also alleges that some of the documents on its privilege log are
confidential reports of child abuse or neglect.

13

The Court has

reviewed both the Prosecutor’s and the City’s privilege logs
[Dkts. 67 and 69-8] and conducted an in camera review of certain
documents listed in the Prosecutor’s privilege log that it
claims falls under these statutory protections.
1.

Grand Jury Transcripts and Reports

The general rule regarding grand jury transcripts is that
they be kept secret.

Hinojosa v. State, 781 N.E.2d 677, 680

(Ind. 2003), see Douglas Oil Co. of California v. Petrol Stops
Northwest et al., 441 U.S. 211, 218-19 (1979).

Indiana Code §

35-34-2-10(b) provides that a transcript of testimony of a grand
jury witness may be produced only upon order of the court which
impaneled the grand jury, and only after a showing of
particularized need for the transcript.

Plaintiffs argue that

they can demonstrate a particularized need for the transcript
and that this Court should order the Prosecutor to produce the
transcript in the interest of time and efficiency.

However,

this Court is not in a position to make such a determination.
In general, requests for disclosure of grand jury transcripts
should be directed to the court that supervised the grand jury’s
activities, and the judge who supervised the grand jury is in
the best position to review the request for such disclosure.
Douglas Oil, 441 U.S. at 225-26; Ind. Code §35-34-2-10(b)(2)(A).
Therefore, the Plaintiffs are not entitled to item 175 on the
Prosecutor’s Privilege Log [Dkt. 67 at 150], and must directly
14

petition the court that presided over the grand jury to obtain
the transcript of the grand jury proceedings.
Next, Indiana Code § 35-34-2-10(a) prohibits a person who
was present at a grand jury proceeding from disclosing any
evidence or testimony given or produced, what a grand juror
said, or any vote of a grand juror to any other person except to
a person who was present or entitled to be present at that
proceeding.

The Prosecutor claims that several items on their

privilege log related to the grand jury proceedings are
protected from disclosure under Indiana Code § 35-34-2-10(a).
However, these documents do not include the transcript of the
testimony of witnesses during the grand jury proceedings, and a
number of the documents are public filings.

In addition,

providing documents to a grand jury does not automatically make
them immune from discovery, similar to a client’s inability to
provide an attorney with an otherwise non-privileged document in
an attempt to make it privileged.

Thus, disclosure of these

remaining documents would not constitute unauthorized
disclosure, and Plaintiffs are entitled to disclosure of these
documents.
2.

Department of Child Services Records

Indiana Code § 31-33-18-1 makes confidential any reports
and investigations of child abuse and neglect.

However, such

reports may be made available to an individual named in the
15

report or record who is alleged to be abused or neglected or the
parents, guardians, custodians, and attorneys of a child named
in such report, with protection for the identity of the
reporters and other appropriate individuals.
18-2.

Ind. Code § 31-33-

Thus, Plaintiffs are entitled to disclosure of any

reports in which M.D. is named, provided that the identity of
the reporters are protected.

Plaintiffs are entitled to

disclosure of documents 42, 60, 165 on the Prosecutor’s
Privilege Log [Dkt. 67 at 3, 5, 13], as these are all identical
reports about M.D. in which the reporter’s identity is not
disclosed.

Plaintiffs are also entitled to disclosure of

document 327 on the Prosecutor’s Privilege Log [Dkt. 67 at 30]
because M.D. is referenced in the report; however, the identity
of the reporter may not be disclosed and should be redacted
prior to its production.

Documents 279, 311, 325, and pages 1

through 8 of document 280 on the Prosecutor’s Privilege Log
[Dkt. 67 at 25, 28, 29]

are confidential and may not be

disclosed to the Plaintiffs.
Several documents listed on the City’s privilege log relate
to reports of child abuse or neglect; however, it is unclear as
to who is the subject of each of these documents.

The following

documents on the City’s Privilege Log [Dkt. 69-8] may be
confidential under Indiana Code § 31-33-18-2:
•

“Interviews at Chaucie’s Place on 2/25/10” and the
16

identity, address, phone number and date of birth of
“Victim 2” included in pages 44 through 56 of the Carmel
Police Department Case Report Detail
•

Chaucie’s Place information sheet and “Multidisciplinary
Team Confidentiality Sheet”

•

Indiana Department of Child Services Authorization for
Release of Information form dated 2/25/1[sic]

•

Chaucie’s Place (2) “Multidisciplinary Team Confidentiality
Sheet,” “Consent of the parent, guardian, or custodian to
interview children,” (2) Chaucie’s Place information sheet

•

Indiana Department of Child services preliminary report of
alleged child abuse and neglect, dated February 17,
2000[sic]

•

Preliminary report of alleged child abuse or neglect, state
form 11 4 (R3/7-94)/FPP 0310, preliminary report of child
abuse or neglect in compliance with Indiana public law 276,
act of 1979, IC 31-6-11-18

•

Disc Number 1 – DVD Interview Victim #1

•

Disc Number 2 – DVD Interview Victim #1

•

Disc Number 5 – DVD Interview Victim #2

•

Disc Number 55 – Locker Room Map-Chaucie’s Place Interview
with Victim #2

•

Disc Number 56 – Locker Room Map-Chaucie’s Place Interview
17

with Victim #1
To the extent that these documents are about or reference
M.D., they should be produced to the Plaintiffs.

However, the

Court is unable to determine from the City’s Privilege Log which
of these documents may be disclosed and which are confidential.
The City must file an amended privilege log under seal, within
seven days of the date of this Order, listing the documents
above and designate, by initials, which individual(s) each
document references so that the Court can make a determination
as to which, if any, of these documents are confidential and
which must be disclosed.
3.

Presentence Reports

Indiana Code § 35-38-1-13 provides that a presentence
report or memoranda submitted to the court in connection with
sentencing shall be kept confidential, and may not be made
available to any person or public or private agency other than
those enumerated in the statute.

Plaintiffs do not fall within

any of the statutory exceptions for disclosure.

Thus, documents

27, 29, and 100 of the Prosecutor’s Privilege Log [Dkt. 67 at 2,
8] are not subject to production.
D.

Undue Burden and Availably From Other Sources
The Prosecutor argues that Plaintiffs’ subpoena imposes an

undue burden upon it, and both the Prosecutor and the City argue
that the documents are readily obtainable from other sources.
18

A

court may limit the scope of discovery if the discovery sought
is unreasonably cumulative, or is obtainable from some other
source that is more convenient, less burdensome, or less
expensive.

Fed. R. Civ. P. 26(b)(2)(C).

Non-party status is a

significant factor to be considered when determining whether the
burden imposed by a subpoena is undue.

Morrow v. Air Ride

Technologies, Inc., No. IP-05-133-Misc., 2006 WL 559288 at *1
(S.D. Ind. March 6, 2006).

This factor is not absolute, and a

court may weigh a number of factors to determine whether a
subpoena is unduly burdensome, including “relevance, the need of
the party for the documents, the breadth of the document
request, the time period covered by it, the particularity with
which the documents are requested, and the burden imposed.”

Id.

(quoting The Goodyear Tire & Rubber Co. v. Kirk’s Tire & Auto
Servicenter of Haverstraw, Inc., 211 F.R.D. 658, 662-63 (D. Kan.
2003) (internal quotations omitted)).
The Prosecutor does not provide any specific arguments as
to how production of the requested documents imposes an undue
burden besides making a blanket assertion of such.

However,

Plaintiffs have demonstrated that the documents are highly
relevant to their case, as they relate to the underlying facts
of this lawsuit and will assist the Plaintiffs in identifying
witnesses and the discovery of other relevant evidence.
Plaintiffs’ subpoena is not overly broad, and Plaintiffs have
19

even further limited the time period of their original request
from ten years to two years of documents.

The documents

requested are already in the Prosecutor’s and City’s files, many
of which have already been organized and catalogued in order to
be provided to the criminal defense attorneys in the related
criminal case.

The Court finds that Plaintiffs’ request does

not impose an undue burden on the Prosecutor or the City and the
non-privileged documents must be disclosed as outlined herein.
III. CONCLUSION
For the foregoing reasons, the Court GRANTS in part and
DENIES in part the Prosecutor’s motion to quash, and GRANTS in
part and DENIES in part the Plaintiffs’ motion to compel.

The

motion to quash is GRANTED and the motion to compel is DENIED
with respect to the following documents identified on the
Prosecutor’s Privilege Log: 27, 29, 100, 175, 279, 280 (with the
exception of pages 7-8), 311, and 325 [Dkt. 67 at 2, 8, 25, 28,
29, 150]. The Prosecutor shall provide a redacted version of
document 327 omitting the identity of the reporter.

The motion

to quash is DENIED and the motion to compel is GRANTED with
respect to the remaining documents on the Prosecutor’s privilege
log, as well as any other documents or other materials
responsive to Plaintiffs’ subpoena that have been omitted from
the privilege log.

The Plaintiffs' Motion to Compel is GRANTED

with respect to all evidence requested in its subpoena duces
20

tecum served on the City, with the exception of the documents
discussed and specified above.

The City shall file an amended

privilege log under seal within seven days of this order listing
these documents and designate, by initials, which individual(s)
the document references so that the Court can make a
determination as to which, if any, of these documents are
confidential and exempt from disclosure.
In order to protect the identity of the minor witnesses,
the parties shall move the Court for entry of a protective order
with the Prosecutor and the City within seven days of the date
of this Order.
SO ORDERED.
Dated:

03/30/2012
Mark J. Dinsmore
United States Magistrate Judge
Southern District of Indiana

Distribution:
Gregory P. Gadson
LEE FAIRMAN LLP
[e-mail]
Corinne T.W. Gilchrist
OFFICE OF THE INDIANA ATTORNEY GENERAL
[e-mail]
Nathaniel Lee
LEE FAIRMAN LLP
[e-mail]
Rick D. Meils
MEILS THOMPSON DIETZ & BERISH
[e-mail]
John W. Mervilde
MEILS THOMPSON DIETZ & BERISH
[e-mail]
21

Liberty L. Roberts
COLLIER MAGAR & ROBERTS
[e-mail]
Cari L. Sheehan
LEE FAIRMAN LLP
[e-mail]
Robert B. Turner
LEE FAIRMAN LLP
[e-mail]

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