KEATON v. HANNUM et al

Filing 192

ORDER granting in part and denying in part Pltf's 180 Motion to Compel (see Order) c/m. Signed by Magistrate Judge Mark J. Dinsmore on 8/19/2013. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

MARK KEATON,
Plaintiff,
vs.
DAVE HANNUM,
LESLIE SLONE,
CHRISTINE ZOOK,
REBA GARDNER,
JACKIE DAKICH,
Defendants.
______________________________________
INDIANA SUPREME COURT
DISCIPLINARY COMMISSION,
INDIANA UNIVERSITY BOARD OF
TRUSTEES,
Intervenor.

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No. 1:12-cv-00641-SEB-MJD

ORDER ON PLAINTIFF’S MOTION TO COMPEL
This matter comes before the Court on Plaintiff Mark Keaton’s Motion to Compel
Directed to Nonparty Indiana University Police Department. [Dkt. 180.] For the following
reasons, the Court hereby GRANTS in part and DENIES in part Plaintiff’s motion.
I. Background
This case involves several claims for unlawful conduct arising out of the prosecution of
Plaintiff for charges of stalking. [Dkt. 180 at 1.] Specifically, Plaintiff alleges that Defendants
Leslie Slone and Dave Hannum, officers with the Indiana University Police Department (IUPD),
conspired to falsely arrest and prosecute Keaton in violation of his First, Fourth, and Fourteenth
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Amendment rights. [Id.] On May 31, 2013, Plaintiff served IUPD with a subpoena duces tecum
seeking the production of documents relevant to said claims, and IUPD responded with
responses and objections on July 1, 2013. [Id. at 2.] In an effort to streamline the discovery
process, on July 25, 2013 the Court relieved Plaintiff of any further meet and confer obligations
regarding discovery disputes and directed Plaintiff to file motions to compel regarding any such
disputes. [Dkt. 175.] Plaintiff accordingly filed this Motion to Compel, and the Court heard oral
arguments on August 15, 2013. [Id.; Dkt. 180.]
II. Discussion
Pursuant to Rule 45, a party is entitled to subpoena a nonparty for production or
inspection, so long as reasonable steps are taken to avoid imposing undue burden or expense on
the person or entity subject to the subpoena. Fed. R. Civ. P. 45(a)(2)(C), (c)(1). It is the nonparty status that is a significant factor in determining whether a burden is undue:
Although discovery is by definition invasive, parties to a law suit must accept its
travails as a natural concomitant of modern civil litigation. Non-parties have a
different set of expectations. Accordingly, concern for the unwanted burden
thrust upon non-parties is a factor entitled to special weight in evaluating the
balance of competing needs.
United States v. Amerigroup Illinois, Inc., 02 C 6074, 2005 WL 3111972 (N.D. Ill. Oct. 21,
2005) (quoting Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st Cir. 1998)). That is not to
say, however, that any burden or expense is excessive; only where a nonparty is subjected to
“significant expense” should the burden of cost shift to the requesting party. See, e.g., DeGeer v.
Gillis, 755 F. Supp. 2d 909, 928 (N.D. Ill. 2010) (“[c]ourts have considered three equitable
factors when considering cost-shifting and non-parties: (1) whether the nonparty has an interest
in the outcome of the case; (2) whether the nonparty can more readily bear its costs than the
requesting party; and (3) whether the litigation is of public importance”). Unless and until a

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nonparty is subjected to such a “significant expense,” a Rule 45 subpoena for production or
inspection does not constitute an undue burden on a nonparty. Id.
A. The Redaction of Documents in Response to Request No. 1
Plaintiff’s first argument of this Motion to Compel asserts that he is entitled to complete
and unredacted copies of the documents relating to IUPD’s investigation of Plaintiff and
Defendant Zook. [Dkt. 180 at 2.] In response, IUPD argues that its redaction of a driver’s
license number, social security numbers, phone numbers, and addresses was appropriate and in
compliance with IUPD’s policy of “protecting as confidential and private the identifying and
contact information of victims, witnesses and other complainants.” [Dkt. 183 at 1-2.] IUPD also
cites to several cases where courts found redactions of personal information appropriate. [Id.]
However, the referenced cases approve of such redactions only when the redacted
information is not relevant, would contravene the Indiana Rules of Professional Conduct, or
where the need to protect the privacy of the information is great. See Barker v. Floyd Mem'l
Hosp. & Health Servs., 4:10-CV-26-RLY-WGH, 2010 WL 9462572 (S.D. Ind. Sept. 27, 2010)
(ordering that only the plaintiff’s, irrelevant and highly personal, social security number or date
of birth should be redacted); Chavez v. DaimlerChrysler Corp., 206 F.R.D. 615, 622 (S.D. Ind.
2002) (permitting the redaction of “highly confidential information” like social security numbers
in light of the lack of protective order and their irrelevance, and permitting the redaction of
supervisory-level employees’ names and phone numbers because, although relevant, such
contacts should be made through defense counsel pursuant to the Indiana Rules of Professional
Conduct); Scaife v. Boenne, 191 F.R.D. 590, 592 (N.D. Ind. 2000) (permitting the redaction of
the defendants’ addresses, social security numbers, and children’s information because “there is
no relevancy”).

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While the Court respects IUPD’s policy of encouraging people to talk to its officers
without fear that the information will be publicized, that policy cannot restrict Plaintiff’s right to
access relevant, public information such as the names, phone numbers, and addresses of potential
witnesses against him. At the hearing on this motion, Plaintiff acquiesced that the driver’s
license number and the social security numbers are not relevant to his case, and the Court denies
Plaintiff’s motion to compel the removal of those redactions. However, in light of the relevancy
of the redacted addresses and telephone numbers, their historically public nature, and the absence
of court rule or law further protecting their redaction, the Court grants Plaintiff’s motion to
compel the removal of such redactions.
B. The Personnel Files of Slone and Hannum in Response to Request Nos. 7 and 8
Plaintiff then argues that IUPD’s response to the requests for Officer Slone and Officer
Hannum’s personnel files were incomplete, noting that “the produced files contain no
information beyond the late 1990s.” [Dkt. 180 at 3.] In response, IUPD is adamant that “the
entire personnel files of Slone and Hannum have been produced,” and IUPD cannot be
compelled to produce files that do not exist. [Dkt. 183 at 2.]
Additionally, IUPD objects to the request (1) under Indiana’s Access to Public Records
Act (IAPRA) and (2) because IUPD believes that the request is irrelevant and not reasonably
calculated to lead to the discovery of admissible evidence. [Dkt. 180 Ex. 1 at 5-6.] The Court
overrules the relevance objection, as the personnel files of the two IUPD officers who allegedly
acted with egregious misconduct are indeed relevant and could lead to the discovery of
admissible evidence. As for the IAPRA objection, “a federal Rule 45 subpoena constitutes
‘access . . . ordered by a court under the rules of discovery’ permitting disclosure of exempt
records under Indiana Code § 5-14-3-4.” Jackson v. Brinker, 147 F.R.D. 189, 197 (S.D. Ind.

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1993). In other words, “Indiana Code § 5-14-3-4(a) allows for the disclosure of these records . . .
upon order of the court under the rules of discovery.” Davis v. Carmel Clay Sch., 282 F.R.D.
201, 206 (S.D. Ind. 2012). Thus, the IAPRA does not bar this Court from compelling IUPD to
produce such documents, and the objection is overruled.
However, while Plaintiff’s suspicion may be understandable, the Court cannot compel
further production without further evidence that the response was incomplete. See, e.g., Gray v.
Faulkner, 148 F.R.D. 220, 223 (N.D. Ind. 1992) (“The fact that a party may disbelieve or
disagree with a response to a discovery request, however, is not a recognized ground for
compelling discovery, absent some indication beyond mere suspicion that the response is
incomplete or incorrect”). If and when it becomes apparent that such requested information was
not included in IUPD’s response, the Court will address the issue of sanctions. For the present,
without any evidence aside from Plaintiff’s suspicion that IUPD’s response was incomplete, the
Court denies Plaintiff’s Motion to Compel with regard to the personnel files of Officers Slone
and Hannum beyond overruling the objections to those requests as discussed above.
C. The Probable Cause Affidavits Executed by Hannum in Response to Request No. 9
Next, Plaintiff argues that he is entitled to production of all probable cause affidavits filed
by or prepared by Officer Hannum between January 2005 and the present. [Dkt. 180 at 4.]
IUPD objects to the production of the probable cause affidavits on the basis of (1) irrelevance
and unlikelihood to lead to the discovery of admissible evidence, (2) Officers Hannum and
Slone’s alleged qualified immunity, and (3) the alleged undue burden that production of such
affidavits would place on IUPD. [Dkt. 180 Ex. 1 at 6-7.]
The Court first addresses IUPD’s relevance argument. Plaintiff argues that his class-ofone equal protection claim contends that he was “singled out for disparate treatment,” that

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“defendants occasioned his arrest and prosecution in an arbitrary manner and without any
rational basis,” and that Plaintiff was “intentionally treated differently from others similarly
situated.” [Dkt. 180 at 4.] Plaintiff cites to Swanson v. City of Chetek as evidence that the
Seventh Circuit recognizes such a claim with regard to claims for malicious prosecution. [Id.
(citing to 719 F.3d 780 (7th Cir. 2013)).] In response, IUPD cites only to a Second Circuit case
that asserts that a successful class-of-one claim requires an “extremely high” similarity between
the Plaintiff and the “others similarly situated.” [Dkt. 183 at 5 (quoting Neilson v. D’Angelis,
409 F.3d 100, 104 (2nd Cir. 2005)).] The purpose of discovery, however, is to garner the very
evidence that is required for a successful claim. Without access to Officer Hannum’s other
probable cause affidavits or other stalking investigation files, Plaintiff cannot know the degree of
similarity between himself and others arrested and prosecuted by Officers Hannum and Slone.
Accordingly, the probable cause affidavits are relevant, and IUPD’s relevance objection is
overruled.
Next, the Court addresses IUPD’s assertion that Officer Hannum and Officer Slone’s
alleged qualified immunity protects IUPD’s obligation to produce discovery documents. IUPD
cites to Mitchell v. Forsyth in support of this argument, asserting that qualified immunity is
appropriate “to protect public officials from the broad-ranging discovery that can be peculiarly
disruptive of effective government.” [Id. (quoting 472 U.S. 511, 526 (1985)).] However,
reliance on this case is misguided, as the quoted dictum merely references Harlow v. Fitzgerald,
457 U.S. 800 (1982), which held that “a defendant pleading qualified immunity is entitled to
dismissal before the commencement of discovery.” Mitchell v. Forsyth, 472 U.S. 511, 526
(1985) (holding that a determination of qualified immunity is an appealable interlocutory

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decision). As this subpoena was served against nonparty IUPD, which is not a defendant, the
question of qualified immunity is irrelevant, and the Court overrules this objection.
The Court now addresses IUPD’s undue burden objection. In its letter of response to
Plaintiff’s request, IUPD wrote that “Hannum has prepared approximately 540 probable cause
affidavits within the relevant time period” but objects to their production because they are not
centrally located and their review would be unduly burdensome. [Dkt. 180 Ex. 1 at 6-7.] IUPD
then indicated that approximately 350 of those case files currently exist in hard copy and 190 of
those case files exist with electronic attachments, and a review of these files to identify the
probable cause affidavits prepared by Officer Hannum would take seventy-four hours. [Dkt. 183
at 4.] At the hearing on this Motion to Compel, IUPD’s counsel indicated that documents
prepared by Officer Hannum for those 540 cases, presumably including such probable cause
affidavits, are ostensibly located on Officer Hannum’s computer. Alternatively, IUPD has also
indicated that a search in IUPD’s Automated Records Management System (ARMS) for Officer
Hannum as “arresting officer” is possible, though may not turn up all of the cases for which
Officer Hannum prepared a probable cause affidavit, and the review of the 17,000 “criminal
activity” cases since January 2005 would take 1,133 hours, reiterating its objection that such a
production would be unduly burdensome. [Id. at 3.]
The Court reiterates that, although afforded significant weight, the burden placed upon a
nonparty is not undue unless the nonparty faces a “significant expense.” DeGeer v. Gillis, 755 F.
Supp. 2d 909, 928 (N.D. Ill. 2010). In evaluating whether the burden of production is undue, the
Court will measure expense not against the most thorough and expensive method of production,
but against the most timely and economic method of production that serves the requesting party’s
purpose. While the IUPD may have the prerogative to elect a different method of production,

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such an election may not delay production and will not shift the cost of production to the
Plaintiff. IUPD has indicated that the bulk of the time and cost in producing these affidavits
derives from each case file’s review and reproduction, but such review and reproduction of the
entire case file is not necessary. Additionally, Plaintiff has confirmed that a “mere list” of the
cases on which Officer Hannum has worked would serve his purpose for production, as the
probable cause affidavits are on file with the court. [Dkt. 190 at 6.]
With regard to Officer Hannum’s documents that are located on his computer, the Court
(1) orders IUPD to produce the electronic files that may contain the requested probable cause
affidavits and (2) orders Plaintiff to use the contents of these electronic files solely for this
litigation and for no other purposes. Such production shall be made pursuant to the Parties’
Agreed Electronic Discovery Protocol, which protects any unintentional disclosure of privileged
information. [Dkt. 51 at 2.] Production of any privileged documents as part of that production
shall be deemed “unintentional” for the purposes of that order. IUPD may unilaterally elect
either to review these electronic files and produce only the probable cause affidavits themselves
or to produce a list of the qualifying cases with documents on Officer Hannum’s computer, so
long as the list contains (1) the suspect/defendant’s name, (2) the IUPD case number, (3) the
court cause number, when available, and (4) the most specific date possible, such as the day of
arrest, the month of prosecution, the year during which the case was active, or the date of the
electronic files. Regardless of the method of production, IUPD will bear the cost of production
of these computer files, and Plaintiff must receive the files within seven (7) business days of the
date of this Order.
The Court also (1) orders IUPD to produce the listed results of the search in ARMS of
Officer Hannum as “arresting officer” from January 2005 to present and (2) orders Plaintiff to

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use the contents of these electronic files solely for this litigation and for no other purposes. The
list of these results must contain (1) the defendant’s name, (2) the IUPD case number, (3) the
court cause number, when available, and (4) the most specific date possible, such as the day of
arrest, the month of prosecution, or the year during which the case was active. IUPD will bear
the cost of production of these computer files, and Plaintiff must receive this list as soon as
possible, no later than three (3) business days of the date of this Order. The Court so grants
Plaintiff’s Motion to Compel the production of the probable cause affidavits prepared by Officer
Hannum from January 2005 to the present.
D. Documents Related to IUPD Stalking Investigations in Response to Request No. 11
Plaintiff further argues that he is entitled to production IUPD’s files relating to
investigations of stalking allegations between January 2005 and the present. [Dkt. 180 at 6.] In
its letter of response, IUPD objected to the production of such documents on the same bases as
against the affidavits: (1) relevance, (2) qualified privilege, and (3) undue burden. [Dkt. 180 Ex.
1 at 7.] IUPD estimates that the review and reproduction of the approximately thirty-nine
stalking files would take an estimated twenty hours and argue that such a production would
cause IUPD an undue burden. [Dkt. 183 6.]
Because there are no unique arguments to the relevance and qualified privilege objections
here versus the objections to the production of Officer Hannum’s affidavits, the Court overrules
those objections for the same reasons discussed above. As for its undue burden objection, IUPD
again allots the bulk of its time for review and reproduction of the case files related to stalking,
neither of which are absolutely necessary to the requested production. With regard to the cases
stored electronically, the Court (1) orders IUPD to produce the electronic files of the requested
stalking investigations in PDF format and (2) orders Plaintiff to use the contents of these

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electronic files solely for this litigation and for no other purposes. With regard to the cases not
stored electronically, the Court (1) orders IUPD to give Plaintiff access to the files, from which
Plaintiff may select the documents he wishes to be copied and produced, and (2) orders Plaintiff
to use the contents of these electronic files solely for this litigation and for no other purposes.
Such production shall be made pursuant to Parties’ Agreed Electronic Discovery Protocol, which
protects an unintentional disclosure of privileged information. [Dkt. 51 at 2.] Production of any
privileged documents as part of that production shall be deemed “unintentional” for the purposes
of that order. The Court so grants Plaintiff’s Motion to Compel the production of IUPD’s
stalking investigation files from January 2005 to the present.
E. IUPD Internal Policies, Procedures, and Protocols in Response to Request Nos. 12-17
For his penultimate argument, Plaintiff asserts that IUPD’s response regarding IUPD’s
policies, procedures, and protocols was incomplete, citing to an incident report that quotes a
policy that was not produced. [Dkt. 180 at 6-7.] In response, much like its response to the
motion to compel Slone and Hannum’s personnel files, IUPD is adamant that any policy that
Plaintiff believes IUPD is withholding is no longer in effect, and IUPD cannot be compelled to
produce files that do not exist. [Dkt. 183 at 7.]
Additionally, IUPD objects to these requests “based on the vagueness of the words,
‘related to’ or ‘relating to.’” [Dkt. 180 Ex. 1 at 7-8.] While arguably broad, the Court does not
find the wording of request numbers 12, 13, 14, 15, 16, or 17 to be vague. The Court overrules
these objections and orders IUPD to produce any such document “that constitutes or comprises”
the internal policies, procedures, training, or protocols that the Plaintiff seeks in these requests.
As for Plaintiff’s argument that IUPD’s responses are incomplete, the Court reiterates
that it cannot compel a production without further evidence that the response was incomplete.

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See, e.g., Gray v. Faulkner, 148 F.R.D. 220, 223 (N.D. Ind. 1992) (“The fact that a party may
disbelieve or disagree with a response to a discovery request, however, is not a recognized
ground for compelling discovery, absent some indication beyond mere suspicion that the
response is incomplete or incorrect”). If and when it becomes apparent that any such requested
information was not included in IUPD’s response, the Court will address the issue of sanctions.
For the present, without any evidence aside from Plaintiff’s suspicion that IUPD’s response was
incomplete, the Court denies Plaintiff’s Motion to Compel with regard to the internal policies,
procedure, training, or protocols of IUPD.
F. Privilege Log
Plaintiff’s final argument in his Motion to Compel notes that there were redactions in
IUPD’s responses that were not noted in the then-existing log of documents withheld on grounds
of privilege (“privilege log”). [Dkt. 180 at 8-9.] However, just hours after Plaintiff timely
transmitted this Motion to Compel in order to meet the Court’s deadline, IUPD served Plaintiff
with an amended privilege log. [Dkt. 188-2 at 10.] As a result, Plaintiff moved to withdraw this
aspect of his motion and confirmed at this motion’s hearing that there is no further dispute on
this particular matter. Id. Accordingly, the Court denies this aspect of the motion as moot.
III. Conclusion
For the aforementioned reasons, the Court hereby GRANTS in part and DENIES in part
Plaintiff’s Motion to Compel Directed to Nonparty Indiana University Police Department. [Dkt.
180.]

Date:

08/19/2013
Mark J. Dinsmore
United States Magistrate Judge
Southern District of Indiana

Distribution:
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MARK KEATON
PO BOX 11208
Ft. Wayne, IN 46856
David L. Ferguson
FERGUSON & FERGUSON
[e-mail]
David B. Hughes
INDIANA SUPREME COURT DISCIPLINARY COMMISSION
[e-mail]
Caryn M. Nieman
OFFICE OF THE ATTORNEY GENERAL
[e-mail]
Don R. Hostetler
OFFICE OF THE ATTORNEY GENERAL
[e-mail]
James R. A. Dawson
TAFT STETTINIUS & HOLLISTER LLP
[e-mail]
Daniel Mark Witte
TRAVELERS STAFF COUNSEL OFFICE
[e-mail]
Frederick A. Roetter
TRAVELERS STAFF COUNSEL OFFICE
[e-mail]

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