MICKLE v. CITY OF INDIANAPOLIS et al

Filing 55

ORDER granting in part and denying in part Plaintiff's 46 Motion to Compel (see Order). Signed by Magistrate Judge Mark J. Dinsmore on 8/31/2015. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ANTHONY MICKLE,
Plaintiff,
vs.
CITY OF INDIANAPOLIS,
TRACY KEITHLEY in her individual
capacity and official capacity as officer of the
Indianapolis Metropolitan Police Department,
Defendants.

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No. 1:14-cv-01608-RLY-MJD

ORDER ON MOTION TO COMPEL
This matter comes before the Court on Anthony Mickle’s (“Plaintiff”) Motion to Compel
Production of Documents. [Dkt. 46.] For the following reasons, the Court GRANTS IN PART
and DENIES IN PART Plaintiff’s motion to compel.
I. Background
On October 1, 2014, Plaintiff filed his Complaint against Tracy Keithley (“Officer
Keithley”) and the City of Indianapolis (“the City”), collectively “Defendants,” alleging that
Officer Keithley used unreasonable and excessive force against him in violation of Section 1983
of the Civil Rights Act and that the City negligently hired, supervised, and/or retained Officer
Keithley. [Dkt. 1.] Specifically, Plaintiff alleges that, while responding to a call from the
Country Hearth Hotel on October 7, 2012, Officer Keithley shot Plaintiff once in the head and
once in the thigh even though Plaintiff “complied with all of Officer Keithley’s demands” to
remove his hands from his pockets and lie down. [Id. at 3.] In response, Defendant alleges that
Plaintiff matched the description of a suspect who had reportedly threatened the hotel clerk with
a knife, that Plaintiff did not comply with Officer Keithley’s orders that Plaintiff remove his
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hands from his pockets and lie down face down, and that Officer Keithley, believing that
Plaintiff’s hand was on a gun in his pocket, fired three shots. [Dkt. 14 at 2-3.]
On March 30, 2015, Plaintiff served Defendants with his First Request for Production of
Documents, requesting in relevant part that Defendants produce “[a]ll documents relating to all
investigations into, concerning and/or following the Incident.” [Dkt. 47-1 at 6.] In making this
request, Plaintiff was seeking the Indianapolis Metropolitan Police Department Internal Affairs
(“IMPD Internal Affairs”) reports and summaries pertaining to the October 7, 2012 shooting
(“Incident”), but Defendants responded by alleging that the Report and Summary sought are
protected by the law enforcement investigatory privilege, pursuant to Anderson v. Marion
County Sheriff’s Department, 220 F.R.D. 555 (S.D. Ind. 2004). [Dkt. 47-2 at 28.] Following a
settlement conference in the matter on July 13, 2015, the Court authorized Plaintiff to file a
motion to compel the production of the Report and Summary, which motion Plaintiff filed on
July 17, 2015. [Id. at 2.]
Oral argument was held on August 11, 2015, at which time Plaintiff withdrew his request
for any Summary pertaining to the Incident, limiting the documents in question to those factual
documents (such as witness statements) that underlie the Summary. Additionally, Defendants
were ordered to submit copies of the withheld documents for in camera review, and the matter
was taken under advisement. [Dkt. 50.] Because Defendants’ submission appeared to contain
both withheld documents and documents that had already been produced, the Court scheduled a
follow-up hearing on August 18, 2015, at which hearing Defendants coincidentally agreed to
produce certain documents previously withheld, pursuant to a protective order. [See Dkts. 51,
52.] In its Minute Order for the subsequent hearing, the Court clarified that “Defendants are to
provide the Magistrate Judge, for in camera review, only the documents that counsel has actually

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withheld from production. In addition, on or before August 21, 2015, Defendants can provide
any further submissions on the issue of the production of Officer Keithley’s statement.” [Dkt. 51
(emphasis added).] Accordingly, on August 20, 2015, Defendants submitted a compact disc with
two electronic folders—one marked Privileged and one marked Attorneys’ Eyes Only—for in
camera review. Having so narrowed the issues, Plaintiff’s motion to compel [Dkt. 46] is now
before the Court.
II. Legal Standard
Rule 37 permits a party to file a motion to compel an opposing party to make a required
disclosure upon “evasive or incomplete disclosure, answer, or response.” Fed. R. Civ. P. 37(a).
A required disclosure, as broadly defined by Rule 26, includes any information that a party may
use to support its claims. Fed. R. Civ. P. 26 (a)(1)(A). “For good cause, the court may order
discovery of any matter relevant” to the issues of the case. Fed. R. Civ. P. 26 (b)(1). Ultimately,
this Court has “broad discretion in discovery matters, [including when ruling on a] motion to
compel discovery.” Packman v. Chicago Tribune Co., 267 F.3d 628, 646 (7th Cir. 2001).
III. Discussion
Plaintiff asserts that the law enforcement investigatory privilege should not be applied to
the IMPD Internal Affairs Report and Summary sought because, when weighing the ten factors
established by the Frankenhauser court, each factor weighs in favor of the Plaintiff. [Dkt. 47 at
4-9.] In response, Defendants argue that the three most significant and applicable factors 1 weigh
heavily in their favor, and thus the Court should deny Plaintiff’s motion to compel the Report

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When explaining to the Court at oral argument why Defendants only addressed three of the ten factors and why the
Court should not interpret the limited scope of Defendants’ brief as a concession that the remaining seven factors do
indeed weigh in Plaintiff’s favor, defense counsel reasoned that the focus was out of respect for the Court’s time and
page limit requirements. Interestingly enough, however, Defendants’ response brief measured just twelve pages in
length out of the thirty-five pages allotted pursuant to the Local Rules, S.D. Ind. L.R. 7-1(e)(1), and the three factors
addressed were discussed in only five of the twelve pages [Dkt. 49 at 7-11]. Thus, the Court finds that Defendants’
brevity was not out of necessity, but out of choice.

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and the Summary. [Dkt. 49 at 5-12.] At oral argument, Plaintiff withdrew his request for the
IMPD Internal Affairs Summary of the report, which withdrawal was confirmed at the
subsequent hearing on the matter. Additionally, at the subsequent hearing on the matter
Defendants agreed to produce certain documents that had previously been withheld, provided
that they are produced pursuant to a protective order. Accordingly, the scope of Plaintiff’s
motion to compel is now limited to the documents that Defendants have not agreed to produce
pursuant to the forthcoming protective order and that are not a Summary of the Incident Report.
The law enforcement investigatory privilege “is a qualified common law privilege
protecting civil as well as criminal law enforcement investigatory files from civil discovery.”
Jones v. City of Indianapolis, 216 F.R.D. 440, 443 (S.D. Ind. 2003). The purposes of the
privilege are (1) to prevent public disclosure of law enforcement techniques and procedures; (2)
to preserve the confidentiality of sources; (3) to ensure the safety of witnesses and law
enforcement personnel; (4) to maintain the privacy of those involved with an investigation; and
(5) to prevent outside interference with an investigation. Id. at 444 (quoting In re Dep't of
Investigation of City of New York, 856 F.2d 481, 484 (2d Cir. 1988)). Once a court makes a
finding that the requested materials fall within the scope of the law enforcement investigatory
privilege, the court must weigh the public interest in protecting the confidentiality of police
investigations against the civil right of the requesting party. Id.
In order to weigh these competing interests, courts consider the ten factors first
established in Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D. Pa. 1973). See, e.g., Anderson
v. Marion Cnty. Sheriff's Dep't, 220 F.R.D. 555, 563-64 (S.D. Ind. 2004); Jones v. City of
Indianapolis, 216 F.R.D. 440, 444 (S.D. Ind. 2003); Tuite v. Henry, 181 F.R.D. 175, 177 (D.D.C.
1998) aff'd, 203 F.3d 53 (D.C. Cir. 1999). The ten factors are as follows:

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(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-evaluation 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.
Jones, 216 F.R.D. at 444 (citing to Tuite, 181 F.R.D. at 177). The court has “considerable
leeway” in weighing the aforementioned factors. Tuite, 181 F.R.D. at 177. As with any
allegation of privilege, “the party claiming the privilege bears the burden of justifying the
application of the investigatory privilege.” Jones, 216 F.R.D. at 444.
The Court will now address the documents submitted by Defendants on August 20, 2015
that remain withheld as “Privileged.” The first two of the four documents being so withheld
appear to be identical copies that both consist of “the Internal Affairs commander’s summary” of
the investigation dated March 27, 2013 and the “Case Summary” submitted by an Internal
Affairs investigator on February 13, 2013. The third document being withheld as privileged,
titled Firearms Investigation Report, is a summary of the identity of the witnesses to the incident,
the physical location of the Incident, and the weather conditions at the time of the Incident, with
a narrative “Summary” of the Incident attached. The Court finds these three documents to be the
exact Summaries for which Plaintiff withdrew his request, and accordingly they are no longer at
issue. Thus, the only document in question is a compilation of Internal Affairs investigators’

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handwritten notes regarding the Incident. The Court will now examine whether the
investigators’ handwritten notes are protected by the law enforcement investigatory privilege by
weighing the Frankenhauser factors, as similarly weighed in Jones.
A. The extent to which disclosure will thwart governmental processes by
discouraging citizens from giving the government information
In Jones, the court found that disclosure could potentially thwart the governmental
process, as there was considerable local media coverage of that incident and the incident
involved a criminal investigation. 216 F.R.D. at 445-46. Although no evidence of media
coverage of this Incident was presented, the fact remains that there is an interest in encouraging
citizens to assist law enforcement with future investigations. Accordingly, this factor weighs
slightly in Defendants’ favor.
B. The impact upon persons who have given information of having their identities
disclosed
The Jones court found that disclosure could potentially have a negative impact on certain
witnesses because “whether the witnesses’ fears are well founded or not, some members of the
community may feel intimidated, or even threatened by providing evidence that may implicate a
police officer in engaging in criminal activity.” Id. at 446. While this perception is not always
the case, it is a possibility. Accordingly, this factor, too, weighs slightly in Defendants’ favor.
C. The degree to which governmental self-evaluation and consequent program
improvement will be chilled by disclosure
In Jones, the court found this factor to weigh in favor of non-disclosure because “the
release of I[M]PD’s investigatory techniques is akin to a team providing its opponent with its
play book.” Id. Here, there is even greater reason to maintain privilege over the materials in
question, as they are handwritten notes of Internal Affairs investigators, not just IMPD officers,

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and the materials are an exact example of “governmental self-evaluation.” Thus, the Court finds
that this factor weighs strongly in Defendants’ favor.
D. Whether the information sought is factual data or evaluative summary
On this issue, the Jones court reasoned that the “notes containing information relating to
I[M]PD’s investigation” were evaluative rather than factual and fell “squarely within the
investigatory privilege.” Id. Likewise, the IA investigators’ notes presented to the Court for in
camera review are evaluative and not factual in nature. Accordingly, this factor weighs strongly
in Defendants’ favor.
E. 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
In Jones, the plaintiff seeking the materials was the executor of the shooting victim’s
estate, and the court found that the factor weighed in favor of the plaintiff. Id. at 447. Here,
while the Plaintiff was charged with possession of marijuana following the Incident, the case is
now closed and therefore Plaintiff is not a potential defendant in a “pending” or “likely” criminal
proceeding relating to the Incident. [Dkt. 47 at 7.] Thus, the Court finds that this factor weighs
in Plaintiff’s favor.
F. Whether the investigation has been completed
The court in Jones found that this factor weighed in favor of non-disclosure, as the
Department of Justice had opened an investigation into the matter that was on-going. 216 F.R.D.
at 447. Here, however, the IA investigation concluded over two years ago, no grand jury was
convened, and no action was taken by the prosecutor’s office. [Dkt. 47 at 7.] Accordingly, the
Court finds that this factor weighs strongly in Plaintiff’s favor.
G. Whether any interdepartmental disciplinary proceedings have arisen or may
arise from the investigation
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Although the defendants in Jones had only been placed on “administrative duty” without
formal disciplinary action, the Department of Justice investigation had the potential of
culminating in criminal indictments, so this factor weighed in favor of non-disclosure. 216
F.R.D. at 447. Again, there is no such ongoing investigation in this matter, and no evidence was
presented suggesting that disciplinary proceedings against Officer Keithley had arisen in the
past. Thus, this factor also weighs strongly in Plaintiff’s favor.
H. Whether the plaintiff's suit is nonfrivolous and brought in good faith
The Jones matter involved “the untimely death of a man in police custody,” so the court
quickly found that this factor weighed in the plaintiff’s favor. 216 F.R.D. at 447. While Plaintiff
here, thankfully, did not die from his wounds sustained during the Incident, the fact remains that
he sustained injuries when he was shot by a police officer. Thus, Plaintiff’s suit before the Court
is not frivolous, and this factor weighs in Plaintiff’s favor.
I. Whether the information sought is available through other discovery or from
other sources
On this point, the Jones court found that this factor weighed in favor of non-disclosure
because the plaintiff could obtain factual information by deposing witnesses and had already
deposed some IMPD officers regarding the incident that occurred one year prior. Id. at 448. In
this matter, almost three years have passed since the Incident occurred, and Plaintiff asserts that
any deposition taken now will not produce information as equally reliable as the information
contained in the materials sought. [Dkt. 47 at 8.] The Court is inclined to agree with Plaintiff’s
argument and finds that this factor weighs slightly in Plaintiff’s favor.

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J. The importance of the information sought to the plaintiff's case
In Jones, the plaintiff made no effort to articulate how each piece of evidence sought was
necessary to the claim before the court, so the factor was found to weigh in favor of nondisclosure. 216 F.R.D. at 448. At oral argument in this matter, Plaintiff asserted that the
materials sought, such as the statements of Officer Keithley and the other witnesses, were
essential to piecing together the events that took place the night of the Incident. However,
Defendants have since agreed to produce the statements sought, and only the IA investigators’
handwritten notes are at issue, and Plaintiff made no assertion with regard to their significance to
his case. Accordingly, the Court finds that this favor weighs strongly in Defendant’s favor.
Having weighed each of the Frankenhauser factors, and in its broad discretion, the Court
finds that the Defendants need not produce the handwritten notes taken by the Internal Affairs
investigators. Although there are factors that weigh in favor of both disclosure and nondisclosure, the Court finds particularly persuasive the fact that the handwritten notes are not
factual in nature and the fact that that the information contained therein is not of significant
importance to Plaintiff’s case. Accordingly, Plaintiff’s motion to compel with regard to the final
document at issue is DENIED.
IV. Conclusion
For the foregoing reasons, the Court hereby GRANTS IN PART and DENIES IN
PART Plaintiff’s Motion to Compel Production of Documents. [Dkt. 46.] Pursuant to their oral
stipulation and this Order, Defendants are ORDERED to produce the discoverable documents
contained in the Indianapolis Metropolitan Police Department Internal Affairs Report regarding
the Incident within seven (7) days of the date of this Order.

Dated: 08/31/2015
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Distribution:
M. Edward Krause, III
COHEN GARELICK & GLAZIER
[e-mail]
Andrew J. Upchurch
OFFICE OF CORPORATION COUNSEL
[e-mail]
Amanda J. Dinges
OFFICE OF CORPORATION COUNSEL
[e-mail]
Andrew R. Duncan
RUCKELSHAUS KAUTZMAN BLACKWELL BEMIS & HASBROOK
[e-mail]
Edward J. Merchant
RUCKELSHAUS KAUTZMAN BLACKWELL BEMIS & HASBROOK
[e-mail]
John F. Kautzman
RUCKELSHAUS KAUTZMAN BLACKWELL BEMIS & HASBROOK
[e-mail]

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