BREITWEISER v. INDIANA DEPARTMENT OF CHILD SERVICES et al

Filing 85

ORDER granting Defendants' 75 Motion for Protective Order. See Order. Signed by Magistrate Judge Mark J. Dinsmore on 9/27/2016. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

BETH BREITWEISER,

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Plaintiff,
vs.
INDIANA DEPARTMENT OF CHILD
SERVICES,
MARY BETH BONEVENTURA,
PEGGY SURBEY,
NOLA HUNT,
Defendants.

No. 1:15-cv-01687-TWP-MJD

ORDER ON DEFENDANTS’ MOTION FOR PROTECTIVE ORDER
This matter is before the Court on Defendants’ Motion for Entry of Protective Order.
[Dkt. 75.] For the following reasons, the Court GRANTS Defendants’ Motion.
I.

Background

This matter involves allegations that Defendants wrongfully investigated Plaintiff for
child abuse or neglect. [See Dkt. 1.] On September 2, 2016, Defendants moved for a protective
order to prohibit discovery of an audio recording of a conversation (the “recording”) involving
an individual (the “reporter”) who reported allegations of child abuse or neglect to Defendant
Indiana Department of Child Services (DCS). [Dkt. 75.] On September 23, the Court ordered
Defendants to submit the recording for in camera review. [Dkt. 82.] Defendants complied with
the Court’s order on September 26. [Dkt. 83.]
As an initial matter, the Court’s in camera review of the recording reveals that it could
not have been part of the initial report that triggered the investigation at issue, as Plaintiff

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suspects. [Dkt. 78 at 1 (¶ 3).] The recording’s content demonstrates that the underlying
conversation must have occurred at some point in time after DCS’s initial contact with Plaintiff.
II.

Legal Standard

Federal Rule of Civil Procedure 26(c) governs discovery protective orders and permits
the Court to restrict discovery “to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense” upon a showing of good cause. Fed. R. Civ. P.
26(c)(1). The decision to issue a protective order is committed to the sound discretion of the
Court. Id.; see Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002) (“District
courts have broad discretion in matters relating to discovery.”). “Before restricting discovery,”
the Court is required to “consider the totality of the circumstances, weighing the value of the
material sought against the burden of providing it, and taking into account society’s interest in
furthering the truthseeking function in the particular case before the court.” Patterson, 281 F.3d
at 681. Documents protected from disclosure under state law are generally appropriate subjects
for a protective order. See, e.g., Davis v. Carmel Clay Sch., 282 F.R.D. 201, 209 (S.D. Ind.
2012).
III.

Discussion

In support of their Motion, Defendants argue that Ind. Code § 31-33-18-2 imposes a duty
upon them to protect the identity of the reporter and that disclosure would therefore be
inappropriate. Plaintiff argues that she is entitled to a redacted, written transcript of the
recording under the statutory framework. Plaintiff argues that the recording may reveal that the
allegations were meritless. Plaintiff also requests access to the identity of the reporter, wishing
to depose the reporter and believing that the report may have been the result of animus. In reply,
Defendants maintain that any redaction would be insufficient to protect the identity of the

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reporter due to the nature and context of the content. Defendants further argue that any animus is
irrelevant to their duty to assess and respond to reports of child abuse or neglect.
Complaints of child abuse and neglect are confidential under Indiana law. Ind. Code §
31-33-18-1. Nonetheless, section 31-33-18-2 of the Indiana Code provides a list of certain
persons who may have access to such communications. This list includes, in relevant part:
(8) Each parent, guardian, custodian, or other person responsible for the welfare
of a child named in a report or record and an attorney of the person described
under this subdivision, with protection for the identity of reporters and other
appropriate individuals.
(9) A court . . . upon the court’s finding that access to the records may be
necessary for determination of an issue before the court. However, . . . access is
limited to in camera inspection unless the court determines that public disclosure
of the information contained in the records is necessary for the resolution of an
issue then pending before the court.
Ind. Code. § 31-33-18-2 (emphasis added). “[T]he statute requires redaction of DCS reports”
before they may be provided to a parent, such as Plaintiff in this case, so as to protect the identity
of the reporter. Doe v. Indiana Dep’t of Child Servs., 53 N.E.3d 613, 616 (Ind. Ct. App. 2016).
In interpreting a predecessor statute that contained substantially the same language, the Indiana
Court of Appeals observed: “In reading the statute as a whole, we do not believe the legislature
intended to allow discovery of the identity of a reporter simply because suit has been filed . . . .
To do so would defeat the purpose of the statute to encourage reporting.” Kinder v. Doe, 540
N.E.2d 111, 115 (Ind. Ct. App. 1989). Rather, disclosure under the statute is permissible only
where the court is satisfied that a particular exception is met. See id.
First, Plaintiff argues that she should have access to the reporter’s identity to allow for the
reporter’s deposition. Paragraph (8) of the above-quoted statute plainly does not permit
Defendants to disclose the recording directly to Plaintiff unless they are able to protect the
identity of the reporter through redaction. Therefore, Plaintiff could only receive access to the

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reporter’s identifying information pursuant to Ind. Code. § 31-33-18-2(9), which allows for
public disclosure of records “necessary for the resolution of an issue then pending before the
court.”
Plaintiff cites Kinder v. Doe in support of disclosure under paragraph (9). Kinder,
however, is distinct from this case in several material ways, including the legal claims (which
were brought against the reporting party and not the investigating agency) and the nature of the
document the plaintiff sought to discover (as noted above, the recording at issue in this case
could not have been part of the initial report). 540 N.E.2d at 114–15 (noting that the issue before
the court was “whether the reporter [was] immune from civil liability” (emphasis added)). The
Court’s in camera review of the recording compels the conclusion that the recording is not
“necessary for the resolution of an issue . . . pending before the court” under paragraph (9).
Unredacted disclosure of the recording is therefore inappropriate.
Second, Plaintiff argues in the alternative that she should have access to the recording in
redacted form pursuant to paragraph (8). After in camera review, however, the Court concludes
that redaction sufficient to protect the identity of the reporter is impossible due to the nature of
the recording’s content. Therefore, the recording cannot be disclosed in either redacted or
unredacted form in a manner that would be consistent with the protections accorded by Ind.
Code. § 31-33-18-2.
IV.

Conclusion

Given the important policies the Indiana statute seeks to advance, and taking into
consideration the “totality of the circumstances, weighing the value of the material sought”
against the potential harm that could arise if Defendants were required to produce the recording,
Patterson, 281 F.3d at 681, the Court finds good cause to issue a protective order pursuant to

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Federal Rule of Civil Procedure 26(c). The Court therefore GRANTS Defendants’ Motion for
Entry of Protective Order, [Dkt. 75], and hereby FORBIDS the disclosure or discovery of the
recording referenced in Defendants’ Motion. 1
SO ORDERED.

Dated: 27 SEP 2016

Distribution:
Service will be made electronically
on all ECF-registered counsel of record via
email generated by the court’s ECF system.

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Plaintiff’s request for an order providing that Defendant “not be able to rely upon” or “refer[]” to the
recording in these proceedings is premature, [Dkt. 78 at 4], as motions “must not be incorporated within a
brief, response, or reply to a previously filed motion.” S.D. Ind. L.R. 7.1. Plaintiff is free to move the
court in limine to provide such relief at the appropriate juncture.

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