TAYLOR v. DANIELS et al
Filing
177
ORDER ON MOTION TO COMPEL - Based on the foregoing, Plaintiff's Motion to Compel and for Sanctions Against Bureau of Prisons Terre Haute Indiana for Failure to Respond to Discovery and Produce Memorandum of Hector Rivera [Dkt. 163 is DENIED (SEE ORDER FOR ADDITIONAL INFORMATION). Signed by Magistrate Judge Mark J. Dinsmore on 3/15/2018. Copy sent to Plaintiff via US Mail. (DW)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
ROBERT TAYLOR,
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Plaintiff,
v.
GILBERT, et al.
Defendants.
UNITED STATES OF AMERICA,
Interested Party.
No. 2:15-cv-00348-JMS-MJD
ORDER ON MOTION TO COMPEL
This matter is before the Court on Plaintiff’s Motion to Compel and for Sanctions Against
Bureau of Prisons Terre Haute Indiana for Failure to Respond to Discovery and Produce
Memorandum of Hector Rivera. [Dkt. 163.] For the reasons set forth below, the Court DENIES
Plaintiff’s Motion.
I.
Background
Plaintiff, Robert Taylor (“Taylor”), is a federal prisoner, who was incarcerated at the
United States Penitentiary – Terre Haute (“USP – Terre Haute”) at the times relevant to this
lawsuit. He brings this lawsuit under the theory set forth in Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971). He alleges violations of his Eighth Amendment rights. Specifically,
he alleges that four officers assaulted him on November 12, 2014, and January 26, 2015, while
he was housed in the Special Housing Unit (“SHU”) of the USP-Terre Haute.
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Plaintiff has served multiple Touhy requests 1 upon non-party Federal Bureau of Prisons
(“BOP”). The BOP objected to producing certain documents, asserting the documents are
protected by law enforcement investigatory privilege and deliberative process privilege. Plaintiff
disputes the BOP’s claim of privilege and seeks an order compelling the production of a portion
of the documents. Plaintiff further seeks sanctions in relation to the BOP’s Rule 30(b)(6)
deposition, contending that the witness was not prepared to testify about topics identified in the
notice. The Court obtained copies of the documents at issue and reviewed them in camera as part
of its decision on this motion.
II.
Discussion
Prior to addressing the merits of Plaintiff’s Motion, the Court will address the BOP’s
contention that the motion is improper. The BOP asserts that to challenge an agency’s response
to a Touhy request, Plaintiff must bring a separate direct action in federal court against the BOP
under the Administrative Procedures Act ("APA"). [Dkt. 174 at 5.] The BOP’s contention is
correct only when the underlying action resides in state court. When a state court litigant seeks
documents from a non-party federal government agency, the government is shielded by
sovereign immunity, which prevents the state court from enforcing the subpoena. Houston
Business Journal, Inc. v. Office of the Comptroller, 86 F.3d 1208, 1211-12 (D.C. Cir. 1996). “If
the agency refuses to produce the requested documents, the sole remedy for the state-court
litigant is to file a collateral action in federal court under the APA. . . A federal-court litigant, on
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The term “Touhy request” comes from the Supreme Court decision, United States ex rel. Touhy v.
Regan, 340 U.S. 462 (1951). In that case, the Supreme Court ruled that an FBI agent could not be held in
contempt for refusing to obey a subpoena based on instructions given to him by the Attorney General of
the United States pursuant to the regulations that the Department of Justice has enacted under the Federal
Housekeeping Statute. Because Federal Housekeeping regulations specify the requirements to make a
request for information from a federal agency, those requests are consequently referred to as Touhy
requests.
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the other hand, can seek to obtain the production of documents from a federal agency by means
of a federal subpoena. In federal court, the federal government has waived its sovereign
immunity, see 5 U.S.C. § 702, and neither the Federal Housekeeping Statute nor the Touhy
decision authorizes a federal agency to withhold documents from a federal court.” Houston
Business Journal, Inc., 86 F.3d 1208, 1212; see also Ceroni v. 4Front Engineered Sols., Inc., 793
F. Supp. 2d 1268, 1275 (D. Colo. 2011).
Having determined the motion is proper, the Court must address the appropriate standard
of review. There is a split among the circuits as to how to evaluate non-party subpoenas to
federal agencies. Although the Seventh Circuit has yet to address the issue, the Eastern District
of Wisconsin recently offered this overview:
The District of Columbia and Ninth Circuits hold that this issue should be
assessed using FRCP 26 and 45. This is the same, relatively low, bar for
discovery that is applied to every civil litigant, and centers on the subpoenaed
party's claim of privilege, undue burden, or lack of relevance. Conversely, the
Fourth and Eleventh Circuits maintain that an agency's refusal to comply with a
subpoena is entitled to more deference. The standard they apply comes from the
Administrative Procedures Act (“APA”), which provides that the agency's
decision cannot be disturbed unless it was arbitrary or capricious. 5 U.S.C. §
706(a)(A).
Estate of Williams v. City of Milwaukee, 2017 WL 1251193, at *2 (E.D. Wis. 2017). Noting that
analysis under the discovery rules is the “more modern” standard, the court elected not to
choose, finding instead that the motion at hand must be granted even under the more restrictive
APA standard. Id. In this case, the Court finds the converse is true: even under the more liberal
discovery standard, the motion must be denied because the documents at issue are either
privileged or not relevant to Plaintiff’s lawsuit.
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A. Rivera Memo
This five-page memorandum was prepared by Hector Rivera, an agent with the Office of
Internal Affairs (“OIA”), following the investigation into the alleged incidents. The BOP asserts
the Rivera Memo includes a summary of Agent Rivera’s investigation, his mental impressions,
and his recommendation to the Supervisor Agent. [Dkt. 174 at 10.] It was pre-decisional and
deliberative, as opposed to the agency’s final decision, which was produced. Consequently, the
BOP contends the memo is privileged pursuant to the law enforcement investigatory privilege
and the deliberative process privilege. The BOP notes the Rivera Memo is the only document in
the OIA investigative packet that it withheld from production. [Dkt. 174 at 10.]
Plaintiff asserts the BOP has not established that either privilege applies to the memo, or,
in the alternative, that the privileges should be overridden based upon Plaintiff’s need for the
document. Plaintiff further disputes that the BOP properly preserved the privilege in its Touhy
response letter. Addressing the last issue first, while the BOP did not use the term “law
enforcement investigatory privilege” or “deliberative process privilege” in its response, it did
note the reason for withholding the memo and cite the appropriate regulation:
The BOP agrees to produce the file, and produces it contemporaneously with this
letter, with the exception of one document in the file: a 5-page memorandum from
Hector Rivera providing his summary of the investigation and recommendation.
The document is pre-decisional and compiled for law enforcement purposes, and
therefore privileged. The record is not subject to disclosure pursuant to 28 C.F.R.
§ 16.26(b)(5).
[Dkt. 163-6 at 2.]
The purpose of the law enforcement investigatory privilege “is 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.” Jones v. City of
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Indianapolis, 216 F.R.D. 440, 444 (S.D. Ind. 2003) (internal citation omitted); see also 28 C.F.R.
§ 16.26(b)(5). Similarly, the deliberative process privilege protects communications that are part
of a government agency’s decision-making process. U.S. v. Farley, 11 F.3d 1385, 1389 (7th Cir.
1993). The privilege “rests on the obvious realization that officials will not communicate
candidly among themselves if each remark is a potential item of discovery and front page news,
and its object is to enhance ‘the quality of agency decisions' by protecting open and frank
discussion among those who make them within the Government.” Department of Interior v.
Klamath Water Users Protective Ass'n, 532 U.S. 1, 8–9 (2001) (internal citation omitted).
While the BOP asserts both privileges apply, having reviewed the Rivera Memo in
camera the Court finds the deliberative process privilege does not apply. The Memo contains
primarily factual information in the form of interview summaries and descriptions of
investigatory steps, rather than deliberative material. See Anderson v. Marion County Sheriff’s
Dept., 220 F.R.D. 555, 562-63 (S.D. Ind. 2004). As the document reveals the BOP’s
investigatory procedure and contains summaries of interviews with law enforcement personnel,
the Court finds the Memo is protected by the law enforcement investigatory privilege.
The law enforcement investigatory privilege is not absolute. Such a finding can be
overridden in appropriate cases by the need for the privileged materials. See Dellwood Farms,
Inc. v. Cargill, Inc., 128 F.3d 1122, 1125 (7th Cir. 1997). The balancing of that need—the need
of the litigant who is seeking privileged investigative materials—against the harm to the
government if the privilege is lifted “is a particularistic and judgmental task.” Dellwood Farms,
128 F.3d at 1125.
In balancing the public interest in protecting police investigations against the needs of
civil rights plaintiffs, the Court considers ten factors first announced in Frankenhauser v. Rizzo,
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59 F.R.D. 339, 344 (E.D. Pa. 1973), which, “although not exhaustive, are useful in making this
determination.” Tuite v. Henry, 181 F.R.D. 175, 177 (D.D.C. 1998). These factors are:
(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.
Tuite, 181 F.R.D. at 177, citing Frankenhauser, 59 F.R.D. at 344. The Court has “considerable
leeway” weighing these factors in the undertaking of the essential balancing process. Tuite, 181
F.R.D. at 177.
Though Plaintiff evaluated each Frankenhauser factor in his initial brief, the BOP
unwisely declined to refute those arguments in its response. Instead, the BOP relied upon its
assertion of privilege without considering the fact that such privilege may be overridden. The
Court applies the Frankenhauser factors as follows:
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1. The extent to which disclosure will thwart governmental processes by
discouraging citizens from giving the government information
This factor weighs in favor of disclosure as the Rivera Memo involved only law
enforcement personnel as opposed to citizen interviews.
2. The impact upon persons who have given information of having their
identities disclosed
This factor weighs in favor of disclosure as the identities of the interviewees (Defendants
in this action) have already been disclosed. The BOP has already produced copies of their signed
statements. [Dkt. 174 at 9.]
3.
The degree to which governmental self-evaluation and consequent
program improvement will be chilled by disclosure
As the Rivera Memo outlines an internal affairs investigation, this factor weighs in favor
of non-disclosure.
4. Whether the information sought is factual data or evaluative summary
As the Rivera Memo is an evaluative summary of Rivera’s investigation, this factor
weighs in favor of non-disclosure.
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
Plaintiff is not a defendant in any criminal proceeding relating to the incident at issue,
therefore this factor weighs in favor of disclosure.
6. Whether the investigation has been completed
The investigation into the incidents alleged by Plaintiff is complete. This factor weighs in
favor of disclosure.
7. Whether any interdepartmental disciplinary proceedings have arisen or
may arise from the investigation
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The BOP has notified the Court of no ongoing disciplinary proceedings related to the
OIA investigation against any of the Defendants, therefore this factor weighs in favor of
disclosure.
8. Whether the plaintiff's suit is nonfrivolous and brought in good faith
With no evidence that this lawsuit is frivolous or brought in bad faith, this factor also
weighs in favor of disclosure.
9. Whether the information sought is available through other discovery or
from other sources
On this point, Plaintiff argues he has no independent access to information, given his
status as an inmate. A significant ongoing discovery issue in this case has been whether the
alleged incidents were captured on video, and, if so, what the video shows and whether it still
exists. The BOP has consistently maintained no video footage exists of the incidents alleged by
Plaintiff. Plaintiff contends the Rivera Memo “likely would include discussion regarding video
footage of the 2014 and 2015 incidents” and is “the only means by which to learn if video
footage existed, and, if it did, what the tape showed.” [Dkt. 164 at 7.]
The Court’s in camera review of the Rivera Memo does not support Plaintiff’s position.
The Memo contains summaries of Rivera’s witness interviews (including each of the individual
Defendants whose statements have already been produced to Plaintiff), steps taken during the
IAO investigation, and Rivera’s conclusions based upon the information gathered. There is no
discussion of video footage in the Memo. Consequently, the Court finds this factor weighs in
favor of non-disclosure.
10. The importance of the information sought to the plaintiff's case
Again, Plaintiff asserts the Memo likely contains important factual findings relevant to
his civil rights claims he is unable to otherwise obtain. Having reviewed the Memo, the Court
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disagrees. The BOP has produced the witness statements. Beyond these facts, already in
Plaintiff’s possession, the remaining content of the Memo (Rivera’s investigatory process and
conclusions based upon the investigation) is not significant to Plaintiff’s case. Therefore, this
factor weighs in favor of non-disclosure.
Having weighed each of the Frankenhauser factors, and in its broad discretion, the Court
finds that the BOP need not produce the Rivera Memo. Although there are factors that weigh in
favor of both disclosure and nondisclosure, the Court finds particularly persuasive the fact that
the BOP produced the witness statements taken during the IAO investigation and the information
that remains undisclosed is not of significant importance to Plaintiff's case. As the Rivera Memo
is privileged, it may rightfully be withheld from discovery under Fed. R. Civ. P. 26(b)(1) and the
BOP’s decision to withhold it was not arbitrary and capricious. Accordingly, under either
standard Plaintiff's motion to compel with regard to the Rivera Memo is DENIED.
B. FOIA-Exempt Portion of Central File
The BOP produced Plaintiff’s Central File, with the exception of the portion considered
to be exempt from FOIA’s disclosure requirements because they pertain to a law enforcement
investigation. Although Plaintiff’s briefing focused on the Rivera Memo, his request for relief
includes the production of the FOIA-exempt portion of his Central File. The BOP maintains the
FOIA-exempt documents are also protected by law enforcement investigatory privilege. Based
upon the Court’s in camera review of the documents, the Court finds the documents are
privileged.
Whereas the Rivera Memo contained information relating to the OIA investigation into
the incidents underlying Plaintiff’s lawsuit, the FOIA-exempt portion of Plaintiff’s file includes
information relating to all aspects of Plaintiff’s incarceration. The documents include
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investigative reports into incidents involving Plaintiff unrelated to this lawsuit and inmate
monitoring information that reveals information about other inmates. Given the irrelevance of
the documents to Plaintiff’s lawsuit, it is not necessary to analyze each Frankenhauser factor to
determine whether the privilege should be overridden by Plaintiff’s need for the documents. The
FOIA-exempt portion of Plaintiff’s Central File is both privileged law enforcement investigatory
material and not relevant to Plaintiff’s lawsuit. Therefore, as with the Rivera Memo, under both
the discovery rules and the APA standard, Plaintiff’s motion must be DENIED with regard to
the FOIA-exempt documents.
C. Rule 30(b)(6) Deposition
Plaintiff asserts the BOP should be sanctioned for its failure to provide a knowledgeable
Rule 30(b)(6) witness and assessed with the costs associated with the deposition, including
attorney’s fees. Specifically, Plaintiff contends the witness (Mr. Monarez) was “woefully
unprepared” and did not have personal knowledge of the search for video footage of the
incidents at issue in the lawsuit. [Dkt. 164 at 11; Dkt. 163 at 2-3.] Having reviewed the
deposition transcript provided by Plaintiff, the Court disagrees with Plaintiff’s assessment.
While Mr. Monarez did not personally perform the search, he delegated the search to a
technician and relied upon the technician’s conclusion. [Dkt. 163-2 at 8.] Rule 30(b)(6) does not
require the deponent to have personal knowledge of the search for recordings of Plaintiff. The
notice sought information relating to the policies and procedures surrounding video recording at
USP—Terre Haute, to which Mr. Monarez testified. 2 The Court finds no sanctionable conduct on
the part of the BOP with regard to Mr. Monarez’s deposition.
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The notice also sought testimony as to “all recordings of Robert Taylor, whether audio or video, at
USP—Terre Haute.” [Dkt. 163-1.] As the BOP maintains there are no recordings of Plaintiff, only policy
and procedural topics remained.
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III.
Conclusion
Based on the foregoing, Plaintiff’s Motion to Compel and for Sanctions Against Bureau
of Prisons Terre Haute Indiana for Failure to Respond to Discovery and Produce Memorandum
of Hector Rivera [Dkt. 163] is DENIED.
Dated: 15 MAR 2018
Distribution:
ROBERT TAYLOR
04699-054
FLORENCE - HIGH USP
FLORENCE HIGH U.S. PENITENTIARY
Inmate Mail/Parcels
P.O. BOX 7000
FLORENCE, CO 81226
UNITED STATES OF AMERICA
Sean Tyler Dewey
ICE MILLER LLP
sean.dewey@icemiller.com
Rachana Nagin Fischer
UNITED STATES ATTORNEY'S OFFICE
rachana.fischer@usdoj.gov
Mary Nold Larimore
ICE MILLER LLP
larimore@icemiller.com
Shelese M. Woods
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
shelese.woods@usdoj.gov
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