Littlepage v. Dukes et al

Filing 37

MEMORANDUM OPINION AND ORDER signed by Magistrate Judge H. Brent Brennenstuhl on 1/15/19; granting in part and denying in part 34 Motion for Protective Order: Dukes is not required to provide grand jury transcripts in response to Plaintiffs discovery requests. Dukes is required to provide copies of law enforcement agency reports in response to Plaintiff's discovery requests. cc: Counsel(DJT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:17-CV-00041-JHM
JEFFERY W. LITTLEPAGE

PLAINTIFF

VS.
WILLIAM DUKES, Jr, Individual capacity
and CITY OF PROVIDENCE, KENTUCKY

DEFENDANTS

MEMORANDUM OPINION
AND ORDER
Background
Before the Court is the motion of Defendant William Dukes, Jr. for a protective order, DN
34. Plaintiff Jeffery Littlepage has filed a response at DN 35 and Dukes has replied at DN 36.
Nature of the Case
Defendant Dukes was employed as a police officer by the City of Providence. Littlepage
alleges that Dukes assaulted him and otherwise used excessive force under color of law in violation
of Littlepage’s constitutional rights. He has also asserted claims under state law for assault and
malicious prosecution. In addition to suing Dukes in his individual capacity, he has asserted an
official-capacity claim against the City of Providence (DN 1).
Dukes was indicted by a grand jury of this judicial district and charged with two counts of
deprivation of rights under color of law in violation of 18 U.S.C. § 242 and one count of document
falsification under 18 U.S.C. § 1519. (see United States v. William Dukes, Jr., No. 4:17-cr-00010JHM-1 at DN 1). These charges relate to the events complained of in this civil action. Dukes was
tried before a jury and convicted of one count of deprivation of rights under color of law and

acquitted of the two remaining charges (Id. at DN 50). Dukes has appealed his conviction, which
is pending before the United States Court of Appeals for the Sixth Circuit (Id. at DN 79).
Dukes’ Motion
Included among requests for production Littlepage submitted to Dukes are requests for
“copies of all statements . . . including but not limited to any Grand Jury . . .” and “copies of all
reports prepared by any law enforcement agencies concerning the incident described in the
Complaint, including the Federal Bureau of Investigation or United States Department of Justice .
. .” (DN 34-2). Dukes moves for a protective order that he not be compelled to produce these
documents.
As to the grand jury transcripts, Dukes contends that secrecy of grand jury proceedings is
accorded strong protection. Dukes asserts that, under Fed. R. Crim. P. 6(e) a party seeking grand
jury material must demonstrate that the material is needed to avoid possible prejudice in another
judicial proceeding, the need for disclosure is greater than the need for continued secrecy and the
request for production is structured to cover only that portion which is necessary. Dukes cites
Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211, 222 (1979) in support.
Applying this test, Dukes contends that Littlepage cannot demonstrate, other than as a
matter of convenience, that the transcripts are necessary to avoid injustice in this action. Any
information contained in the grand jury transcript, Dukes argues, is equally available through other
discovery methods in this case. Dukes concludes that the need for disclosure does not outweigh
the need for continued secrecy. Additionally, Dukes asserts that Littlepage’s request for the
entirety of grand jury material cannot be considered as structured to cover only the portion which
may be necessary.

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Turning to Littlepage’s request for law enforcement reports, Dukes contends that the
reports are subject to a qualified privilege afforded statements by informers to law enforcement
agencies. Dukes cites Cullen v. Margiotta, 811 F.2d 698, 715 (6th Cir. 1987) for the proposition
that a party seeking production of such reports must demonstrate that the information is both
relevant and essential to presentation of the case on the merits and that need for disclosure
outweighs the need for secrecy. Dukes states that Littlepage cannot demonstrate that the reports
are essential because the information is available through other discovery means, such as witness
interviews and depositions.
Littlepage’s Response
Littlepage responds to Dukes motion regarding the grand jury transcript by attempting to
rebut an argument which Dukes did not make. He discusses whether grand jury proceedings are
privileged as a matter of Kentucky state law as set forth in a treatise on Kentucky jurisprudence
and a state case dealing with privilege as a matter of public policy. See Tabor v. Commonwealth,
625 S.W.2d 571 (Ky. 1981). Dukes does not address federal precedent dealing with the specific
topic of grand jury protection, other than to cite In re Grand Jury Proceedings (Greenberg), (No
Number in Original), 1982 U.S. Dist. LEXIS 18355 (D. Conn. June 25, 1982) for the proposition
that Dukes does not have standing to object to the production of grand jury material. The quotation
which Littlepage offers from that case is taken out of context. That case dealt with the question of
whether a religion-based claim of parent-child privilege afforded a mother a right to refuse to
testify against her daughter before the grand jury and bears no relevance to the question of whether
Dukes has standing to oppose production of a grand jury transcript. The only criteria Littlepage
appears to address for overcoming the presumptive secrecy of grand jury proceedings is the need

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for disclosure versus the need for secrecy, in that he asserts the underlying criminal proceedings
are now complete.
As to the issue of production of the law enforcement reports, Littlepage devotes three
sentences to arguing, without citation to authority, that Dukes does not have standing to assert the
privilege and his argument is “not covered by the law or circumstances of this action” (DN 35, p.
3).
Dukes’ Reply
Dukes contends that Littlepage’s Response failed to address the elements necessary to
overcome the presumption of secrecy of grand jury proceedings.

Dukes takes issue with

Littlepage’s assertion that the underlying criminal matter is concluded, noting that an appeal is still
pending. Dukes also rejects Littlepage’s argument that he lacks standing to oppose production of
the grand jury proceedings, noting that Douglas Oil, supra, allowed an objection under similar
circumstances.

Dukes similarly argues that Littlepage has failed to satisfy the criteria for

production of the law enforcement reports.
Discussion
Fed. R. Civ. P. 26(c) affords the Court with the discretion to limit the scope of discovery
under certain circumstances. See Levitin v. Nationwide Mut. Ins. Co., No. 2:12-CV-34, 2012 U.S.
Dist. LEXIS 177738, at *3 (S.D. Ohio Dec. 14, 2012). Specifically, the Court may issue a
protective order "forbidding the disclosure or discovery" or "forbidding inquiry into certain
matters, or limiting the scope of disclosure or discovery to certain matters" to prevent "annoyance,
embarrassment, oppression, or undue burden or expense" where the movant has established "good
cause" for such an order. Fed. R. Civ. P. 26(c)(1)(A) and (D); Levitin, 2012 U.S. Dist. LEXIS
177738, at *3; Nix v. Sword, 11 F. App'x 498, 500 (6th Cir. 2001). "To show good cause, a movant

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for a protective order must articulate specific facts showing clearly defined and serious injury
resulting from the discovery sought and cannot rely on mere conclusory statements." Nix, 11 F.
App'x at 500 (internal quotation marks and citation omitted).
A. Grand Jury Transcript
In Macomb Interceptor Drain Drainage Dist. v. Inland Waters Pollution Control, Inc., No.
11-CV-13101, 2015 U.S. Dist. LEXIS 149306 (E.D. Mich. Nov. 4, 2015) the Eastern District of
Michigan set forth a comprehensive summary of the legal issues associated with disclosure of
grand jury proceedings:
A prevailing concept our grand-jury system is that matters brought
before the grand jury will be kept secret to protect the interests of
the government, the public, and individual citizens:
First, if preindictment proceedings were made public, many
prospective witnesses would be hesitant to come forward
voluntarily, knowing that those against whom they testify
would be aware of that testimony. Moreover, witnesses who
appeared before the grand jury would be less likely to testify
fully and frankly, as they would be open to retribution as well
as to inducements. There also would be the risk that those
about to be indicted would flee, or would try to influence
individual grand jurors to vote against indictment. Finally, by
preserving the secrecy of the proceedings, we assure that
persons who are accused but exonerated by the grand jury will
not be held up to public ridicule.
Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219, 99
S. Ct. 1667, 60 L. Ed. 2d 156 (1979). Indeed, the concept of grandjury secrecy is so vital to our justice system that "courts must
consider not only the immediate effects upon a particular grand jury,
but also the possible effect upon the functioning of future grand
juries." Id. at 222. That is, even if a grand jury has concluded its
investigation, courts must consider that disclosure of grand-jury
matters may impair future grand-jury investigations.
Persons called upon to testify will consider the likelihood that
their testimony may one day be disclosed to outside parties.
Fear of future retribution or social stigma may act as powerful
deterrents to those who would come forward and aid the grand
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jury in the performance of its duties. Concern as to the future
consequences of frank and full testimony is heightened where
the witness is an employee of a company under investigation.
Thus, the interests in grand jury secrecy, although reduced, are
not eliminated merely because the grand jury has ended its
activities.
Id.
This enduring standard of secrecy has been codified in the Federal
Rules. See, generally, Fed.R.Crim.P. 6. A court may, however,
"authorize disclosure—at a time, in a manner, and subject to any
other conditions that it directs—of a grand-jury matter . . .
preliminarily to or in connection with a judicial proceeding." Fed.
R. Crim. P. 6(e)(3)(E)(i). But any party seeking such disclosure
must demonstrate a compelling need for disclosure that overcomes
the general presumption in favor of secrecy. In re Grand Jury 89-472, 932 F.2d 481, 483 (6th Cir.1991). Specifically,
parties seeking grand jury transcripts under Rule 6(e) must
show that the material they seek is needed to avoid a possible
injustice in another judicial proceeding, that the need for
disclosure is greater than the need for continued secrecy, and
that their request is structured to cover only material so
needed.
Douglas Oil Co., 441 U.S. at 222. Notably, though,
[t]he fact that the grand jury documents are relevant or that
production . . . would expedite civil discovery or reduce
expenses for the parties is insufficient to show particularized
need when the evidence can be obtained through ordinary
discovery, i.e., subpoenaing the documents from other
sources, or pursuing other routine avenues of investigation.
Fed. Deposit Ins. Corp. v. Ernst & Whitney, 921 F.2d 83, 86-87 (6th
Cir. 1990) (citing Cullen v. Margiotta, 811 F.2d 698, 715 (2d Cir.
1987); United States v. Sells Engineering, 463 U.S. 418, 431, 103
S. Ct. 3133, 77 L. Ed. 2d 743 (1983)).
McComb, 2015 U.S. Dist. LEXIS 149306, at *5-8.
Consequently, the protection afforded grand jury proceedings arises from Federal Criminal
Rule 6 and not, as Littlepage appears to believe, from privilege and his arguments in that regard

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are therefore misdirected. Contrary to Littlepage’s assertion that Dukes does not have standing to
oppose the release of grand jury proceedings, “a proper party for bringing suit for injunctive relief
is the target, because the target is the person whose interests Rule 6(e)(2)’s secrecy requirements
were designed to protect.” Blalock v. United States, 844 F.2d 1546, 1555 (11th Cir. 1988) (Tjoflat,
J. specially concurring).1
Littlepage has failed to make any showing of a compelling need under Fed. R. Civ. P. 6 to
override the requirement of grand jury secrecy and Dukes’ motion for a protective order regarding
the grand jury transcript is granted.
B. Law Enforcement Agency Reports
Dukes advocates for the protection of law enforcement agency reports under a doctrine of
qualified privilege for statements by informers given to law enforcement agencies set out in
Roviaro v. United States, 353 U.S. 53 (1957). The government has the “privilege to withhold from
disclosure the identity of persons who furnish information of violations of law to officers charged
with enforcement of that law.” Id. at 59. This privilege, commonly known as the “informant’s
privilege,” is applicable in both criminal and civil actions. Holman v. Cayce, 873 F.2d 944, 946
(6th Cir. 1989); Johnson v. Warden, Ross Corr. Inst., No. 2:17-CV-121, 2018 U.S. Dist. LEXIS
103331, at *6-7 (S.D. Ohio June 20, 2018). However, the privilege is one for the government to
assert. Askew v. City of Memphis, No. 14-CV-2080-STA-tmp, 2015 U.S. Dist. LEXIS 180889,
at *12 (W.D. Tenn. July 23, 2015) (citing Holman, 873 F.2d at 946). Moreover, “generally
speaking, ‘once the identity of the informer has been disclosed to those who would have cause to
resent the communication’ the privilege no longer applies.” Johnson, 2018 U.S. Dist. LEXIS
103331, at *7 (quoting Roviaro, 353 U.S. at 60).

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Littlepage has also argued that the City of Providence lacks standing to oppose production of the grand jury
proceedings, however only Dukes filed the motion.

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Given that the government appears to have waived assertion of the privilege by providing
copies of reports disclosing the identities of informants to Dukes, the subject of the investigation,
and given that Dukes has no independent standing to assert the informant’s privilege, the
undersigned concludes that Dukes has failed to make a showing under Fed. R. Civ. P. 26(c) so as
to be entitled to a protective order on production of law enforcement agency reports.
Order
IT IS HEREBY ORDERED that the motion of Defendant Dukes for a protective order
(DN 34) is GRANTED IN PART and DENIED IN PART. Dukes is not required to provide
grand jury transcripts in response to Plaintiff’s discovery requests. Dukes is required to provide
copies of law enforcement agency reports in response to Plaintiff’s discovery requests.

January 15, 2019

Copies: Counsel

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