Cormier et al vs. Lafayette City-Parish Consolidated Government et al

Filing 69

RULING ON MOTION denying 53 Motion to Compel. Signed by Magistrate Judge Patrick J Hanna on 8/10/2011. (crt,Dauterive, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
JOHN BOWMAN CORMIER AND
MARY ANN HENRY CORMIER

CIVIL ACTION NO. 6:09-cv-0703

VERSUS

JUDGE DOHERTY

LAFAYETTE CITY-PARISH
CONSOLIDATED GOVERNMENT,
ET AL.

MAGISTRATE JUDGE HANNA

RULING ON MOTION

On July 27, 2011, the undersigned granted in part and deferred in part the
plaintiffs’ motion to compel discovery (Rec. Doc. 53). It was ordered that the
documents listed on the Lafayette City-Parish Consolidated Government’s privilege
log were to be produced to the undersigned for in camera review. In all other
respects, the ruling was deferred pending the in camera review. The Lafayette CityParish Consolidated Government (“the Government”) produced the documents to the
undersigned, and the documents were reviewed. For the following reasons, the
plaintiffs’ motion to compel discovery is DENIED.

BACKGROUND INFORMATION
On January 29, 2008, Lafayette city police officers Cpl. Heather Martin,
Officer Chase Guidry, and Sgt. Dewitt Sheridan investigated an incident at a vacant
lot at the corner of South Pierce and West Simcoe Streets in Lafayette, Louisiana.
Plaintiff Joseph Bowman Cormier, who has an ownership interest in the lot, was
attempting to remove vagrants from the property. Witnesses alleged that Mr. Cormier
brandished a firearm, and the officers observed Mr. Cormier cursing in a loud voice.
Greg Greer, who was involved in the incident but was not at the scene when the
officers arrived, later called 911 and claimed that Mr. Cormier had struck him during
the incident. Based on this complaint, a misdemeanor summons for simple battery
was issued to Mr. Cormier later that day.
In August 2008, city prosecutors charged Mr. Cormier with aggravated assault
in connection with the January 2008 incident. The battery charge and the aggravated
assault charge were dropped when the complaining victim, Greg Greer, and witness,
Melanie Green, failed to appear for trial. Mr. Cormier was then charged with
disturbing the peace and disorderly conduct. In April 2009, Mr. Cormier was
convicted on those charges in Lafayette city court.
In July 2008, local television news anchor Chuck Huebner allegedly broadcast
the misdemeanor summons that was issued to Mr. Cormier as well as Cpl. Martin’s
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written statement concerning the January 2008 incident. The police department
subsequently conducted an internal affairs investigation “to determine who may have
leaked these internal documents to the media.”1 The investigation revealed that Cpl.
Martin released her statement to the City Marshal’s Office “with no knowledge that
the document would be given to the media.”2 During the course of this litigation,
defendant Earl “Nickey” Picard admitted having given Cpl. Martin’s statement to a
deputy city marshal with instructions to deliver it to Mr. Huebner.3 Mr. Cormier ran
unsuccessfully against Mr. Picard for the city marshal post in the fall 2008 election.
In this lawsuit, filed under 42 U.S.C. § 1983, Mr. Cormier alleges that, in
connection with the January 2008 incident and the news broadcast, his
constitutionally-protected rights were violated by the Government and others. He
seeks to recover damages he allegedly sustained as a result of his allegedly having
been falsely arrested, falsely prosecuted, and defamed.
In the instant motion, the plaintiffs seek the production of documents, which
the Government claims are privileged, that were created during the course of the
Lafayette police department’s internal affairs investigation.

1

Rec. Doc. 59-4 at 1.

2

Rec. Doc. 59-4 at 2.

3

Rec. Doc. 59-3 at 23.

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ANALYSIS
At the hearing on this matter, which was held on July 27, 2011, the plaintiffs
identified the documents they are seeking to have produced as those withheld from
production and claimed by the Government, in its response to the plaintiffs’
discovery, to be privileged.4 The Government contends that these documents are
confidential police files that are discoverable only after their relevancy to the
plaintiffs’ claims is weighed against the Government’s interest in maintaining their
confidentiality. Pursuant to this Court’s order (Rec. Doc. 68), copies of those
documents were produced to the undersigned for in camera review. The documents
were reviewed in light of the claimed privilege.
Under Rule 26(b)(1) of the Federal Rules of Civil Procedure, “[p]arties may
obtain discovery regarding any nonprivileged matter that is relevant to any party’s
claim or defense....” The Fifth Circuit has held that, in resolving disputes concerning
the production of police files to which a privilege has been asserted, the court should
balance the government’s interest in confidentiality against the litigant’s need for the

4

Rec. Doc. 59-3 at 7.

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documents.5 This is accomplished by evaluating and weighing the ten factors
identified in Frankenhauser v. Risso.6 Those 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 government 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 the 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 police investigation has been completed.

7.

Whether any intradepartmental disciplinary proceedings have arisen or
may arise from the investigation.

8.

Whether the plaintiff's suit is non-frivolous and brought in good faith.

9.

Whether the information sought is available through other discovery or
from other sources.

10.

The importance of the information sought to the plaintiff's case.

5

Coughlin v. Lee, 946 F.2d 1152, 1160 (5th Cir. 1991).

6

59 F.R.D. 339, 344 (E.D. Pa. 1973).

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After reviewing these factors in the context of this litigation, the undersigned
finds that the documents listed on the Government’s privilege log should remain
confidential.
With regard to the first factor, the undersigned finds that disclosing these
documents would likely thwart governmental processes by discouraging citizens from
giving information to the government that might lead to internal affairs
investigations. This is so because witnesses are less likely to be forthcoming in
response to such an investigation if their comments are not protected from public
disclosure. In this case, permitting the contents of the investigation to be revealed
would likely discourage police officers from fully cooperating with internal affairs
investigations and, consequently, render future internal affairs investigations both less
effective and less likely to occur. This factor weighs strongly in favor of maintaining
the confidentiality of the documents.
The second factor concerns the impact of disclosure upon persons whose
identifies have been protected. This factor is insignificant in this case because the
identities of the police officers involved in the January 2008 incident have already
been disclosed.
The undersigned finds that the third factor – the degree to which governmental
self-evaluation and consequent program improvement will be chilled by the
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disclosure – is critically important in this case. The police department should be free
to evaluate the actions of its employees and the department’s employees should be
free to disclose how events unfolded during an incident and arrest without fear that
what they say will become part of a later court proceeding. To allow the department’s
confidential investigative reports and findings to be revealed publicly would
discourage internal department evaluations and discourage department employees
from freely cooperating with internal affairs investigations. Forcing the department
to produce the documents sought by the plaintiffs in this lawsuit would likely have
a chilling effect on the department’s self-evaluation and self-improvement processes.
Therefore, this factor weighs heavily in favor of maintaining the confidentiality of the
documents.
The fourth factor asks whether the information sought is factual data or
evaluative summary. Both types of information are contained in the documents that
were reviewed. For the reasons explained with regard to the first and third factors,
the undersigned finds that the evaluative materials should remain confidential. The
factual materials will be discussed at factor nine, below.
The fifth factor is whether the party seeking the discovery is an actual or
potential defendant in any criminal proceeding either pending or reasonably likely to
follow from the incident in question. Mr. Cormier was an actual criminal defendant
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in proceedings that followed directly from the January 2008 incident. But no criminal
charges arose out of the leak of police department documents to the media, which was
the focus of the internal affairs investigation. Therefore, this factor weighs in favor
of maintaining the confidentiality of the documents created in the course of the
internal affairs investigation.
Factor number six asks whether the police investigation has been completed.
A stronger case can generally be made for the protection of documents created during
an ongoing criminal investigation than for those created during an investigation that
has already concluded. Although the Lafayette police department’s internal affairs
investigation concluded long ago, this factor is not relevant in this litigation. The
internal affairs investigation was not an inquiry into Mr. Cormier’s arrest but an
inquiry into the leak of Cpl. Martin’s statement to the media. The internal affairs
investigation revealed that the statement was not leaked to the press by a police
officer,7 and discovery in this litigation has established that Nickey Picard had the
statement delivered to the news media.8 Therefore, the fact that the internal affairs
investigation has concluded is not significant and does not weigh in favor of either
disclosing or protecting the documents.

7

Rec. Doc. 59-4 at 2.

8

Rec. Doc. 59-3 at 23.

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The seventh factor asks whether any intradepartmental disciplinary proceedings
have arisen or may arise from the investigation. Police department disciplinary
proceedings did arise from the internal affairs investigation. The undersigned finds
that such intradepartmental proceedings should remain confidential. Therefore, this
factor weighs strongly in favor of denying the plaintiffs’ request for production of
these documents.
The eighth factor inquires into whether the plaintiff's suit is non-frivolous and
brought in good faith. No such determination has yet been made, although the
defendants have argued that the plaintiffs’ claims are frivolous.9 Therefore, this is a
neutral factor.
The ninth factor asks whether the information sought to be produced is
available through other discovery or from other sources. Included in the materials
sought to be produced in this case are transcribed statements from Sgt. Dewitt
Sheridan, Officer Heather Martin, Lt. Nolvey Stelly, Capt. Jimmy Smith, Lt. Morgan
Green, Lafayette City Marshal Nickey Picard, and Deputy City Marshal Timmy
Picard. Four of them are defendants in this lawsuit. All of them, except for Capt.
Jimmy Smith, have been identified as potential witnesses in the case.10 All of them

9

See, e.g., Rec. Doc. 64 at 9; Rec. Doc. 65 at 16.

10

Rec. Doc. 58 at 4-6; Rec. Doc. 64 at 13-15; Rec. Doc. 65 at 20-23.

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could easily be deposed. Their deposition testimony would provide the same factual
information found in their statements to the internal affairs investigators. Thus, this
factor weighs in favor of non-disclosure.
The final factor to be considered is how important the information
sought is to the plaintiff's case. Here, the purpose of the police department’s internal
affairs investigation was to determine whether Cpl. Martin’s statement was leaked to
the media by a police officer. The plaintiffs have already been provided with the
September 19, 2008 letter from Police Chief Jim Craft, in which he explained that
Cpl. Martin unintentionally released her statement to the City Marshal’s office “with
no knowledge that the document would be given to the media.”11 Furthermore, in
response to discovery in this lawsuit, defendant Nickey Picard admitted that he
caused the statement to be delivered to the local news commentator.12 There is no
factual basis for any claim the plaintiffs’ might make concerning the police
department leaking Cpl. Martin’s statement to the press. Any claims that the
plaintiffs might have against the police officers or the police department would arise
out of Mr. Cormier’s having been issued a summons concerning the January 2008
incident – not out of the leaking of information concerning that incident to the media.

11

Rec. Doc. 59-4 at 2.

12

Rec. Doc. 59-3 at 23.

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Accordingly, neither the internal affairs investigation nor the documents sought to be
produced are important to this litigation. This factor strongly supports protecting the
documents from disclosure.
In summary, the first, third, fourth, fifth, seventh, ninth, and tenth factors weigh
heavily in favor of maintaining the confidentiality of the documents created in
connection with the Lafayette police department’s internal affairs investigation. The
second, sixth, and eighth factors are inconsequential. Therefore, after a careful
evaluation and weighing of the ten relevant factors, the undersigned concludes that
the Government’s interest in maintaining the confidentiality of these documents
outweighs the plaintiffs’ interest in their disclosure. Accordingly, the plaintiffs’
motion is DENIED.
Signed at Lafayette, Louisiana, this 10th day of August 2011.

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