Wynes v. Royal Oak, City of et al
OPINION and ORDER Granting in Part and Denying in Part Defendants' 14 MOTION for Protective Order, and Extending Discovery, (Discovery due by 6/2/2017). Signed by District Judge Stephen J. Murphy, III. (DPar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 2:16-cv-12656
HONORABLE STEPHEN J. MURPHY, III
CITY OF ROYAL OAK and MICHAEL
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
MOTION FOR A PROTECTIVE ORDER  AND EXTENDING DISCOVERY
Plaintiff Jeffrey Wynes brings this section 1983 action against police officer Michael
Paramo and Paramo's current employer, the City of Royal Oak. Wynes served Royal Oak,
as well some of Paramo's previous employers, with subpoenas for production of documents
related to Wynes. Defendant Royal Oak objects to providing the requested documents and
filed the instant motion. For the reasons below, the Court will grant the motion in part and
deny it in part.
The case arises out of Wynes's arrest on Halloween night 2015. Wynes alleges that
Michael Paramo, a police officer for the City of Royal Oak, mistreated him in making the
arrest. Six of the seven counts in Wynes's complaint are solely against Paramo. One of the
counts is against Royal Oak and claims that the City "knew, or should have known, of
Defendant Paramo's propensity to violate the rights of individuals in the manner alleged"
because "[p]rior to the date of this incident Defendant Paramo had been sued in his
capacity as police officer on at least one prior occasion for allegations including excessive
force, false arrest, false imprisonment, assault and battery, and intentional infliction of
emotional distress, in Oakland County Circuit Court[.]" ECF 1, ¶¶ 46–47. Wynes alleges
that Royal Oak failed to properly screen its police officers. Id. at ¶ 51.
The instant motion concerns Wynes's subpoenas, which command Paramo's former
employers—the City of Pontiac, the City of Sylvan Lake, and Washtenaw County—to
produce personnel files concerning Paramo. The files are to include "all citizen complaints"
made against Paramo and "all materials pertaining to any discipline imposed" against him.
Subpoenas, ECF 14-2, 14-3, 14-4. The Pontiac subpoena additionally seeks "a copy of any
settlement agreement in Ortiz v. City of Pontiac, et al.," the case mentioned in the
complaint and in which Paramo had allegedly been sued. ECF 14-2, PgID 79.
Defendants now move for a protective order to prevent the release of personnel files
and the settlement agreement on the grounds that they are privileged and irrelevant.
In general, the scope of discovery is broad, Lewis v. ACB Bus. Servs., Inc., 135 F.3d
389, 402 (6th Cir. 1998). Materials that would not admissible at trial may nevertheless be
discoverable under Federal Rule of Civil Procedure 26(b) if they are "reasonably calculated
to lead to the discovery of admissible evidence." Id. But discovery is not boundless; the
Court may limit or regulate the disclosure of materials "to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense[.]" Fed. R. Civ. P.
26(c)(1). Accordingly, the Court may quash or modify a subpoena under certain
circumstances. See Fed. R. Civ. P. 45(d)(3).
To begin, Defendants argue that the material sought is not relevant. Wynes alleges
that Royal Oak inadequately screened, trained, and supervised its officers, including
Paramo. He argues that Royal Oak "may be held liable if it knew about Defendant
Paramo's prior instances of misconduct and . . . nonetheless hired him" or if it failed to
uncover such instances due to an inadequate screening process. Resp., ECF 17, PgID
102. But Defendants argue that the personnel files of the other municipalities are irrelevant
to what Royal Oak knew or did in its own hiring and training of Paramo.
The Court disagrees. When Royal Oak hired Paramo, it hired a career police officer.
Paramo had worked for three other municipalities before joining the ranks of Royal Oak's
police force. It stands to reason that Royal Oak, like many other employers, may have
reached out to Paramo's former employers to check references or otherwise inquire about
him. If Paramo left a trail of misdeeds behind him, the particulars of those deeds—and the
ease of their discovery—is relevant to the claim against Royal Oak. Thus, what matters is
not just "what Royal Oak knew upon hiring him," Mot., ECF 14, PgID 75, but what Royal
Oak should have known through appropriate diligence. Paramo's personnel files are
The settlement agreement, on the other hand, is not. Generally, a settlement
agreement is inadmissible to "either to prove or disprove the validity or amount of a
disputed claim," yet may be admissible "for another purpose, such as proving a witness's
bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a
criminal investigation or prosecution." Fed. R. Evid. 408. An inadmissible agreement may
nevertheless be discoverable, however, if the party seeking it makes a showing that his
request is "reasonably calculated to lead to admissible evidence." Doe v. Aramark Educ.
Res., Inc., 206 F.R.D. 459, 461 (M.D. Tenn. 2002). The Court finds that the information
contained in the settlement agreement would not tend to make a fact of consequence more
or less probable, and further finds that Wynes has not shown that his pursuit of the
agreement is reasonably calculated to lead to admissible evidence. The agreement is
therefore not discoverable.
Right to Privacy
Notwithstanding the relevancy of Paramo's personnel files, Defendants argue that the
release of Paramo's personnel records "could pose a serious threat of harm if it were to fall
into the wrong hands," and therefore the disclosure of the information violates Paramo's
right to privacy under the Fourteenth Amendment. Resp., ECF 14, PgID 71. Defendants
offer Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998) in support of the
In Kallstrom, the plaintiffs were undercover police officers who testified in a largescale prosecution of a violent gang's drug conspiracy. After the City released the officers'
personnel files to both an advocacy organization and to the attorney of one of the
defendants, the officers brought suit under § 1983, and claimed that the City violated their
right to privacy as guaranteed by the Due Process Clause of the Fourteenth Amendment.
The Court reaffirmed its prior holding that "not all rights of privacy or interests in
nondisclosure of private information are of constitutional dimension," id., but concluded that
the officers had "a fundamental constitutional interest in preventing the release of personal
information contained in their personnel files where such disclosure creates a substantial
risk of serious bodily harm[.]" Id. at 1064. The court further emphasized that the
seriousness of the risk is critical, because it is "the magnitude of the liberty deprivation
[that] strips the very essence of personhood" and implicates the Due Process Clause. Id.
at 1064 (quoting Doe v. Claiborne Cty., Tenn. By & Through Claiborne Cty. Bd. of Educ.,
103 F.3d 495, 506–07 (6th Cir. 1996)).
Also, the Kallstrom court specifically held that the "disclosure of the officers'
addresses, phone numbers, and driver's licenses, as well as the names, addresses, and
phone numbers of their family members" created the substantial risk. Id. at 1069. But the
information at issue here is more circumscribed. Wynes has already "offered to enter into
a stipulated order with Defendants' counsel to allow for the redaction of Defendant
Paramo's private personal identifying information including his social security number,
driver's license number, home address, phone number, as well as the personal information
of his family members." Resp., ECF 17, PgID 105 n.3. He has also "offered to stipulate to
not publically disclose any of Defendant Paramo's personal identifying information." Id.
Paramo's personnel files, so limited, are distinct from the sensitive material discussed in
The Court notes Defendants' concern that Wynes's counsel also represents another
person, in a criminal matter, who was arrested during the same encounter at issue in this
case. Defendants worry that, as in Kallstrom, the information might "fall into the wrong
hands." Reply, ECF 19, PgID 131. But unlike in Kallstrom, the Court has the advantage of
looking prospectively at the possibility of mishandled information, and the above-mentioned
redactions do much to curb any safety risks associated with counsel's dual representation.
Though likely not necessary, the Court will also instruct and warn Plaintiff's counsel that
any improper use of the materials will earn swift and serious sanctions. Reasonable
safeguards, achieved through the Court's orders, and good-faith negotiations, should be
more than sufficient to protect the materials that will be disclosed.
Because Defendants have not shown that the limited disclosure of redacted versions
of the personnel files would pose a substantial risk of serious bodily harm, Paramo cannot
prevent the disclosure on due-process grounds.
Executive/Deliberative Process Privilege
Defendants also assert an executive or deliberative process privilege. They argue that
the personnel files produced by municipalities' police departments are intragovernmental
documents. Defendants assert that the privilege applies both to Royal Oak's files and those
of the non-party municipalities.
The deliberative process privilege is quite limited. Its purpose is to promote "'the
quality of agency decisions' by allowing government officials freedom to debate alternative
approaches in private." In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997) (quoting
N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975)). It therefore protects
"advisory materials which truly reflect the deliberative or policymaking processes of an
agency, but would not protect purely factual, investigative material." Perry v. City of
Pontiac, No. 07-14036, 2011 WL 4345239, at *6 (E.D. Mich. Sept. 16, 2011) (quoting
Schell v. U.S. Dep't of Health & Human Servs., 843 F.2d 933, 940 (6th Cir.1988)) (internal
quotation marks and alterations omitted). Thus, communications unrelated to a decisional
process, or made after the decision, are not privileged. See Sears, 421 U.S. at 151–52.
And given its purpose, it follows that the privilege belongs to the agency seeking to
safeguard its internal debates — not persons or organizations implicated in the discussions.
For all these reasons, the deliberative process privilege has little applicability to the
personnel files Wynes seeks. And, to the extent the personnel files held by Pontiac, Sylvan
Lake, and Washtenaw County implicate decisional deliberations, the privilege to withhold
the information belongs to those bodies, not Defendants. Thus, neither Defendant has
standing to assert the privilege to quash the third-party subpoenas. See United States v.
Llanez-Garcia, 735 F.3d 483, 498–99 (6th Cir. 2013). As for Royal Oak, it may only
withhold information reflecting pre-decisional opinions, recommendations, or deliberations;
it may not withhold factual, investigative materials or discussions occurring after the
decision to which they relate.
Finally, tucked into Defendants' argument on deliberative process privilege is mention
of a Michigan law forbidding the disclosure of involuntary statements made by law
enforcement officers. See Mot., ECF 14, PgID 73. The law, however, contains an exception
that permits law enforcement agencies to disclose the statements "for use in a civil action
against the employing agency or the law enforcement officer." Mich. Comp. Laws § 15.395.
The release of any statements is therefore permissible.
WHEREFORE, it is hereby ORDERED that Defendants' Motion for a Protective Order
 is GRANTED IN PART and DENIED IN PART. The subpoenaed parties shall
DISCLOSE to Plaintiff the personnel files referred to in the subpoenas within 10 days of
this order, subject to the following limitations:
(1) Defendant Paramo's social security number, driver's license number, home
or other addresses, phone numbers, and email addresses shall be redacted.
(2) The names, ages or birth dates, social security numbers, driver's license
numbers, home or other addresses, phone numbers, and email addresses of
Paramo's family members shall be redacted.
(3) The City of Pontiac, the City of Sylvan Lake, and the County of Washtenaw
may redact or withhold the portions of the personnel files which are
"deliberative" as discussed and defined in this Opinion.
IT IS FURTHER ORDERED that the portion of the Pontiac subpoena is QUASHED
as to its command concerning the settlement agreement. The City of Pontiac need not
disclose that information.
IT IS FURTHER ORDERED that the discovery cut-off date is EXTENDED to June 2,
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: May 22, 2017
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on May 22, 2017, by electronic and/or ordinary mail.
s/David P. Parker
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