Grimes v. DOE

Filing 33

ORDER DENYING MOTION TO QUASH AND GRANTING IN PART MOTION TO STAY [#19] AND STAYING ACTION UNTIL DECEMBER 31, 2017 (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MONIQUE GRIMES, as Personal
Representative of the Estate of
DAMON GRIMES, Deceased,
Plaintiff,
v.

Case No. 17-cv-12860
Hon. Gershwin A. Drain

TROOPER MARK BESSNER, et al.,

Defendants.
____________________________/
ORDER DENYING MOTION TO QUASH AND GRANTING IN PART
MOTION TO STAY [#19] AND STAYING ACTION UNTIL DECEMBER
31, 2017
I. INTRODUCTION
Presently before the Court is Non-Party State of Michigan and the Michigan
State Police’s (“MSP”) Motion to Quash the Plaintiff’s October 4, 2017 Subpoena
and Stay this Action, filed on October 18, 2017. 1 Plaintiff filed a Response in
Opposition on November 6, 2017, and the MSP filed a Reply on October 9, 2017.
A hearing was held on November 14, 2017. For the reasons that follow, the Court

The MSP should have filed two separate motions-one motion seeking to quash the
October 4, 2017 subpoena and a second motion seeking to stay these proceedingsrather than request both forms of relief in a single motion.

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will deny MSP’s Motion to Quash and will grant in part the MSP’s request to stay
the instant proceedings.
II. FACTUAL BACKGROUND
Plaintiff’s son was killed during an encounter with former MSP Trooper,
Defendant Mark Bessner, on August 26, 2017. Bessner deployed his Taser directly
at Plaintiff’s son, who was riding an ATV at the time. The Taser caused Plaintiff’s
son to lose control of the ATV and he was propelled into the rear end of another
vehicle.
Bessner, as well as reportedly two other officers, have resigned from the
MSP as a result of this incident. Investigations by the Detroit Police Department,
the Michigan State Police and the Wayne County Prosecutor’s Office are
purportedly ongoing.
Plaintiff initiated the instant lawsuit on August 30, 2017 asserting Fourth
Amendment claims against Bessner. Also, on August 30, 2017, Plaintiff sent
FOIA letters to the City of Detroit and the MSP requesting that all evidence be
preserved and requesting that all records relating to the case be produced to
Plaintiff’s counsel.
On September 27, 2017, the MSP responded to Plaintiff’s FOIA letter and
indicated that the request was granted as to “existing, non-exempt records in the
possession of the Michigan State Police that fall within the scope of your request.”

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The MSP further advised that a processing fee of $5,331.20 to search, retrieve,
review, examine and exempt material and upon payment of half of this amount, the
MSP would begin processing the request. The MSP estimated that it would take
90 days to produce the documents that were subject to the FOIA request.
Plaintiff also sought the name of the MSP Trooper who was in the car with
Bessner during the incident on August 27, 2017. The MSP, however, failed to
provide this information to Plaintiff’s counsel, which resulted in Plaintiff’s counsel
having to prepare and file a Motion to Perpetuate Testimony of MSP Lietenant
Neil Donahue for the limited purpose of identifying the MSP Trooper who was in
the car with Bessner. The MSP has since provided the name to Plaintiff’s counsel
and Plaintiff has withdrawn the Motion to Perpetuate Testimony. 2
Due to the astronomical fee amount requested by the MSP to process
Plaintiff’s FOIA request, Plaintiff served Rule 45 Subpoenas on the MSP and the
State of Michigan seeking the same information and documents sought in the
FOIA letter. The MSP moved to quash the subpoenas on October 18, 2017.

Plaintiff has filed another Motion to Perpetuate the testimony of Lieutenant Neil
Donahue regarding purported destruction of evidence at the scene of the incident.

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III.

LAW & ANALYSIS

A.

Motion to Quash

Federal Rule of Civil Procedure 45(d)(3) governs quashing or modifying a
subpoena and obligates the district court to quash or modify a subpoena that:
(i)
(ii)
(iii)
(iv)

fails to allow a reasonable time to comply;
requires a person to comply beyond the geographical limits
specified in Rule 45(c);
requires disclosure of privileged or other protected matter, if no
exception or waiver applies; or
subjects a person to undue burden.

Fed. R. Civ. P. 45(d)(3)(A). The MSP asserts that the subpoena violates three of
the four grounds set forth in Rule 45(d)(3). First, the MSP argues that it provided
inadequate time—fourteen days—to produce the documents and items requested.
Additionally, the MSP argues that the subpoena seeks items that are subject
to the qualified law enforcement privilege.

Lastly, the MSP asserts that the

voluminous scope of the requests create an undue burden.
The qualified law enforcement privilege is “designed to prevent disclosure
of information that would be contrary to the public interest in the effective
functioning of law enforcement.” In re Packaged Ice Antitrust Litigation, No. 08md-01952, 2011 U.S. Dist. LEXIS 2011 WL 1790189, *6 (E.D. Mich. May 10,
2011) (citations and internal quotations marks omitted). The Sixth Circuit has held
that the privilege “protects only suggestions, advice, recommendations and
opinions, rather than factual and investigatory reports, data and surveys in
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government files.” United States v. Leggett & Platt, 542 F.2d 655, 658 n.4 (6th
Cir. 1976). The individual seeking to quash a subpoena has a heavy burden of
proof to show why the subpoena must be quashed. United States v. Wells, No. 0610589, 2006 WL 3203905, *2 (E.D. Mich. Nov. 3, 2016).
To determine whether the qualified law enforcement privilege applies,
courts balance the following factors:
(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 selfevaluation and consequent program improvement will be chilled by
disclosure; (4) whether the information sought is factual data or an
evaluative summary; (5) whether the party seeking the discovery is
an actual or potential defendant in any criminal proceedings either
pending or reasonably likely to follow from the incident in question;
(6) whether the police 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.
Flagg v. City of Detroit, No. 05-74253, 2008 U.S. Dist. LEXIS 21923, *7 (E.D.
Mich. Mar. 20, 2008)(quoting Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D.
Pa. 1973)).
In Flagg v. City of Detroit, the defendants sought to quash subpoenas served
by the plaintiff on four separate entities or individuals. Flagg, 2008 U.S. Dist.
LEXIS 21923, *1. The subpoena served upon the Wayne County Prosecutor and

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her office is the only relevant subpoena for purposes of the motion presently before
this Court. The Wayne County Prosecutor objected to the subpoena on the ground
that it sought materials that were part of an ongoing criminal investigation. 2008
U.S. Dist. LEXIS 21923, *6.
The Flagg court ultimately concluded that a review of the ten
Frankenhauser factors was unnecessary because the parties had not briefed the
matter and the materials were not available for in camera review. 2008 U.S. Dist.
LEXIS 21923, *7. The Flagg court determined that the plaintiff’s subpoena was
premature because discovery had recently begun and the plaintiff had yet to
explore other avenues of party discovery that may produce the items sought by the
subpoena served on the Wayne County Prosecutor and her office. 2008 U.S. Dist.
LEXIS 21923, *7.

The Flagg court therefore quashed the subpoena without

prejudice so that Plaintiff could renew efforts to obtain materials from the Wayne
County Prosecutor’s Office. 2008 U.S. Dist. LEXIS 21923, *7.
The MSP argues that the circumstances herein are similar to the
circumstances in Flagg, thus this Court should quash the October 4, 2017
subpoena. In support of its present motion, the MSP includes an affidavit from
Matthew H. Penny, an attorney employed with the Wayne County Prosecutor’s
office. See Mot., Ex. 3 at Pg ID 258. Mr. Penny states that he has been assigned to
assist the MSP and the Detroit Police Department in the investigation of Damon

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Grimes’ death on August 26, 2017. Id. Mr. Penny opines that the release of
“statements and reports of the civilian and police witnesses” to the public “would
be harmful to the ongoing investigation and any subsequent prosecution or
prosecutions.” Id.
Plaintiff opposes the MSP’s request to quash the subpoena, arguing that the
MSP has failed to meet its heavy burden to show that quashing the subject
subpoena is warranted. Plaintiff complains that the MSP fails to address all ten of
the Frankenhauser factors. Rather, the MSP relies on the fact that the Flagg court
only considered four factors when it concluded that it would quash the subpoena
served on the Wayne County Prosecutor’s office.
Looking to the Frankenhauser factors, the Court finds the following:
(1)

The extent to which disclosure will thwart governmental

processes by discouraging citizens from giving the government
information. The MSP does not address this factor, nor is there any
evidence before the Court suggesting that disclosure of the sought
material will discourage citizens to provide information to the
Government. This factor weighs in favor of Plaintiff.
(2) The impact upon persons who have given information of
having their identities disclosed.

The MSP likewise has not

addressed this factor and there is no evidence before the Court that

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persons who have given information to the Government will be
adversely affected by disclosure of the information sought by
Plaintiff’s subpoena.
(3) The degree to which governmental self-evaluation and
consequent program improvement will be chilled by disclosure.
Again the MSP fails to address this factor and there is nothing before
the Court to suggest that government self-evaluation will be chilled by
disclosure.
(4)

Whether the information sought is factual data or an

evaluative summary. The MSP also fails to address this factor. It
appears that the information sought by the October 4, 2017 subpoena
is factual in nature and not evaluative.

Moreover, the privilege

“protects only suggestions, advice, recommendations and opinions,
rather than factual and investigatory reports, data and surveys in
government files.” Leggett & Platt, 542 F.2d at 658 n.4. This factor
favors the Plaintiff’s position.
(5)

Whether the party seeking the discovery is an actual or

potential defendant in any criminal proceedings either pending or
reasonably likely to follow from the incident in question. The
MSP likewise fails to address the fifth factor. Here, the party seeking

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discovery from the MSP is not a potential defendant. This factor also
favors the Plaintiff’s position.
(6) Whether the police investigation has been completed. The
MSP claims that an investigation into the incident on August 26, 2017
is ongoing and that release of any information related to this
investigation will be harmful. While this factor appears to favor the
MSP’s position, the Court notes that the MSP has failed to offer any
particularized explanation as to why release of this information will
harm the ongoing investigation. Additionally, the MSP originally
agreed to produce the subject information, albeit with an astronomical
price tag, thus its reliance on the ongoing investigation seems suspect.
(7) Whether any interdepartmental disciplinary proceedings have
arisen or may arise from the investigation. While the MSP fails to
address this factor, there is some evidence in the record to suggest that
at least two officers involved in the August 26, 2017 incident have
been suspended.
(8) Whether the plaintiff’s suit is non-frivolous and brought in
good faith. Plaintiff’s suit is not frivolous and it has been brought in
good faith.

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

The MSP suggests that Plaintiff

has other avenues for obtaining the information sought by the
subpoena. However, this is inaccurate because the only defendant
herein is Bessner, and he will not have access to any of the requested
materials. This factor favors the Plaintiff.
(10) The importance of the information sought to the plaintiff’s
case.

There can be no question that the requested materials are

relevant here. In fact, Penny has opined that video evidence from the
scene is highly relevant.
Lastly, Plaintiff further argues that it is not seeking documents from the
Wayne County Prosecutor’s office, thus there will be no interference with the
prosecution’s decision making. Based on the foregoing considerations, the Court
will deny the MSP’s request to quash the subpoena as to items numbered 1-10, and
12-14 on Schedule A to the subject subpoena. Item number 11, which seeks the
personnel files, disciplinary and employment files for Bessner and any other
officer who has been suspended as a result of the August 26, 2017 incident, should
be produced for in camera review by this Court.

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B.

Stay of Proceedings

Additionally, the MSP requests that the instant proceedings be stayed
pending the outcome of the criminal investigation and any related criminal charges
and proceedings. This request will be granted in part. The Court will stay the
instant proceedings until December 31, 2017.
The Court has the discretion to stay civil proceedings pending the outcome
of parallel criminal proceedings. Landis v. No. Am. Co., 299 U.S. 248, 254-55
(1936). In determining whether to grant a stay, courts typically consider the
following factors: (1) the extent to which the issues in the civil and criminal
proceedings overlap; (2) the status of the criminal proceedings; (3) the plaintiff’s
interests in expeditious civil proceedings weighed against the prejudice to the
plaintiff caused by the delay; (4) the hardship on the defendant; (5) the
convenience of both the civil and criminal courts; and (6) the interests of the public
and third parties. In re Scrap Metal Litigation, No. 02-0844, 2002 WL 31988168,
at *2 (N.D. Ohio Nov. 7, 2002).
As to the first factor, whether there is overlap in issues between the civil and
criminal proceedings, Bessner has not been charged with any offense. Thus, there
is no overlap at this juncture. However, if Bessner is indicted, there may be issues
that overlap between the civil and criminal proceedings.

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The second factor weighs in favor of denying a stay. “In general, courts
recognize that the case for a stay is strongest where the defendant has already been
indicted, whereas pre-indictment requests for a stay as in this case, are usually
denied.” Chao v. Fleming, 498 F. Supp.2d 1034, 1037 (W.D. Mich. Jul. 6, 2007).
Here, there is no certainty that charges will be brought against Bessner. The MSP
argues that a stay may be appropriate even before charges are filed and that
numerous issues are sure to arise if this matter is permitted to proceed while the
investigations are ongoing. The MSP relies on the Federal Rules of Criminal
Procedure and Michigan’s Rules of Criminal Procedure to suggest that allowing
this matter to proceed will somehow run afoul of these rules. None of the cited
rules are applicable however because there are no ongoing criminal proceedings.
As to the prejudice factor, “absent a showing of undue prejudice upon
defendant or interference with his constitutional rights, there is no reason why
plaintiff should be delayed in her efforts to diligently proceed to sustain her claim.”
Birge v. Dollar Gen. Corp., No. 04-2531, 2005 U.S. Dist. LEXIS 36835, * (W.D.
Tenn. Dec. 14, 2005)(quoting Hicks v. City of New York, 268 F. Supp.2d 238,
241(E.D.N.Y. 2003)).

Because there have been no charges brought against

Bessner, and such charges are only a possibility, an indefinite stay is inappropriate
and prejudicial to the Plaintiff’s claims. Moreover, this Court “has an obligation to
move its docket, and not let cases languish before it.” In re Scrap Metal Litigation,

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2002 WL 31988168, at *7.

Based on the foregoing considerations, the Court will

grant the MSP’s request for a stay in part and will stay the instant proceedings until
December 31, 2017.
IV.
.

CONCLUSION

Accordingly, Non-Party State of Michigan’s and the Michigan State Police’s

Motion to Quash Plaintiff’s October 4, 2017 Subpoena is DENIED and Non-Party
State of Michigan’s and the Michigan State Police’s Motion to Stay this Action
[#19] is GRANTED IN PART.
This matter is STAYED until December 31, 2017.
SO ORDERED.
Dated: November 28, 2017

/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
November 28, 2017, by electronic and/or ordinary mail.
/s/ Tanya Bankston
Deputy Clerk

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