Sevy v. Barach et al

Filing 32

ORDER OVERRULING 29 Defendants' Objections. Signed by District Judge Laurie J. Michelson. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANTHONY SEVY,
Plaintiff,
v.

Case No. 17-13789
Honorable Laurie J. Michelson
Magistrate Judge Anthony P. Patti

PHILIP BARACH and HAROLD
MARSHALL,
Defendants.
ORDER OVERRULING DEFENDANTS’ OBJECTIONS [29]
Magistrate Judge Anthony P. Patti recently ordered Defendants and non-party 44th District
Court to produce Defendants’ employee files (less any personal information like addresses or
phone numbers) no later than September 18, 2018. (ECF No. 28, PageID.162.) Magistrate Judge
Patti found that the employee files may contain past incidents of misconduct or discipline. And
past incidents are relevant to Plaintiff’s prayer for punitive damages.
Defendants object to Judge Patti’s ruling. (ECF No. 29, PageID.170.) Defendants say his
ruling misreads controlling Supreme Court and Sixth Circuit precedent. (Id.) So the ruling hinges
on a legal error. (Id.) And according to Defendants, a magistrate judge’s alleged legal error gives
the Court leeway to conduct a plenary review of the decision (Id.)
This is a “nondispositive” discovery dispute that the Court reviews under a “clearly
erroneous or contrary to law” standard of review. 28 U.S.C. § 636(b)(1)(A); United States v.
Curtis, 237 F.3d 598, 603 (6th Cir. 2001) And for discovery disputes such as this, the statute is
often read to permit review for abuse of discretion. See Charles Alan Wright, et al., Practice and
Procedure with Regard to Nondispositive Matters, 12 Fed. Prac. & Proc. Civ. § 3069 (2d ed.)

(“Regarding legal issues, the language ‘contrary to law’ appears to invite plenary review. But many
matters such as discovery scheduling or disputes might better be characterized as suitable for an
abuse-of-discretion analysis.”) see also Arucan v. Cambridge East Healthcare/Sava Seniorcare
LLC, No. 16-12726, 2018 U.S. Dist. LEXIS 508, at *2 (E.D. Mich. Jan. 3, 2018). Abuse of
discretion means the magistrate judge’s decision must leave the Court “with the definite and firm
conviction” the magistrate judge made a “clear error of judgment.” Hall v. Liberty Life Assur. Co.,
595 F.3d 270, 275 (6th Cir. 2010) (internal quotations omitted). So the Court will review
Magistrate Judge’s Patti’s decision for an abuse of discretion.
Defendants say the employee files are not relevant and therefore not discoverable.
Magistrate Judge Patti held otherwise. And he did not make “a clear error of judgment.”
The employee files are relevant because Sevy seeks punitive damages. To establish
entitlement to punitive damages, Sevy needs to underscore the “degree of reprehensibility of the
defendant’s conduct.” Bmw of N. Am. v. Gore, 517 U.S. 559, 575 (1996). And “repeated
misconduct is more reprehensible than an individual instance of malfeasance.” Id. at 577. Sevy
wants Defendants to produce the employee files solely to see if Barach and Marshall are repeat
offenders. And Gore supports Sevy’s logic. Id. at 576 (“[E]vidence that a defendant has repeatedly
engaged in prohibited conduct while knowing or suspecting that it was unlawful would provide
relevant support for an argument that strong medicine is required to cure the defendant’s disrespect
for the law.”) Other case law does, too. See, e.g., Martinez v. Stockton, 132 F.R.D. 677, 683 (E.D.
Cal. 1990). So Magistrate Judge Patti did not err in holding that, at this stage of the case, the files
(minus addresses and phone numbers) are at least discoverable.
Defendants arguments to the contrary are not persuasive. First Defendants say Gore is
distinguishable. (ECF No. 29, PageID.173–174.) But the relevant portion of Gore is right on point:

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it discusses the elements of a punitive damages claim and indicates that past instances of
misconduct are relevant to a claim for punitive damages. See Gore, 517 U.S. at 575–77. Then
Defendants cite Franklin v. Messmer, 111 F. App’x 386, 388 (6th Cir. 2004), for the proposition
that an officer’s prior bad acts are not relevant to alleged present ones. (ECF No. 29, PageID.175.)
But Franklin discusses the relevance of prior bad acts in the context of an excessive-force claim,
not punitive damages. See 111 F. App’x at 388 (holding that prior bad acts offered to show an
officer’s subjective intent are not relevant to an excessive force claim which asks only whether the
officer’s actions were objectively reasonable in light of the circumstances). Franklin is thus
inapposite. So Defendants offer nothing that leaves the Court with a “definite and firm conviction”
that Magistrate Judge Patti made “a clear error of judgment”
Thus, Defendants objections (ECF No. 29) are OVERRULED and the Court ORDERS
Defendants to produce the employee files within seven days of entry of this Order.
SO ORDERED.
s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE
Date: October 29, 2018

I hereby certify that a copy of the foregoing document was served upon counsel of record
and/or pro se parties on this date, October 29, 2018, by electronic and/or ordinary mail.

s/William Barkholz
Case Manager

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