Mitchell v. Warren, City of

Filing 79

ORDER granting in part and denying in part 41 Motion to Compel - Signed by Magistrate Judge Mona K. Majzoub. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CORA MITCHELL, Personal
Representative of the Estate of
ROBERT MITCHELL,
Plaintiff,
vs.

CIVIL ACTION NO. 09-CV-11480
DISTRICT JUDGE JOHN CORBETT O’MEARA
MAGISTRATE JUDGE MONA K. MAJZOUB

CITY OF WARREN, et al.,
Defendants.
________________________/

ORDER GRANTING IN PART PLAINTIFF’S MOTION TO COMPEL RESPONSE TO
PLAINTIFF’S FIRST AND SECOND REQUESTS FOR PRODUCTION OF
DOCUMENTS (DOCKET NO. 41)
This matter comes before the Court on Plaintiff’s Motion to Compel Response to Plaintiff’s
First and Second Requests for Production of Documents. (Docket no. 41). Defendants City of
Warren, Warren Police Commissioner William Dwyer, and Warren police officers Raymond Henke
and Jesse Lapham filed a response. (Docket no. 57). Plaintiff filed a reply. (Docket no. 61). The
parties filed a Joint Statement of Resolved and Unresolved Issues. (Docket no. 64). The motion has
been referred to the undersigned for a hearing and determination pursuant to 28 U.S.C.
§ 636(b)(1)(A). (Docket no. 45). The Court heard oral argument on the motion on March 28, 2012.
This matter is now ready for ruling.
Cora Mitchell, as personal representative of the estate of her deceased son Robert Mitchell,
brings this action against the City of Warren, Warren Police Commissioner William Dwyer, Warren
police officers Raymond Henke and Jesse Lapham, Taser International, Inc., and Michigan Taser

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Distributing, Inc. Plaintiff’s second amended complaint alleges claims of excessive force, denial
of equal protection, conspiracy invidious racial animus, Monell violations, wrongful death, failure
to warn products liability, gross negligence, negligence, and breach of express and implied warranty.
(Docket no. 76).
On March 25, 2010 Plaintiff served her First Request for Production of Documents to the
City of Warren, Dwyer, Henke, and Lapham. (Docket no. 41, ex. 1). She served her Second Set of
Interrogatories and Requests for Production of Documents to the City of Warren, Dwyer, Henke,
and Lapham on February 3, 2011. (Docket no. 41, ex. 7). Defendants served responses and
objections to the requests on May 19, 2010 and March 7, 2011. (Docket no. 41, exs. 2, 8). The Joint
Statement reveals that the parties have been unable to resolve their dispute with regard to First
Request for Production nos. 9-13 and Second Request for Production nos. 26-34.
First Request for Production no. 9 is redundant and duplicative of First Request for
Production no. 12. Plaintiff’s motion is denied as to this request.
First Request for Production no. 10 is overbroad in time and scope. Defendants are directed
to produce unredacted copies of all documents within their possession, custody, or control for
incidents occurring from 2005 through 2011 that are related to: (a) pursuing, or chasing, a person
without probable cause to believe that they have committed a crime; (b) excessive force, or any other
improper seizure of a person; (c) the discharge of a firearm; (d) any use of a taser or other electronic
control device (ECD) against an unarmed person; and (e) racially motivated or discriminatory
conduct. Plaintiff’s request for documents related to the failure to prevent fellow officers from
violating a citizen’s rights will be denied for lack of relevance. Plaintiff’s requests for documents
related to improper report writing and improper demeanor will be denied as vague and overbroad.

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First Request for Production no. 11 is overbroad in time and scope. Defendants are directed
to produce unredacted copies of all claims or complaints within their possession, custody, or control
that were made by a resident of the City of Detroit, or that arose from incidents that took place inside
the City of Detroit, from 2005 through 2011 that are related to (a) pursuing, or chasing, a person
without probable cause to believe that they have committed a crime; (b) excessive force, or any other
improper seizure of a person; (c) the discharge of a firearm; (d) any use of a taser or other electronic
control device (ECD) against an unarmed person; and (e) racially motivated or discriminatory
conduct.
The Court will grant Plaintiff’s motion with respect to First Request for Production no. 12,
and will direct Defendants to produce unredacted copies of all documents within their possession,
custody, or control, including unredacted incident reports and investigative records, for incidents
occurring from 2005 through 2011 that pertain to any incident involving any Warren Police officer
in which there was the discharge of a firearm, and/or the deployment of a taser device or other
electronic device (ECD) against an unarmed person.
The Court will grant Plaintiff’s motion with respect to First Request for Production no. 13,
and will direct Defendants to produce all documents within their possession, custody, or control
having to do with any investigation by the Macomb County Prosecutor’s Office into the discharge
of a firearm, and/or the deployment of a taser against an unarmed individual by any Warren Police
officer between 2005 and 2011.
Second Request for Production no. 26 asks Defendants to produce, among other things,
documentation of Defendant Lapham’s psychological examinations. Plaintiff maintains that her
request encompasses both pre-employment and post-incident psychological examinations.

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Defendants assert the psychotherapist-patient privilege and object to the request on the grounds that
Defendant Lapham had a reasonable expectation of confidentiality in any underlying psychological
reports. See Jaffee v. Redmond, 518 U.S. 1 (1996). Defendants further contend that Defendant
Lapham’s detailed psychological evaluation reports were never provided to the police force, which
instead was provided only with a simple report stating whether he was fit for duty or not. The Court
has not been made aware of any facts to indicate that Defendant Lapham authorized disclosure of
his psychological records or was aware that his communications with the psychotherapist would not
remain confidential and would be disclosed to third parties. See, e.g., Scott v. Edinburg, 101
F.Supp.2d 1017, 1018-20 (N.D. Ill. 2000). The Court will deny Plaintiff’s motion to compel
production of Defendant Lapham’s psychological examinations, testing, or evaluations.
The Court will direct Defendants to respond in full to Second Request for Production nos.
27, 28, 29, and 30.
The Court finds that Second Request for Production nos. 31 and 32 are overbroad in time and
scope. Plaintiff’s motion to compel is denied as to these requests.
The Court will grant Plaintiff’s motion with respect to Second Request for Production no.
33, and will direct Defendants to produce an authorization for employment records from the City
of Detroit that complies with the Michigan Bullard-Plawecki Act.
The Court will grant Plaintiff’s motion with respect to Second Request for Production no.
34. Defendants are directed to produce documents within their possession, custody, or control that
are responsive to this request. If no such documents exist which have not already been produced
Defendants must state as much in their response.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel Response to Plaintiff’s

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First and Second Requests for Production of Documents (docket no. 41) is GRANTED IN PART
as described in this order. On or before May 13, 2012 Defendants must produce documents
responsive to First Request for Production nos. 10, 11, 12, 13, and Second Request for Production
nos. 27, 28, 29, 30, 33, and 34 as discussed herein. Plaintiff’s motion is denied as to First Request
for Production no. 9 and Second Request for Production nos. 26, 31, and 32.
NOTICE TO THE PARTIES
Pursuant to Fed. R. Civ. P. 72(a), the parties have a period of fourteen days from the date of
this Order within which to file any written appeal to the District Judge as may be permissible under
28 U.S.C. § 636(b)(1).
Dated: April 23, 2012

s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE
I hereby certify that a copy of this Order was served upon Counsel of Record on this date.

Dated: April 23, 2012

s/ Lisa C. Bartlett
Case Manager

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