Hernandez v. Causey et al

Filing 62

ORDER granting in part and denying in part 56 Motion to Compel. Signed by Magistrate Judge Michael T. Parker on September 9, 2020. (js)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
GABINO RAMOS HERNANDEZ

PLAINTIFF

v.

CIVIL ACTION NO. 2:17-cv-123-KS-MTP

PHILLIP CAUSEY, ET AL.

DEFENDANTS
ORDER

THIS MATTER is before the Court on Plaintiff’s Motion to Compel [56]. Having
considered the parties submissions, the record, and the applicable law, the Court finds that the
Motion [56] should be granted in part and denied in part.
Plaintiff filed this action on July 20, 2017. See Complaint [1]. Plaintiff alleges that on
July 20, 2016, Defendant Phillip Causey and other Immigration and Custom Enforcement
Agency (“ICE”) officers responded to a request from Laurel, Mississippi, police officers to assist
with translating Spanish in connection with a traffic stop of two Hispanic individuals, including
Plaintiff. See [1]; Amended Complaints [5] [20]. Plaintiff alleges that Defendant Causey arrived
at the scene and wrongfully shot him. Id. Plaintiff asserts that Causey violated his constitutional
rights and committed tortious conduct under state law. Id. Plaintiff also asserts claims under the
Federal Tort Claims Act against the United States for negligent training and supervision and for
allowing Causey to utilize pretext to conduct illegal stops and seizures without probable cause or
reasonable suspicion. Id.
On April 1, 2020, Plaintiff served his first set of interrogatories on the United States. See
Notice [43]. On July 28, 2020, the government served its responses. See Notices [53]. That
same day, the Court conducted a telephonic conference with the parties concerning disputes
arising from the interrogatories and responses. The parties were unable to resolve their disputes.
Thus, on August 6, 2020, Plaintiff filed the instant Motion [56], requesting that the Court compel
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the government to provide complete answers to certain interrogatories. Specifically, Plaintiff
seeks complete answers to eight interrogatories, which the Court will group into three categories:
Reports, ICE Operation, and Authority for Actions.
Reports
Four of the interrogatories seek the identities of individuals who prepared specifically
identified documents and the sources of the information contained in the documents.
Interrogatory No. 2: Please identify the individual who prepared the . . . ICE
Significant Incident Report [submitted on July 21, 2016] and the source of the facts
and information contained therein.
Interrogatory No. 3: Please identify the individual who prepared the Department
of Homeland Security, Office of Inspector General, Report of Investigation, I16ICE-BLX-15750 . . . and the source of all facts and information contained therein.
Interrogatory No. 10: Please identify the individual who sent the email of July
20, 2016, 11:08 PM . . . and the source of the information provided therein.
Interrogatory No. 12: Please identify the individual who prepared the Department
of Homeland Security Immigration and Customs Enforcement Report of
Investigation, No. 001, partially entitled “IMMGRTN ENF AGT 0402 Intentional
Discharge of Service Weapon (minor injury), Laurel, Jones, MS” and the source of
all facts and information contained therein . . . .
Concerning the identities of the individuals who prepared the subject reports and email,
the government, in its Response [60], asserts that it has provided this information in response to
Interrogatories Nos. 2, 10, and 12. As for Interrogatory No. 3, however, the government argues
that the law enforcement privilege shields the name of this individual.
The law enforcement privilege is a “qualified privilege protecting investigative files in an
ongoing criminal investigation.” In re U.S. Dept. of Homeland Sec., 459 F.3d 565, 569 (5th Cir.
2006). When considering whether this privilege applies, courts balance “the government’s
interest in confidentiality against the litigant’s need for the documents.” Coughlin v. Lee, 946

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F.2d 1152, 1160 (5th Cir. 1991). In particular, courts consider the Frankenhauser factors. Id. at
570 (citing Frankenhauser v. Rizzo, 59 F.R.D. 339 (E.D. Pa. 1973)).
The Frankenhauser factors include: (1) the extent to which disclosure will thwart
government 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 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 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 complete; (7) whether any interdepartmental
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. Id.
In support of its argument, the government submitted a declaration from Darcia Rufus, an
Assistant Counsel to the Inspector General, which states in part:
For disclosure requests, it is DHS OIG’s policy to assert the law enforcement
privilege over the names of OIG investigative employees who are GS-14s and
below, which include Special Agents (SAs) and Assistant Special Agents-inCharge (ASACs). By applying redactions to investigative personnel who are GS14 and below, OIG is able to protect its law enforcement function by protecting the
agents from unwanted harassment based on their positions and ensuring that the
release of their names will not have an adverse effect on OIG’s investigative
abilities.
See Declaration [60-1].
The Court finds that the Department of Homeland Security’s policy, without more, is
insufficient to justify application of the law enforcement privilege in this situation. The
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government does not specifically address the Frankenhauser factors and fails to explain why this
specific individual would be subjected to undue harassment or explain why the release of his or
her name would have an adverse effect on any investigation. On the other hand, Plaintiff
explains his need for the information. According to Plaintiff, the report describes events which
transpired immediately prior to and during the shooting, and information concerning how and
from where this information was gathered may be important to Plaintiff’s claims. The Court
finds that the Frankenhauser factors weigh in favor of compelling the United States to disclose
the information in question. Thus, the government is hereby directed to identify the individual
who prepared the Department of Homeland Security, Office of Inspector General, Report of
Investigation, I16-ICE-BLX-15750.
Concerning the source of information contained in these reports and email, the
government asserts that it does not have any information beyond what is contained in the reports
and email. The government also argues that production of this information is unnecessary
because it has identified all of the individuals having first-hand knowledge of the events of July
20, 2016 and Plaintiff has deposed these witnesses.
Federal Rule of Civil Procedure 26(b)(1) provides that:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense and proportional to the needs of the case, considering
the importance of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweights it likely benefits.
This Rule also specifies that “[i]nformation within this scope of discovery need not be admissible
in evidence to be discoverable.” Id. The discovery rules are accorded a broad and liberal
treatment to achieve their purpose of adequately informing litigants in civil trials. Herbert v.
Lando, 441 U.S. 153, 177 (1979). At some point, however, discovery yields diminishing returns,
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needlessly increases expenses, and delays the resolution of the parties’ dispute. Finding a just
and appropriate balance in the discovery process is one of the key responsibilities of the Court,
and “[i]t is well established that the scope of discovery is within the sound discretion of the trial
court.” Freeman v. United States, 566 F.3d 326, 341 (5th Cir. 2009).
The Court finds that Plaintiff’s requests seek information relevant to the claims in this
action. As Plaintiff points out, discovery is not limited to depositions of individuals at the scene
of an incident. Plaintiff may seek information to test the credibility of witnesses and the
accuracy of their recollections. Surely, the authors of the subject documents did not create the
information contained therein out of whole cloth, but gathered information about the events that
transpired prior to and during the subject shooting. The source of that information is relevant to
the claims and defenses in this case.
Additionally, the government should not be allowed to simply state it does not have this
information. These documents were created by government agents. The government must
inquire as to the sources of the information contained in the documents.1 The government is
directed to provide complete answers to Interrogatories Nos. 2, 3, 10, and 12.
Operation
Plaintiff also inquired about the operation which brought Defendant Causey and the other
ICE agents to Laurel, Mississippi, making them available to assist the local police on the night in
question.
Interrogatory No. 7: What particular surveillance and immigration enforcement
operations in Laurel, Mississippi were the five ERO officers completing when the
telephone request for assistance from a Laurel Police Officer was received on July
20, 2016.
1

The Court notes that pursuant to Fed. R. Civ. P. 33(b)(1)(2), an interrogatory must be answered
by any officer or agent who must furnish the information available to the party, if that party is a
public or private corporation, a partnership, an association or a governmental agency.
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The government argues that this interrogatory seeks information that is protected by the
law enforcement privilege, as providing particulars about a law enforcement operation would
reveal law enforcement techniques and could place officers in danger or hinder future
investigations. The government also argues that the sought-after information is not relevant to
the claims and defenses in this case. According to the government, knowing what the ICE
officers were doing earlier in the day has no bearing on why the ICE officers were at the scene at
the time of the shooting.
Plaintiff counters that this information is important because he claims the reason given
for ICE agents’ presence at the scene—assisting with Spanish translation—was pretextual.
Plaintiff claims that agents were there as a result of racial profiling, which may have been a
pattern that day. Additionally, Plaintiff asserts that he is not seeking the particulars of the
operations, merely asking that the government identify the operations referenced in the reports.
The Court finds that Plaintiff’s request seeks information relevant to the claims. As for
the law enforcement privilege, the government does not assert that the operations are ongoing or
argue that revealing the identity of the operations, without identifying any techniques or
procedures, would hinder future investigations or place agents in danger. The privilege should
not prevent the government from providing a basic description of the operations, which includes
the types of operations and (if the information can be revealed without compromising an ongoing
investigation) the targets of the operations.
Authority
The final group of interrogatories concern the authority for the actions of Defendant
Causey and the other ICE officers on the night in question.
Interrogatory No. 13: Please provide the jurisdiction and authority for ERO
officers to chase, arrest or detain individuals suspected of violating local traffic
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laws. Please include references to all federal statutes, regulations, written policies,
memorandum, or other written instructions by any department, section, or office of
ICE, ERO, or the Department of Homeland Security, including the Department of
Public Affairs, the Office of Professional Responsibility, or the Office of Inspector
General.
Interrogatory No. 14: Please provide the jurisdiction and authority for ERO
officers to chase, seize, command, and or point deadly weapons at individuals
suspected of violating local traffic laws. Please include references to all federal
statutes, regulations, written policies, memorandum, or other written instructions
by any department, section, or office of ICE, ERO, or the Department of Homeland
Security, including the Department of Public Affairs, Office of Professional
Responsibility, and the Office of Inspector General.
Interrogatory No. 15: Please state the policy or procedure of ICE or ERO officers
that in any way relates to the use of deadly weapons or the firing of deadly weapons
at individuals fleeing a suspected local traffic violation, including reference to all
regulations, written policies, memorandum, or other written instructions by any
department, section, or office of ICE, ERO, or the Department of Homeland
Security, including the Department of Public Affairs, Office of Professional
Responsibility, and the Office of Inspector General.
The government objects to these interrogatories on the basis that they are framed under
the premise Causey interacted with Plaintiff because of a traffic stop. According to the
government, Causey did not engage, chase, or shoot Plaintiff because of a traffic stop.
Plaintiff argues that the interrogatories ask what jurisdiction or authority Defendants had
to intervene in any local minor traffic stop. According to Plaintiff, Defendants must identify any
jurisdiction or authority that covers or applies to the conduct of the ICE agents in this matter. As
the government points out, however, Plaintiff did not ask generally what authority the ICE
officers had to act under the circumstances as existed on that night. Plaintiff now seeks
information he did not request in the interrogatories, and the Court will not compel the
government to provide such information in that manner. Thus, the Court will deny the Motion to
Compel as to Interrogatories Nos. 13 and 14.

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In Interrogatory No. 15, however, Plaintiff seeks “the policy or procedure of ICE or ERO
officers that in any way relates to the use of deadly weapons or the firing of deadly weapons at
individuals fleeing a suspected local traffic violation . . . .” The Court finds that it is not
necessary for the government to accept the premise that Causey interacted with Plaintiff because
of a traffic stop before answering this interrogatory. The government shall state (or provide
copies of) the policies or procedures that in any way relate to the use of deadly weapons under
the circumstances as existed on the night in question. Thus, the Court will grant the Motion to
Compel as to Interrogatory No. 15 in part as set forth herein.2
IT IS, THEREFORE, ORDERED that:
1. Plaintiff’s Motion to Compel [56] is GRANTED in part and DENIED in part.
2. On or before September 18, 2020, the government shall provide answers to Plaintiff’s
interrogatories as set forth herein.
SO ORDERED this the 9th day of September, 2020.
s/Michael T. Parker
UNITED STATES MAGISTRATE JUDGE

2

In his Motion, Plaintiff also argues that the government waived all of it objections because it
failed to timely respond to the interrogatories. In response, the government argues that Plaintiff
acquiesced to the delay. The Court need not address this issue because the Court granted the
Motion to Compel as to Interrogatories Nos. 2, 3, 7, 10, 12 and 15, and would deny the Motion
as to Interrogatories 13 and 14 even if the government waived its objection as Plaintiff now seeks
information he did not request in the interrogatories.
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