Schweppe et al v. Pine Lawn, Missouri, City of et al

Filing 110

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that non-party Movant City of St. Louis' Motions to Quash Subpoena (Docs. 85 , 86 ) are GRANTED in part and DENIED in part. Movant shall produce to Plaintiffs the records responsive to Plaintiffs subp oenas except for the following, to the extent they are publicly available: Records relating to CN 14-040493; Accident Reports 13-042829; 12-039721; and 11-053580; and Any incident reports as defined by Mo. Rev. Stat. § 610.100.IT IS FURTHER ORDERED that Plaintiffs shall tender to Movant any witness fees or mileage compensation required by Rule 45(b)(1).. Signed by District Judge John A. Ross on 1/30/18. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

LISA SCHWEPPE and
JILLIAN ZURMUEHLEN,
Plaintiffs,
vs.
CITY OF PINE LAWN, MISSOURI and
STEVEN BLAKENEY,
Defendants.

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Case No. 4:16-cv-00253-JAR

MEMORANDUM AND ORDER
This matter is before the Court on two Motions to Quash Subpoena and/or for Protective
Order filed by non-party Movant City of St. Louis. (Docs. 85, 86.) Plaintiffs Lisa Schweppe and
Jillian Zurmuehlen have filed a memorandum in opposition (Doc. 87) and Movant has replied
(Doc. 94).
Background
Plaintiffs allege the following in their complaint: Defendant Steven Blakeney, a former
Lieutenant in the Pine Lawn, Missouri, Police Department, drugged and abducted them from a
St. Charles restaurant. (Doc. 1.) Blakeney called another Pine Lawn Police Officer, who
allowed Blakeney and Plaintiffs to “travel uninterrupted across town” by providing a police
escort as Blakeney drove the women to a bar in St. Louis. Plaintiffs were eventually taken to
Blakeney’s home in Oakville, Missouri, where they regained consciousness around 4:00 a.m. and
demanded to be taken home. Blakeney again summoned the second officer, who arrived and
took Plaintiffs home in his Pine Lawn police cruiser.

Plaintiffs sued Blakeney under 28 U.S.C. § 1983, alleging that he violated their
constitutional rights while acting under color of state law. Plaintiffs alleged that Pine Lawn was
liable for failing to screen Blakeney before hiring him and being aware of, but failing to correct
or prevent his misconduct. Plaintiffs served on Movant two subpoenas. The first sought, among
other things, “[c]omplete and unredacted copies of all . . . materials . . . concerning police
investigations” in cases involving Blakeney. (Doc. 85-1.) The second sought “[c]omplete and
unredacted copies of all . . . materials . . . concerning the training, employment, discipline,
expulsion, or termination of Steven Blakeney,” who had been removed from the St. Louis Police
Academy before joining the Pine Lawn Police Department. (Doc. 86-1.)
Movant moved to quash both subpoenas, arguing that the records sought were “closed”
under Missouri Law, might include the identities of victims or others unrelated to this suit, or
were already available to the public for a reasonable fee. (Docs. 85, 86.) In addition, Movant
noted that Plaintiffs provided “no witness fee or mileage compensation.”

(Docs. 85, 86.)

Plaintiffs respond that Movant failed to show that the materials subpoenaed were protected from
discovery and that Movant’s arguments in support of quashing are insufficient. (Doc. 91.)
Movant also sought a protective order covering any records it is ordered to produce. (Docs. 85,
86.)
Discussion
Federal Rule of Civil Procedure 45(d)(3)(A) provides that a court must quash or modify a
subpoena that seeks “disclosure of privilege or other protected matter, if no exception or waiver
applies.” 1

However, “[t]he burden is particularly heavy to support a ‘motion to quash as

1

Movant does not object to timing, geography, or any undue burden inherent in complying with
the subpoenas; it only objects on the grounds that the material is protected from disclosure. See
Fed. R. Civ. P. 45(3)(A)(i), (ii), (iv).
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contrasted to some more limited protection.’” Id. (quoting Westinghouse Electric Corp. v. City
of Burlington, 351 F.2d 762, 766 (D.C. Cir. 1965)).
First, Movant asserts that the records sought are covered by Missouri Revised Statute
§ 610.021(3) and (13), which exempts certain “closed” material from the general rule that the
records of public governmental bodies must be made public. Among those exemptions are
records concerning the “(3) [h]iring, firing, disciplining or promoting of particular
employees . . . when personal information about the employee is discussed or recorded,” and
“(13) [i]ndividually identifiable personnel records, performance ratings or records pertaining to
employees or applicants for employment.” Mo. Rev. Stat. § 610.021(3), (13). Movant also
argues that the records are “closed” under § 610.105, which covers documentation pertaining to a
case that is “nolle prossed, dismissed, or [in which] the accused is found not guilty or imposition
of sentence is suspended in the court.” Further, Movant specifically asserts that the subpoenas
could include documents created by the Internal Affairs Division of the St. Louis Police
Department, the confidentiality of which is paramount to the effective investigation of future
misconduct.

(Doc. 87 at 2.)

In support, Movant cites State ex rel. Delmar Gardens N.

Operating, LLC v. Gaertner, 239 S.W.3d 608, 611 (Mo. 2007) (en banc) (“Missouri recognizes a
right of privacy in personnel records that should not be lightly disregarded or dismissed.”), and
State ex rel. St. Louis Cty. v. Block, 622 S.W.2d 367, 370 (Mo. Ct. App. 1981) (the
confidentiality of Internal Affairs files “is essential to protect the integrity of the police
department and to maintain an effective disciplinary system”)
In response, Plaintiffs note that Movant does not identify any actual privilege that
protects the records from discovery. (Doc. 91 at 3-4.) Plaintiffs also note that § 610.021 deals
with Missouri’s Sunshine Laws, not subpoenas, and assert that the cases Movant cites are

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inapposite. Instead, Plaintiffs offer Noce v. City of Webster Groves, 4:10-cv-2363, 2013 WL
4620662, at *3 (E.D. Mo. Aug. 29, 2013), in which the Court denied the defendants’ motion to
quash and ordered a non-party police department to turn over the personnel records. The Court
held that the defendants “d[id] not “explain why plaintiff is not entitled to the documents she
s[ought]” and that any privacy concerns could be addressed by redacting “irrelevant, sensitive
matters.” Id. at *3, *4. In this case, Plaintiffs suggest that any concerns regarding Blakeney’s
privacy could be addressed by redacting sensitive information (as the City of Pine Lawn did
when it produced Blakeney’s complete personnel file) or by designating the records
“Confidential” pursuant to the protective order in this case. (Doc. 91 at 4-5.)
The Court agrees with Plaintiffs. Movant does not claim any privilege that shields the
records sought. See Fed. R. Civ. P. 45. Moreover, the Court concludes that § 610.021 and
§ 610.105 do not shield the subpoenaed records from discovery. Missouri courts make clear that
the state law’s “general prohibition only extends to the public’s access to such files, and so
[Plaintiffs] correctly recognize[] that if the information is ‘material and favorable’ to [their] case,
the Sunshine Law does not per se bar its admission.” State v. Donovan, No. ED 104625, 2017
WL 4782271, at *7 n.4 (Mo. Ct. App. Oct. 24, 2017), reh’g and/or transfer denied (Dec. 19,
2017); see also State ex rel. Jackson Cty. Grand Jury v. Shinn, 835 S.W.2d 347, 347 (Mo. Ct.
App. 1992) (denying motion to quash subpoena “seeking ‘all documents and records maintained
in the internal affairs investigation file regarding’ certain named police officers”); cf. Mo. Rev.
Stat. § 546.720 (expressly stating that the identity of the state execution team members is not
discoverable by “subpoena, or other means of legal compulsion”—language not present in
§ 610.021(3) or (13)); but see, Edwards v. Villmer, No. 4:16CV1077 RLW, 2017 WL 2711600,
at *4 (E.D. Mo. June 22, 2017) (citing Mo. Rev. Stat. § 610.100.2) (denying a motion to compel

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production of closed documents because “the documents requested either have been produced,
are privileged and/or confidential documents, or do not sufficiently relate to [Plaintiffs] claims in
this lawsuit”).

Moreover, Movant can protect Blakeney’s privacy by redacting irrelevant,

sensitive information, as Pine Lawn did. 2 In fact, Local Rule 2.17(A) requires Movant to redact
certain sensitive information such as social security numbers, dates of birth, and home addresses.
Movant next argues that the subpoenaed records may “involve alleged crimes of a sexual
nature” and that Missouri law simply protects the right of victims to request that their identity be
kept confidential unless and until a formal charge is filed. (Doc. 85 at 2 (citing Mo. Rev. Stat.
§ 610.100.7).) Because no charge was ever filed, Movant seems to suggest that those records
cannot be shared without the victim or victims’ consent. (Id.)
The full text of § 610.100.7 reads, “The victim of [a sex crime] may request that his or
her identity be kept confidential until a charge relating to such incident is filed.” Mo. Rev. Stat.
§ 610.100.7. Rather than creating a presumption of confidentiality which the victim must waive,
as Movant implies, the provision allows victims to request confidentiality until a charge is filed.
Because Movant does not assert that the victims of the alleged crimes at issue have requested
confidentiality, the Court concludes that § 610.100.7 does not mandate quashing the subpoena.
What is more, Movant provides no authority for the proposition that records relating to alleged
sex crimes are otherwise protected from discovery.
Movant further argues that because police officers can be compelled under Garrity v.
State of N.J., 385 U.S. 493 (1967), to respond to police department questioning under threat of
termination, investigative and personnel records might contain information otherwise protected

2

The Court notes that the subpoena seeks “Complete and un-redacted copies” of the requested
records, but Plaintiffs suggest in their Response that properly redacted documents would satisfy
their request. (See Doc. 91 at 4.)
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by the officers’ Fifth Amendment rights. (Doc. 87 at 2.) The disclosure of that information “has
a serious potential for compromising constitutional rights of police officers,” Movant asserts.
(Id.) However, Movant does not cite any case in which a subpoena was quashed on that basis or
that otherwise stands for the proposition that providing police investigative records in response
to a subpoena violates an officer’s Fifth Amendment rights. In fact, Movant does not assert that
the records sought contain so-called Garrity material—only that they might. The Court is
therefore unable to conclude that disclosure would be unconstitutional in the way Movant
suggests.
In sum, the Court concludes that Movant has failed to show that the records sought by
Plaintiff are privileged or otherwise protected from disclosure. Plaintiffs’ suit includes a failureto-screen claim to which past disciplinary issues recorded in Blakeney’s police academy and
investigative files would directly relate.
That said, Movant asserts that some of the records covered by Plaintiffs’ subpoenas are
publicly available “upon payment of reasonable fees.” (Doc. 85 at 3.) The Court agrees that
Movant should not be required to produce any record reasonably available to the public. Movant
also asserts that Plaintiffs did not tender witness fees or mileage compensation as required by
Rule 45(b)(1). (Id. at 2.) The Court will order Plaintiffs to remit the required amounts.
Finally, Movant asks the Court to review the records in camera for relevance before
releasing them to the Plaintiffs and moves for a protective order covering any documents the
Court orders it to provide. (Id. at 4-5.) The Court concludes that an in camera review is
unnecessary. Likewise, the Court concludes that the privacy concerns motivating Movant’s
request for a protective order are sufficiently addressed by the Court’s January 19, 2017,
protective order. (Doc. 36.)

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The Court notes that the subpoenas appear to cover a large number of records. However,
two facts mitigate any concern that the subpoenas are overbroad: first, Movant represents that
the subpoena served on the St. Louis Police Department’s Custodian of Records (see Doc. 85-1)
has been limited, by agreement of the parties, to records pertaining to “the report numbers
specifically identified in the subpoena and records 2010 to present” (Doc. 85 at 3). Second, the
subpoena served on the St. Louis Police Department’s Human Resources Division is naturally
limited by the very short time during which Blakeney was enrolled in the St. Louis Police
Academy.
Conclusion
For the foregoing reasons, the Court is satisfied that the information sought by Plaintiffs
is relevant and discoverable. The Court will therefore allow the subpoenas as limited by
agreement of the parties, and as to records that are not reasonably available to the public.
Accordingly,
IT IS HEREBY ORDERED that non-party Movant City of St. Louis’ Motions to Quash
Subpoena (Docs. 85, 86) are GRANTED in part and DENIED in part. Movant shall produce
to Plaintiffs the records responsive to Plaintiffs’ subpoenas except for the following, to the extent
they are publicly available:
•

Records relating to CN 14-040493;

•

Accident Reports 13-042829; 12-039721; and 11-053580; and

•

Any incident reports as defined by Mo. Rev. Stat. § 610.100.

IT IS FURTHER ORDERED that Plaintiffs shall tender to Movant any witness fees or
mileage compensation required by Rule 45(b)(1).

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Dated this 30th day of January, 2018.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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