Goodwin v. City of Cleveland, Ohio et al

Filing 44

Memorandum Opinion and Order Denying 39 Cuyahoga County Sheriff's Office's Motion to quash Plaintiff's subpoena and for Protective Order. Signed by Magistrate Judge Kenneth S. McHargh on 4/20/16. (M,De)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

ELIZABETH GOODWIN, adm’r,

Plaintiff,
vs.
CITY OF CLEVELAND,
et al.,
Defendants.

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Case No. 1:15CV0027

JUDGE DONALD NUGENT
(Magistrate Judge Mchargh)

MEMORANDUM
AND ORDER

McHARGH, Mag.J.
The plaintiff, Elizabeth Goodwin, as administrator of the estate of Tanisha
Anderson, has filed a suit in this court against defendants City of Cleveland and
Cleveland police officers Scott Aldridge and Bryan Myers. The case involves the
alleged wrongful death of Ms. Anderson, allegedly at the hands of police officers
who were responding to a call for assistance involving a mental health episode.
The complaint alleges four counts:
1. Excessive force. 42 U.S.C. § 1983.
2. Wrongful death. Ohio Rev. Code § 2125.02.
3. Assault, and Battery.

4. Violation of the Americans with Disabilities Act.
(Doc. 1, Compl., at §§ 55-63.) Proceedings in the case have been delayed while a
criminal investigation of the officers’ conduct has been ongoing. See, e.g., doc. 23,
28, 32, 34, 37.
Currently before the court is the Motion to Quash and for Protective Order
(doc. 39), filed by Non-Party Cuyahoga County Sheriff’s Office (“CCSO”). The
motion seeks to quash a March 25, 2016, subpoena to produce documents which was
served on the Public Records Manager of the CCSO. (Doc. 39, Exh. A.) The court
held a status conference via telephone on April 20, 2016, and heard arguments from
the interested parties. The court also considered the memorandum in support of
the motion (doc. 39), and the opposition filed by the plaintiffs (doc. 40).
The motion to quash (doc. 39) is DENIED, for the following reasons.
The motion is based on the assertion that the documents sought are
privileged communications, protected by the “confidential law enforcement
investigatory privilege,” under Ohio Rev. Code § 2317.02, or as attorney work
product1. (Doc. 39, at 1.)
The plaintiffs respond (and CCSO does not contest) that they are “simply
seeking a copy of the statements the family members have made to Cuyahoga
County investigators.” (Doc. 40, at 1.)

1

The court considers these interview statements to constitute raw “oral
information transmitted . . . and recorded as conveyed,” In re Columbia/HCA
Healthcare Corp. Billing Practices Litig., 293 F.3d 289, 294 (6th Cir. 2002), cert.
dismissed, 539 U.S. 977 (2003), concerning the underlying facts of the incident,
which would not be protected under the attorney work product doctrine.

Federal courts apply the federal law of privilege to all federal law claims.
Pearson v. Miller, 211 F.3d 57, 66 (3d Cir. 2000); Urseth v. City of Dayton, 110
F.R.D. 245, 253 (S.D. Ohio 1986). The Sixth Circuit has not ruled on the existence
of the law enforcement privilege. See, e.g., Dean v. F.D.I.C., 389 F.Supp.2d 780,
791-792 (E.D. Ky. 2005) (not recognizing privilege in that case); but see, e.g., Ohio
Bureau of Workers' Comp. v. MDL Active Duration Fund, Ltd., No. 2:05CV0673,
2006 WL 3311514, at *3 (S.D. Ohio Nov. 13, 2006) (common law privilege
recognized in both state and federal courts). Several other circuits have recognized
the privilege. See, e.g., Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d 1122, 1125
(7th Cir. 1997); In re Department of Investigation of the City of New York, 856 F.2d
481, 483-484 (2d Cir. 1988).
Even those courts which have recognized the privilege have recognized its
limits:
The law enforcement investigatory privilege is not absolute. It can be
overridden in appropriate cases by the need for the privileged
materials. The balancing of that need – the need of the litigant who is
seeking privileged investigative materials – against the harm to the
government if the privilege is lifted is a particularistic and judgmental
task [within the discretion of the district judge].
Dellwood Farms, 128 F.3d at 1125 (internal citation omitted). See also Urseth, 110
F.R.D. at 253 (privilege to be determined by case-by-case balancing). In balancing
the competing interests, the purpose of the privilege is relevant, namely, “to prevent
disclosure of law enforcement techniques and procedures, to preserve the
confidentiality of sources, to protect witness and law enforcement personnel, to
safeguard the privacy of individuals involved in an investigation, and otherwise to

prevent interference with an investigation.” In re Department of Investigation, 856
F.2d at 484. The mere invocation of an ongoing investigation is insufficient to
support the claim of privilege. Kitevski v. City of New York, No. 04CIV7402, 2006
WL 680527, at *3 (S.D. New York Mar. 16, 2006).
The privilege asserted requires a balancing of the conflicting interests, rather
than the simple assertion of privilege. See, e.g., Dellwood Farms, 128 F.3d at 1125;
Urseth, 110 F.R.D. at 253; Frankenhauser, 59 F.R.D. at 344. The court has
considered the particular considerations which apply concerning police
investigatory files in a civil rights case, as set forth in Frankenhauser v. Rizzo, 59
F.R.D. 339, 344 (E.D. Pa. 1973). Many of the factors which would ordinarily weigh
against disclosure are not present here. For example, the production of the
statements to plaintiffs would not prejudice the criminal investigation, or jeopardize
other legitimate law enforcement interests. In this case, the court finds the balance
weighs in favor of the production of the statements to the plaintiffs.
The motion to quash (doc. 39) is DENIED.
IT IS SO ORDERED.
Apr. 20, 2016

/s/ Kenneth S. McHargh
Kenneth S. McHargh
United States Magistrate Judge