Grayson v. DeWitt et al
Filing
96
MEMORANDUM OPINION AND ORDER granting in part and denying in part the 90 MOTION to Compel Discovery. Signed by Magistrate Judge Martin C. Carlson on Octobe 5, 2016. (kjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LOUIS GRAYSON,
Plaintiff
v.
MATTHEW DEWITT, et al.,
Defendants
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Civil No. 1:15-CV-453
(Judge Jones)
(Magistrate Judge Carlson)
MEMORANDUM OPINION AND ORDER
I.
Statement of Facts and of the Case
Language is the medium we all use for communication of ideas. On occasion,
however, our words can spawn confusion rather than create clarity. This may be what
has occurred in the instant case, where the parties’ current discovery disputes seem
to be the product of mutual misunderstandings.
This case comes before us for resolution of various discovery disputes, and a
motion to compel filed by the plaintiff. (Doc. 90.) The background of this dispute
is as follows: The plaintiff, Louis Grayson, has brought a federal civil rights lawsuit
against numerous individual and institutional defendants arising out of Grayson’s
September 6, 2013, arrest in York County, Pennsylvania. In his complaint Grayson
lodges allegations of use of excessive force, failure to intervene and prevent the use
of excessive force, supervisory and municipal liability against these defendants, along
with pendent state claims of assault, battery, and intentional infliction of emotional
distress.
The parties are now embroiled in a discovery dispute. Broadly speaking, this
dispute relates to disclosure of police policy manuals, citizen complaint submissions,
internal affair investigations into allegations of police misconduct, and police
disciplinary actions. These materials were sought by the plaintiff primarily in order
to amass factual support for Grayson’s municipal and supervisory liability claims.
The parties have exchanged numerous communications regarding these broadly
framed discovery demands, but these communications have not added clarity to their
conversation. Several factors appear to combine and contribute to this lack of clarity.
For example, some of the plaintiff’s requests are cast broadly, without any topical or
temporal limitations, while others were construed more narrowly by defendants as
relating only to specific named parties. Further, in addressing the plaintiff’s
discovery demands it seems that the defendants construed these demands as relating
solely to matters pertaining to excessive force, the allegations set forth in the
complaint. The plaintiff, in turn, appears to have been casting his discovery net in a
more sweeping fashion, and may have sought information concerning all citizen
complaints, internal affairs investigations, and disciplinary actions taken by the
defendant police departments. Further complicating this discovery process was the
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fact that plaintiff’s counsel learned that the defendants had produced different
information in separate litigation. This discrepancy raised concerns on the part of
plaintiff’s counsel, although the defendants take the position that these different
discovery responses were a product of the different discovery demands made in these
separate lawsuits.
When the parties were unable to amicably resolve this dispute, the plaintiff
filed a motion to compel and for sanctions, (Doc. 90.), which was referred to the
undersigned. As is our custom, we initially scheduled a telephonic conference with
counsel in an effort to reach an accord on these discovery matters. That informal
conference extended for an hour, but added little further clarity and produced no
consensus among the parties. Therefore, we directed further briefing on these
discovery disputes.
This matter has now been fully briefed by the parties, and is ripe for resolution.
Upon consideration of the parties’ competing positions, for the reasons set forth
below, the motion will be granted, in part. Having found that this dispute arises out
of mutual misunderstanding between counsel, all of whom have acted in good faith,
we will decline the invitation to impose sanctions in this case.
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II.
Discussion
Several basic guiding principles inform our resolution of the instant discovery
dispute. At the outset, Rule 37 of the Federal Rules of Civil Procedure governs
motions to compel discovery, and provides that:
(a) Motion for an Order Compelling Disclosure or Discovery
(1) In General. On notice to other parties and all affected persons, a
party may move for an order compelling disclosure or discovery. . . .
Fed. R. Civ. P. 37(a).
The scope of what type of discovery may be compelled under Rule 37 is
defined, in turn, by Rule 26 of the Federal Rules of Civil Procedure.Fed. R. Civ. P.,
Rule 26(b)(1), which provides that:
Unless otherwise limited by court order, the scope of discovery is as
follows: 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 outweighs its likely benefit. Information within
this scope of discovery need not be admissible in evidence to be
discoverable.
Fed. R. Civ. P., Rule 26(b)(1).
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Rulings regarding the proper scope of discovery, and the extent to which
discovery may be compelled, are matters consigned to the court’s discretion and
judgment. Thus, it has long been held that decisions regarding Rule 37 motions are
“committed to the sound discretion of the district court.” DiGregorio v. First
Rediscount Corp., 506 F.2d 781, 788 (3d Cir. 1974). Similarly, issues relating to the
scope of discovery permitted under Rule 26 also rest in the sound discretion of the
Court. Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 90 (3d Cir. 1987).
Therefore, a court’s decisions regarding the conduct of discovery, and whether to
compel disclosure of certain information, will be disturbed only upon a showing of
an abuse of discretion. Marroquin-Manriquez v. I.N.S., 699 F.2d 129, 134 (3d Cir.
1983). This far-reaching discretion extends to rulings by United States Magistrate
Judges on discovery matters. In this regard:
District courts provide magistrate judges with particularly broad
discretion in resolving discovery disputes. See Farmers & Merchs. Nat'l
Bank v. San Clemente Fin. Group Sec., Inc., 174 F.R.D. 572, 585
(D.N.J.1997). When a magistrate judge's decision involves a
discretionary [discovery] matter . . . , “courts in this district have
determined that the clearly erroneous standard implicitly becomes an
abuse of discretion standard.” Saldi v. Paul Revere Life Ins. Co., 224
F.R.D. 169, 174 (E.D.Pa.2004) (citing Scott Paper Co. v. United States,
943 F.Supp. 501, 502 (E.D.Pa.1996)). Under that standard, a magistrate
judge's discovery ruling “is entitled to great deference and is reversible
only for abuse of discretion.” Kresefky v. Panasonic Commc'ns and
Sys. Co., 169 F.R.D. 54, 64 (D.N.J.1996); see also Hasbrouck v.
BankAmerica Hous. Servs., 190 F.R.D. 42, 44-45 (N.D.N.Y.1999)
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(holding that discovery rulings are reviewed under abuse of discretion
standard rather than de novo standard); EEOC v. Mr. Gold, Inc., 223
F.R.D. 100, 102 (E.D.N.Y.2004) (holding that a magistrate judge's
resolution of discovery disputes deserves substantial deference and
should be reversed only if there is an abuse of discretion).
Halsey v. Pfeiffer, No. 09-1138, 2010 WL 3735702, *1 (D.N.J. Sept. 17, 2010).
This discretion is guided, however, by certain basic principles. Thus, at the
outset, it is clear that Rule 26's definition of that which can be obtained through
discovery reaches nonprivileged matter that is relevant to any party’s claim or
defense. Therefore, valid claims of relevance and privilege still cabin and restrict the
court’s discretion in ruling on discovery issues. Furthermore, the scope of discovery
permitted by Rule 26 embraces all relevant information a concept which is not
confined to admissible evidence but is also defined in the following terms:
“Information within this scope of discovery need not be admissible in evidence to be
discoverable.” Rather, “[p]arties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense.”
This concept of relevance is tempered, however, by principles of
proportionality. Thus we are now enjoined to also consider whether the specific
discovery sought is “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
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in resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.” Fed. R. Civ. P., Rule 26(b)(1).
A party moving to compel discovery bears the initial burden of proving the
relevance of the requested information. Morrison v. Philadelphia Housing Auth., 203
F.R.D. 195, 196 (E.D.Pa. 2001). Once that initial burden is met, “the party resisting
the discovery has the burden to establish the lack of relevance by demonstrating that
the requested discovery (1) does not come within the broad scope of relevance as
defined under Fed.R.Civ.P. 26(b)(1), or (2) is of such marginal relevance that the
potential harm occasioned by discovery would outweigh the ordinary presumption in
favor of broad disclosure.” In re Urethane Antitrust Litigation, 261 F.R.D. 570, 573
(D.Kan. 2009). Likewise, “[i]n deciding whether a federal privilege against discovery
exists, plaintiffs as the objecting party have the burden of establishing the privilege.”
Bayges v. Se. Pennsylvania Transp. Auth., 144 F.R.D. 269, 271 (E.D. Pa. 1992).
Indeed, because the assertion of a claim of privilege “may result in the withholding
of relevant information and so may obstruct the search for truth,” In re Chevron
Corp., 633 F.3d 153, 164 (3d Cir. 2011), it is well-established that, “ ‘The burden of
proving that the . . . privilege applies is placed upon the party asserting the privilege.’
United States v. Landof, 591 F.2d 36, 38 (9th Cir. 1978).” Matter of Grand Jury
Empanelled February 14, 1978, 603 F.2d 469, 474 (3d Cir. 1979).
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Furthermore, requests for information relating to government investigations,
such as police internal affair investigations, can implicate a legitimate governmental
privilege, a governmental privilege which acknowledges a governmental needs to
confidentiality of certain data but recognizes that courts must balance the
confidentiality of governmental files against the rights of a civil rights litigant by
considering:
(1) the extent to which disclosure will thwart governmental 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 selfevaluation 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 the 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 completed; (7) whether any intradepartmental 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; and (10) the importance
of the information sought to the plaintiffs case.
Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D. Pa. 1973).
In addition, when assessing claims of relevance and proportionality in
discovery disputes, we must focus on the nature of the parties’ claims and defenses,
and weigh the discovery demands against the relevance of the information as it
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pertains to those claims or defenses. This relevance determination is significant in
this case since the plaintiff’s discovery demands are generally tailored to develop
evidence in support of a municipal liability claim. Such municipal liability claims
must meet an exacting burden of pleading and proof. It is well-settled that local
governmental entities may not be held liable under § 1983 for the acts of others under
a theory of respondeat superior or vicarious liability. Ashcroft v. Iqbal, 556 U.S. 662
(2009); see also Colburn v. Upper Darby Twp., 946 F.2d 1017, 1027 (3d Cir. 1991).
Instead, such an agency may only be held liable “when execution of a government's
policy or custom, whether made by its lawmakers or by those whose edicts or acts
may fairly be said to represent official policy, inflicts the injury that the government
as an entity is responsible under § 1983.” Monell v. Dep’t of Soc. Servs., 436 U.S.
658, 694 (1978).
Thus, to sustain a claim against this institutional defendant, a plaintiff must
“identify a . . . ‘policy’ or ‘custom’ that caused the plaintiff's injury.” Bd. of County
Comm’rs of Bryan County v. Brown, 520 U.S. 397, 403 (1997). This custom must
be “so widespread as to have the force of law.” Id. at 404; see also Beck v. City of
Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (a policy is an official proclamation or
edict of a municipality, while a custom is a practice that is “so permanent and well
settled as to virtually constitute law”) (quoting Andrews v. City of Phila., 895 F.2d
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1469, 1480 (3d Cir. 1990) (citations omitted). The plaintiff must further “allege that
a ‘policy or custom’ of [the defendants] was the ‘moving force’ behind the
[constitutional] violation.” Grayson v. Mayview State Hosp., 293 F.3d 103, 107 (3d
Cir. 2002) (citing Brown, 520 U.S. at 404). A municipality can be held liable on the
basis of failure to train when “that failure amounts to ‘deliberate indifference . . . [of
the constitutional] rights of persons. . . .’” Woloszyn v. County of Lawrence, 396
F.3d 314, 324 (3d Cir. 2005) (citations omitted). There must also be a causal nexus,
in that the “‘identified deficiency in [the] training program must be closely related to
the ultimate [constitutional] injury.’” Id. at 325 (citations omitted). Therefore,
analysis of a claim under Monell requires separate analysis of two distinct issues:
“(1) whether plaintiff’s harm was caused by a constitutional violation, and (2) if so
whether the [municipality] is responsible for that violation.” Collins v. City of Harker
Heights, Texas, 503 U.S. 115, 120 (1992).
An institutional defendant may also be liable for constitutional violations
resulting from inadequate training or supervision of its employees if the failure to
train amounts to a custom of the municipality. However, failure-to-train claims also
must meet precise and demanding legal criteria. Such a failure must “amount[] to
deliberate indifference to the constitutional rights of persons with whom the police
come in contact.” Colburn, 946 F.2d at 1028 (citing City of Canton v. Harris, 489
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U.S. 378, 388 (1989)). Proving agency liability on a theory of deliberate indifference
is an especially difficult showing for a plaintiff to satisfy where the plaintiff has
alleged that insufficient training or supervision has caused constitutional violations.
Reitz v. County of Bucks, 125 F.3d 139, 145 (3d Cir. 1997). Such a showing requires
that “(1) . . . lawmakers know that employees will confront a similar situation; (2) the
situation involves a difficult choice or a history of employees mishandling; and (3)
the wrong choice by an employee will frequently cause deprivation of constitutional
rights.” Carter v. City of Phila., 181 F.3d 339, 357 (3d Cir. 1999). Moreover, the
plaintiff proceeding on such a theory must establish that the agency’s “deliberate
conduct . . . was the ‘moving force’ behind the injury alleged.” Reitz, 125 F.3d at 145
(quoting Brown, 520 U.S. at 404). Therefore, the need for training, supervision, or
other corrective action to avoid imminent deprivations of a constitutional right “must
be so apparent that any reasonable policymaker or supervisor would have taken
appropriate preventive measures.” Horton v. City of Harrisburg, No. 06-2338, 2009
U.S. Dist. LEXIS 63428, *13 (M.D. Pa. July 23, 2009) (quoting Strauss v. Walsh, No.
Civ. A. 01-3625, 2002 U.S. Dist. LEXIS 24717, 2002 WL 32341791, at *3 (E.D. Pa.
Dec. 17, 2002)). Additionally, in order to recover for municipal liability on a failureto-train theory, the alleged failure must be “closely related to the ultimate
(constitutional) injury.” Woloszyn, 396 F.3d at 325.
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The Supreme Court has reaffirmed the exacting guiding principles which
define institutional civil rights liability based upon a failure to train or oversee law
enforcement officers. In Connick v. Thompson, – U.S.– , 131 S.Ct. 1350, 1359
(2011), the court described the parameters of agency liability in the following terms:
A municipality or other local government may be liable . . .if the
governmental body itself “subjects” a person to a deprivation of rights
or “causes” a person “to be subjected” to such deprivation. See Monell
v. New York City Dept. of Social Servs., 436 U.S. 658, 692 (1978).
But, under § 1983, local governments are responsible only for “their
own illegal acts.” Pembaur v. Cincinnati, 475 U.S. 469, 479(1986) . . .
. They are not vicariously liable under § 1983 for their employees'
actions. . . . Plaintiffs who seek to impose liability on local governments
under § 1983 must prove that “action pursuant to official municipal
policy” caused their injury. Monell, 436 U.S., at 691. Official
municipal policy includes the decisions of a government's lawmakers,
the acts of its policymaking officials, and practices so persistent and
widespread as to practically have the force of law. . . . These are
“action[s] for which the municipality is actually responsible.” Pembaur,
supra, at 479–480. In limited circumstances, a local government's
decision not to train certain employees about their legal duty to avoid
violating citizens' rights may rise to the level of an official government
policy for purposes of § 1983. A municipality's culpability for a
deprivation of rights is at its most tenuous where a claim turns on a
failure to train. See Oklahoma City v. Tuttle, 471 U.S. 808, 822–823
(1985) (plurality opinion) (“[A] ‘policy’ of ‘inadequate training’ ” is “far
more nebulous, and a good deal further removed from the constitutional
violation, than was the policy in Monell ”). To satisfy the statute, a
municipality's failure to train its employees in a relevant respect must
amount to “deliberate indifference to the rights of persons with whom
the [untrained employees] come into contact.” . . . Only then “can such
a shortcoming be properly thought of as a city ‘policy or custom’ that is
actionable under § 1983. . . . “ ‘[D]eliberate indifference’ is a stringent
standard of fault, requiring proof that a municipal actor disregarded a
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known or obvious consequence of his action.” . . . Thus, when city
policymakers are on actual or constructive notice that a particular
omission in their training program causes city employees to violate
citizens' constitutional rights, the city may be deemed deliberately
indifferent if the policymakers choose to retain that program.
Id. (some citations deleted).
Given this exacting legal standard, the court in Connick also observed that:
“[C]ontemporaneous or subsequent conduct cannot establish a pattern of violations
that would provide notice to the city and the opportunity to conform to constitutional
dictates ....” Id. at n.7.
With these principles in mind, we turn to a resolution of the discovery disputes
between these parties, as those disputes relate to disclosure of police policy manuals,
citizen complaint submissions, internal affair investigations into allegations of police
misconduct, and police disciplinary actions. Balancing these considerations of
relevance, privilege and proportionality, and recognizing that questions of relevance
are defined by the elements of proof for Monell municipal liability claims, we believe
that the motion to compel should be granted in part, as denied in part, as follows:
First, given that contemporaneous or subsequent conduct generally cannot
establish a pattern of violations that would provide notice to the city and the
opportunity to conform to constitutional dictates, we will deny the plaintiff’s request
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for disclosure of information which post-dates the date of this alleged incident,
September 2013.
As to information in the possession custody and control of the defendants
which predates September 2013, striking the balance between relevance,
proportionality and privilege, we will direct the following disclosures:
First, with respect to the named defendant police officers, the defendants shall
identify all citizen complaints, internal affair investigations, and disciplinary findings
in their possession, custody and control.
The defendants shall produce any
responsive materials pertaining to the named defendant officers which relate to
allegations of use of excessive force for inspection and copying by the plaintiff’s
counsel. To the extent that there are responsive materials in the nature of citizen
complaints, internal affair investigations, and disciplinary findings pertaining to the
named defendant officers which do not relate to excessive force claims, the legal
claim at issue in this case, the defendants should at a minimum identify the responsive
materials, and if the defendants elect not to disclose these records, provide the
plaintiff with a privilege log identifying the withheld information, and the legal basis
for withholding the requested information. We will set no temporal limits on this
discovery.
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As for discovery requests which seek citizen complaints, internal affair
investigations, and disciplinary findings that are in the possession, custody or control
of the defendants which do not relate to any of the individual named defendants, we
appreciate that these records may have some relevance to Monell claims if they reveal
an endemic pattern or problem requiring municipal action. However, consistent with
the dictates of Monell, Connick and their progeny, we believe that the discovery
should be tailored to the perceived deficiency in police training or conduct, in this
case allegations of the use of excessive force. We also believe that principles of
proportionality call for some further temporal limitations on the scope of this
particular discovery, as well as topical limitations, pertaining to the matters at issue
in this litigation. In the past, in the exercise of the court’s discretion, courts have
often set five year temporal limits on discovery. Miller v. Hygrade Food Prod. Corp.,
89 F. Supp. 2d 643, 647 (E.D. Pa. 2000). Therefore, it will be further ordered that the
defendants shall produce for a period of five years prior to September 2013, all
citizen complaints, internal affair investigations, and disciplinary findings relating to
excessive force claims that are in their possession, custody or control. Since some of
these materials may relate to persons who are not named as parties in this litigation,
these reports may be produced in a redacted format to protect the privacy of third
parties. Further, if the production of this information in specific instances in the
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judgment of defense counsel entails privilege matters, the defense may move for a
narrowly tailored protective order, and provide a privilege log in lieu of specific
documents. Finally, if upon receipt of this information, plaintiff’s counsel concludes
that the disclosures to date indicate that additional discoverable information may
exist, the plaintiff may seek discovery of that additional information.
Finally, recognizing that Monell liability entails an assessment of agency
policies, the defendants shall produce the police policy manual that was in existence
in 2013 for inspection by the plaintiff. If the defendant believes that any portion of
that manual should be withheld, they shall provide a privilege log identifying the
redacted portion(s) of the manual and describing the grounds for withholding this
information.
An appropriate order follows.
III.
Order
AND NOW this 5th day of October 2016, in accordance with the foregoing
Memorandum, IT IS ORDERED that the plaintiff’s’s motion to compel, (Doc. 90.),
is GRANTED in part and DENIED in part, as follows:
1.
The plaintiff’s request for information post-dating the date of this
alleged incident, September 2013, is DENIED.
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2,
With respect to the named defendant police officers, for matters
predating September 2013, IT IS ORDERED that the defendants shall
identify all citizen complaints, internal affair investigations, and
disciplinary findings in their possession, custody and control. The
defendants shall produce any responsive materials pertaining to the
named defendant officers which relate to allegations of use of excessive
force for inspection and copying by the plaintiff’s counsel. To the
extent that there are additional responsive materials in the nature of
citizen complaints, internal affair investigations, and disciplinary
findings pertaining to the named defendant officers which do not relate
to excessive force claims, the legal claim at issue in this case, the
defendants shall at a minimum identify the responsive materials, and if
the defendants elect not to disclose these records, provide the plaintiff
with a privilege log identifying the withheld information, and the legal
basis for withholding the requested information.
3.
As for discovery requests which seek citizen complaints, internal affair
investigations, and disciplinary findings that are in the possession,
custody or control of the defendants which do not relate to any of the
individual named defendants, IT IS FURTHER ORDERED that the
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defendants shall produce for a period of five years prior to September
2013, all citizen complaints, internal affair investigations, and
disciplinary findings relating to excessive force claims that are in their
possession, custody or control. Since some of these materials may relate
to persons who are not named as parties in this litigation, these reports
may be produced in a redacted format to protect the privacy of third
parties. Further, if the production of this information in specific
instances in the judgment of defense counsel entails privilege matters,
the defense may move for a narrowly tailored protective order, and
provide a privilege log in lieu of specific documents. Finally, if upon
receipt of this information, plaintiff’s counsel concludes that the
disclosures to date indicate that additional discoverable information may
exist, the plaintiff may seek discovery of that additional information.
4.
Finding that this dispute resulted from mutual, good faith
misunderstanding between counsel, the plaintiff’s request for monetary
sanctions is DENIED.
5.
Finally, recognizing that Monell liability entails an assessment of
agency policies, IT IS ORDERED that the defendants shall produce the
police policy manual that was in existence in 2013 for inspection by the
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plaintiff. If the defendant believes that any portion of that manual
should be withheld, they shall provide a privilege log identifying the
redacted portion(s) of the manual and describing the grounds for
withholding this information.
The disclosures directed by the Court shall be made on or before November
7, 2016.
S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
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