Cope v. Brosius et al

Filing 117

MEMORANDUM AND ORDER - IT IS ORDERED that the plaintiffs motion to compel, (Docs. 112 and 114.) is GRANTED, in part, and DENIED in part. The defendants request for a telephonic conference is DENIED since this order resolves this dispute. SEE MEMO & ORDER FOR COMPLETE DETAILS. Signed by Magistrate Judge Martin C. Carlson on February 11, 2016. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
EDWARD J. COPE,
Plaintiff
v.
GRETCHEN BROSIUS, et al.,
Defendants

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Civil No. 4:12-CV-2382
(Judge Brann)
(Magistrate Judge Carlson)

MEMORANDUM AND ORDER
I.

Factual Background

This is a civil rights action brought by a local police officer against his
employers relating to numerous disputes that Cope has had with his employers, fellow
police officers, and Northumberland’s municipal leaders. These disputes have
myriad, interlocking aspects in Cope’s view and date back to at least the fall of 2009.
From Cope’s perspective most of the disputes relate to Cope’s efforts to speak out on
matters that he deems to be of public concern, and actions he perceives that were
taken in retaliation for this speech.

This case has been marked by frequent, and acrimonious, discovery disputes,
and now comes before the Court for resolution of the latest iteration of these disputes,
as set forth in the plaintiff’s third motion to compel. (Docs. 112 and 114.)1
Having carefully reviewed the parties’ latest submissions, for the reasons set
forth below, the motion to compel will be GRANTED, in part, and DENIED, in part.
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(b)(1) of the Federal Rules of Civil Procedure, which
defines relevant discoverable evidence. Further, rulings regarding the proper scope

While both of these documents have been identified as motions to compel
on the docket, in fact Doc. 114 is a response in opposition to the motion to
compel.
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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). Thus, 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.
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BankAmerica Hous. Servs., 190 F.R.D. 42, 44-45 (N.D.N.Y.1999)
(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 broad definition of that which can be obtained through
discovery reaches nonprivileged matters that are relevant to a 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.
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).
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With these legal guideposts in mind, we turn to consideration of the various
discovery requests set forth in this motion to compel.
In his motion to compel Cope first seeks a fully executed copy of the
defendants’ prior response to interrogatories.

In this regard, the plaintiff

acknowledges receiving a response to this discovery request in March of 2013, but
alleges that it was not fully executed. To the extent that the plaintiff seeks a fully
executed and signed copy of this longstanding response this motion is GRANTED.
Second, the plaintiff seeks copies of notes and minutes of meetings from 2002
to the present where “police department polices [sic]” were considered. The
defendant’s response to this request was to direct the plaintiff to the website where
all minutes are maintained and to identify those instances where it was believed that
minutes would reflect consideration of police policies. While we regard this response
as generally adequate, out of an abundance of caution and fairness we will ORDER
defendants to forward copies of all pertinent minutes, notes and records of meetings
in its possession, custody and control which are responsive to this request to the
plaintiff.
The plaintiff then seeks interview notes, reports and other documents relating
to an investigation conducted by a third party for the defendant Borough. It is
represented that this report has been released in a redacted form, but the parties
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dispute whether the redactions are adequate or appropriate. The parties also dispute
whether the report is privileged, although any privilege may have been waived by the
release of the report. In order to address these questions, IT IS ORDERED that the
defendants shall provide the Court copies of the redacted and unredacted report for
our in camera inspection.
The plaintiff also seeks the complete personnel file of several defendants. To
the extent that Cope claims that he is entitled to wholesale discovery of these
personnel files because these individuals forfeited their privacy rights when they were
sued by Cope, we disagree. Defendants and witnesses do not forfeit their personal
privacy in personnel records when they are sued. Quite the contrary, courts have long
recognized that:
Although personnel files are discoverable, they contain confidential
information and discovery of them should be limited. See, e.g., ReaganTouhy v. Walgreen Co., 526 F.3d 641, 648 (10th Cir.2008) (“Personnel
files often contain sensitive personal information ... and it is not
unreasonable to be cautious about ordering their entire contents
disclosed willy-nilly.... This is not to say personnel files are
categorically out-of-bounds.”); Miles v. Boeing Co., 154 F.R.D. 112,
115 (E.D.Pa.1994) (“[P]ersonnel files are confidential and discovery
should be limited.”). The Court must weigh the right to relevant
discovery against the privacy interest of non-parties. The Court finds
that Plaintiff is not entitled to the entire personnel records of all the
individuals without a more particularized showing of relevance

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Harris v. Harley-Davidson Motor Co. Operations, Inc, No. 09-1449, 2010 WL
4683776, *5 (M.D.Pa Nov. 10, 2010). Miles v. Boeing Co., 154 F.R.D. 112, 115
(E.D. Pa. 1994)(“personnel files are confidential and discovery should be limited.”).
Here, the plaintiff simply asserts in general terms his belief that wholesale disclosure
of these files will reveal relevant information. This is an insufficient showing in our
view. Therefore, in the absence of a more narrowly tailored request, or a more
fulsome explanation of relevance, the motion to compel is DENIED in this regard.
The plaintiff also seeks copies of certain use of force policies in various
electronic formats, including a thumb drive and electronic copies of these policies in
their native format including all metadata. The defendants have responded by voicing
a complete willingness to provide this information once the parties agree upon a
protocol for handling this electronic data. This seems a prudent request, since the
plaintiff’s discovery demand seeks information relating to the integrity of these
electronic records or their alteration. The plaintiff, however, has disagreed and
declined to discuss any protocol for release of this information. We believe that the
defendants are well-advised to insist upon an appropriate procedural protocol when
handling this data, and agree that they may make this disclosure contingent upon the
parties agreeing upon such a protocol. Therefore, this request will be DENIED. The
parties may return to this Court is they are unable to agree upon such a protocol.
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Finally, the plaintiff seeks an award of attorneys’ fees, insisting that such fees
are mandatory. We disagree. In this setting, where we have granted the motion in
part and denied it in part, the award of fees rests in our sound discretion. “If the
motion is granted in part and denied in part, the court may. . . , after giving an
opportunity to be heard, apportion the reasonable expenses for the motion.” Fed. R.
Civ. P., Rule 37(a)(5)(B). In this case, in the exercise of our discretion we will direct
that each party bear its own costs associated with this discovery litigation.
Having resolved these matters fully, the defendants’ request for a telephonic
conference is DENIED.
An appropriate form of order follows:
III.

Order

AND NOW this 11th day of February 2016, IT IS ORDERED that the
plaintiff’s motion to compel, (Docs. 112 and 114.) is GRANTED, in part, and
DENIED in part as follows:
1.

To the extent that the plaintiff seeks a fully executed and signed copy
of the longstanding response to interrogatories provided in 2013 this
motion is GRANTED.

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2.

IT IS ORDERED that the defendants shall forward copies of all
pertinent minutes, notes and records of meetings in its possession,
custody and control which are responsive to the plaintiff’s request for
copies of notes and minutes of meeting from 2002 to the present where
“police department polices [sic]” were considered.

3.

IT IS ORDERED that the defendants shall provide the court copies of
the redacted and unredacted interview notes, reports and other
documents relating to an investigation conducted by a third party for the
defendant Borough report for our in camera inspection

4.

The motion to compel production of personnel files is DENIED.

5.

The plaintiff’s request for copies of certain use of force policies in
various electronic formats, including a thumb drive and electronic
copies of these policies in their native format including all metadata is
DENIED since the defendants have responded by voicing a complete
willingness to provide this information once the parties agree upon a
protocol for handling this electronic data, which the plaintiff has
declined to do to date, but the defendants shall produce this information

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once the parties agree to an appropriate disclosure protocol. The parties
may return to this Court is they are unable to agree upon such a protocol.
6.

The plaintiff’s request for attorneys’ fees is DENIED. Each party will
bear its own costs associated with this discovery litigation.

7.

The defendants’ request for a telephonic conference is DENIED since
this order resolves this dispute.

S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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