CHISLER v. JOHNSTON et al
Filing
160
MEMORANDUM OPINION indicating that, for reasons more fully stated within, the evidence which Chisler seeks to have the DOC produce is clearly relevant. Because the Court finds that the DOC has failed to demonstrate an applicable privilege under the p resent circumstances, the Court determines that Chisler's motion to compel production of a copy of certain documents 138 is granted, with the limitation that the document be produced under seal, by 5:00 p.m. on 6/27/11. An appropriate Order follows. Signed by Judge Nora Barry Fischer on 6/16/11. (jg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CHARLES CHISLER,
Plaintiff,
vs.
SGT. EDWARD P. JOHNSTON, in his
individual capacity, et al.,
Defendants.
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Civil No. 09-1282
Judge Nora Barry Fischer
MEMORANDUM OPINION
I. INTRODUCTION
Charles Chisler (―Chisler‖) initially filed the pending motion to compel production of
certain documents against the Pennsylvania Department of Corrections (―DOC‖) on April 7,
2011. (See Docket No. 138). At oral arguments on May 3, 2011, Chisler orally moved to
withdraw his motion to compel, and the motion to compel was withdrawn on May 4, 2011. (See
Docket No. 150). Pursuant to a Consent Order filed May 24, 2011, (see Docket No. 158), the
motion to compel was reopened by the Court. The Consent Order limited arguments on the
motion to compel to those already made by the parties. (See id.). The motion is therefore ripe.
Based on the following discussion, Chisler‘s ―Motion to Compel Production of a Copy of
Certain Documents Produced by the Dept. of Corrections with Limited Redactions‖ (Docket No.
[138]) is GRANTED, with the limitations set forth below.
II. FACTUAL BACKGROUND
Chisler brings this action pursuant to 42 U.S.C. § 1983 against several current and former
employees of the DOC. (Docket No. 21 at ¶ 5). On October 7, 2007, Chisler was employed as a
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Corrections Officer Trainee (―COT‖) at SCI-Fayette. (Id. at ¶ 2). Because Chisler was still in his
first year of employment, he was required to receive regular training from various superior
officers, including Defendant Sergeant Edward Johnston (―Johnston‖). (Id.). Chisler alleges that,
during this required ―training,‖ Defendants Johnston, Lieutenant Timothy Wentroble
(―Wentroble‖), Sergeant Clayton Stoner (―Stoner‖), and Corrections Officer (―CO‖) Erik Keller
(―Keller‖) ―violently attacked and hog-tied‖ Chisler. (Id. at ¶ 3). Chisler claims that Defendants‘
conduct violated his civil rights and caused him severe and permanent injuries, pain, and
psychological and emotional injuries. (Id.).
Chisler also claims that Defendants Lieutenant Howard Sutton (―Sutton‖), Lieutenant
Donald Hockenberry (―Hockenberry‖), Sergeant Daniel Lynch (―Lynch‖), and Sergeant Joseph
Palanchar (―Palanchar‖) (all together ―Supervisory Defendants‖) were aware of the ―assault‖ on
Chisler. (Id. at ¶ 4). Chisler claims that the Supervisory Defendants threatened him with
punishment and ―loss of his career‖ if Chisler filed a truthful incident report of the attack. (Id.).
During discovery, on November 22, 2010, the Court ordered the DOC to produce
documents responsive to Chisler‘s requests for information relating to ―incidents of workplace
violence, horseplay, hazing or other inappropriate contact and behavior‖ at several state
correctional institutions. (Docket No. 118). The Court based this order on its finding that
―individual Defendants worked at state correctional facilities other than SCI-Fayette…‖, (Id. at 4
n.7), and that Chisler had alleged that the claimed custom of hazing and violence occurred at all
of the state‘s correctional institutions. (See id. at 3).
After the parties conferred on December 1, 2010, they entered into an agreement for
preliminary production of DOC documents. (Docket No. 121). The agreement made clear that
documents would be produced subject to ―attorneys eyes only‖ protection, a confidentiality
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agreement, and a clawback agreement. (See Docket No. 140 at 4-5). The DOC then released a
multitude of responsive documents, but asserted the government documents and deliberative
process privileges over all or large portions of many of the documents. (Id. at 5; see also Docket
No. 138-1)).
In his instant motion, (Docket No. 138), Chisler seeks to compel production of the
executive summary and investigative file for the DOC‘s Office of Professional Responsibility
(―OPR‖) investigation of the suicide of COT A.H., who was stationed at SCI-Graterford.
(Docket No. 139 at 2). Chisler claims that the OPR conducted an investigation in which twentyone (21) employees were interviewed and a report of approximately one hundred and ninety
(190) pages was produced. (Id.).
Chisler claims that the document he seeks to have produced will prove valuable in
establishing that there is an ―informal custom and policy permitting horseplay/workplace
violence,‖ (Docket No. 138 at ¶ 2), and that the requested documents are ―relevant and
significant to the case at bar.‖ (Id. at ¶ 15). The DOC claims that the documents are not only
irrelevant, but also subject to the ―government document‖ and deliberative process privileges.
(Docket No. 140 at 6).
The Court has reviewed the requested report in camera. The manner in which the Court
came into possession of the report is worthy of note. The report was filed by Chisler, unsealed,
as an appendix to the present motion. (See Docket No. 138-2). The DOC moved for sanctions
based on the disclosure of this document, which was subject to the ―attorneys eyes only‖ and
confidentiality restrictions. (See Docket No. 141 at ¶ 19; Docket No. 138-2 (showing the
document with a ―Confidential – Attorneys Eyes Only‖ stamp)). Consequently, the Court
reviewed the document when it was filed with the present motion.
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III. LEGAL STANDARD AND ANALYSIS
Rule 26 describes the scope of discovery as follows:
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—including the existence, description,
nature, custody, condition, and location of any documents or other tangible things
and the identity and location of persons who know of any discoverable matter. For
good cause, the court may order discovery of any matter relevant to the subject
matter involved in the action. Relevant information need not be admissible at the
trial if the discovery appears reasonably calculated to lead to the discovery of
admissible evidence.
FED.R.CIV.P. 26(b)(1).
―Although the scope of discovery under the Federal Rules is unquestionably broad, this
right is not unlimited and may be circumscribed.‖ Bayer AG v. Betachem, Inc., 173 F.3d 188,
191 (3d Cir. 1999) (citing Micro Motion, Inc. v. Kane Steel Co., 894 F.2d 1318, 1322 (Fed. Cir.
1990)). This Rule places two relevant limitations upon the instant motion: privilege and
relevance. A party may ―obtain discovery regarding any nonprivileged matter that is relevant to
any party‘s claim…‖ FED.R.CIV.P. 26(b)(1) (emphasis added).
a. Relevant Information
―Relevant evidence‖ means ―anything having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less probable that
it would be without the evidence.‖ FED.R.EVID. 401. The scope of this language is intended to be
broad. See Moyer v. United Dominion Industries, Inc., 473 F.3d 532, 542 (3d Cir. 2007);
McQueeney v. Wilmington Trust Co., 779 F.2d 916, 922 (3d Cir. 1985). Generally, relevant
evidence is admissible. FED.R.EVID, 402. However, ―[r]elevant information need not be
admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of
admissible evidence.‖ FED.R.CIV.P. 26(b)(1) (emphasis added).
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Because the scope of relevance is rather broad, see Moyer, 473 F.3d at 542, this Court is
inclined to find that the report requested by Chisler are relevant. Several of Chisler‘s claims rely
upon a custom, practice, or policy of violence in state correctional institutions. (See Docket No.
21 at 16, 18, 19). He claims that these customs or practices occur on a state-wide basis. (See
Docket Nos. 118 at 3; 114-2). Resolution of this action is thus dependent upon Chisler‘s ability
to show that this custom, practice, or policy existed at a state-wide level.
The factual information contained in the requested report appears likely to make Chisler‘s
claim of a ―custom and practice of violence‖ in the State Corrections Institute ―more probable or
less probable,‖ and it should thus be deemed relevant. See FED.R.EVID. 401. Although the events
described in the report occurred after the events alleged by Chisler, both the initial actions of the
COs and the response or lack thereof by DOC authorities could be probative as to the existence
of a custom, practice, or policy of workplace violence. It is therefore difficult to characterize the
report as anything other than relevant.
Further, the Court has previously ordered the DOC to produce documents regarding
hazing at several of its facilities. (See Docket No. 118). As the Court is aware, having reviewed
the document in camera, the requested file tends to indicate that hazing is condoned in at least
one of the DOC‘s facilities. The Court has already declared such information relevant. (Id. at 3).
The Court has not been made aware of any reason why it should now find this information to be
irrelevant.
It should be noted at this point that Federal Rule of Evidence 403 1 is irrelevant for the
present analysis. Although district courts must ―articulat[e] a balance between the probative
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FED.R.EVID. 403 states:
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value and the prejudicial effect of the evidence as required by [Rule 403] and the jurisprudence
of [the United States Court of Appeals for the Third Circuit]‖ to determine admissibility, Glass v.
Philadelphia Elec. Co., 34 F.3d 188, 191 (3d Cir. 1994) (Alito, J.), the instant question is not one
of admissibility, but of production. Parties may obtain discovery pertaining to any relevant
information, even if that information is not admissible at trial. See FED.R.CIV.P. 26(b)(1). The
Court has therefore made no decisions with respect to Rule 403.
b. Privilege
Courts have long recognized the right of government officials to invoke a variety of
privileges, all of which fall under the broader heading of ―executive privilege.‖ In re Sealed
Case, 121 F.3d 729, 736 (D.C. Cir. 1997). These privileges enable agencies to resist disclosure
of documents the confidentiality of which the agency feels is crucial to the fulfillment of the
agency‘s unique responsibilities. Id. at 736. The DOC has invoked two subsidiary privileges to
the broader executive privilege: what the DOC refers to as the ―government documents‖
privilege, and the deliberative process privilege.
i. Invocation
The requirements for invoking these privileges are the same. The government documents
privilege invoked by the DOC under United States v. Reynolds, 345 U.S. 1 (1953) requires ―a
formal claim of privilege, lodged by the head of the department which has control over the
matter, after actual personal consideration by that officer.‖ Reynolds, 345 U.S. at 7-8.
Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence.
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―The essential matter is that the decision to object should be taken by the
minister who is the political head of the department, and that he should have seen
and considered the contents of the documents and himself have formed the view
that on grounds of public interest they ought not to be produced.‖
345 U.S. at 8 n.20 (citation omitted). In the Third Circuit, these requirements have been extended
to the invocation of other forms of executive privilege. See U.S. v. O’Neill, 619 F.2d 222, 226
(3d Cir. 1980).
The Court is satisfied that the privileges have been properly invoked. John Wetzel has
claimed that he is the head of the Department of Corrections. (See Docket No. 140-2, ¶ 1). He
has likewise adequately described the requested reports and stated that he has personally
reviewed the requested files. (Id. at ¶¶5-6). Finally, he asserts that:
A danger exists in disclosing the investigative records, which will
compromise security and interfere with the ability of my staff and administration
to effectively administer the correctional institutions under our control. Release of
an unredacted copy of the investigative file and executive summary will
unnecessarily chill the free and uninhibited exchange of ideas between staff in the
OSII office and their supervising Director. It will also interfere with my ability to
collect the information necessary from the OSII office in determining the
completeness and effectiveness of OSII investigation and in determining whether
discipline for any wrong-doing is appropriate. Finally, release of such files will
necessary [sic] deter witnesses from providing information to OSII officers.
(Id. at ¶ 7). The DOC has therefore satisfied all of the requirements and properly invoked the
executive privileges.
ii. Government Documents Privilege
The DOC relies United States v. Reynolds, 345 U.S. 1 (1953), as the authority for the
DOC‘s claimed government documents privilege. (See Docket No. 140 at 9). Reynolds addressed
a formal claim of privilege lodged by the Secretary of the Air Force in response to the plaintiffs‘
request for an accident investigation report of the crash of a military aircraft carrying civilians.
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Reynolds, 345 U.S. at 2-6. In that case, the Supreme Court held that there is a privilege against
revealing military and state secrets. Id. at 6-7.
At no point in Chief Justice Vinson‘s opinion is there any mention or recognition of a
―government documents privilege.‖ Rather, the DOC‘s characterization of the ―government
documents privilege,‖ as a safeguard against disclosure of security-related information and as an
absolute privilege, invulnerable to any showing of necessity on the part of the party seeking
disclosure, is a fitting description of the military and state secrets privilege, which was the actual
product of Reynolds. The DOC‘s reference to ―security concern[s]‖ supports the Court‘s view
that the DOC was indeed referring to the state secrets privilege in its response to Chisler‘s
motion. (See Docket No. 140 at 9).
Likewise, the DOC‘s reliance upon the procedural requirements of Reynolds justifies the
conclusion that the DOC is attempting to assert the state secrets privilege. The DOC cites
Reynolds for the procedural invocation requirements, despite the fact that O’Neill expressly
extended the same requirements to other forms of executive privilege in the Third Circuit. See
O’Neill, 619 F.2d at 226. The Court finds the DOC‘s sole reliance upon Reynolds telling.
Having concluded that the DOC is attempting to rely upon the state secrets privilege
adopted by the Supreme Court in Reynolds, this Court now turns to the question of whether the
state secrets privilege is applicable here. ―[T]he state secrets privilege must be asserted by the
United States.‖ El-Masri v. United States, 479 F.3d 296, 304 (4th Cir. 2007) (citing Reynolds,
345 U.S. at 7). The privilege ―may not be used to shield any material not strictly necessary to
prevent injury to national security; and, whenever possible, sensitive information must be
disentangled from nonsensitive information to allow for the release of the latter.‖ Ellsberg v.
Mitchell, 709 F.2d 51, 57 (D.C.Cir. 1983) (emphasis added).
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Here, the Court sees no pressing matter of national, or even state, security. The requested
information pertains to an investigation of a suicide allegedly the result of workplace violence
and harassment. (See Docket No. 139 at 2). Even if the facts contained within the documents are
offensive to the government, i.e. they show that there is a custom, practice, or policy of
workplace violence and harassment, the disclosure of such will not hamper the function of
government. In fact, it seems more likely that the disclosure of such information will improve the
function of government by allowing such a custom to be eliminated. It is good public policy and
in the interests of the tax payer to have properly run government institutions. The Court therefore
sees no reason to apply to ―government documents privilege‖ to enable the DOC to avoid
disclosure of the requested report.2
iii. Deliberative Process Privilege
The deliberative process privilege is the most frequently invoked form of executive
privilege. In re Sealed Case, 121 F.3d at 737. Even so, ―the deliberative process privilege, like
other executive privileges, should be narrowly construed.‖ Redland Soccer Club, Inc. v.
Department of Army of U.S., 55 F.3d 827, 856 (quoting Coastal States Gas Corp. v. Dep’t of
Energy, 617 F.2d 854, 868 (D.C.Cir. 1980)).
Even after establishing that this privilege has been appropriately invoked, a district court
also must be satisfied that a privilege claimant has satisfied two elements. See Redland Soccer
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Even if the information was of such critical value as to result in the proper invocation and
application of the state secrets privilege, the Court notes that ―nonsensitive information‖ must be
from the ―sensitive information.‖ Ellsberg, 709 F.2d at 57. Based on the security concerns raised
by the DOC in invoking the privilege, the Court would be compelled to find that the only
sensitive information contained in the requested documents are the names of the witnesses and of
the victim. This sensitive information could easily be ―disentangled‖ from the rest of the
information by way of redaction.
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Club, 55 F.3d at 854. First, a district court must determine whether the communications are in
fact privileged. Id. Next, the court must balance the parties‘ interests. Id.
With respect to the first element, the deliberative process privilege permits the
government to withhold documents containing ―confidential deliberations of law or
policymaking, reflecting opinions, recommendations or advice.‖ In re Grand Jury, 821 F.2d 946,
959 (3d Cir. 1987) (citing NLRB v. Sears Roebuck & Co., 421 U.S. 132, 150-54 (1975)). ―[T]he
ultimate purpose of this long-recognized privilege is to prevent injury to the quality of agency
decisions.‖ Sears Roebuck, 421 U.S. at 151.
The burden lies with the government to show that the privilege applies. Id. (citing
Schreiber v. Society for Savings Bancorp., 11 F.3d 217, 221 (D.C. Cir. 1993)). To meet this
burden, the government must present more than ―a bare conclusion or statement‖ that the
documents sought are privileged. Redland Soccer Club, 55 F.3d at 854. The proper exercise of
this privilege falls within the court‘s purview: it must be the court, not the agency, which
determines that availability of the privilege. See id.
The privilege does not extend to factual information, even when that information is
contained within an otherwise protectable document. See In re Grand Jury, 821 F.2d at 959;
Paisley v. C.I.A., 712 F.2d 686, 699 (D.C. Cir. 1983). Nor does the privilege extend to
―communications made subsequent to an agency decision.‖ Redland Soccer Club, 55 F.3d at 854
(citing United States v. Farley, 11 F.3d 1385, 1389 (7th Cir. 1993)).
If a court is satisfied that the privilege should apply to the relevant information, the court
must next balance the parties‘ interests. A court‘s considerations should include at least: ―(i) the
relevance of the evidence sought to be protected; (ii) the availability of other evidence; (iii) the
‗seriousness' of the litigation and the issues involved; (iv) the role of the government in the
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litigation; [and] (v) the possibility of future timidity by government employees who will be
forced to recognize that their secrets are violable.‖ Redland Soccer Club, 55 F.3d at 854 (quoting
First Eastern Corp., 21 F.3d at 468 n.5).
Turning to the instant case, the deliberative process privilege only extends to
―confidential deliberations of law or policymaking, reflecting opinions, recommendations or
advice.‖ In re Grand Jury, 821 F.2d at 959. It is hard to imagine that the totality of the
investigation documents for which Chisler seeks production is entirely deliberative. Indeed,
much of the report is factual narrative. It is therefore unlikely that the DOC has appropriately
claimed the deliberative process privilege.
Even if the claim is appropriate in a general sense, the underlying factual information is
not protected by the privilege. Id. The DOC‘s claim to the privilege with respect to the
underlying facts is therefore inappropriate. Given that the DOC interviewed twenty-one
employees and produced a report of approximately one hundred and ninety pages, it seems likely
that there is far more factual information contained within the requested document than the mere
facts of A.H.‘s suicide and a letter claiming that sexual harassment may have been a contributing
factor. (See Docket No. 139 at 2) (summarizing the unredacted factual information contained in
the redacted version of the requested document). It would appear that the remaining factual
information should be produced in some manner.
With respect to the remaining information, the Court must engage in the balancing test as
required by Redland Soccer Club. Again, the Court‘s considerations must include the relevance
of the information, the availability of other evidence, the ―seriousness‖ of the litigation and the
issues involved, the role of the government in the litigation, and the possibility of ―future
timidity‖ of government officials who recognize that their secrets may be divulged. Redland
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Soccer Club, 55 F.3d at 854. The relevance of this information has already been established. See
supra Part IV.a. Similarly, there appears to be no other evidence that speaks to the DOC‘s
reaction to the allegations of sexual harassment and mistreatment in the A.H. situation. These
two elements weigh in favor of disclosure of the requested document.
The litigation is serious. If Chisler prevails on his claim, he will have established a
custom, practice, or policy of workplace violence at the DOC. He alleges that he was attacked
and hog-tied, and that such activity is part of a custom or practice at the DOC (Docket No. 21 at
¶¶ 3, 4). Chisler asserts that the document for which he requests disclosure also demonstrates a
custom or practice of similar behavior and that the DOC condoned the same. If true, these
allegations can and should have serious repercussions within the Pennsylvania government. This
factor, too, weighs in favor of disclosure.
Even though the DOC is not a party to the litigation, it is the DOC‘s alleged inaction, if
proven true, that gave rise to the current suit. The DOC‘s ―role‖ in this litigation is therefore a
critical one. Without the alleged inaction, some of which may be corroborated by the evidence
contained within the requested documents, there would be no suit at all. The government‘s role
in the litigation therefore weighs in favor of disclosure.
Finally, the Court looks to the possibility of future timidity if the requested information is
disclosed. Here, it is worth noting that some of the relevant information has been disclosed
elsewhere. (See Docket Nos. 155-1; 155-1A). However, the most relevant facts pertaining to the
DOC‘s response to its investigation have not been disclosed. The likelihood of increased timidity
seems minimal here, where the only new evidence that needs to be disclosed specifically relates
to the actual alleged events and possible discipline, not the identities of the witnesses. It seems
unlikely that the release of a properly redacted or sealed copy of the investigation will have the
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dramatic chilling effect painted by Secretary-Designee Wetzel. (See Docket No. 140-2 at ¶ 7).
This final factor, like all the others, weighs in favor of disclosure.
IV. PRIVACY OF THE ESTATE
As the Court has observed, the requested report addresses an investigation over the
suicide of a DOC employee. (See Docket No. 139 at 2). The Court is cognizant of the risk to the
estate that may arise if the full document is disclosed to the public. The Court notes, however,
that Chisler only requests production of ―interviews, recommendations and discipline imposed.‖
(Docket No. 138 at 5). The Court believes that this request can be satisfied by production of the
requested investigation documents under seal. Such production will satisfy Chisler‘s request for
information while avoiding undue invasion of the privacy rights of A.H.‘s estate. It will also
produce the added benefit of limiting the disclosure of evidence that gives rise to SecretaryDesignee Wetzel‘s concerns. (See Docket No. 140-2 at ¶ 7).
V. CONCLUSION
The evidence which Chisler seeks to have the DOC produce is clearly relevant. Because
the Court finds that the DOC has failed to demonstrate an applicable privilege under the present
circumstances, the Court determines that Chisler‘s motion to compel production of a copy of
certain documents, Docket No. [138], is GRANTED, with the limitation that the document be
produced under seal, by 5:00 p.m. on June 27, 2011. An appropriate Order follows.
s/Nora Barry Fischer
Nora Barry Fischer
United States District Judge
Date: June 16, 2011
cc/ecf: All counsel of record
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