VOGT v. WETZEL et al

Filing 66

ORDER granting 63 Motion for Reconsideration re 62 Memorandum Order on 59 Motion to Compel related to the production of certain emails filed by Plaintiff STEVEN VOGT, and denying in part as moot Motion to Compel 59 as it pertains to records concerning the development of DOC mail policies. Signed by Magistrate Judge Maureen P. Kelly on 5/10/22. (ndf)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
STEVEN VOGT,
Plaintiff,
v.
JOHN WETZEL, Secretary of the Department
of Corrections (Official & Individual
Capacity) and JOHN/JANE DOE, Mailroom
Employee at S.C.I. Fayette (Official &
Individual Capacity),
Defendants.

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Civil Action No. 17-1407
District Judge Arthur J. Schwab
Magistrate Judge Maureen P. Kelly
Re: ECF Nos. 59 and 63

MEMORANDUM ORDER
Through this pro se civil rights action, Plaintiff Steven Vogt (“Vogt”) alleges that
Defendants John Wetzel (“Wetzel”), Secretary of the Pennsylvania Department of Corrections
(“DOC”) and unidentified mailroom employees at the State Correctional Institution at Fayette
(“SCI – Fayette”) violated his constitutionally protected liberty interest in notice that mail
addressed to him at SCI – Fayette without a return address was rejected by facility staff and
returned to the United States Post Office. Litigation of his claim has reached the discovery phase.
Pending before the Court is Vogt’s Motion for Reconsideration, ECF No. 63, requesting
reconsideration of this Court’s Memorandum Order entered on April 14, 2022, ECF No. 62,
resolving in part Vogt’s “Motion to Compel Production of Requested E-Mails and Records from
the Defendant Under Rule 37.” Also pending is an issue raised in Vogt’s Motion to Compel related
to records of the development of DOC’s mail policies. See ECF Nos. 59. The Court deferred
consideration of this issue pending the filing of Defendants’ supplemental response. See ECF No.
62. Defendants have filed “Secretary Wetzel’s Supplemental Response to Plaintiff’s Motion to

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Compel [ECF 59] and Response to Plaintiff’s Motion for Reconsideration [ECF 63].” ECF No.
65. Thus, both motions are ripe for consideration.
For the following reasons, the Motion for Reconsideration as to employee emails is
granted, and the Motion to Compel production of mail policies is denied as moot.
1. DOC Mail Policies
On March 25, 2022, Vogt filed a Motion to Compel seeking, in part, documents related to
DOC’s development of policies regarding delivery of inmate mail. ECF No. 59 ¶¶ 4-5. Wetzel
responded that such policies were subject to the deliberative process privilege. ECF No. 61 ¶ 28.
The assertion of privilege was not supported with “precise and certain reasons.” Thus, the Court
deferred resolution of the claim pending Wetzel’s identification of relevant documents and the
reason for the assertion of privilege as to each document. ECF No. 62 at 4-7.
Wetzel’s Supplemental Response to the Motion to Compel reflects that a search for the
requested documents has been completed and that, upon review, “Secretary Wetzel has concluded
that these documents can be produced to Plaintiff.” ECF No. 65 ¶ 4. Wetzel requests a brief period
to complete production. Id. ¶ 5. Accordingly, the Motion to Compel production of responsive
documents related to DOC mailing procedures is denied as moot. Wetzel is granted until May 24,
2022, to complete production. Defendant Wetzel is directed to file a notice on the docket
confirming production of these documents to Plaintiff.
2. Employee Emails
Vogt’s Motion to Compel also requested an order compelling the production of emails
stored on DOC’s computer system that mention Vogt’s name or inmate number, refer to this civil
action, or relate to the refusal of mail addressed to him at SCI – Fayette since the filing of this
action. ECF No. 59 at 1-2. Wetzel objected that the request was overbroad, unduly burdensome,

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not relevant to Plaintiff’s claims, and not proportional to the needs of the case. ECF No. 61 ¶ 16.
Without waiving these objections, Wetzel further represented that, “[t]here do not appear to be any
emails in the accounts [of mailroom employees] during the October 2016 through June 2017 time
period naming or involving Plaintiff.” Id. ¶ 19. Wetzel also responded that two of the mailroom
employees were no longer employed by the DOC and “their email accounts are no longer active
and available for review.” Id. ¶ 20. The Court agreed that the request was overbroad as it was not
limited to the issue of mail delivery and, in any event, the Court could not order the production of
documents that do not exist. ECF No. 62.
In the pending Motion for Reconsideration, Vogt clarifies that despite the apparent breadth
of the request for emails to or from Department of Corrections staff that refer to him by name or
inmate number, his request is limited to emails about mail addressed to him or referring to this
civil action. ECF No. 63 at 2. Vogt explains that in his experience, employees other than mailroom
staff are routinely assigned to the mailroom and thus the initial search for responsive emails may
have been too narrow. Finally, he questions the accuracy of Wetzel’s response that former
employee emails are inaccessible. Id. at 3.
Wetzel has responded to the Motion for Reconsideration stating, “that he has no personal
knowledge of any emails that would be responsive,” and that DOC’s Information Technology
Procedures Manual confirms that email accounts of former DOC employees are not kept or
retained. ECF No. 65 at 2. Further, an investigation by counsel yielded no emails that would be
responsive “from the email accounts that were available to be reviewed.” Id. ¶ 9. Of particular
significance, Wetzel fails to address whether DOC computer files and email accounts are archived,
and whether such archives were searched.

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A motion for reconsideration may be granted only if one of three situations is shown: “(1)
an intervening change in controlling law, (2) the availability of new evidence not previously
available, or (3) the need to correct a clear error of law or to prevent manifest injustice.” Reich v.
Compton, 834 F. Supp. 753, 755 (E.D. Pa. 1993), citing Dodge v. Susquehanna Univ., 796 F.
Supp. 829, 830 (M.D. Pa. 1992).
Because of the interest in finality, at least at the district court level, motions for
reconsideration should be granted sparingly; the parties are not free to relitigate
issues the court has already decided. . . . Stated another way, a motion for
reconsideration is not properly grounded in a request for a district court to rethink
a decision it has already made, rightly or wrongly. . . .
Williams v. Pittsburgh, 32 F. Supp. 2d 236, 238 (W.D. Pa. 1998) (internal citations omitted).
In this case, the Court finds that reconsideration is appropriate in the interest of justice.
Based on counsel’s representations of the search conducted, the potential remains that a diligent
search of system back-up files and email archives, if any, could result in the location of relevant
emails.
For the reasons set forth herein, IT IS HEREBY ORDERED that the Motion for
Reconsideration, ECF No. 63, is granted, and the Motion to Compel, ECF No. 59, is granted in
part, as follows:
(1) Wetzel, through the DOC and counsel, is directed to search electronically stored
information, including any electronic archives or backup files, for emails referring to
Vogt by name or inmate number related to the delivery or refusal of mail for the period
October 2016 to date. Any documents or information that are otherwise discoverable
but subject to withholding as privileged or protected must be identified and resolved in
accordance with Rule 26(b)(5) of the Federal Rules of Civil Procedure.

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(2) The search shall include email accounts of all employees at SCI-Fayette, past and
present, whether retired or resigned, for the identified period who may have been
assigned to the SCI-Fayette mailroom or participated in the delivery or return of mail
addressed to Vogt.
(3) Upon the conclusion of the search, if no responsive documents are located, counsel
shall file a supplemental response to the Motion to Compel identifying the steps
undertaken to conduct the search, search terms employed, and certifying that the search
was conducted in accordance with the requirements of the Federal Rules of Civil
Procedure.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Rule 72.C.2 of
the Local Rules of Court, the parties are allowed fourteen (14) days from the date of this Order to
file an appeal to the District Judge which includes the basis for objection to this Order. Any appeal
is to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110,
Pittsburgh, PA 15219. Failure to timely appeal will constitute a waiver of any appellate rights.
DATED: May 10, 2022

BY THE COURT:

/s/ Maureen P. Kelly

MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE
cc:

The Honorable Arthur J. Schwab
United States District Judge
All counsel of record via CM/ECF
Steven Vogt
BN-3436
SCI Fayette
48 Overlook Drive
LaBelle, PA 15450

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