Estate of Derek Williams Jr. et al v. City of Milwaukee et al

Filing 32

ORDER signed by Judge J.P. Stadtmueller on 3/23/2017 GRANTING 20 Plaintiffs' Motion to Compel and DENYING Plaintiffs' Request for Award of Attorneys' Fees and Costs (Docket #20 at 8). (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ESTATE OF DEREK WILLIAMS, JR.,
TANIJAH WILLIAMS, DEREK
WILLIAMS III, and TALIYAH S.
WILLIAMS,
Case No. 16-CV-869-JPS
Plaintiffs,
v.
CITY OF MILWAUKEE, JEFFREY
CLINE, RICHARD TICCIONI,
PATRICK COE, JASON BLEICHWEHL,
ROBERT THIEL, TODD KAUL,
ZACHARY THOMS, GREGORY
KUSPA, CRAIG THIMM, CHAD
BOYACK, and DAVID LETTEER,

ORDER

Defendants.

On February 14, 2017, Plaintiffs filed a motion to compel seeking to
overrule Defendants’ objections to a certain discovery request. On November
1, 2016, Plaintiffs issued an interrogatory seeking a “list [of] Milwaukee police
officers, from 2006 to 2012, who have been identified as potential problem
officers by the MPD’s Early Intervention Program (EIP) and any other early
warning system.” (Docket #20-1 at 3). Defendants responded on December
20 that “[t]his interrogatory is vague and ambiguous as to the terms
‘potential problem officers’ and ‘any other early warning system.’
Furthermore, the EIP program does not ‘identify’ or label officers as
‘potential problem officers,’ and therefore the City cannot provide a response
to this interrogatory.” Id.

Defendants describe the EIP program as “an automated proactive risk
analysis management tool designed to identify and assist employees who
show symptoms of job stress, training deficiencies or personal problems that
may affect job performance.” (Docket #27 at 2). They assert that it is a
non-disciplinary program. Id. The EIP system tracks “performance
indicators” including “(1) personnel investigations; (2) squad accidents; (3)
use of force incidents; (4) vehicle pursuits; and (5) sick leave usage.” Id. at 2-3.
An “intervention alert” is created whenever too many of these incidents occur
in a short time span. Id. at 3. The alert is investigated by a supervising officer
and usually involves the employee’s cooperation. Id. at 3-4.
On January 4, 2017, in an e-mail to Defendants seeking a more
complete response to the interrogatory, Plaintiffs “clarified” the interrogatory
as follows:
To be clear, Interrogatory Number 7 asks for a list of all
Milwaukee police officers, from 2006 to 2012, for whom an EIP
“intervention alert” was generated. For each officer listed,
please include the following information: (a) the performance
indicator(s) that generated the alert; (b) the date the alert was
generated; (c) the name of the commanding officer(s) who
were notified of the alert; (d) whether a determination was
made to complete an intervention; and (e) the nature of the
intervention. Also please produce the "intervention alert"
document that was generated in each instance.
Id. Defendants answered this modified interrogatory by claiming it was
overly broad and a response would be unduly burdensome. (Docket #20-2 at
3-4). They also asserted that the request was not likely to lead to the
discovery of admissible evidence. Id. Defendants further cited the need for
confidentiality of the EIP alerts to maintain the effectiveness of the program.
Id. In the end, Defendants limited their production to the EIP alerts generated
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for the police officer defendants in this case, and there was only one in the
relevant time period. Id. Plaintiff again attempted to convince Defendants to
withdraw their objections by e-mail on January 28, 2017. The discussion did
not lead to the production of any further information. (Docket #21-1 at 3-5).
Federal Rule of Civil Procedure (“FRCP”) 26(b)(1) governs the
disposition of this motion. It provides that
[p]arties 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. 26(b)(1). Plaintiffs argue that a complete response to their
modified interrogatory is necessary because of the breadth of their Monell
claim. Specifically, they
intend to prove this claim [] by showing that if MPD had
effective early warning and disciplinary systems, those systems
would have flagged Defendants Cline, Bleichwehl, Thoms, and
Kuspa, and MPD could have then intervened in these officers’
behavior before they had a chance to violate Derek Williams’
constitutional rights. The information requested in
Interrogatory Number 7—a department wide list of officers for
whom “intervention alerts” were generated by the EIP system
during the five years preceding the underlying incident
including the “intervention alert” documents themselves—is
necessary for Plaintiffs’ counsel and their expert to demonstrate
that EIP was defective, how it was defective, and to properly
examine policymaker witnesses.

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(Docket #20 at 5). Plaintiffs also contend that Defendants’ confidentiality
concern is mooted by the protective order outstanding in this case. (Docket
#16).
Defendants’ response reasserts their objections. They first claim that
the request is overbroad because many intervention alerts have nothing to do
with the issues in this case, which are the officer defendants’ alleged use of
excessive force against, and deliberate indifference to, Derek Williams.
(Docket #27 at 7-8). They argue that because the EIP system is nondisciplinary, it does actually establish a persistent failure of supervision,
monitoring, control, or discipline as Plaintiffs must show to prove their
Monell claim. Id. Defendants further contend that a full EIP alert production
is simply a fishing expedition for Plaintiffs to uncover unrelated police
misconduct over the 2006 to 2012 time span. Id. at 8-9. The production would
also take an estimated 43 hours to compile. Id. at 11. Finally, Defendants
reiterate their confidentiality concerns. Id. at 10-11.
Plaintiffs reply that all EIP alerts, even those which seem facially
irrelevant, are important to prove their Monell claim. For instance, if alerts
generated because of excessive sick leave or car accidents comprised the bulk
of the alerts, “it would indicate that EIP was ineffective at identifying MPD
officers with truly problematic behavior involving the mistreatment of
citizens.” (Docket #30 at 2). Additionally, they believe that the 43 hour
production estimate does not show an undue burden; “[t]he reality is that
complex litigation is often document intensive. Indeed, the City would not
bat an eye before producing several boxes of files if this were a business
transaction, and there is no reason to apply a different standard just because
this is a civil rights case.” Id. at 4.

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The Court must agree with Plaintiffs. They are the masters of their
Monell claim, and if the EIP alerts are the method they have chosen to prove
it, then those documents meet the minimal relevance standard imposed by
FRCP 26(b)(1). See Kuttner v. Zaruba, 819 F.3d 970, 980 (7th Cir. 2016) (noting
that while the old version of FRCP 26(b)(1) permitted “discovery if it held
reasonable prospects of leading to admissible evidence,” the new rule
nevertheless “provides that discovery need not be admissible in evidence to
be discoverable”) (quotation omitted). Defendants may argue the faults in
using the EIP evidence to support those claims at summary judgment or trial.
Plaintiffs themselves may realize, after they and their expert review the
information, that it is not as helpful as they might have otherwise expected.
These points are for another time, however; at this stage, Plaintiffs must be
permitted to explore the possibility. Defendants’ other concerns carry little
weight. The protective order in this case will protect the EIP documents from
disclosure. The burden of producing the EIP alerts, while steep, is
outweighed by their importance to Plaintiffs’ claim. Plaintiffs’ motion to
compel will, therefore, be granted. Because defendants have advanced
reasonable bases on which to contest the instant discovery request, Plaintiffs’
request for attorneys’ fees must be denied.
Accordingly,
IT IS ORDERED that Plaintiffs’ motion to compel (Docket #20) be
and the same is hereby GRANTED; and
IT IS FURTHER ORDERED that Plaintiffs’ request for an award of
attorneys’ fees and costs (Docket #20 at 8) be and the same is hereby
DENIED.

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Dated at Milwaukee, Wisconsin, this 23rd day of March, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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