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

Filing 33

ORDER signed by Judge J.P. Stadtmueller on 3/30/2017 GRANTING 24 Plaintiffs' Expedited Motion to Compel. The United States Attorney's Office for the Eastern District of Wisconsin ORDERED to produce to Plaintiffs the report of the FBI interview of Defendant Zachary Thoms. (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 27, 2017, Plaintiffs submitted an expedited motion to
compel the United States Attorney’s Office for this District (“USAO”) to
produce a report of an interview with Defendant Zachary Thoms (“Thoms”).
The FBI conducted the interview during the course of their investigation into
the events of Derek Williams’ death. Id. at 2. Upon review of the parties’
briefing, the Court noted that they had not addressed the full scope of the
relevant legal issues, and ordered further briefing. (Docket #28). That briefing
was completed on March 22, 2017. See (Docket #29 and #31).
Plaintiffs issued subpoenas to the FBI and the USAO to obtain the
documents they possessed related to their investigation, including the Thoms
interview report (referred to by the parties, and hereinafter, as the “302
report”). (Docket #24-2). In response, those agencies produced a proffer letter

the USAO had sent to Thoms prior to his interview, assuring him that “the
United States agrees not to use any information furnished by your client
during the interview directly against him in any civil or criminal
proceedings.” (Docket #24-3 at 2).
Plaintiffs asked for the 302 report itself. (Docket #24 at 3). The FBI
deferred the decision to produce the report to the USAO. Id. The USAO’s
view was that “Thoms[‘] interview was conducted under the provisions and
assurances of the proffer letter including the provision that the United States
will not use the interview against Thoms in a criminal or civil proceeding.
Since Zachary Thoms is named a defendant in the estate’s lawsuit, we believe
the release of the 302 could be viewed as a violation of the proffer letter.” Id.
The USAO declined to produce the report.
Plaintiffs argue that the USAO’s position is groundless. First, they
posit that the 302 is relevant and discoverable under the Federal Rules of Civil
Procedure (“FRCP”). (Docket #24 at 4). Second, Plaintiffs believe that the
stated basis for withholding the report is inapposite. The proffer letter only
prevents the United States from using the information furnished in Thoms’
interview against him, and the federal government is not a plaintiff here. Id.
at 3-4. Finally, Plaintiffs maintain that even if production of the 302 could be
interpreted as violating the proffer letter agreement, that is no reason to
avoid producing the report here. Id. at 4. In their view, “[t]o the extent that
the USAO is concerned that producing the Thoms 302 will have some sort of
chilling effect on its ability to convince witnesses to provide information via
proffer, such an argument would be based on pure speculation and cannot
trump Plaintiffs’ right to discovery under the Federal Rules of Civil
Procedure.” Id.

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The USAO’s initial response expounds on its earlier-quoted objection.
It cites the Department of Justice’s (“DOJ”) Touhy regulations, which prohibit
its employees from producing materials in cases where the United States is
not a party without prior approval from the DOJ. (Docket #25 at 2); see 28
C.F.R. § 16.22(a); United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). The
Touhy regulations provide various factors for the DOJ to weigh when
considering a request to produce a document. 28 C.F.R. § 16.26(a)-(c).
Without specifically connecting its analysis to any of the Touhy regulation
factors, the USAO reiterates that
providing the 302 report would violate the terms and spirit of
the proffer letter. That is, the letter is intended to encourage
cooperation from targets or defendants in criminal
investigations. That cooperation is premised upon the
agreement that what is disclosed in the proffer session will not
be used against the cooperating target or defendant. It is
entirely likely that disclosure of the FBI 302 in this instance
would have a chilling effect in the future such that targets and
defendants are no longer willing to provide useful information
to the USAO and other law enforcement agencies.
(Docket #25 at 3).
The parties’ supplemental briefing addresses that which the Court
detected in its initial review of the applicable law—a split of authority on the
appropriate standard of review. The District of Columbia and Ninth Circuits
hold that this issue should be assessed using FRCP 26 and 45. This is the
same, relatively low, bar for discovery that is applied to every civil litigant,
and centers on the subpoenaed party’s claim of privilege, undue burden, or
lack of relevance. Conversely, the Fourth and Eleventh Circuits maintain that
an agency’s refusal to comply with a subpoena is entitled to more deference.
The standard they apply comes from the Administrative Procedures Act

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(“APA”), which provides that the agency’s decision cannot be disturbed
unless it was arbitrary or capricious. 5 U.S.C. § 706(a)(A). As applied here, the
USAO’s decision “will be upheld if it is reasonable and if the decision is in
accordance with the agency’s Touhy regulations.” Sauer Inc. v. Lexington Ins.
Agency, Inc., No. 5:13-CV-180, 2014 WL 5580954, at *4 (E.D. N.C. Oct. 31,
2014). Though it appears the former standard is the more modern view, and
one which the Court would prefer to adopt, the Court need not stake a claim
to either, as Plaintiffs’ motion must be granted even under the more
restrictive APA standard. See In re Packaged Ice Antitrust Litig., No. 08-MD1952, 2011 WL 1790189 *2 (E.D. Mich. May 10, 2011).
Plaintiffs’ supplemental brief largely restates their previous arguments.
(Docket #29). They also address the USAO’s contention that the normal
discovery process may be used to gain the same information contained in the
302 report. Plaintiffs counter that Thoms was likely more forthcoming in
providing information for the 302 report than he would be in a deposition in
this case. Id. at 7-8. The USAO’s supplemental brief provides a slightly
different formulation of the reason for its non-disclosure:
The proffer letter provides that “[i]n exchange for your
client’s truthful statement, the United States agrees not to use
any information furnished by your client during the interview
directly against him in any civil or criminal proceedings.”
Officer Thoms provided information to the USAO and the FBI
with the understanding that the information provided would
remain private or confidential and possibly used against him
only in very limited situations that are detailed within the
proffer letter. The current civil proceeding in which neither the
USAO nor the FBI is a party is not one of those very limited
situations. It was reasonable for the USAO and FBI to construe
the proffer letter as precluding the release of Officer Thoms’
information as set forth in the 302 report.

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(Docket #31 at 4) (emphasis added).
This reason fails to satisfy either standard of review. As with the
USAO’s initial opposition, the supplemental brief again fails to cite any of the
Touhy factors. Further, the USAO’s position is dissonant with the express
terms of the proffer letter. The general understanding of confidentiality
expressed in the emphasized portion of the above quotation is found
nowhere in the letter. Rather, the letter restricts itself to use of the 302 report
as between Thoms and the United States. The letter does not even suggest
that the USAO’s disclosure of the 302 report to Plaintiffs is improper. The
United States is not being compelled to “use any information . . . directly
against” Thoms; disclosure of the 302 report is at best an indirect action
against Thoms, and is certainly not an instance where the United States is
using information against him. (Docket #24-3 at 2) (emphasis added). The
Court must conclude that the USAO has “offered an explanation for its
decision that runs counter to the evidence before the agency,” and therefore
it is arbitrary. Sauer, 2014 WL 5580954, at *4.1
This result comports with the nature of proffer letters. Proffer letters
are agreements between the United States and the target defendant. United
States v. Williams, 298 F.3d 688, 694 (7th Cir. 2002).2 Plaintiffs are not parties

1

The USAO also makes no claim of privilege, burden, or lacking relevance,
and so Plaintiff’s motion would be granted under the alternative FRCP 26 and 45
standards.
2

The Williams court found that proffer agreements are contracts between the
government and the defendant, and “a defendant waives any objection to the
government’s use of proffered statements when the proffer agreement allows such
use.” Williams, 298 F.3d at 694. While this finding was made in the context of a
criminal case, the principle may be applied here. Things not promised in the
proffer letter—here, non-disclosure of the 302 report to a non-party civil
litigant—cannot be enforced as part of that agreement.

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to the agreement and are not bound by it. Whether disclosure of the 302
report has any chilling effect on proffer letters in the future is not only
speculative, but it also has no bearing on whether Plaintiffs are entitled to
discovery in this matter. The USAO and any proffering defendants know (or
should know) that the United States cannot promise what it has no power to
grant; namely, protection of the proffer from discovery by non-party civil
litigants.
Accordingly,
IT IS ORDERED that Plaintiffs’ expedited motion to compel (Docket
#24) be and the same is hereby GRANTED; and
IT IS FURTHER ORDERED that the United States Attorney’s Office
for the Eastern District of Wisconsin shall produce to the plaintiffs the report
of the FBI interview of the defendant Zachary Thoms.
Dated at Milwaukee, Wisconsin, this 30th day of March, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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