Ladach v. City of Romulus

• Decision Date: 10 February 2014
• Docket Number: Civil Action No.: 13-CV-10771
• Parties: KEVIN PAUL LADACH, Plaintiff, v. CITY OF ROMULUS, a Municipal Corporation, d/b/a/ City of Romulus Police Department, and CHIEF ROBERT DICKERSON, in his official and individual capacity, and CAPTAIN DERRAN SHELBY, in his official and individual capacity, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

KEVIN PAUL LADACH, Plaintiff, v. CITY OF ROMULUS, a Municipal Corporation, d/b/a/ City of Romulus Police Department,and CHIEF ROBERT DICKERSON, in his official and individual capacity,and CAPTAIN DERRAN SHELBY, in his official and individual capacity, Defendants.

Civil Action No.: 13-CV-10771

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: February 10, 2014

District Judge Julian Abele Cook, Jr.

Magistrate Judge Mona K. Majzoub

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART

DEFENDANTS' MOTION FOR A PROTECTIVE ORDER [16]

This matter comes before the Court on Defendants City of Romulus, Robert Dickerson, and Derran Shelby's Motion for Protective Order. Plaintiff filed a Response (docket no. 19), and Defendants filed a Reply (docket no. 20). The motion was referred to the undersigned for decision. (Docket no. 17.) The parties have fully briefed the motions; the Court has reviewed the pleadings and dispenses with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f)(2). The Court is now ready to rule pursuant to 28 U.S.C. § 636(b)(1)(A).

I. Background

Plaintiff filed this action alleging violations of the Michigan Whistleblower Protection Act (WPA), M.C.L. 15.361 et seq., his First Amendment right to free speech, and Michigan publicpolicy. (See docket no. 1.) Plaintiff is a member of the City of Romulus Police Department (the Department). (Id. ¶2.) His claims arise out of his alleged refusal to "commit a crime and destroy evidence of criminal conduct by a fellow police officer or engage in a cover-up of criminal conduct by a fellow officer which violated a citizen's Fourth Amendment rights." (Id. ¶1.) Specifically, Plaintiff alleges that on August 1, 2012, while he was supervising the Department's Records Bureau, he learned that another officer had allegedly struck a handcuffed prisoner. (See id. ¶¶24, 26.) Plaintiff contends that he then heard an unidentified person (whom Plaintiff later learned was the alleged victim) ask Defendant Dickerson for a copy of the surveillance video tape that would show him being struck. (Id. ¶27.) When Plaintiff heard Defendant Dickerson deny the request, Plaintiff made a backup of the video on one of the Department's computers. (Id. ¶29.)

Plaintiff further alleges that on September 21, 2012, attorney Michael Rataj sent the Department a FOIA request seeking "among other things, a request for any and all copies of the video" related to the "assault of the handcuffed prisoner." (Id. ¶31.) This request was forwarded to Plaintiff because he is was in charge of the Records Bureau. (See id. ¶ 32.) Plaintiff asserts that he prepared the materials for delivery to attorney Rataj and presented them to Defendant Dickerson for review. (Id. ¶34.)

Plaintiff alleges that he was then called to a meeting with Defendant Dickerson and Defendant Shelby, who were surprised that the video had not been deleted.¹ Plaintiff further alleges that Defendant Shelby said the video "ain't pretty" and that Defendant Dickerson said, "I'm not giving this video out so some attorney can help this guy fill out his complaint packet." (Id. ¶¶ 43,44.) Plaintiff was then instructed to complete a time extension for the FOIA request. (Id. ¶ 45.)

Plaintiff claims that on October 4, 2012, Defendant Dickerson instructed Plaintiff to delete the digital video from the Department computer and from a USB drive onto which the video had been copied. (Id. ¶ 49-52.) Defendant Dickerson also asked Plaintiff to give him the only two copies of the video on CD, which had been made pursuant to the FOIA request; Defendant Dickerson indicated that the discs would be turned over to the city attorney.² (Id. ¶ 52.) Plaintiff alleges that later that day, he and Defendant Shelby had a conversation wherein Plaintiff aired his concerns about being part of a "cover up," at which time Defendant Shelby stated, "I don't think there is any kind of cover up." (Id. ¶ 54-58.)

The next day, Plaintiff contacted the Michigan Attorney General's Office to report his suspicions of the alleged assault and the possible cover up. (Id. ¶ 61.) On October 8, 2012, Plaintiff told Defendants Shelby and Dickerson that he had reported the incident and that he had made a copy of the video. (Id. ¶ 62.) Plaintiff alleges that he met with a human resources representative on December 5, 2012, to report a "hostile work environment" created by Defendants Dickerson and Shelby. (Id. ¶ 66.) Then, after several meetings, and after allegedly discovering that Defendant Shelby was paid for time that he did not work, on January 9, 2013, Plaintiff was demoted from Detective Sergeant to Sergeant and road patrol supervisor, which included a loss of significant pay and benefits. (Id. ¶¶ 67-81.)

Plaintiff filed his Complaint in this matter on February 25, 2013. (Id. at 18.) On June 28, 2013, Plaintiff served Defendants with his First Request for Production of Documents. (Docket no. 16-2.) As part of his request, Plaintiff asked Defendants to produce all documents, including video, related to the alleged assault on the unknown victim, any reports related to the incident, and any documents related investigations of the incident, whether by the Department or the City of Romulus. (See id., Request Nos. 3, 4, 9, 10, 18, and 21.) Defendants refused to produce the requested documents without a protective order, and when the Parties could not reach an agreement with regard to the scope of such an order, Defendants filed their instant Motion.

II. Governing Law

A. Discovery Standard

The scope of discovery under the Federal Rules of Civil Procedure is traditionally quite broad. Lewis v. ACB Bus. Servs., 135 F.3d 389, 402 (6th Cir. 1998). Parties may obtain discovery on any matter that is not privileged and is relevant to any party's claim or defense if it is reasonably calculated to lead to the discovery of admissible evidence. Fed.R.Civ.P. 26(b)(1). "Relevant evidence" is "evidence 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 than it would be without the evidence." Fed.R.Evid. 401. But the scope of discovery is not unlimited. "District courts have discretion to limit the scope of discovery where the information sought is overly broad or would prove unduly burdensome to produce." Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007). Rule 34 allows a party to serve requests for production of documents on an opposing party. Fed.R.Civ.P. 34. A party receiving this type of discovery request has thirty days to respond with answers or objections. Fed.R.Civ.P. 34(b)(2)(A).

B. Protective Order

Rule 26(c) allows the Court to issue protective orders for good cause shown to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including that the disclosure or discovery not be had or that the disclosure or discovery be limited to certain matters. Fed.R.Civ.P. 26(c). The party seeking a protective order has the burden of showing that good cause exists for the order. Nix v. Sword, 11 Fed. App'x 498, 500 (6th Cir.2001). To show good cause, the movant must articulate specific facts showing clearly defined and serious injury resulting from the discovery sought and cannot rely on conclusory statements. Id.

Local Rule 26.4(a) "governs motions for protective orders based on a claim that information is privileged or subject to protection." E.D. Mich. LR 26.4(a). To assert a claim of privilege, a party must "(A) state the claim that information, otherwise discoverable, is either privileged or subject to protection, and (B) without revealing privileged or protected information, describe the nature of the documents . . . not produced or disclosed, to enable the court to assess application of the privilege or protection." (Id.)

III. Analysis

At issue in Defendants' current Motion are Plaintiff's following Requests for Production:

3. Any and all documents (including video, electronic or digital records contained in the definition of "Document" or "Documents" above) which concern the alleged assault on a handcuffed arrestee by and referred to in the Complaint.

4. All documents (including video, electronic or digital records contained in the definition of "Document" or "Documents" above) which concern the procurement or acquisition of any statement from the arrestee who was assaulted by an Romulus Police Department Officer as alleged the Complaint.

9. The original report, any supplemental reports, the use of force report, and anydocuments related to the Romulus Police Department's response (including any investigation or discipline) to the incident described in the Complaint involving the assault of the handcuffed prisoner by a Romulus Police Officer, believed to be Officer Jones.

10. The internal investigation related to Romulus Police Department incident involving the assault of the handcuffed prisoner.

18. All documents concerning any investigation by the City of the assault by any officer who assaulted the handcuffed arrestee, as alleged in the Complaint.

21. All documents concerning any investigation of the assault of the arrestee by a Romulus Police Department Officer as alleged in the Complaint, conducted by the City of Romulus and/or the City of Romulus Police Department and/or any Defendant.

(Docket no. 16-2; docket no. 16.)

Defendants acknowledge that "there was an altercation between the arrestee and the officer, during which the arrestee spat at the officer and was struck." (Docket no. 16 at 12 n.3.) They argue, however, that whether the incident occurred and whether there was any subsequent investigation is irrelevant for purposes of Plaintiff's instant claims. That is, Defendants note that Plaintiff need only establish that he was engaged in a "protected activity" and that Defendant retaliated against him for engaging in that protected activity, but they argue that Plaintiff can meet his burden on...