The opinion of the court was delivered by: Proud, Magistrate Judge
Before the Court is plaintiffs' motion to compel the defendant City of Venice to expand its initial disclosures and respond to interrogatories and requests for production. (Doc. 30). Also before the Court is the defendants' brief in opposition. (Doc. 33). Although all of the disputed discovery requests were directed specifically to the City-- not the individual defendants-- the defendants responded collectively, and they collectively have responded to the subject motion. In recognition that the individual defendants have been sued in both their individual and official capacities, the Court will refer to the defendants collectively. With that said, the ultimate burden of compliance lies with the City.
Scope of Discovery and Procedural Issues
Federal Rule of Civil Procedure 26(b)(1) permits the discovery of any matter relevant to the subject matter of the pending action, so long as the sought after information is not privileged, even if inadmissible at trial, if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. The Supreme Court has interpreted relevance broadly to include any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).
Plaintiffs McAfee and Strode were both police officers in Venice, Illinois. McAfee was fired in April 2005 after she reported several other officers for filing false police reports, using excessive force against an arrestee, running an illegal sting, assaulting her, and a host of other alleged misconduct. McAfee claims that the officers involved called her a snitch, threatened that she would be fired, intimated that she would been "gotten rid of," actually assaulted her, and made disparaging remarks touching upon her gender, race and religion. She further alleges that Police Chief Newsome did nothing to help her, failed to discipline the offending officers and ignored the officers' alleged illegal activities. Similarly, plaintiff Strode alleges that after he reported that an officer had used excessive force, officers tried to inflict retribution; and when Strode threatened to report the wrongdoing, he too was fired. Police Chief Newsome, Officers Tyler, Garrett, Fisk and Jones, Mayor Echols, and the City of Venice are all named as defendants. Plaintiffs assert claims under the First Amendment, Title VII (42 U.S.C. § 2000e-3(a)), and related state law claims of assault, battery, conspiracy, negligent hiring, supervision or retention, and retaliatory discharge.
With respect to defendants' Rules 26 initial disclosures, plaintiffs are incredulous that, aside from the defendants themselves, defendants identify only one witness and they disclose only three exhibits, despite asserting 12 affirmative defenses. They intimate that defendants should have turned over documents referenced in the initial disclosures without plaintiffs having to make any further discovery requests. Plaintiffs further contend all their discovery requests are relevant to proving their allegations and combating the defendants' affirmative defenses. More specifically, plaintiffs seek proof of the City's knowledge of alleged criminal and unconstitutional behavior of its police officers. Plaintiffs also note that defendants' objections to the discovery requests do not cite specific evidentiary rules or legal authority, but plaintiffs do not otherwise address the defendants' specific objections. Plaintiffs stress that public policy favors the exposure of crime.
As a preliminary matter, defendants note that plaintiffs have failed to include a certificate reflecting that they attempted to resolve this discovery dispute before coming to court, as required by Federal Rule of Civil Procedure 37(a)(2). Defendants assert that their Rule 26 initial disclosures were complete and in compliance with the rule. Defendants note that plaintiffs have not made any substantive arguments regarding their specific objections. Defendants also object that plaintiffs' discovery requests were out of time. In addition, defendants argue that some of plaintiffs' discovery requests are merely an attempt to obtain documents they were unable to obtain via subpoena duces tecum. Defendants also argue that the production of personnel files violates their privacy interests and the privacy interests of non-parties.
Plaintiff has failed to certify that he attempted to informally resolve this discovery dispute, as required; but, in the interest of judicial economy, and in an attempt to keep this case relatively on track for trial, the Court will rule on the subject motion.
Plaintiffs bald assertion that the defendants' Rule 26(a) initial disclosures are inadequate is without merit. There is no rule of proportionality between the number of affirmative defenses and the number of non-party witnesses and exhibits a party must use or consider using. In the event plaintiff is able to specify a witness or item of evidence which should have been disclosed, plaintiffs are free to move to exclude that witness or evidence, or otherwise sanction the defendants. Furthermore, Rule 26(a)(1) does not require the production of documentary or tangible evidence; rather, that evidence may be described by category and location.
Regardless of whether plaintiff's discovery requests were out of time, the defendants proceeded to respond to them (albeit with a string of other objections), rather than refuse to respond or seek a protective order from the Court. Moreover, the Court strongly prefers to have cases decided on their merits, as opposed to procedural one-upmanship.
Defendants' objections to plaintiffs' interrogatories and request for production do not cite any specific rules or legal authority, but their objections are so basic and straight forward that citation to authority is unnecessary. Similarly, despite plaintiffs' failure to specifically address each objection is not fatal, as plaintiffs general arguments are easily understood relative to defendants' objections.
Although the Court will address each of the contested discovery requests in turn, as a general matter the Court finds that the plaintiffs are attempting to obtain discovery regarding the City of Venice Police Department as a whole, when the amended complaint is drafted in such a way as to make certain parameters obvious. The amended complaint revolves around the alleged wrongdoing of certain officers, and the alleged supervisory failures of the defendant police chief. Thus, the scope of discovery will be limited accordingly, regardless of plaintiffs' desire to "indict" the entire Police Department and/or the City of Venice. With that said, in accordance with Monell v. New York Department of Social Services, 436 U.S. 658 (1978) and Auriemma v. Rice, 957 F.2d 397, 399 (7th Cir. 1992), plaintiffs' amended complaint claims the City is liable for the actions of the individual defendants because those individuals acted in accordance with the City's "policy, custom and practice." Such a claim serves to dramatically broaden the scope of discovery. Although the Court agrees that public policy favors the exposure of crime, the Court does not perceive that that principle further broadens the scope of discovery in this civil action.
Relative to defendants' assertion that their personnel records are private, the Court of Appeals for the Seventh Circuit has not afforded blanket protection to personnel records. The Court recognizes the confidential nature of much of the information typically found in personnel files and the defendants' desire to keep a variety of employee information confidential. Nevertheless, the Court of Appeals for the Seventh Circuit has observed that "the contents of [employee personnel files] are by no means uniform. Some information contained in personnel files may be completely innocuous while other information could be of the most personal and sensitive nature." National Labor Relations Board v. Pfizer, 763 F.2d 887, 891 (7th Cir. 1985). In accordance with Pfizer and Federal Rules of Civil Procedure 26(b)(5) and 26(c), a party seeking to protect information from disclosure must make an express claim of privilege or for protection, which the defendants have not done.
As a general matter, the Court observes that many of plaintiffs' discovery requests suffer from imprecise drafting and overreaching. Although the Court often perceived what plaintiffs were aiming for, neither the Court nor the defendants can take responsibility for editing or redrafting the discovery requests to comport with what one imagines plaintiffs meant to request.
Plaintiffs' Requests for Production
Plaintiffs seek documents related to the City's policies and procedures regarding hiring, discipline and firing of the police chief and police officers. Defendants object to the relevance of policies and procedures regarding the hiring, discipline and firing of the police chief. The defendants' limited objection is sustained. Plaintiffs' claims and the underlying factual scenario relate to the hiring, discipline and firing of officers, not the chief. Therefore, defendants need only produce the requested documents as they pertain to officers.
Plaintiffs seek all statutes, ordinances, manuals and memos that regulate the employment and conduct of the police chief and police officers from January 2001 to the present. Defendants' objection that this request is vague is not well taken. However, insofar as defendants refer to their objection to Request 1, which focuses on the fact that the police chief's employment is not at issue, the Court agrees that statutes, ordinances, manuals and memos that regulate the employment of the police chief are irrelevant and need not be produced.
Plaintiff seeks all documents related to the hiring, supervision, retention and work performance of defendants Newsome, Tyler, Garrett, Fisk and Jones, including documents showing a propensity for violence, and inclination to commit crimes, and any matter bearing adversely on their honesty, reliability, trustworthiness or good character. Defendants' objection is sustained; as drafted this request is vague, calls for speculation and seeks, in part, irrelevant materials.
Request 4 is aimed at all documents related to any act Newsome, Tyler, Garrett, Fisk an Jones related to, or similar to, the acts that plaintiffs complained of in their amended complaint. Defendants' objection that ...