The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION
JANE DOE, )
)
Plaintiff, )
)
v. ) No. 18-cv-3191
)
RICHARD MacLEOD, et al., )
)
Defendants. )
OPINION
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
This matter comes before the Court on Plaintiff Jane Doe’s Motion to
Compel the Illinois Department of Corrections (Department) to Produce
Material Responsive to the January 11, 2019 Subpoena (d/e 25) (Motion).
For the reasons set forth below, the Motion is ALLOWED in part and
DENIED in part.
BACKGROUND
Plaintiff Doe alleges that she was incarcerated in the Logan
Correctional Center (Logan) in Logan County, Illinois from March 2015 to
August 2017. The Complaint states that Defendant Richard MacLeod was
a counselor at Logan. She alleges that in 2016 and 2017 MacLeod
repeatedly sexually assaulted her while she was housed at Logan. She
alleges that when she reported the sexual assaults, she was transferred to
Decatur Correctional Center in retaliation for making the report. See
Complaint (d/e 1), ¶¶ 8, 15-35.
Doe further alleges that Defendant Margaret Burke was Warden of
Logan at the time and Defendant Todd Sexton was a member of Logan’s
Internal Affairs Department. The Complaint alleges the following regarding
Burke and Sexton:
36. On information and belief, Ms. Doe’s transfer was
carried out by defendant Sexton, defendant Warden Burke, and
other as-yet-unidentified defendants, in retaliation for plaintiff’s
complaint about Macleod, and with the knowledge that it would
harmful to plaintiff.
37. On information and belief, defendant Macleod abused
other women at Logan in the same way that he abused plaintiff.
Other IDOC personnel at Logan, including but not limited to
Sexton, knew as early as February 2017 that Macleod was in
fact engaging in this pattern of abuse.
. . . .
42. Likewise, in the manner described more fully above,
defendants Sexton, Burke and other as-yet-unidentified
defendants violated Ms. Doe’s right to be free from cruel and
unusual punishment because they knew that plaintiff’s rights
were being violated, had the realistic opportunity to intervene to
prevent or stop the misconduct from occurring, and failed to do
so. In the alternative, these defendants were on notice of a
substantial risk of harm to plaintiff and they consciously
disregarded that risk.
43. The misconduct described in this count was objectively
unreasonable and was undertaken intentionally, with malice and
knowing disregard for plaintiff’s clearly established
constitutional rights, and not for any legitimate penological
purpose.
Complaint, ¶¶36-37, 42-43. Does alleges claims against all three
Defendants for violation of her Eighth Amendment rights to be free from
cruel and unusual punishment and alleges claims against Burke and
Sexton for retaliating against her in violation of her First Amendment rights.
Complaint, Counts I and II.
On January 11, 2019, Doe served a Subpoena (Subpoena) on the
Department to produce documents. Document Request 13 of the
Subpoena asks for the following:
13. All Documents and Communications regarding sexual
contact, sexual misconduct or sexual assault committed by
IDOC employees or Logan Correctional Center employees
against inmates at Logan Correctional Center.
Motion Exhibit Filed Under Seal (d/e 27) (Sealed Exhibits), Exhibit A,
Subpoena, at Subpoena Rider to Illinois Department of Corrections
(Subpoena Rider). The Subpoena defined “Documents” and
“Communications” as follows:
Definitions
"Document" includes any handwritten, typed, photographed,
computerized, audio, video, or other graphic matter, regardless
of how it is printed, stored or reproduced, in your possession,
custody, and/or control
"Communication" includes any/all forms of communication,
including, for example, letters, emails (and any attachments
thereto), notes, text messages, voicemails, social media
communications or the like.
Id.
The Department responded:
RESPONSE: The Illinois Department of Corrections objects to
this request to the extent it seeks information that is protected
by the law enforcement investigatory privilege. See, e.g.,
Surratt v. Walker, 2010 WL 2670895, *2 (C.D. Ill. Jul. 2, 2010)
(denying motion to compel subpoena request for "investigative
files, grievances, reports, log records or lists of inmates who
reported sexual assault or harassment by officers or staff''
because disclosure of such information would "invite
repercussions, or it would at least create in the inmates fear of
such repercussions " and "discourage inmates from coming
forward."). "Incorporated under Rule 26(b) of the Federal Rules
of Civil Procedure, [the law enforcement investigatory privilege]
serves 'to prevent disclosure of law enforcement techniques
and procedures, to preserve the confidentiality of sources, to
protect witnesses and law enforcement personnel, to safeguard
the privacy of individuals involved in an investigation, and
otherwise prevent interference with an investigation."' Castor v.
Brown's Chicken and Pasta, Inc., 314 Ill. App. 3d 542, 544
(2000) (quoting Hernandez v. Longini, 1997 WL 754041,
*3-*4 (N.D. Ill. Nov. 13, 1997)). The Illinois Department of
Corrections objects to producing documents received from,
sent to, or created at the request of the Illinois State Police or
the Logan County State's Attorney's Office which concern an
ongoing investigation. The Illinois Department of Corrections
objects to producing documents received from, sent to, or
created at the request of the Illinois State Police or the Logan
County State's Attorney's Office which concern an ongoing
investigation. The Illinois Department of Corrections further
objects to this request because it is vague, overbroad in scope,
seeks information wholly irrelevant to the claims in this case,
and is disproportional to the needs of this case. It is unclear
how the Illinois Department of Corrections could discern and
identify every communication and document that may be
related to sexual misconduct or sexual assault committed by
IDOC or Logan Correctional employees without speaking with
every offender and correctional employee. This request poses
an undue burden on the Illinois Department of Corrections.
Documents Bates stamped IDOC Subpoena 000008-000009,
000011, 000013-000036, and a CD, have been withheld based
on the investigatory privilege. See Illinois Department of
Corrections Privilege Log.
Subject to and without waiving said objections, the Illinois
Department of Corrections will produce the Checklist for File
Initiation Report, Bates stamped 000001, the Investigational
Interview of [Jane Doe], Bates stamped IDOC Subpoena
000002- 000003, and Incident Reports, Bates stamped IDOC
Subpoena 000004-000007, Email, Bates stamped IDOC
Subpoena 000010, Letter from the Illinois State Police, Bates
stamped IDOC Subpoena 000012, and Illinois Times article,
Bates stamped 000037.
Sealed Exhibits, Exhibit B, Illinois Department of Corrections’ Response to
Plaintiff’s January 11, 2019 Subpoena, at 11.
Doe asks the Court to overrule the Department’s relevance and
undue burden objections. Doe states that the parties have resolved the
Department’s investigative privilege claims. Motion attached Memorandum
in Support of Plaintiff’s Motion to Compel the Illinois Department of
Corrections to Produce Material Responsive to the January 11, 2019
Subpoena (Doe Memorandum), at 4-5 n.2. The Department, however,
asserts the investigative privilege claim in its response. IDOC’s Response
to Plaintiff’s Motion to Compel [Doc. 25] (d/e 31) (Response), at 5-6. It
appears the parties need to discuss the privilege claims further before
presenting the issue to the Court. If the parties have not or cannot resolve
this privilege claim, Doe is given leave to file a second motion to address
that issue. At this point, the Court only addresses the relevance and undue
burden objections.
ANALYSIS
The scope of material that may be sought through a subpoena is as
broad as the scope of discovery generally allowed in civil proceeding. See
Graham v. Casey’s General Stores, 206 F.R.D. 251, 253 (S.D. Ind. 2002).
Thus, a subpoena may seek any non-privileged relevant information that is
proportional to the needs of the case. Information is relevant for discovery
purposes if the information sought appears reasonably calculated to lead to
discovery of admissible evidence. Fed. R. Civ. P. 26(b)(1); see e.g., Pruitt
v. Knight, 2019 WL 1416726, at *1 (S.D. Ind. March 29, 2019). The Court
must quash a subpoena if the subpoena requires disclosure of privileged or
otherwise protected matter or subjects a person to an undue burden. Fed.
R. Civ. P. 45(c)(3)(iii) & (iv). The party opposing discovery generally has
the burden of proving that the requested discovery should be disallowed.
Etienne v. Wolverine Tube, Inc., 185 F.R.D. 653, 656 (D. Kan. 1999);
Golden Valley Microwave Foods, Inc. v. Weaver Popcorn Co. Inc., 132
F.R.D. 204, 207 (N.D. Ind. 1990); Flag Fables, Inc. v. Jean Ann=s Country
Flags and Crafts, Inc., 730 F. Supp. 1165, 1186 (D. Mass. 1989).
To determine whether a subpoena imposes an undue burden, the
Court should “weigh the burden to the subpoenaed party against the value
of the information to the serving party.” Amini Innovation Corp., v.
McFerran Home Furnishings, Inc., 300 F.R.D. 406, 409 (C.D. Ca. 2014);
see Northwestern Memorial Hosp. v. Ashcroft, 362 F.3d 923, 927 (7th Cir.
2004). The burden imposed on non-parties is entitled to “special weight” in
performing this calculus. Cusumano v. Microsoft Corp., 162 F.3d 708, 717
(1st Cir. 1998); Mosely v. City of Chicago, 252 F.R.D. 421, 434 (N.D. Ill.
2008). The Court may also consider the burden of the subpoena on
privacy interests of affected. See Malibu Media, LLC v. John Does 1-14,
287 F.R.D. 513, 516 (N.D. Ind. 2012).
The Department is a non-party but has a vested interest in the
outcome of the case. The Department must indemnify Burke and Sexton
for payment of damages for claims for actions or omissions occurring within
the scope of their employment. 5 ILCS 350/2. The Department, therefore,
is not a truly disinterested third party. Under the circumstances, the Court
finds that the Department is not entitled as much “special” consideration as
a truly disinterested third party. Furthermore, the documents sought are
within the possession or control of the Department, not Defendants Burke
and Sexton. Doe may, therefore, properly seek these documents from the
Department by use of the Subpoena.
Documents regarding other sexual contact, sexual misconduct, and
sexual assaults by Logan employees against Logan inmates (collectively
Sexual Misconduct) are relevant to the claims against Defendants Burke
and Sexton. Doe alleges that Sexton and Burke intentionally or recklessly
allowed a substantial risk of harm to exist that inmates such as Doe would
be subjected to Sexual Misconduct. Information about other Sexual
Misconduct committed by Logan personnel against Logan inmates may be
relevant to show the risk of harm to inmates at Logan, including Doe, from
Sexual Misconduct and Sexton or Burke’s knowledge of such risk of harm.
The evidence of other Sexual Misconduct is relevant. The Department’s
relevance arguments to the contrary are not persuasive.
The Subpoena Document Request 13, however, is overly broad in
several respects. The request lacks any time limitation. Doe alleges that
MacLeod assaulted her in 2016 and 2017. The Department should be
required to produce only documents reasonably close in time to the alleged
wrongful conduct to show the risk of harm at the time of the assaults and
Burke and Sexton’s knowledge of such risk of harm. In addition, Doe’s
definition of “documents” and “communications” are quite broad and would
require the Department to expend significant time and energy to secure
every type of document and communication within those definitions related
to these topics. Finally, the request imposes a burden on other inmates
and Logan personnel. The request seeks highly personal information
about other inmates involved in unrelated allegations of Sexual Misconduct.
The request also seeks personally damaging information about other
Logan personnel accused of Sexual Misconduct unrelated to the claims in
this case. Release of such information could damage the reputations of
Logan personnel even if the accusations were determined to be unfounded.
Doe asks the Court to modify the request to require production of
relevant information that does not impose an unreasonable burden under
the circumstances. The Court has authority to modify subpoenas to avoid
undue burden. Fed. R. Civ. P. 45(d)(3)(A)(iv). The Court finds that it is
appropriate in this case to modify Subpoena Document Request 13 to
require the Department to produce a limited set of responsive information
that does not impose an undue burden.
The Court, therefore, limits the time frame of Subpoena Document
Request 13 to responsive non-privileged documents related to Sexual
Misconduct from March 1, 2015 to the date of the Subpoena, July 31, 2018.
Doe suggests these dates as appropriate. The Court agrees. Doe alleges
she was assaulted in 2016 and 2017. Documents related to alleged Sexual
Misconduct that occurred from March 2015 to July 2018 should provide
sufficient information to establish the extent of the risk to inmates and the
extent of Burke and Sexton’s knowledge of such risk.
The Court further limits Subpoena Document Request 13 to non-
privileged documents consisting of: (1) written complaints submitted to
Department employees alleging Sexual Misconduct (Written Complaints);
(2) Department investigatory files of Written Complaints; and (3) all other
Department investigatory files or logs of allegations of Sexual Misconduct
in addition to the allegations set forth in Written Complaints. Doe suggests
that these types of documents would be responsive to this request and
would not impose an undue burden. See Doe Memorandum, at 2. The
Court agrees with her suggestion. Limiting the responsive documents in
this manner should greatly reduce the burden on the Department to collect
responsive documents. The Department will not be put to the burdensome
task of scouring every text and social media posting related to every inmate
and employee.
Finally, the Court directs the parties to prepare an agreed protective
order to protect the documents produced from improper disclosure. The
Department correctly notes that some of the information may include
medical information subject to the Health Insurance Portability and
Accountability Act of 1996 (HIPAA), Pub. L. 104-191, 110 Stat. 1936. Such
information must be protected by a HIPAA qualified protective order. The
Department also correctly notes that the identity of victims and Department
employees in unrelated matters should be protected from disclosure.
Redaction of identifying information, however, is not necessary. The Court
agrees with Doe that redaction may unnecessarily complicate her ability to
ask Burke and Sexton about other allegations of Sexual Misconduct, and
so, frustrate her ability to discover their knowledge of the risk of harm that
Doe faced from possible Sexual Misconduct. The parties should be able to
agree on an appropriate protective order that will prevent improper
disclosure of such information. The parties are directed to prepare an
agreed protective order to limit access and use of the produced documents.
THEREFORE, IT IS ORDERED that Plaintiff Jane Doe’s Motion to
Compel the Illinois Department of Corrections to Produce Material
Responsive to the January 11, 2019 Subpoena (d/e 25) is ALLOWED in
part and DENIED in part. The Court directs the parties to submit an agreed
proposed protective order by May 31, 2019. The Court orders the Illinois
Department of Corrections to produce the documents called for in this
Opinion by June 17, 2019.
ENTER: May 15, 2019
s/ Tom Schanzle-Haskins
TOM SCHANZLE-HASKINS
UNITED STATES MAGISTRATE JUDGE