# Cooper v. Rezutko

> District Court, N.D. Indiana · February 10, 2022

URL: https://www.frixlaw.com/law-library/cases/10162192

## Case

- **Court:** District Court, N.D. Indiana
- **Decided:** February 10, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10162192

## How later opinions describe it (automated extraction)

- stating that the good cause standard “primarily considers the diligence of the party seeking amendment.” (internal quotation omitted)
- noting that work product immunity has been extended “to oral statements made by witnesses to attorneys ‘whether presently in the form of mental impressions or memoranda.’” (quoting Hickman, 329 U.S. at 512)

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

KEITH COOPER,

Plaintiff,

v. CASE NO. 3:17-CV-834-PPS-MGG

STEVE REZUTKO, et al.,

Defendants.

OPINION AND ORDER
Pending and ripe before the Court are six discovery-related nondispositive
motions. [DE 197, DE 200, DE 206, DE 208, DE 232, and DE 246]. Each motion is
addressed in turn below.
I. GENERAL BACKGROUND
This case arises from the 1996 robbery and shooting of Michael Kershner in
Elkhart, Indiana for which Plaintiff Keith Cooper (“Cooper”) was convicted in 1997. At
the trial, Cooper was found to be the tall African American man, accompanied by a
short African American man, who struggled with Kershner and shot him during the
robbery. A key piece of evidence was a hat—a customized baseball hat with a jeweled
“J” on it (“the J Hat”)—worn by the “tall man” and left behind at the scene. The DNA
obtained from the J Hat was originally tested in 1997 by the Indiana State Police (“ISP”)
Laboratory. At Cooper’s trial, the ISP lab report was stipulated into evidence along with
the opinion of the ISP lab analyst who indicated that neither Cooper nor any other
person could be eliminated as having possibly worn the hat. At the time of the trial, no
match had been found for the DNA recovered from the J Hat. Five years later, after
Cooper was convicted and sentenced to 40 years in prison, the DNA samples were re-

tested using a new technique that led lab technicians to identify a specific DNA
evidentiary profile.
In the meantime, Indiana Deputy Public Defender William D. Polansky
(“Polansky”) was assigned to represent Cooper in post-conviction relief (“PCR”)
proceedings. Polansky requested the DNA evidentiary profile obtained from the J Hat
be run in the state and federal databases to see if it could be matched to an individual.

In March 2004, the ISP lab informed Polansky that the DNA profile from the J Hat had
been matched to a Michigan Department of Corrections inmate named Johlanis Ervin.
Polansky’s investigator in the Indiana Public Defender’s office, Harold Bailey, visited
Ervin at his prison in Ionia, Michigan on March 25, 2004. On April 16, 2004, both Bailey
and Polansky visited Ervin in Ionia. On August 18, 2008, Ervin was also visited by

Cooper’s current counsel, Elliot Slosar, who was not yet representing Cooper but was
then representing Cooper’s co-defendant in the Kershner matter, Christopher Parish, in
a civil rights action before this Court1.
Ultimately, Cooper withdrew his PCR petition after his sentence was modified in
April 2006. In February 2017, Cooper was pardoned by Indiana Governor Eric J.

Holcomb. Shortly thereafter, Cooper initiated the instant action alleging that his
constitutional rights were violated when Defendant Elkhart Police Officers (“Defendant

1 Case No. 3:07-cv-452-RLM. A jury verdict was returned in favor of Parish on October 27, 2010. [DE 193].
Officers”)2, acting individually and pursuant to Defendant City of Elkhart’s (“the
City’s”) policy and practices, conducted a reckless investigation, deliberately withheld

exculpatory evidence, made false reports, and falsely testified resulting in his wrongful
conviction and imprisonment for the 1996 Kershner robbery and shooting. Discovery
formally began on February 20, 2018, when this Court entered its original Rule 16(b)
Scheduling Order. [DE 28]. In the midst of the discovery period, Defendant Steve
Rezutko died on February 5, 2019. [DE 112]. On June 25, 2019, Diana Rezutko as
Personal Representative of the Estate of Stephen Rezutko was substituted for Steve

Rezutko as a defendant in this action. [DE 135].
Through the course of discovery, several discovery disputes arose and were
resolved through Court orders. Afterward, the Court amended its Scheduling Order,
thereby extending the case management deadlines as follows: completion of fact
discovery by April 2, 2021; Cooper’s expert disclosures by April 29, 2021; Defendants’

expert disclosures by May 31, 2021; and completion of all fact and expert discovery by
July 1, 2021 [DE 195 at 2]. As of this date, these expired deadlines still govern.
With the close of fact discovery approaching in late February and March 2021,
the parties presented several new discovery disputes to the Court by motion. Some
have already been resolved but six motions, related to three substantive discovery

disputes, remain pending. More specifically, issues pending before the Court include (1)
whether certain information the City requested from Polansky about his interactions

2 Steve Rezutko, Edward Windbigler, Steven Ambrose, and Tom Cutler
with Ervin in 2004 should be protected from disclosure based upon the work product
doctrine [DE 197 & 200]; (2) whether Cooper should be allowed to serve additional

requests for admission on Defendants [DE 206 & 208]; and (3) whether the non-party
Honorable Michael A. Christofeno should be protected from testifying in this case [DE
232]. Additionally, the parties propose competing expert discovery and dispositive
motion deadlines to propel this case toward trial. [DE 246]. Each is addressed in turn.
II. ANALYSIS
A. The City’s Motion to Compel—Polansky Subpoena [DE 197]

1. Relevant Background
Over the course of discovery in this case, Defendants’ investigator Steven Radde,
the City’s attorney Martin Kus, and his paralegal Natasha Felton visited Ervin at the
Michigan prison where he is incarcerated five times in varying combinations between
July 2, 2018, and November 12, 2018. After these visits, the City’s team secured a

Declaration from Ervin dated November 12, 2018. [DE 221-5].
In his November 2018 Declaration, Ervin described being robbed by two African
American men—one tall and one stocky—in Benton Harbor, Michigan in the fall of
1996. Ervin reported that his friends William Edwards and Omar Nelums were present
and victimized at the robbery. Ervin indicated that among the items stolen was his
“new ball cap that had the letter ‘J’ embroidered in the middle of the front.” [DE 221-5

at 2]. Ervin then described his 2004 meetings with Polansky and Bailey explaining that
they showed him photographs of an African American man they identified as Keith
Cooper who he immediately recognized as the tall African American man who robbed
him and his two friends in Benton Harbor in 1996. From another photograph, Ervin
identified the hat—the J Hat—that was taken from him during the 1996 robbery.

Defendants had previously obtained Declarations from Nelums on September 17,
20183 [DE 221-11], and Edwards on October 23, 20184 [DE 221-12]. In their Declarations,
Edwards and Nelums both described the 1996 Benton Harbor robbery nearly the same
as Ervin later did. In a subsequent Affidavit, dated August 15, 2019, however, Nelums
recanted stating that he was never the victim of a robbery in the fall of 1996; that he had
answered the questions posed by Radde just as Radde wanted, convinced that it would

help Ervin; and that Radde had promised to help him investigate his own post-
conviction case. [DE 221-6].
Ervin refused to testify further despite being subpoenaed by Defendants for a
deposition on November 1, 2019 [DE 221-8], and by Cooper for a deposition on January
13, 2021 [DE 221-9]. Similarly, Edwards refused to testify regarding his October 2018

Declaration at a deposition noticed for January 14, 2021. Nelums, however, testified at a
deposition on January 12, 2021, affirming the recantation in his August 2019 Affidavit.
[DE 221-10].
Throughout discovery, the City also sought information from Polansky, in part
because Cooper had identified Polansky as a witness in his initial disclosures dated

February 28, 2018. [DE 198-3 at 5]. First, the City served a subpoena for documents on

3 Nelums did not describe visits from Bailey and Polansky in 2004. Instead, Nelums reported that he
identified the photo of Cooper shown to him by the City’s investigator, Radde, when he visited Nelums
on August 6, 2018. [DE 221-11].
4 Attached to Edwards’ Declaration is a photo that he states is “the tall man who robbed us that night.”
[DE 221-12 at 3]. He says nothing about any visits from Bailey, Polansky, Radde, Kus, or Felton.
Polansky on November 15, 2018. [DE 198-6]. As relevant here, the City requested
production of photographs he or Bailey showed Ervin during their 2004 visits,

correspondence with Cooper referring to his or Bailey’s meetings with Ervin, and notes
taken at the time of the 2004 Ervin meetings. While Polansky’s personal attorney
indicated that Polansky could not produce any contents of his Cooper file without a
court order or written consent from Cooper, Cooper and Polansky collectively
responded to the subpoena stating that Polansky did not possess any of the
photographs and objecting to the requests for correspondence and interview notes

citing attorney-client privilege, work product doctrine, and undue burden. [DE 198-8].
Second, the City deposed Polansky on December 8, 2020. [DE 198-2]. During the
deposition, Polansky refused to answer certain questions based on Cooper’s counsel
objection alleging that information about Polansky’s 2004 conversation with Ervin is
protectable work product.5 Through his questioning, counsel for the City particularly

sought from Polansky (1) some recitation of what Ervin said at the April 2004, interview
[DE 198-2 at 79:22–80:23, 80:25–81:13, 81:19–83:1,83:17–84:22]; (2) his interview methods
including what questions he asked Ervin [DE 198-2 at 76:8–18; 77:7–78:4] and what
photos he showed to Ervin [Id. at 78:14–25, 79:2–11, 79:15–20]; (3) his purpose for the
Ervin interview and his actions leading to the Ervin interview [Id. at 58:5–14, 67:16–68:1,

75:22–76, 75:22–76]; (4) confirmation of the existence of notes regarding Ervin’s

5 Cooper reports that he “is not asserting an attorney-client privilege over the information that the City
seek to compel from Mr. Polansky related to the deposition questions regarding his meeting with Mr.
Ervin on April 14, 2006.” [DE 221 at 7 n.3]. As this is the only reference to the date “April 14, 2006,” in any
of the briefs, the Court assumes that Cooper inadvertently transposed numbers and that he is referring to
the Polansky-Ervin meeting on April 16, 2004. The result regardless is that only the work product issue
needs to be addressed in this instance.
identification of photos from Cooper’s original trial record during his April 2004
interview [Id. at 87:2–17, 90:21–91:10]; and (5) information Bailey reported to him from

his own Ervin interview in March 2004 [Id. at 68:7–14]. Counsel for the City stated
explicitly that he was not asking for Polansky’s thought processes during his 2004 Ervin
interview, his opinion or impression or response regarding what Ervin said, or how
information gleaned during the Ervin interview affected his strategy for Cooper’s PCR.
[DE 198-2 at 80:24–81:4 (“And, again, I’m just asking for what was—what was said, if
anything by Mr. Ervin to you; that is, I don’t want any mental impressions. I don’t want

any strategies. I just want facts of what happened at the meeting.”)].
After exchanges with Cooper’s counsel on the work product issue, the City filed
the instant Motion to Compel on February 26, 2021. Since being filed, two issues within
the Motion to Compel were mooted when Cooper agreed to disclose his March 14, 2006,
letter to Polansky and an April 7, 2004, notation on Polansky’s time logs. [See DE 221 at

15]. Therefore, the only remaining issue in the City’s Motion to Compel is whether the
work product doctrine protects Polansky from disclosing “what, if anything, Ervin told
[him] about the 1996 Benton Harbor robbery during their prison interview on April 16,
2004, and what photographs Ervin identified as depicting the man who robbed him.”
[DE 234 at 6; see also DE 198 at 10].

2. Legal Standard
The work product privilege is codified in Federal Rule of Civil Procedure
26(a)(3), which provides:
a party may not discover documents and tangible things that are prepared
in anticipation of litigation or for trial by or for another party or its
representative (including the other party’s attorney, consultant, surety,
indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials
may be discovered if:

(i) they are otherwise discoverable under Rule 26(b)(1); and

(ii) the party shows that it has substantial need for the materials to
prepare its case and cannot, without undue hardship, obtain their
substantial equivalent by other means.

“[T]he work-product doctrine is designed to serve dual purposes: (1) to protect an
attorney’s thought processes and mental impressions against disclosure; and (2) to limit
the circumstances in which attorneys may piggyback on the fact-finding investigation
of their more diligent counterparts.” Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d 612,
621–22 (7th Cir. 2010). Thus, work product protection extends to an attorney’s notes and
memoranda of witnesses’ oral statements because such documents tend to reveal the
attorney’s mental processes. Upjohn Co. v. United States, 449 U.S. 383, 399 (1981) (citing
Hickman v. Taylor, 329 U.S. 495, 513, 516–17 (1947)). Moreover, “forcing an attorney to
repeat or write out all that witnesses have told him and to deliver the account to his
adversary gives rise to grave dangers of inaccuracy and untrustworthiness.” Hickman,
329 U.S. at 512–13; see also Upjohn Co. v. United States, 449 U.S. 383, 399–400 (1981).
Nevertheless, “material, non-privileged facts” cannot be hidden from an opposing party
in litigation. Hickman, 329 U.S. at 513.
Both “‘opinion’ work product, which reflects or reveals a lawyer’s mental
processes, [and ‘fact’ work product] are generally protected and can be discovered only
in limited circumstances.” Caremark, Inc. v. Affiliated Comput. Servs., Inc., 195 F.R.D. 610,
616 (N.D. Ill. 2000). The protection afforded “fact” work product “may only be
overcome if the party seeking production demonstrates both a substantial need for the

materials and that it would suffer undue hardship in procuring the requested
information some other way.” Logan v. Com. Union Ins. Co., 96 F.3d 971, 976 (7th Cir.
1996). “[T]his burden is difficult to meet and is satisfied only in ‘rare situations, such as
those involving witness unavailability.’” Eagle Compressors, Inc. v. HEC Liquidating Corp.,
206 F.R.D. 474, 478 (N.D. Ill. 2002) (quoting Trustmark Ins. Co. v. General & Cologne Life Re
of Am., 2000 WL 1898518 * 3 (N.D. Ill. 2000)). Determining whether invasion of an

attorney’s work product is warranted, however, requires an analysis of each case’s
unique facts. Cf. Hickman, 329 U.S. at 513–14 (discussing competing interests of
discovering the truth and protecting attorney mental impressions reflected in work
product disputes then applying the standard to the unique facts of that case).
3. Work Product Status of Requested Information

There is no dispute that Polansky interviewed Ervin in anticipation of
litigation—namely Cooper’s PCR proceedings. Thus, Polansky’s thought processes and
mental impressions, before, during and after the Ervin interview are protectable
opinion work product. Similarly, any facts relevant to Cooper’s case here that Polansky
gleaned from the Ervin interview are likely protectable fact work product.

The parties dispute, however, whether the oral summary of the Polansky-Ervin
interview, sought through the City’s deposition questions to Polansky, even qualifies
generally as work product under Fed. R. Civ. P. 26(b)(3). The City argues it does not
because it does not fall into the categories of “documents and tangible things” identified
as protectable in Rule 26(b)(3). Yet, the City’s distinction of an oral summary from
documents, materials, and tangible things is incongruous with the purposes of the work

product doctrine. See Sandra T.E., 600 F.3d at 621–22. After all, Polansky’s testimony—
an intangible thing—would be of no less value and would include the same information
as if he drafted a memo—a document or tangible thing—summarizing the facts
revealed by Ervin in his April 16, 2004, interview with Polansky. See In re Sealed Case,
856 F.2d 268, 273 (D.C. Cir. 1988) (noting that work product immunity has been
extended “to oral statements made by witnesses to attorneys ‘whether presently in the

form of mental impressions or memoranda.’” (quoting Hickman, 329 U.S. at 512)).
The City also contends that its seeks nothing from Polansky reflecting his mental
process as an attorney. In support, the City relies on this Court’s decision in Gingerich v.
City of Elkhart Prob. Dep’t, 273 F.R.D. 532, 540 (N.D. Ind. 2011). In Gingerich, the plaintiff
served an interrogatory on the defendant municipality seeking to identify individuals

who reported her allegedly questionable conduct, their positions, dates of reports, and
content of reports. Id. The defendant only produced four names describing their reports
as “verbal” within a particular three-month window of time. Id. The defendant objected
to any further response on the grounds of privilege. Id.
In Gingerich, the Court preliminarily found that the defendant had not met its

burden to establish the applicability of any privilege. Id. Yet the Court still analyzed
whether the requested information qualified as protectable work product. Citing
E.E.O.C. v. Jewel Food Stores, Inc., 231 F.R.D. 343, 346 (N.D. Ill. 2005), the Court held that
the information sought through the plaintiff’s interrogatory, which did not “ask[] who
was interviewed, what the investigation revealed, [and] for the source of [the
respondent’s] information,” was not protectable work product because it revealed

nothing about litigation strategy or mental processes. Gingerich, 273 F.R.D. at 540, 542.
The Court reasoned that “factual interrogatories concerning the identities of potential
witnesses who were interviewed and the substance of their statements do not provide
insight into the attorney’s mental process.” Id. at 540. The Court further stated that
“[c]ompetent counsel routinely obtain information through interviewing witnesses and
reviewing documents, and are able to provide interrogatory responses that set forth

only that factual information without revealing ‘mental processes, impressions and
strategies.’” Id. (quoting Jewel, 234 F.R.D. at 347).
The circumstances here, however, are distinguishable from those in Gingerich.
First, the plaintiff in Gingerich sought factual information through an interrogatory
directed to a non-attorney party whereas the City is soliciting witness interview

summary information from a non-party attorney through deposition questions. Second,
the information the City seeks from Polansky is more akin to the oral statements and
summaries deemed protectable through Hickman and Upjohn than the facts sought
through the Gingerich interrogatory. Third, the City not only knows that Ervin is the
witness Polansky interviewed but has also interviewed Ervin directly and secured

Ervin’s Declaration about the 1996 robbery, the photo array presented by Polansky at
his 2004 interview, and Ervin’s identification of Cooper.
Thus, the Polansky deposition questions open a different can of worms than the
Gingerich interrogatory. Through its deposition questions, the City claims to seek only
the facts of what Ervin told Polansky at the 2004 interview about the 1996 robbery and
the identification of Cooper from photos. Polansky’s answers to those questions,

however, reveal the questions he chose to ask Ervin as part of his investigation into
matters relevant to Cooper’s PCR proceedings if only implicitly. In other words,
Polansky’s deposition testimony would necessarily disclose his own oral summary,
comparable to a written note or memorandum, of his investigative efforts in
preparation for litigation of Cooper’s post-conviction review. Cf. Sandra T.E., 600 F.3d at
622 (“Work-product protection applies to attorney-led investigations when the

documents at issue can fairly be said to have been prepared or obtained because of the
prospect of litigation.” (internal quotation omitted)); 1100 West, LLC v. Red Spot Paint &
Varnish Co., Inc., No. 1:05-cv-1670-LJM-WTL, 2007 WL 2904073, at *2 (S.D. Ind. May 18,
2007) (“documents created by [a party’s agent or attorney] during the course of . . .
litigation that reflect which potential witnesses [an investigator hired by counsel] has

interviewed, the questions he chose to ask them, and his notes regarding their answers
are classic work product; so, too, are the affidavits that [the investigator] drafted
summarizing his understanding of the witnesses’ statements.”). Accordingly, the
information that the City seeks from Polansky qualifies as fact work product. The
question remains, however, whether that work product is discoverable.

4. Protectability of Polansky’s Fact Work Product
Fact work product is only discoverable if the requesting party—in this case the
City—shows a “substantial need for the materials to prepare its case and [that it]
cannot, without undue hardship, obtain their substantial equivalent by other means.”
Fed. R. Civ. P. 26(b)(3)(ii).6 The City argues that it has a substantial need for the
information about the 2004 Polansky-Ervin interview because of Cooper’s approach to

this litigation7.
The record is clear that the J Hat, and any link its shares with the Kershner scene
and the Benton Harbor robbery, will be a key fact litigated in this case. Yet the record
includes conflicting evidence from Ervin, Nelums, and Edwards about the Benton
Harbor robbery bringing Ervin’s November 2018 Declaration into question. Thus,
comparing Ervin’s statements about the Benton Harbor robbery to Polansky in 2004

with his 2018 Declaration and Nelums’ August 2019 Affidavit stating that the Benton
Harbor robbery did not occur would, as the City suggests, tend to be helpful to a trier of
fact. Additionally, Bailey testified at his deposition in December 2020 that he does not
recall any visit to Ervin in 2004 or any assignment from Polansky at that time. [DE 234-3
at 3]. Therefore, absent uncovering any other evidence, Polansky is the only arguably

neutral resource available to corroborate or contradict Ervin’s Declaration. In other
words, Polansky’s testimony may provide the City with critical impeachment evidence
against Cooper.

6 Cooper contends that the City waived any substantial need argument by not raising it in its
memorandum in support of its Motion to Compel. Indeed, undeveloped arguments are waived. United
States v. Parkhurst, 865 F.3d 509, 524 (7th Cir. 2017). Here, however, the City argued that the information
at issue does not constitute work product. Therefore, the City’s substantial need argument was properly
raised for the first time in response to Cooper’s response brief.
7 The City also challenges Cooper’s objection to soliciting Polansky for information regarding the 2004
Ervin Interview based on Cooper’s February 2019 response to the City’s Request for Admission No. 10
directing the City to Bailey or Polansky for that information. [DE 234-5 at 4]. However, Cooper’s counsel
reported in a letter to the City’s counsel dated October 21, 2019, that amended responses would follow
identifying Ervin as the proper witness regarding the 2004 interview. [DE 221-16 at 4]. Therefore, the City
was at the very least on notice that Polansky was not the proper witness negating its argument here.
Yet impeachment alone is not a sufficient basis for invading the work product
privilege. Sandra T.E., 600 F.3d at 622–23. “A court is not justified in ordering a litigant

to permit his adversary to inspect witness statements, which he has procured in
preparing for trial, upon the adversary’s mere surmise or suspicion that he might find
impeaching material in the statements.” Id. (quoting Hauger v. Chi., Rock Island & Pac.
R.R. Co., 216 F.2d 501, 508 (7th Cir. 1954)). Moreover, an attorney’s notes—or in this case
his testimony—cannot be used simply to impeach a witness when the witness himself
could have been deposed. Id. (citing Gay v. P.K. Lindsay Co., 666 F.2d 710, 713 (1st Cir.

1981). Accordingly, Cooper contends that Polansky’s work product need not and
should not be disclosed because the same information is available from Ervin himself.
Notably, Ervin refused to testify at two noticed depositions. Why the parties,
especially the City, have not made greater efforts to obtain Ervin’s deposition testimony
is not evident from the briefs here. Similarly, the briefs offer no explanation for Ervin’s

refusal to appear at a deposition. Nevertheless, the City reasonably anticipates that
Cooper will call Ervin as a witness at trial to prove his claim that the City engaged in
deceit or undue influence when securing Ervin’s Declaration. With this evidentiary
battle presumably looming, the City contends that it has substantial need for Polansky’s
testimony related strictly to what Ervin told him and what pictures Ervin identified on

April 16, 2004, to defend itself at trial.
A decision to invade work product protection should not be taken lightly. This
case, however, presents a confluence of circumstances that both establish the City’s
substantial need for Polansky’s work product and its inability to obtain the same
information through other means without undue hardship. The claims and defenses in
this case demand discovery generally into events spanning 22 years including the

Kershner robbery and shooting followed by Cooper’s conviction in 1997; the alleged
Benton Harbor robbery in 1996; Cooper’s former attorney’s investigation in 2004; and
the written testimony of Ervin, Nelums, and Edwards in 2018 and 2019. The relevant
facts are numerous. Memories continue to decay. One defendant has died since the
inception of the case. And key witnesses appear to be protecting their own interests by
refusing to testify at depositions. Taken together, this unusual set of circumstances

presents more obstacles than open doors to the truth surrounding Cooper’s 1997
conviction. Yet Polansky holds presumably reliable evidence that will assist the trier of
fact in this case and foster greater confidence in the outcome by minimizing any
prejudice these unusual circumstances create for the parties, especially the City, in
making or defending against the claims in Cooper’s complaint.

5. Motion to Compel Conclusion
With no other available source for a substantial equivalent of Polansky’s
testimony, the City has established that this is one of those rare cases where invading
the protection afforded by the work product doctrine is warranted. Eagle Compressors,
206 F.R.D. at 478; cf. Hickman, 329 U.S. at 513–14. Accordingly, the City’s Motion to

Compel is GRANTED IN PART. [DE 197]. To minimize the risk of exposing
protectable thought processes or mental impressions, Polansky is ORDERED to
produce written responses to the following two questions:
(1) What did Ervin tell Polansky on April 16, 2004?
(2) What pictures did Ervin identify on April 16, 2004?
Polansky may consult any of his notes or files in preparing his responses but need not

disclose them to the City.8
B. The City’s Motion to Seal [DE 200]
Along with its Motion to Compel, the City filed a Motion to File Certain Exhibits
Under Seal. Specifically, the City asks that its Exhibits 19 and 20 [DE 201-1 and 201-2]
accompanying its memorandum in support of its Motion to Compel be maintained
under seal because they may contain privileged information. Since the Motion to Seal

was filed, the City’s Motion to Compel was mooted as to the issues related to Exhibits
19 and 20. [See DE 221 at 15]. Accordingly, good cause exists to maintain Exhibits 19 and
20 under seal as they are not relevant to the remaining disputes in the City’s Motion to
Compel. See Citizens First Nat’l Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 944
(7th Cir. 1999). Therefore, the City’s Motion to Seal is GRANTED. [DE 200].

C. Cooper’s Motion for Additional Requests to Admit [DE 206] and the
City’s Motion to Strike Plaintiff’s Requests for Admission, Dkt. #206
[DE 208]

1. Relevant Background
In the original Rule 16(b) Scheduling Order governing this case, the discovery
plan established a deadline for “the completion of all discovery” and, among other
things, authorized each party to “serve a maximum of . . . 30 requests for admission on

8 Notably, this Order merely finds that Polansky’s responses are discoverable. The question of whether
any of the information gleaned from Polansky is admissible at trial is reserved for the trial judge to
resolve, as needed, as part of his gatekeeping function through appropriate pre-trial motions and/or
objections.
any other party.” [DE 28 at 1]. The Court’s attached “Explanation of Scheduling Order”
stated that “[a]ll discovery other than depositions must be initiated at least forty-five

dates before the [discovery] cut-off date.” [Id. at 3].
On agreement of the parties, the Court amended the Scheduling Order on
January 21, 2020, adding a fact discovery deadline and extending the expert disclosure
deadlines and the deadline for the close of all discovery. [DE 175]. The Scheduling
Order was amended further on December 16, 2020, establishing the current deadlines of
April 2, 2021, for completion of all fact discovery followed by expert disclosure

deadlines and a July 1, 2021, deadline for the completion of all discovery. [DE 195].
As the fact discovery deadline approached, the parties coordinated
approximately two dozen depositions between February and April 2, 2021. Among
those deposed were Defendant Tom Cutler on February 19, 2021, and Defendant
Edward Windbigler on February 22, 2021. During both depositions, Defendants

challenged the foundation of documents maintained by the City. Surprised by the
objections, Cooper’s attorneys reviewed all the documents produced in this case and
prepared 93 requests for admission (“RFAs”) directed to the City and 148 RFAs directed
to Defendant Estate of Rezutko. On March 1, 2021, Cooper filed the instant motion for
additional RFAs with his proposed 241 RFAs attached. [DE 206].

In response, the Estate objected to Cooper’s motion on grounds that the RFAs are
(1) untimely, (2) excessive, (3) unduly burdensome and harassing, and (4) superfluous
or improper, at least in part. The City joined the Estate’s response after filing a separate
Motion to Strike Plaintiff’s Requests for Admission [DE 208] arguing that the RFAs
were untimely. Cooper’s and the City’s overlapping motions are addressed together.

2. Analysis

Rule 36 of the Federal Rules of Civil Procedure governs requests for admission.
The Rule provides that
[a] party may serve on any other party a written request to admit . . . the
truth of any matters within the scope of Rule 26(b)(1) relating to . . . facts,
the application of law to fact, or opinions about either; and . . . the
genuineness of any described documents.

Fed. R. Civ. P. 36(a)(1). “The purpose of Rule 36 is to expedite the trial by determining
what issues are in genuine dispute and by resolving the issues which are not disputed.”
Berry v. Federated Mut. Ins. Co., 110 F.R.D. 441, 443 (N.D. Ind. 1986); see also Escobedo v.
Ram Shirdi Inc., No. 10 C 6598, 2011 WL 13243990, at *2 (N.D. Ill. Mar. 16, 2011)
(“Admissions are sought, first to facilitate proof with respect to issues that cannot be
eliminated from the case, and secondly, to narrow the issues by eliminating those that
can be.”).
a. Timeliness
The Estate and the City both argue that Cooper’s proposed RFAs are untimely
pursuant to the Court’s Scheduling Order because they were not served within 45 days
of the April 2, 2021, fact discovery deadline. Cooper argues that the 45-day window for
initiating written discovery does not apply to RFAs because they are not discovery
devices. The question of whether RFAs are discovery devices is not as easy to answer as
the parties suggest. Both sides rely upon nonprecedential district court opinions, many
of which do not explicate a rationale for a conclusion one way or the other, to support
their position. Yet the Seventh Circuit, whose opinion would hold sway over this Court,

intentionally reserved the question of “whether requests for admission are a discovery
device or should be characterized otherwise.” Laborers’ Pension Fund v. Blackmore Sewer
Constr., Inc., 298 F.3d 600, 606 n.2 (7th Cir. 2002). Thus, the question is an open one – at
least within the Seventh Circuit.
However, an interesting analysis from the Northern District of Illinois, laden
with fitting literary comparisons, thoughtfully considered the question and concluded,

in essence, that RFAs are a bit of anomaly—not fitting neatly into the category of
discovery or trial devices available under the Federal Rules of Civil Procedure. Kelly v.
McGraw-Hill Cos., Inc., 279 F.R.D. 470, 471–72 (N.D. Ill. 2012). In fact, the Kelly court
found that the purpose of particular RFAs dictate whether they are governed by
discovery management or trial management principles. Id. at 472 (“requests to admit

come in what are two really different flavors [and] the fundamental difference between
those two types of requests calls for very different treatment”).
While Kelly is not binding authority on this Court, it presents a persuasive
approach to the consideration of RFAs that is imminently more reasonable than the
conclusory statements the parties invite the Court to adopt. Moreover, the City and

Estate’s timeliness argument does not succeed even if Cooper’s proposed RFAs are
discovery devices. Therefore, this Court will leave the question of whether RFAs
constitute discovery devices for another day.
Assuming without deciding that the Scheduling Order mandated that all RFAs
be served at least 45 days before the close of fact discovery, Cooper’s RFAs should have

been served before February 16, 2021. They weren’t. However, Cooper has shown that
the foundational issues surrounding many of the documents held by the City were
challenged for the first time during Cutler’s and Windbigler’s depositions on February
19th and 22nd—three and five days after the presumed deadline. Additionally, Cooper
immediately began reviewing all documents produced in this case for similar concerns,
drafted the proposed RFAs, and prepared the instant motion for additional RFAs all

within ten days while simultaneously participating in other scheduled depositions. In
so doing, Cooper’s counsel exhibited due diligence in handling the newfound
information. As a result, good cause exists to allow the arguably belated RFAs to ensure
a fair result on the claims and defenses at issue in this case. See Empress Casino Joliet
Corp. v. Balmoral Racing Club, Inc., 831 F.3d 815, 831 (7th Cir. 2016) (stating that the good

cause standard “primarily considers the diligence of the party seeking amendment.”
(internal quotation omitted)); see also Fed. R. Civ. P. 1.
Notably, the City’s sole argument in support of its motion to strike the RFAs is
untimeliness. [DE 208 at 2]. Having found the RFAs to be sufficiently timely, the Court
must DENY the City’s motion to strike the RFAs. [DE 208].

b. Burden of Production on the City and the Estate
The City and the Estate argue that Cooper’s RFAs are unduly burdensome
because they are excessive in number and seek improper admissions.
i. Number of RFAs
Rule 36 itself provides no limit on the number of RFAs that can be propounded.
See Escobedo, 2011 WL 13243990, at *2 (citation omitted). However, “[r]equests to admit

should not be excessive in number and, obviously, should be tailored in a manner and
scope to avoid harassment and improper motive.” Tamas v. Fam. Video Movie Club, Inc.,
301 F.R.D. 346, 347 (N.D. Ill. 2014) (quoting Robinson v. Stanley, 06 C 5158, 2009 WL
3233909, at *2 (N.D. Ill. Oct. 8, 2009)). As a result, “[c]ourts routinely disallow requests
for admission that run into the hundreds on the grounds that they are abusive,

unreasonable, and oppressive.” Robinson, 2009 WL 3233909, at *2. Yet, “[b]ecause of the
relatively efficient, inexpensive, and conclusive nature of requests to admit, a court
should be reasonably certain of the existence of discovery abuse before it limits the
number or scope of requests to admit with regard to any matter otherwise
discoverable.” Sun Elec. Corp. v. Allen Group, No. 82 C 7684, 1985 U.S. Dist. LEXIS 22571,

at *6 (N.D. Ill. Feb. 14, 1985). In other words, the appropriate number of RFAs in any
case is determined based on an assessment of the unique circumstances of the case
including the parameters of any applicable case management order, the content of the
RFAs themselves, and the complexity of the case.
Here, the Court adopted the parties’ agreed limit of 30 RFAs per party in its

Scheduling Order. [DE 28 at 1]. Cooper therefore agreed to a total of 150 RFAs—30 to
each of the five defendants. Now he asks the Court not only to allow him to redistribute
all his RFAs to only two of the defendants—the City and the Estate—but also to
increase his total number of RFAs to 241. In support, he argues that discovery was
voluminous in this case necessitating a large number of RFAs “to simplify and
streamline trial” and that RFAs are one of the few remaining methods of establishing

liability against Steve Rezutko after his death. [DE 226 at 9–10].
At first blush, Cooper’s arguments seem reasonable. Indeed, one of the key
purposes of Rule 36 RFAs is simplifying issues for trial. See, e.g., Berner v. OutdoorEnv’ts
Grp., LLC, No. 1:09-cv-00685-SEB-JMS, 2010 WL 98706, at *2 (S.D. Ind. Jan. 8, 2010).
Moreover, there is no denying that all the parties in this action have been hampered in
their ability to litigate their positions by Mr. Rezutko’s unexpected death such that

RFAs may be a useful alternative method of proof. However, Cooper has offered no
meaningful explanation why he could not accomplish those same goals with the 150
RFAs already authorized—even if redistributed among the defendants. Without more,
Cooper has not established good cause, as required by Fed. R. Civ. P. 16(b)(4), to amend
the Scheduling Order to allow for 241 RFAs distributed between only two defendants.

Therefore, the Court DENIES Cooper’s motion for additional RFAs IN PART
[DE 206] and limits him to 150 total RFAs. However, Cooper may redistribute those 150
RFAs among the defendants as he chooses. Even so, all of Cooper’s RFAs must comply
with the substantive goals and requirements of Rule 36, as discussed further below.
ii. Propriety

In opposing Cooper’s motion for additional RFAs, the Estate argues that many of
the proposed RFAs are unanswerable. Specifically, the Estate challenges Cooper’s RFAs
58–68 and 117–18, which ask for an admission that one non-party made certain
statements to another non-party during criminal investigations. The Estate explains that
the communications at issue are recorded in the 1996 and 2001 internal affairs
investigations reports and that it can attest to their inclusion in those reports but has no

personal knowledge as to whether the statements were actually made as these RFAs
request. Similarly, the Estate contends that it could only speculate as to RFAs 72–80,
100, 102–05, 107–09, 111–12, 114–16, and 123–24 seeking admission that Mr. Rezutko
made certain statements to non-parties during specific investigations. The Estate also
objects to these RFAs because answering them would require further discovery unlikely
to result in definitive conclusions.

The Estate’s substantive objections here are misplaced. Rule 36 requires an
answer to RFAs in the form of an admission, a denial, a detailed statement why the RFA
cannot be truthfully admitted or denied, or an objection. Fed. R. Civ. P. 36(a)(4)–(5).
Rule 36 does not provide any opportunity for an answering party to ask the Court to
quash RFAs. Only the requesting party has formal recourse to the Court through Rule

36, which allows the requesting party to “move to determine the sufficiency of an
answer or objection.” Fed. R. Civ. P. 36(a)(6). Thus, the Estate’s objections above are
more properly incorporated into its answers to the RFAs.
Notably, Rule 36(a)(4) only allows answering parties to “assert lack of
knowledge or information as a reason for failing to admit or deny . . . if the party states

that it has made reasonable inquiry and that the information it knows or can readily
obtain is insufficient to enable it to admit or deny.” “What constitutes ‘reasonable
inquiry’ and what material is ‘readily obtainable’ depends upon the facts of each case.”
Hanley v. Como Inn, Inc., No. 99 C 1486, 2003 WL 1989607, at *2 (N.D. Ill. Apr. 28, 2003)
(citation omitted). “Under certain circumstances, parties may be required to inquire of
third parties to properly respond to requests to admit.” Id. Generally, however, a

reasonable inquiry is limited to review and inquiry of those persons and documents
that are within the responding party’s control.” Id. Thus, the Estate’s lack of personal
knowledge alone is an insufficient reason for failing to answer an RFA.9 The Estate
must make a reasonable inquiry into the issues presented in the RFAs to inform its
answer or lack thereof under Rule 36.
The Estate further objects to Cooper’s RFAs 133–48 seeking admissions that Mr.

Rezutko gave certain testimony in other litigation as well as admissions regarding the
discovery requests and responses, pleadings and other filings, and court orders in this
action. The Estate contends that these RFAs seek irrelevant information, information
already admissible, or information with no evidentiary purpose. As the Estate states,
“[w]hether and when a party served Interrogatories, letters exchanged between counsel,

what the Court has ordered, and when discovery responses and filings were due are not
‘facts at issue’ in the case . . . .” [DE 213 at 7]. Moreover, other mechanisms are available
to streamline the trial on these issues, should they require litigation. For instance,
stipulations are a common tactic used to support summary judgment motions and to

9 The Estate cites Exec. Mgmt. Servs., Inc. v. Fifth Third Bank, 2016 WL 3129528, at *2 (S.D. Ind. Feb. 26, 2016)
asserting that the court sustained an objection to an RFA because the responding party could not “have
personal knowledge of what another party knows.” [DE 213 at 5]. However, careful reading of the
entirety of the case shows that the court considered the responding party’s “lack of personal knowledge”
objection but ultimately held that the RFAs were objectionable because they sought “admission to multi-
faceted disputed facts within [the] litigation” rather than “simple and direct facts” as contemplated by
Fed. R. Civ. P. 36.
limit testimony at a trial. Alternatively, the Court can take judicial notice of any relevant
adjudicative facts. See Fed. R. Evid. 201.

3. Conclusion as to Cooper’s Motion for Additional RFAs
As discussed above, Cooper’s RFAs served on March 1, 2021, were not untimely,
but they were excessive in number and likely excessive in scope, at least in part.
Accordingly, Cooper’s Motion for Additional RFAs is GRANTED IN PART. [DE 206].
Cooper may serve 150 of his proposed RFAs, distributed as he chooses among the five
defendants. Cooper is ORDERED to revise his selected proposed RFAs to avoid any

sustainable objections by Defendants based upon the standards set forth in this Opinion
and Order.10 Defendants must answer the RFAs consistent with the requirements of
Rule 36 and the deadlines set forth below.
D. Non-Party Christofeno’s Motion to Quash Non-Party Subpoena and for
Entry of Protective Order [DE 232]

1. Relevant Background
Non-party Michael A. Christofeno currently serves as Judge for 34th Judicial
Circuit (Elkhart County, Indiana), after being elected to the office on November 8, 2016,
and assuming the bench in January 2017. In or around 1997, Christofeno served as a
deputy prosecuting attorney for Elkhart County, Indiana. In that role, he prosecuted the
State’s criminal case against Cooper that resulted in his conviction for the Kershner

10 Cooper is also reminded that “[u]nder Rule 36, requests for admission should be simple and direct so
that they can be readily admitted or denied.” Climco Coils Co. v. Siemens Energy & Automation, Inc., No. 04
C 50342, 2006 WL 850969, at *1 (N.D. Ill. Mar. 28, 2006) (footnote omitted). Among the proper purposes
for RFAs is determining whether documents to be introduced at trial will have foundational problems.
Berry, 110 F.R.D. at 443. Yet a party’s current state of knowledge of facts, which is neither relevant nor
probative of any matter, is not a proper subject of an RFA. Nutmeg Grp., 285 F.R.D. at 405. Similarly, an
RFA is improper if it asks a party to admit the opposing party’s theory of the case. Id.
robbery and shooting. On January 13, 2016—about ten months before being elected
judge, Christofeno sent a letter as a private citizen to then Indiana Governor Mike Pence

in support of Cooper’s pending petition for pardon.
In January 2021, Cooper’s counsel initiated conversations with Judge
Christofeno, through counsel, in an attempt to schedule his deposition. Cooper would
like to depose the Judge as a fact witness about what evidence the Defendant Officers
here disclosed to him when he was prosecuting Cooper’s criminal case back in the
1990s. Cooper has also expressed interest in Christofeno’s communications and

interactions with the Defendant Officers as well as his practice in maintaining the
prosecutor’s file. Through counsel, the Judge declined to sit for a deposition citing the
duties and restrictions placed on trial court judges in the State of Indiana. Yet on March
3, 2021, Cooper proceeded and served Judge Christofeno with a subpoena for a virtual
deposition to be held on April 2, 2021. When Cooper refused to withdraw the subpoena,

Judge Christofeno filed the instant Motion on March 30, 2021.
In support of his Motion, Judge Christofeno argues that (1) the subpoena poses
an undue burden on him; (2) the testimony Cooper seeks is disproportional to the needs
of this case; (3) the subpoena is untimely; and (4) the subpoena improperly seeks
privileged investigatory and work product materials. Accordingly, Judge Christofeno

asks that the deposition subpoena be quashed and that a protective order be entered
shielding him from providing any testimony in this case. Cooper rejects all of Judge
Christofeno’s arguments.
2. Analysis
The scope of information discoverable under the Federal Rules is broad.
Specifically, Fed. R. Civ. P. 26(b)(1) permits discovery on any

nonprivileged matter that is relevant to any party’s claim or defense
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.

Parties may also seek written or oral discovery from non-parties through subpoenas
issued consistent with the requirements of Fed. R. Civ. P. 45. “The scope of material that
is obtainable through a subpoena is as broad as that which is otherwise permitted under
the discovery rules.” Teton Homes Europe v. Forks RV, No. 1:10-CV-33, 2010 WL 3715566,
at *2 (N.D. Ind. Sept. 14, 2010). The court must quash or modify a subpoena that
“requires disclosure of privileged or other protected matter . . . or subjects a person to
undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(iii)–(iv). “The party seeking to quash a
subpoena under [Rule 4(d)(3)(A)] bears the burden of demonstrating that the
information sought is privileged or subjects a person to an undue burden.” Malibu
Media, LLC v. John Does 1–14, No. 1:12-CV-263, 2013 WL 2285950, at *2 (N.D. Ind. May
22, 2013).
Further, “the court may, for good cause, issue an order to protect a party or
person from annoyance, embarrassment, oppression, or undue burden or expense,” up
to and including forbidding the discovery. Fed. R. Civ. Pro. 26(c)(1). “Rule 26(c) confers
broad discretion on the trial court to decide when a protective order is appropriate and
what degree of protection is required.” Ball Corp. v. Air Tech of Mich., Inc., 329 F.R.D. 599,
603 (N.D. Ind. 2019) (quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984)). Judge

Christofeno’s Motion succeeds upon his showing of undue burden.
“[C]alling a judge to give testimony in any proceeding is a very delicate matter.”
United States v. Frankenthal, 582 F.2d 1102, 1107 (7th Cir. 1978). A witness’s judicial
status is likely to provide the imprimatur of prestige, dignity, and authority to a party’s
case, and is likely to lead a fact-finder to misinterpret the judge’s testimony as an official
testimonial. See id. at 1108; see also Leslie W. Abramson, Canon 2 of the Code of Judicial

Conduct, 79 MARQ. L. REV. 949, 977 (1996) (“When a judge testifies, there is concern that
the judge not only is presenting evidence, but also is conferring the prestige and
credibility of judicial office on a litigant’s position.”). Therefore, judicial testimony is
presumptively highly prejudicial.
Moreover, judicial testimony raises ethical concerns. Relevant here is the Indiana

Code of Judicial Conduct (“Judicial Code”), which governs Judge Christofeno’s conduct
in his role as a Circuit Judge. Three rules in particular raise concerns for Judge
Christofeno’s potential testimony in this action—Rule 1.3, 2.10(A), and 3.3.
RULE 1.3: Avoiding Abuse of the Prestige of Judicial Office
A judge shall not abuse the prestige of judicial office to advance the
personal or economic interests of the judge or others, or allow others to do
so.
. . . .
RULE 2.10: Judicial Statements on Pending and Impending Cases
(A) A judge shall not make any public statement that might reasonably be
expected to affect the outcome or impair the fairness of a matter pending
or impending in any court, or many any nonpublic statement that might
substantially interfere with a fair trial or hearing.
. . . .
RULE 3.3: Testifying as a Character Witness
A judge shall not testify as a character witness in a judicial, administrative,
or other adjudicatory proceeding, except when duly summoned.

Ind. Code Jud. Conduct (2020), available at https://www.in.gov/courts/rules/ (last
visited Feb. 3, 2022).
As Cooper notes, Rule 1.3 and 2.10(A) do not expressly prohibit judges from
testifying in litigation and Rule 3.3 only prohibits testimony as a character witness when
the judge has not been duly summoned. Thus, Cooper concludes—after reviewing the
plain language of the rules and the accompanying comments—that Judge Christofeno
would not be violating these rules if he were to testify consistent with the subpoena.
What Cooper fails to consider, however, is the ethical principles underlying all the rules
included in the Judicial Code.
The Code’s preamble starts by stating that “[i]nherent in all the Rules contained
in this Code are the precepts that judges, individually and collectively, must respect and

honor the judicial office as a public trust and strive to maintain and enhance confidence
in the legal system.” Id., Preamble [1]. The preamble further explains that “[j]udges
should maintain the dignity of judicial office at all times, and avoid both impropriety
and the appearance of impropriety in their professional and personal lives [aspiring] at
all times to conduct that ensures the greatest possible public confidence in their

independence, impartiality, integrity, and competence.” Id. at [2]. The preamble
concludes by advising judges that the Code “is not intended as an exhaustive guide”
and that they are to be “governed in their judicial and personal conduct by general
ethical standards as well as by the Code.” Id. at [3]. More practically, the Code explains
that the comments accompanying the rules themselves “neither add to nor subtract
from the binding obligations set forth in the Rules.” Id., Scope [3]. Describing the Code

as aspirational, it also encourages judges to “strive to exceed the standards of conduct
established by the Rules, holding themselves to the highest ethical standards and . . .
thereby enhancing the dignity of the judicial office.” Id. at [4].
Thus, this Court must assume that, based on the admonitions of the Judicial
Code, Judge Christofeno has properly considered ethical rules that could implicate his
testimony and the broad underlying principles envisioned in the Canons of the Judicial

Code.11 First, Cooper expressly intends to use the Judge’s testimony to further his
personal interest in prevailing in this case. Arguably, Cooper is not interested in the
testimony of Christofeno in his capacity as a judge, but in his capacity as a former
deputy prosecuting attorney. This is a distinction without a difference now that
Christofeno has become a judge. Christofeno’s judicial office is attached to him in every

capacity—even those disconnected from his professional life. The risk that a fact finder
would be more influenced by Judge Christofeno’s testimony given his office than other
evidence is real and cannot be mitigated completely no matter the warnings afforded.
Thus, testifying as Cooper requests puts Judge Christofeno in conflict with Rule 1.3

11 Most applicable here are Canons 1–3.
Canon 1: A Judge Shall Uphold and Promote the Independence, Integrity, and
Impartiality of the Judiciary, and Shall Avoid Impropriety and the Appearance of
Impropriety.
Canon 2: A Judge Shall Perform the Duties of Judicial Office Impartially, Competently,
and Diligently.
Canon 3: A Judge Shall Conduct the Judge’s Personal and Extrajudicial Activities to
Minimize the Risk of Conflict with the Obligations of Judicial Office.
Ind. Code of Jud. Conduct (2020).
because his judicial office would be used, even unintentionally, to advance one side’s
interest in this case.

Second, and similarly, Cooper intends to use Judge Christofeno’s testimony to
prove or create the inference that, Defendant Officers did not deliver exculpatory
evidence to him as he was prosecuting Cooper’s criminal case—a key point for Cooper
in making his claims in this case. To use that arguably valuable evidence, Cooper would
have to present Judge Christofeno’s testimony to the Court either in support of a
motion for summary judgment or as evidence at a trial. Accordingly, Cooper’s attempt

to distinguish deposition testimony from the “public statement” prohibition in Rule
2.10(A) is unavailing. After all, judicial proceedings are public by their very nature and
judges, including the undersigned, serve as the primary protector of the public’s
interest in the judicial process. Citizens First Nat’l Bank of Princeton v. Cincinnati Ins. Co.,
178 F.3d 943, 945 (7th Cir. 1999). Moreover, Cooper’s case has been and will likely

remain in the public eye through the media. Thus, while Judge Christofeno’s deposition
may not be open to the public at the time it is taken, his testimony is likely to become
public later in this litigation thereby implicating Rule 2.10(A)’s directive against public
statements related to pending cases in any court.
Lastly, Judge Christofeno argues that Rule 3.3’s caveat against character

testimony could be implicated if he is deposed. While there is no doubt that Judge
Christofeno’s testimony would be draped in the authority of his office and could
therefore be perceived as a statement on either Cooper’s character or the character of
the Defendant Officers, the risk of discipline for violating Rule 3.3 appears less than for
the other two rules discussed. Cooper asserts that he would not be calling Judge
Christofeno as a character witness and that Judge Christofeno has been duly summoned

making a Rule 3.3 violation impossible. Nevertheless, Canon 3 of the Judicial Code,
which undergirds Rule 3.3, is at play.
Canon 3 states that “a Judge shall conduct the Judge’s personal and extrajudicial
activities to minimize the risk of conflict with the obligations of judicial office.” Judge
Christofeno’s testimony would constitute either personal or extrajudicial activity
because it is not related to his duties and obligations as Elkhart County Circuit Judge.

And Cooper’s contrary perspective notwithstanding, Judge Christofeno’s testimony
here carries a risk of conflict with his obligations as Elkhart County Circuit Judge.
Human nature suggests that attorneys involved in questioning Judge Christofeno
would be cognizant of his position and their practice in his court on other matters.
Moreover, knowledge of Judge Christofeno’s testimony in this case could affect how

attorneys perform before him in other cases. Thus, there is a risk of a chilling effect on
attorney conduct now and later. Additionally, future litigants before Judge Christofeno,
pursuing claims similar to Cooper’s here, could reasonably question Judge
Christofeno’s neutrality thereby complicating the flow of his court’s work. Even if, as
argued by Plaintiff, these risks of conflict with Judge Christofeno’s obligations to his

court duties are remote, they create a substantial appearance of impropriety at the very
least.
In sum, Judge Christofeno risks running afoul of the Indiana Code of Judicial
Conduct by testifying in this case. Whether he would necessarily face discipline for
testifying is unknown and irrelevant. His testimony creates risks to his own
professional reputation, to his judicial office, to his judicial colleagues, to attorney

practicing before him, and to future litigants in his court that clash with the ethical
principles and aspirational precepts espoused in the Judicial Code. That risk, arising
from Cooper’s subpoena, poses an undue burden on Judge Christofeno.
Moreover, Judge Christofeno need not endure that burden when the information
Cooper seeks from him can be obtained through other means. Judge Christofeno’s
testimony is not the only evidence available to Cooper to either prove or establish an

inference as to whether the Defendant Officers disclosed exculpatory evidence to him
during the prosecution of Cooper’s case. All that Judge Christofeno could testify to is
whether exculpatory evidence was in his prosecutor’s file—not who did or did not
disclose it to him. That same circumstantial evidence is already in the investigation file,
which Cooper acknowledges he already possesses. Thus, Judge Christofeno’s testimony

would only serve as unnecessary, cumulative evidence.12
Additionally, Christofeno’s communications and interactions with the Defendant
Officers on Cooper’s case as well as his practices related to the maintenance of the
prosecutor’s file may be inaccessible to Cooper if they qualify as privileged. Specifically,
Judge Christofeno argues that these broad categories of information appear to fall

under the law enforcement investigatory privilege and the work product doctrine.

12 In this context, the Court cannot help but wonder if Cooper is hoping that Judge Christofeno’s
testimony would be more valuable to a fact-finder in reaching the inference he is promoting given his
status as a judge.
The investigatory privilege is not absolute but exists “to prevent disclosure of
law enforcement techniques and procedures, to preserve confidentiality of sources, to

protect witnesses and law enforcement personnel, to safeguard the privacy of
individuals involved in an investigation, and otherwise prevent interference in an
investigation.” Szany v. City of Hammond, No. 2:17-CV-74-PPS-JPK, 2019 WL 3812492, at
*1 (N.D. Ind. Aug. 14, 2019) (internal quotations and citations omitted). However, the
privilege “can be overridden in appropriate cases by the need for the privileged
materials.” Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d 1122, 1125 (7th Cir. 1997). In

determining whether to allow disclosure of investigative materials, a court must
balance “the need of the litigant who is seeking privileged investigative materials . . .
against the harm to the government if the privilege is lifted . . . .” Id. There is a strong
presumption against lifting the privilege. Id.
In assessing whether the investigatory privilege applies, courts weigh ten factors.

Szany, 2019 WL 3812492, at *1–*2 (quoting Davis v. Carmel Clay Sch., 282 F.R.D. 201, 206
(S.D. Ind. 2012); accord Anderson, 220 F.R.D. at 563-64; Jones v. City of Indianapolis, 216
F.R.D. 440, 444 (S.D. Ind. 2003)). The problem here is that Cooper has not presented
enough detail as to what information he seeks from Christofeno on these topics to apply
the factors and balance the relevant interests. Thus, the Court cannot discern with

certainty whether the investigatory privilege would apply.
Similarly, the limited record before the Court precludes any final conclusion as to
the applicability of the work product doctrine to the communications and interactions
with the Defendant Officers and to practices related to maintaining prosecutor’s files.
The analysis of the Polansky subpoena above, however, suggests that Christofeno’s
testimony could be protectable work product because he would likely have to rely on

old notes to answer Cooper’s questions about the investigation. See Upjohn, 449 U.S. at
399 (citing Hickman, 329 U.S. at 513, 516–17).
Given the cumulative nature and potentially privileged nature of the information
Cooper seeks from Judge Christofeno, its proportionality to the needs of this case is
uncertain at best. These proportionality concerns only increase the burden testifying
would put on Judge Christofeno as a non-party without sufficient showing from

Cooper to justify imposing that burden. Cooper’s notice of deposition to Judge
Christofeno was undeniably timely as it was served within the confines of the Rule
16(b) Scheduling Order. [See DE 28, 195]. Yet timeliness alone is not enough to
overcome Judge Christofeno’s instant Motion.
Accordingly, Judge Christofeno’s Motion to Quash Non-Party Subpoena and for

Entry of Protective Order is GRANTED. [DE 232]. The subpoena dated March 3, 2021
[DE 232-1] is QUASHED. Further, Judge Christofeno is excused from testifying in this
action at all.
E. Cooper’s Motion to Set Deadlines Through Trial [DE 246]
On August 11, 2021, with the above discovery-related motions all still

pending, Plaintiff filed his Motion to Set Deadlines Through Trial. In response, the
City agreed that new case management deadlines were needed but disagreed with
the timing proposed by Cooper for those deadlines. With the scope of remaining fact
discovery clarified through this Order, the Court GRANTS IN PART Cooper’s
Motion. [DE 246]. To propel this aging case forward, the remaining discovery and
dispositive motion periods are compressed from the parties’ proposed deadlines. All

trial-related deadlines will be set by the presiding judge following a status conference
to be set by separate order.
The fact discovery period remains open until March 31, 2022, for the limited
purposes of Polansky’s written discovery responses to the City and Cooper’s RFAs to

Defendants as outlined above.13 Rule 26(a)(2) expert disclosures are due from Cooper
by April 14, 2022; and from Defendants by May 13, 2022. Rebuttal expert disclosures
must be served by June 13, 2022, with the completion of all discovery by June 27, 2022.
Dispositive motions must be filed by July 11, 2022, with responses due August 15, 2022,
and replies due August 29, 2022.

Consistent with the mandate of Fed. R. Civ. P. 1 to secure a just, speedy, and
inexpensive resolution of this action, the parties should anticipate that additional
requests to modify the Rule 16(b) deadlines will not be considered favorably absent a
showing of circumstances beyond the control of the parties and their counsel. This
case must be prioritized by the parties and their counsel to reach as timely a
resolution of all claims as possible.

13 The Court ACKNOWLEDGES that the parties had some dispute over taking the depositions of
Natasha Felton, Pamela Westlake, and Richard Moore. The City’s represented in its response brief filed
on August 25, 2021, that “[t]he parties agreed that the plaintiff will file a motion on any depositions he
seeks to conduct and the defendants will respond accordingly.” [DE 247 at 2]. To date, no such motion
has been filed. Accordingly, the Court assumes that the depositions are no longer at issue.
III. CONCLUSION
For the reasons discussed above, the Court now:
(1) GRANTS the City’s Motion to Compel [DE 197] and ORDERS William
Polansky to serve the City with written responses to the two questions outlined
above on or before March 18, 2022;

(2) GRANTS the City’s Motion to Seal [DE 200] and DIRECTS the Clerk to
maintain the City’s Exhibits 19 and 20 [DE 201, 201-1, and 201-2] under seal;

(3) GRANTS IN PART Cooper’s Motion for Additional Requests to Admit [DE
206] and authorizes Cooper to serve RFAs on Defendants as outlined above no
later than February 18, 2022, with answers due from served Defendants by
March 18, 2022;

(4) DENIES the City’s Motion to Strike [DE 208];

(5) GRANTS non-party Judge Christofeno’s Motion to Quash Subpoena and for
Entry of Protective Order [DE 232] as outlined above; and

(6) GRANTS IN PART the City’s Motion to Set Deadlines Through Trial [DE
246] and AMENDS the Court’s Rule 16(b) Scheduling Order [DE 28, 195] as
follows:

• Fact discovery (as limited above)—March 31, 2022
• Plaintiff’s expert disclosures—April 14, 2022
• Defendants’ expert disclosures—May 13, 2022
• Rebuttal expert disclosures—June 13, 2022
• All expert discovery—June 27, 2022
• Dispositive motion deadline—July 11, 2022
• Responses to dispositive motions—August 15, 2022
• Replies regarding dispositive motions—September 2, 2022
SO ORDERED this 10th day of February 2022.

s/Michael G. Gotsch, Sr.
Michael G. Gotsch, Sr.
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10162192. Public record. Not legal advice.