United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON DEFENDANTS' MOTION FOR PROTECTIVE
matter is before the Court on Defendants' Motion for
Entry of Protective Order. [Dkt. 75.] For the
following reasons, the Court GRANTS Defendants' Motion.
matter involves allegations that Defendants wrongfully
investigated Plaintiff for child abuse or neglect.
[See Dkt. 1.] On September 2, 2016,
Defendants moved for a protective order to prohibit discovery
of an audio recording of a conversation (the
“recording”) involving an individual (the
“reporter”) who reported allegations of child
abuse or neglect to Defendant Indiana Department of Child
Services (DCS). [Dkt. 75.] On September 23, the
Court ordered Defendants to submit the recording for in
camera review. [Dkt. 82.] Defendants complied
with the Court's order on September 26. [Dkt.
initial matter, the Court's in camera review of
the recording reveals that it could not have been part of the
initial report that triggered the investigation at issue, as
Plaintiff suspects. [Dkt. 78 at 1 (¶ 3).] The
recording's content demonstrates that the underlying
conversation must have occurred at some point in time after
DCS's initial contact with Plaintiff.
Rule of Civil Procedure 26(c) governs discovery
protective orders and permits the Court to restrict discovery
“to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense”
upon a showing of good cause. Fed. R. Civ. P.
26(c)(1). The decision to issue a protective order is
committed to the sound discretion of the Court. Id.;
see Patterson v. Avery Dennison Corp., 281
F.3d 676, 681 (7th Cir. 2002) (“District courts have
broad discretion in matters relating to discovery.”).
“Before restricting discovery, ” the Court is
required to “consider the totality of the
circumstances, weighing the value of the material sought
against the burden of providing it, and taking into account
society's interest in furthering the truthseeking
function in the particular case before the court.”
Patterson, 281 F.3d at 681. Documents protected from
disclosure under state law are generally appropriate subjects
for a protective order. See, e.g., Davis v.
Carmel Clay Sch., 282 F.R.D. 201, 209 (S.D. Ind. 2012).
support of their Motion, Defendants argue that Ind. Code
§ 31-33-18-2 imposes a duty upon them to protect
the identity of the reporter and that disclosure would
therefore be inappropriate. Plaintiff argues that she is
entitled to a redacted, written transcript of the recording
under the statutory framework. Plaintiff argues that the
recording may reveal that the allegations were meritless.
Plaintiff also requests access to the identity of the
reporter, wishing to depose the reporter and believing that
the report may have been the result of animus. In reply,
Defendants maintain that any redaction would be insufficient
to protect the identity of the reporter due to the nature and
context of the content. Defendants further argue that any
animus is irrelevant to their duty to assess and respond to
reports of child abuse or neglect.
of child abuse and neglect are confidential under Indiana
law. Ind. Code § 31-33-18-1. Nonetheless,
section 31-33-18-2 of the Indiana Code provides a list of
certain persons who may have access to such communications.
This list includes, in relevant part:
(8) Each parent, guardian, custodian, or other person
responsible for the welfare of a child named in a report or
record and an attorney of the person described under this
subdivision, with protection for the identity of reporters
and other appropriate individuals.
(9) A court . . . upon the court's finding that access to
the records may be necessary for determination of an issue
before the court. However, . . . access is limited to in
camera inspection unless the court determines that public
disclosure of the information contained in the records is
necessary for the resolution of an issue then pending before
Ind. Code. § 31-33-18-2 (emphasis added).
“[T]he statute requires redaction of DCS reports”
before they may be provided to a parent, such as Plaintiff in
this case, so as to protect the identity of the reporter.
Doe v. Indiana Dep't of Child Servs., 53 N.E.3d 613,
616 (Ind.Ct.App. 2016). In interpreting a predecessor
statute that contained substantially the same language, the
Indiana Court of Appeals observed: “In reading the
statute as a whole, we do not believe the legislature
intended to allow discovery of the identity of a reporter
simply because suit has been filed . . . . To do so would
defeat the purpose of the statute to encourage
reporting.” Kinder v. Doe, 540 N.E.2d 111, 115
(Ind.Ct.App. 1989). Rather, disclosure under the
statute is permissible only where the court is satisfied that
a particular exception is met. See id.
Plaintiff argues that she should have access to the
reporter's identity to allow for the reporter's
deposition. Paragraph (8) of the above-quoted statute plainly
does not permit Defendants to disclose the recording directly
to Plaintiff unless they are able to protect the identity of
the reporter through redaction. Therefore, Plaintiff could
only receive access to the reporter's identifying
information pursuant to Ind. Code. §
31-33-18-2(9), which allows for public disclosure of
records “necessary for the resolution of an issue then
pending before the court.” Plaintiff cites Kinder
v. Doe in support of disclosure under paragraph (9).
Kinder, however, is distinct from this case in
several material ways, including the legal claims (which were
brought against the reporting party and not the investigating
agency) and the nature of the document the plaintiff sought
to discover (as noted above, the recording at issue in this
case could not have been part of the initial report). 540
N.E.2d at 114-15 (noting that the issue before the court was
“whether the reporter [was] immune from civil
liability” (emphasis added)). The Court's in
camera review of the recording compels the conclusion
that the recording is not “necessary for the resolution
of an issue . . . pending before the court” under
paragraph (9). Unredacted disclosure of the recording is
Plaintiff argues in the alternative that she should have
access to the recording in redacted form pursuant to
paragraph (8). After in camera review, however, the
Court concludes that redaction sufficient to protect the
identity of the reporter is impossible due to the nature of
the recording's content. Therefore, the recording cannot
be disclosed in either redacted or ...