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Goudy v. Cummings

United States District Court, S.D. Indiana, Indianapolis Division

March 22, 2017

WALTER GOUDY, Plaintiff,
RODNEY J. CUMMINGS in his individual capacities as an Anderson police detective and as a Madison County prosecutor, STEVE NAPIER in his individual capacity as an Anderson police detective, CITY OF ANDERSON an Indiana municipality, THE STATE OF INDIANA for indemnification purposes only, Defendants.



         This cause is before the Court on Plaintiff's Third Motion for Sanctions [Docket No. 161], originally filed on June 1, 2015 and reinstated on December 12, 2016, as well as Plaintiff's Supplemental Motion for Sanctions [Docket No. 227], filed on July 25, 2016. Plaintiff Walter Goudy filed his lawsuit alleging violations of his rights under Brady v. Maryland by Defendants Steve Napier (in his individual capacity as a police detective) and Rodney Cummings (in his individual capacities as a police detective and prosecutor). He alleges that Defendants withheld exculpatory documents from him during a criminal prosecution culminating in his serving sixteen years of wrongful incarceration for murder. We assume familiarity with the facts alleged in this civil action, given our September 30, 2013 Entry granting in part and denying in part Defendants' motion for judgment on the pleadings. We reiterate those facts here only to the extent relevant and necessary to the present issues before us for a ruling. Plaintiff's motion seeks the imposition of monetary and other sanctions based on the admitted failure of Defendants' attorneys to timely disclose their discovery privilege log as well as an addendum to that log and is further based on various misrepresentations that Plaintiff alleges were made by defense counsel to the Court regarding the circumstances surrounding the creation of the privilege log and Defendants' belated discovery and revelations that had not been previously provided to Plaintiff. For the reasons detailed below, we GRANT in PART Plaintiff's Third Motion for Sanctions and Supplemental Motion for Sanctions.

         Factual Background

         The Underlying Litigation

         This case arises from a shooting that occurred on October 3, 1993, in Anderson, Indiana. Two men fired multiple shots into a car occupied by Marvin McCloud, Damon Nunn, and Jill Barclay, killing Mr. McCloud and seriously injuring Mr. Nunn. Ms. Barclay, who was a passenger in the back seat of Mr. McCloud's car at the time, was not injured and became an eye-witness to the crime. On December 21, 1995, Plaintiff Walter Goudy was convicted by jury verdict of the murder of Mr. McCloud and attempted murder of Mr. Nunn. Another individual, Ellis Thomas (a.k.a., Romeo Lee), was subsequently convicted for his role as the second shooter. A third individual, Kaidi Harvell, pled guilty to Assisting a Criminal relating to his involvement in the crime.

         After a lengthy appeal process, the Seventh Circuit overturned Mr. Goudy's conviction in 2010, based on a finding that three supplemental police reports had not been turned over to Mr. Goudy's counsel as part of pretrial discovery. Those reports included information regarding Ms. Barclay's and other witnesses' identification of Mr. Harvell as one of the shooters. Mr. Goudy initiated this action following his release from prison against Defendants Steve Napier (in his capacity as detective) and Rodney J. Cummings (in his joint capacity as a detective as well as prosecutor), alleging, inter alia, that Detectives Napier and Cummings knew of the supplemental police reports, but wrongfully withheld them from the deputy prosecutors assigned to the case, in violation of Brady v. Maryland, and that following Cummings's election as Madison County prosecutor, he continued to withhold the police reports.

         Mr. Goudy filed his complaint in this action on February 6, 2012. On March 21, 2012, Attorney Anthony Overholt entered an appearance on behalf of Rodney Cummings to defend him on the claims brought against him as an Anderson police detective, and on behalf of Steve Napier and the City of Anderson. On April 26, 2012, Indiana Assistant Attorney General Betsy Isenberg filed her appearance on behalf of Rodney Cummings in his capacity as a Madison County Prosecutor and the State of Indiana.[1] Mr. Overholt and Ms. Isenberg have represented Defendants respectively in these capacities throughout the time period relevant to Plaintiff's sanctions motions.

         Discovery of Defense Counsel's Failure to Produce Privilege Log

         This litigation has proceeded along a protracted and often tortuous path following Defendants' two-year delay in disclosing a privilege log to Plaintiff during discovery. This lawsuit was filed in 2012 and the disclosure of the privilege log did not occur until February 2015. By then, discovery had long been closed, and Defendants had filed summary judgment motions, to which Plaintiff had responded; the then-scheduled trial date was only a few months away. The existence of Defendants' privilege log and the fact that it had not been provided to Plaintiff came to light only after Defendants sought to conduct a second deposition of Paula Maras-Roberts, who was the lead prosecutor in Mr. Goudy's criminal case, but not a party to this case.

         Ms. Maras-Roberts was first deposed on September 4, 2014. At that deposition, she testified that she could not recall whether she had been in possession of the allegedly exculpatory materials that are the subject of this litigation, but testified that if she had received them, she would have disclosed them to Plaintiff. Approximately five months following her first deposition, on February 3, 2015, Defendants issued a subpoena to Ms. Maras-Roberts to appear for a second deposition. On February 13, 2015, Ms. Maras-Roberts by counsel filed a motion to quash that subpoena. In response to the motion to quash, Defendants represented to the Court that their request for a second deposition was based on Ms. Isenberg's having “located a few pages of handwritten notes” after Ms. Maras-Roberts's first deposition that Defendants believed had been authored by Ms. Maras-Roberts. Dkt. 125 at 2. In another submission to the Court, Defendants characterized these notes as “a few needles in a haystack.” Dkt. 147 at 4. According to Defendants, these notes appeared to support the defense theory that they had provided all Brady material to the trial prosecutors, and therefore, Defendants (either in their capacity as police detectives or Mr. Cummings in his capacity as elected prosecutor) had not in any way improperly withheld the exculpatory documents from Plaintiff's counsel at his criminal trial.

         After the notes were referenced in Defendants' briefing on the motion to quash, Plaintiff's counsel emailed defense counsel on February 18, 2015 to request a copy of the referenced pages. Believing that the notes had previously been produced, Mr. Overholt referred Plaintiff's counsel to Defendant's original production of documents made in 2013. Given the large number of pages that had been part of that 2013 production, Plaintiff's counsel reasonably requested that defense counsel specifically identify the pages of notes by reference to their Bates Stamp Number and/or provide them copies in an email. Mr. Overholt responded to this request by attaching copies of the pertinent documents, stating: “As noted below, some of the documents were identified in our privilege log. The other was produced (sic).” Dkt. 141-4 at 2.

         Being thus alerted to the existence of a privilege log, Plaintiff's counsel requested in a letter dated March 27, 2015, that defense counsel tender the privilege log referenced in Mr. Overholt's February 18, 2015 email and also asked defense counsel to indicate when precisely the log had been previously produced, along with proof of service. That same day, Mr. Overholt produced via email the privilege log to Plaintiff's counsel that he indicated had been prepared by his paralegal. In fact, the privilege log had never previously been produced to Plaintiff.

         After it became apparent that the privilege log had not been previously produced to Plaintiff, Mr. Overholt followed up the production of the privilege log with a letter to Plaintiff's counsel, dated April 2, 2015, recounting the following timeline of events by way of explanation for his failure to recall that he had not previously produced the privilege log and Defendants' written discovery responses to Plaintiff:

September 28, 2012: Plaintiff served a request for production;
October 23, 2012: Defendant requested an extension of time to respond to the discovery requests, including request for production of documents;
October 24, 2012: Plaintiff agreed to extension of time;
November 28, 2012: Defendants filed motion for extension of time to respond to request for production of documents and interrogatories;
November 30, 2012: Court granted motion for extension of time;
January 4, 2013: Defendants send a proposed protective order to Plaintiff's counsel and parties agreed to another week extension on providing responses to discovery requests;
March 22, 2013: Plaintiff's counsel agreed to the terms of the proposed protective order;
March 22, 2013: Defendants' counsel filed protective order;
April 1, 2013: Court approve[d] and sign[ed] a protective order regarding the document production;
March 23, 2013: Defendants produce[d] documents in response to the request for production and note[d] that “[w]ritten responses for the Request for Production of Documents will be forthcoming.”
April 18, 2013: Court order[ed] a stay of discovery (Dkt. 72);
September 30, 2013: Court rule[d] on motion to dismiss (Dkt. 75).

         Dkt. No. 142-4. The April 2 letter from Mr. Overholt further provided as follows:

Defendants did not prepare the written discovery responses referred to in the March 23rd letter before the discovery stay was issued. After the stay was effectively lifted months later, Plaintiff did not ask for the written responses nor did undersigned counsel recall that those written responses had not been produced. Because Defendants did not prepare the written responses to discovery and because Plaintiff never sought Defendants' compliance with those requests through Fed.R.Civ.P. 37, Defendants did not produce the privilege log.


         After it became clear that the privilege log had not previously been provided by Defendants to Plaintiff, the attorneys conferred by telephone. Plaintiff's counsel requested the tender of the documents referenced on the privilege log, but Mr. Overholt declined to produce them, indicating that he was standing on the privilege assertion.

         The Court was first made aware of defense counsel's belated disclosure of the privilege log on April 14, 2015, when Plaintiff filed his first motion for sanctions seeking an attorneys' eyes only review of the documents identified on the privilege log as well as a motion to bar Defendants from using or otherwise referring to the handwritten notes purportedly authored by Ms. Maras-Roberts in any subsequent motions, hearings, or at trial. In their responses to Plaintiff's motion for sanctions, both Ms. Isenberg and Mr. Overholt submitted affidavits stating that they did not intentionally withhold their written responses and privilege log from Plaintiff and that the only documents withheld in this case were those that they “to the best of [their] knowledge, believed to be privileged.” Dkt. 147-1 at 3; Dkt. 147-2 at 2-3.

         April 27, 2015 Hearing on Plaintiff's Original Motion for Sanctions and Motion to Bar Documents

         The Court heard oral argument on Plaintiff's motions for sanctions and to bar use of documents on April 27, 2015. When asked by the Court to explain how and when the privilege log was created, Mr. Overholt explained that the log had been prepared before the discovery stay was issued and that once the discovery stay was lifted, he “forgot” that the privilege log had never been sent to Plaintiff. He stated that neither he nor Ms. Isenberg realized that the privilege log had not been produced until the issue arose in connection with Ms. Maras-Roberts's motion to quash. Mr. Overholt further acknowledged that he and Ms. Isenberg had “had a responsibility to produce the information.” Dkt. 158 at 29-30.

         Upon review of Defendants' privilege log, the Court determined that even apart from the issues related to its belated disclosure, the privilege log tendered by Defendants was “substantively insufficient” in that it was so sparse and incomplete that it was impossible to determine what privilege was being asserted as to each document, much less whether the privilege was properly invoked. Id. at 34. Given the delay along with the obvious deficiencies in the privilege log, the Court found that Defendants had waived any discovery privileges that they may have otherwise properly asserted over the documents and ordered Defendants to turn over to Plaintiff all documents identified on the log. Id. at 38-39. At the hearing, the Court also ruled that Ms. Maras-Roberts could be questioned about the handwritten notes and whether she authored them in an attempt to authenticate the notes, but warned Defendants that if the documents could not be authenticated, they could not be used at trial. The Court reserved a decision as to whether any monetary sanctions for defense counsel's dilatory conduct should be imposed. Id. at 39.

         The Documents Identified on the Privilege Log

         Following the April 27 hearing, Defendants complied with the Court's order and turned over all documents identified on their privilege log - a total of 947 pages - for Plaintiff's review. Upon review of those documents, Plaintiff discovered that, in addition to the handwritten notes referenced above which Defendants believed “may have” indicated that Ms. Maras-Roberts had possession of the Brady material at issue in this litigation before Plaintiff's criminal trial, there were other documents identified as privileged that, both sides agree, conclusively establish that Ms. Maras-Roberts and the other Madison County trial prosecutor, David Puckett, had in fact ...

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