United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
R. CHERRY UNITED STATES DISTRICT COURT.
matter is before the Court on Defendant City of Hammond's
Motion for Protective Order [DE 77], filed on October 18,
2018. Plaintiff Denise Szany filed a response on October 28,
2018, and the City of Hammond (the “City”) filed
a reply on November 5, 2018. For the reasons stated below,
the Court takes the motion under advisement and orders the
City to submit portions of the internal affairs file for
in camera review.
action, Szany alleges that she and Garcia were both employees
of the City and that Garcia physically attacked Szany on the
City's property at their place of work. Szany also
alleges that the City fosters a work environment in which
misconduct toward women is tolerated and that the City has
failed to prevent sex-based harassment and sexual harassment.
In light of these allegations, Szany brings claims under 42
U.S.C. § 1983 and Title VII of the Civil Rights Act of
1964 against the City and state law tort claims against
litigation is currently in the discovery phase. Szany seeks
discovery of the City's personnel and internal affairs
files for Garcia. The City objects and has filed the Motion
for Protective Order seeking (1) permission to redact certain
information, (2) an order that it need not produce
investigative and disciplinary information for matters other
than the event giving rise to this litigation because those
other matters are irrelevant and privileged, and (3) a
protective order foreclosing disseminating investigative and
disciplinary information to anyone outside of this
litigation. The whole motion is taken under advisement, but
this Order primarily addresses the City's request
regarding the production of investigative and disciplinary
City argues that Szany's request for Garcia's
complete personnel and internal affairs files is overly broad
and encompasses irrelevant, disproportional, and privileged
information. The scope of discovery is set forth in Federal
Rule of Civil Procedure 26(b)(1) and permits a party to seek
regarding any nonprivileged matter that is relevant to any
party's claim or defense and 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
issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit.
City argues that Szany's broad request for Garcia's
entire personnel and internal affairs files is
disproportionate to the needs of the case and requests
irrelevant information. The City asserts that discovery of
the internal affairs file should be limited to only
“complaints against Corporal Garcia related to sexual
harassment of co-workers in the workplace.” (Br. Supp.
Mot. Prot. Order, 6, ECF No. 78). The City represents that
Szany's complaint against Garcia is the only such
complaint in Garcia's files. Szany, on the other hand,
argues that “violence and interpersonal conflicts with
other officers and citizens” are relevant to her
claims. (Resp. 9, ECF No. 84).
City cites the case of Ripberger v. Corizon, Inc.,
No. 1:11-cv-01394-TWP-MJD, 2012 WL 4340716, *6 (S.D. Ind.
Sept. 20, 2012). In Ripberger, the requesting party
had agreed to limit her request to complaints of sex
discrimination, age discrimination, or retaliation against
the decision-maker who did not hire the requesting party.
Though the requesting party sought complaints against the
decision-maker's supervisor, the court ruled those
City also presents Braud v. Geo Heat Exchangers,
LLC., 314 F.R.D. 386 (M.D. La. 2016), as instructive. In
Braud, production of the alleged bad actor's
personnel file was limited to performance evaluations,
complaints, disciplinary records, and job duties. However,
the City maintains that fewer documents should be found
relevant here because of factual dissimilarities.
Braud court cites McCoo v. Denny's
Inc., 192 F.R.D. 675 (D. Kan. 2000), which held that if
the employee whose personnel file is sought “is alleged
to have engaged in the discrimination or harassment at issue
or played an important role in the employment decision or
incident that gives rise to the lawsuit, the personnel file
will be considered relevant and/or reasonably calculated to
lead to the discovery of admissible evidence, and therefore
discoverable.” McCoo v. Denny's Inc., 192
F.R.D. 675, 687 (D. Kan. 2000).
states that the City's position is not meritorious, and
she underscores that Garcia is not a comparator in this
litigation but instead the alleged bad actor. Szany cites
only an unpublished 1996 opinion from outside of this
judicial circuit in support.
City has not argued that the personnel file is
irrelevant, arguing only that portions of the internal
affairs file are irrelevant. Accordingly, and in light
of McCoo, the Court finds that the personnel file is
relevant. Regarding the internal affairs file, the Court
finds a middle path between the two extremes presented to it
to be appropriate. Documents and information in the internal
affairs file pertaining to any of the following are relevant
and proportional to the needs of the case: complaints against
or investigations of Garcia for sexual harassment, sexual
misconduct, or sexually-motivated violence toward any person;
complaints against or investigations of Garcia for violence
toward coworkers; and complaints against or investigations of
Garcia for ...