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Rose v. Birch Tree Holdings, LLC

United States District Court, N.D. Indiana, Hammond Division

December 11, 2018

GAYLIN ROSE, Plaintiff,



         This matter is before the Court on a Motion to Quash Subpoena Duces Tecum [DE 22], filed by non-party Town of Flora, on September 27, 2018, a Motion to Intervene [DE 34], filed by non-party Damien Lee Davis on November 15, 2018, and Plaintiffs' Motion for Leave to File Amend Complaint and Memorandum of Law in Support [DE 35], filed by Plaintiff Gaylin Rose on November 15, 2018. The Town of Flora seeks to quash a subpoena issued by Defendants. Defendants Birch Tree Holdings, LLC and Joshua Ayres filed a response to the Town's motion on October 5, 2018, and on October 12, 2018, Plaintiff filed a reply.

         Non-party Damien Davis seeks leave to join the action as an intervenor Defendant, and Plaintiff responded to Davis's motion on November 26, 2018. Plaintiff seeks to amend the complaint to add additional parties and a product liability claim. No party has responded to Plaintiff's Motion and the time to do so has passed.

         I. Background

         Defendant Birch Tree Holdings owned an apartment in Flora, Indiana, leased by Plaintiff. On the night of November 20-21, 2016, the apartment caught fire, killing Plaintiff's four children. Plaintiff brought negligence and wrongful death claims against Defendants. Defendants issued a subpoena to the Flora Fire Department, seeking “[a]ny and all investigative materials” concerning the fire. The Town seeks to quash the subpoena, arguing that the documents sought are covered by the law enforcement investigative privilege because a criminal investigation into the matter is ongoing. Defendants argues that quashing the subpoena would result in “manifest injustice, ” because the information requested in the criminal investigation would reveal the identity of another culpable party, which would affect their potential liability under the Indiana Comparative Fault Act.

         Plaintiff seeks to amend her complaint to add an alleged corporate representative of Birch Tree Holdings as a party, add a product liability claim against Sears and Whirlpool, and join the fathers of the deceased children as defendants as required by Indiana's wrongful death statute. Before Plaintiff filed her motion, Damien Davis, one of the fathers named in Plaintiff's proposed amended complaint, filed a motion to intervene as a defendant. Plaintiff argues that the text of Indiana's wrongful death statute requires that Davis be named as a defendant by Plaintiff, rather than an intervenor defendant. Plaintiff also asks the Court to disqualify counsel for Davis, because they previously represented Plaintiff in this matter.

         II. Analysis

         A. The Town's Motion to Quash

         The Town seeks to quash the subpoena issued to it by Defendants, which seeks in relevant part “[a]ny and all investigative materials” pertaining to the fire. “The scope of material obtainable by a Rule 45 subpoena is as broad as permitted under the discovery rules.” Graham v. Casey's Gen. Stores, 206 F.R.D. 251, 253 (S.D. Ind. 2002). The scope of discovery is “any nonprivileged matter that is relevant to any party's claim or defense. . . . Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). However, the Court “must quash or modify a subpoena that .. . requires a disclosure of privileged or other protected matter.” Fed.R.Civ.P. 45(d)(3)(A). The Town asserts the law enforcement investigatory privilege, which is “a common law privilege protecting civil as well as criminal law enforcement investigatory files.” Jones v. City of Indianapolis, 216 F.R.D. 440, 443-44 (S.D. Ind. 2003). “The purpose of this privilege is to prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witness and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise to prevent interference with an investigation.” In re Dept. of Investigation of City of New York, 856 F.2d 481, 485 (2d Cir.1988). The privilege “is not absolute, [and] can be overridden in appropriate cases by the need for the privileged materials.” Dellwood Farms v. Cargill, Inc., 128 F.3d 1122, 1125 (7th Cir. 1997). Courts consider ten factors in balancing the public interest in protecting investigations against the interests of civil litigants:

(1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information;
(2) the impact upon persons who have given information of having their identities disclosed;
(3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure;
(4) whether the information sought is factual data or evaluative summary;
(5) whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to ...

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