United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
Michael G. Gotsch, Sr. United States Magistrate Judge
and ripe before the Court are three motions regarding
subpoenas sent to non-parties by parties in this case.
City of Elkhart, served a subpoena on South Bend Tribune
Corporation (“the Tribune”), a newspaper that has
published articles about this action and related underlying
facts. On July 26, 2018, the Tribune filed its motion to
quash the subpoena. [DE 39]. On August 16, 2018, the
Tribune filed a related motion to strike portions of an
affidavit submitted by the City as part of its response to
the Tribune's motion to quash. [DE 44].
served subpoenas on Elkhart County Prosecutor Vicki E. Becker
(“Becker”), whose office prosecuted Plaintiff
leading to a criminal conviction relevant to this civil
action, and the Michigan Department of Corrections
(“MDOC”), where an individual allegedly involved
in the underlying crime is incarcerated. On September 13,
2018, Becker filed a motion to quash the subpoena issued to
her office. [DE 56]. On January 21, 2019, Plaintiff
filed a motion to compel MDOC to produce the information
requested in its subpoena. [DE 74].
Court addresses each motion in turn.
1996, Plaintiff was arrested and convicted for armed robbery
in Elkhart County, Indiana after being identified by
witnesses as the shooter at the crime scene. He was sentenced
to 40 years in prison.
2006, however, it was revealed that DNA evidence had been
recovered from a baseball cap left at the scene-presumably
the hat worn by the shooter. The DNA on the cap connected it
to an individual named Johlanis Ervin, not Plaintiff. With
this evidence, Plaintiff filed a petition for post-conviction
relief before the Indiana Court of Appeals as well as a
motion to modify his sentence. When the court granted his
motion to modify his sentence in April 2006, Plaintiff was
released from prison and withdrew his petition for
post-conviction relief. Plaintiff then petitioned the
Governor of Indiana for a pardon in 2011. After hearing
testimony in 2014 that witnesses to the armed robbery had
falsely identified Plaintiff as the shooter, the Indiana
Pardon and Parole Board recommended that the Governor pardon
Plaintiff. On February 9, 2017, Indiana Governor Eric J.
Holcomb pardoned Plaintiff.
co-defendant for the 1996 armed robbery, Christopher Parish,
followed a somewhat different path to justice. In 2005,
Parish was released from prison when the Indiana Court of
Appeals overturned his criminal conviction and ordered a new
trial. Parish v. City of Elkhart, Indiana, 702 F.3d
997, 998 (7th Cir. 2012). Parish then refused a plea offer
after which the Elkhart prosecutor dismissed the charges
against him. Based on events leading to and arising from his
criminal conviction, Parish filed a Section 1983 civil rights
action in this Court. A jury in 2010 concluded that Parish
was framed by the Elkhart police officers who investigated
the 1996 robbery and that the violations of Parish's
constitutional rights resulted from the City of Elkhart's
failure to train, discipline, and supervise.
filed his parallel Section 1983 civil rights complaint in
this Court on November 6, 2017, after he was pardoned.
Through his complaint, Plaintiff alleges that Defendants
Steven Rezutko, Steven Ambrose, Edward Windbigler, and
Tom Cutler (“Defendant Officers”)-the officers of
the Elkhart Police Department involved in the investigation
and prosecution of both Plaintiff and Parish for the 1996
armed robbery- improperly and intentionally coerced witnesses
to fabricate incriminating evidence against him and concealed
exculpatory evidence from him and the Elkhart Prosecutor who
ultimately tried him. Plaintiff further contends that these
officers coordinated their efforts to convict him of the
armed robbery. Plaintiff's complaint raises
constitutional claims of (1) denial of due process, (2)
malicious prosecution, (3) Fourth and Fourteenth Amendment
violations for fabricating false evidence, (4) supervisory
liability for certain defendants, (5) failure to intervene,
and (6) conspiracy to deprive him of his constitutional
rights against the Defendant Officers. Plaintiff's
complaint also raises a Monell claim against the
City of Elkhart for a practice and policy that led to the
violations of his constitutional rights by the Defendant
February 20, 2018, this Court entered its Rule 16(b)
Scheduling Order establishing case management deadlines
including a deadline of May 1, 2019, for the close of
discovery to be followed by expert discovery. [DE 28 at
1-2]. As part of its discovery efforts, the City of
Elkhart served a subpoena on the Tribune on June 27, 2018.
[DE 39-33]. Plaintiff also sought information from
non-parties when he served Becker and MDOC a subpoena on
August 17, 2018 [DE 56 at 18-24], and November 19,
2018 [DE 74-1] respectively. Those subpoenas are now
the focus of the Court's attention.
Rule of Civil Procedure 45(a) authorizes parties to issue
subpoenas to non-parties as part of their discovery efforts.
“The scope of material that is obtainable through a
[Rule 45] 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). Accordingly, Rule 45
implicitly requires that a subpoena seek relevant
information. Lee v. City of Elkhart, No.
2:12-CV-25-TLS-APR, 2013 WL 1754977, at *2 (N.D. Ind. Apr.
also provides a mechanism to protect persons subject to
subpoenas. Specifically, Rule 45(d)(1) directs “the
party or attorney responsible for issuing and serving a
subpoena [to] take reasonable steps to avoid imposing undue
burden or expense on a person subject to the subpoena.”
The court is then required to enforce this duty on the
serving party or attorney. Fed.R.Civ.P. 45(d)(1). To invoke
this enforcement clause, a person subject to a subpoena may
file a motion to quash the subpoena. Fed.R.Civ.P. 45(d)(3).
timely motion, the court for the district where compliance is
required must quash or modify a subpoena that . . . requires
disclosure of privileged or other protected matter, if no
exception or waiver applies; 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 45(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).
The Tribune's Motion to Strike
reaching the Tribune's motion to quash, the Court
addresses its Motion to Strike portions of the Declaration of
Defendant Edward A. Windbigler, dated August 9, 2018, filed
on August 16, 2018. The City filed the Declaration in support
of its arguments in opposition to the Tribune's motion to
quash the subpoena the City served on it. The motion to
strike became ripe on September 4, 2018, after full briefing.
its motion, the Tribune asks the Court to strike paragraphs 6
and 7 of Windbigler's Declaration. Paragraphs 6 and 7
recount conversations Windbigler had with a non-party named
Larry Towns in November 2017. The Tribune contends these
paragraphs should be stricken because Towns's statements
constitute inadmissible hearsay. The City does not dispute
that Windbigler's representation of Towns's
statements constitutes hearsay but presents arguments
distinguishing paragraphs 6 and 7 and suggesting that the
Court may and should consider the Windbigler Declaration in
its entirety when deciding the Tribune's motion to quash.
in the analysis below, the Court only used used
Windbigler's paragraphs 6 and 7 to provide context for
the Tribune's motion to quash. The Court resolved the
substantive issues related to the Tribune's motion to
quash without relying upon the facts alleged in those
paragraphs to prove the truth of the matters they assert.
Therefore, there is no need to strike paragraphs 6 and 7 of
Windbigler's Declaration or to decide now whether they
constitute inadmissible hearsay. Accordingly, the Court
DENIES the Tribune's motion to strike as
irrelevant. [DE 44].
The Tribune's Motion to Quash
South Bend Tribune is a daily newspaper serving the City of
South Bend and surrounding communities, including the City of
Elkhart, Indiana. The Tribune has published several news
articles and opinion pieces since 1997 about Plaintiff and
his criminal conviction, his pardon, and the instant lawsuit
against the Defendant Officers and the City of Elkhart.
working on Plaintiff's story over the years, Tribune
reporters have gathered information from publicly-available
court documents, materials obtained through Public Records
Act requests, and individual interviews with Plaintiff, his
attorney Elliot Slosar, and others. Some individuals,
including Defendants Rezutko and Ambrose and the City of
Elkhart's attorney declined to be interviewed.
Tribune's most recent investigation and reporting efforts
regarding Plaintiff's post-conviction proceedings began
in July 2016. The Tribune reporter then working on
Plaintiff's story communicated with Plaintiff's
attorney as early as February 2017. In April 2017, the
reporter served his initial Public Records Act requests
related to this matter on the City. In October 2017, the
Tribune's reporters and editors became aware of the
ProPublica Local Reporting Network (“ProPublica
LRN”) and began discussing whether to apply for
one of its grants for local reporting related to
Plaintiff's case. Mr. Slosar was then interviewed by the
Tribune reporter and an editor on October 24, 2017, at which
time the reporter informed him that the Tribune was applying
for the ProPublica LRN grant. In early December 2017, the
Tribune learned that ProPublica had awarded it a grant. The
Tribune published two articles related to Plaintiff's
case in the summer of 2018 based upon co-reporting with
ProPublica that was identified in the articles' bylines.
[SeeDE 42-10, DE 42-11].
not all of the information reporters gathered regarding
Plaintiff's case was incorporated into published Tribune
articles over the years. Moreover, the Tribune maintained the
confidentiality of the unpublished information ...