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Cooper v. Rezutko

United States District Court, N.D. Indiana, South Bend Division

February 26, 2019

KEITH COOPER, Plaintiff,
STEVE REZUTKO, et al., Defendants.


          Michael G. Gotsch, Sr. United States Magistrate Judge

         Pending and ripe before the Court are three motions regarding subpoenas sent to non-parties by parties in this case.

         Defendant, 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].

         Plaintiff 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].

         The Court addresses each motion in turn.

         I. General Background

         In 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.

         By 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.

         Plaintiff's 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.

         Plaintiff 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[1], 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 Officers.[2]

         On 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.


         Motions to Quash

         A. Legal Standard

         Federal 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. 22, 2013).

         Rule 45 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).

         “On 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).

         B. The Tribune's Motion to Strike

          Before 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.

         Through 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.

         As seen 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].

         C. The Tribune's Motion to Quash

         1. Relevant Background

          The 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.

         While 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.

         The 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”)[3] 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].

         Notably, 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 ...

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