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Szany v. Garcia

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

July 3, 2019

DENISE SZANY, Plaintiff,
v.
JAIME GARCIA and CITY OF HAMMOND, Defendants.

          FINDINGS, REPORT, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE PURSUANT TO 38 U.S.C. § 636(b)(1)(B) & (C)

          JOSHUA P. KOLAR, MAGISTRATE JUDGE

         This matter is before the Court on (1) an Amended Motion by Plaintiff for Sanctions Against Defendant Hammond and Its Attorneys [DE 159], filed on February 26, 2019; (2) Defendant City of Hammond's Motion for Rule to Show Cause Why Plaintiff Should Not Be Held in Contempt [DE 163], filed on February 28, 2019; and (3) Plaintiff's Motion to Strike and for Sanctions [DE 233], filed on May 2, 2019. These motions are before the undersigned for Report and Recommendation by virtue of orders issued February 27, 2019 [DE 161], April 10, 2019 [DE 221], and May 6, 2019 [DE 242].

         This Report constitutes the undersigned's combined proposed findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). For the following reasons, the Court recommends that District Court Judge Philip P. Simon deny Szany's motions and deny in part and grant in part the City of Hammond's motion, requiring that Szany's counsel respond to a show cause order through an affidavit, as more fully explained below.

         PROCEDURAL BACKGROUND

         A. Complaint and Initiation of Discovery

         Plaintiff Denise Szany brings suit against Defendants City of Hammond (“Hammond”) and Jaime Garcia. At the times relevant to this lawsuit, Szany and Garcia were employed as police officers by Hammond. Szany alleges, in part, that Garcia grabbed her by her vest and shook and twisted her body, and, after she broke away, Garcia again grabbed her, this time by her belt, and slapped her buttocks. (Fifth Am. Compl. ¶¶ 8-10, ECF No. 118). Szany brings claims under Title VII of the Civil Rights Act of 1964 against Hammond and state law tort claims against Garcia.

         Discovery commenced in this litigation after a March 15, 2018 preliminary pretrial conference. It has not proceeded smoothly, and the Court has issued numerous orders on discovery and other matters in the past year. In many ways, the motions presently before the Court are simply a continuation of previous discovery disputes, so a recounting of those disputes-and the Court's earlier rulings-is necessary.

         B. Motion for Protective Order and Related Matters

         1. October 2018 Motion and December 2018 Court Orders

         On October 18, 2018, Hammond filed a Motion for Protective Order, in which it sought to shield Garcia's internal affairs file from discovery. Hammond argued that investigative and disciplinary documents in Garcia's internal affairs and personnel files were irrelevant and privileged except for documents involving Szany's complaint against Garcia and any other complaints by Hammond employees against Garcia for workplace sexual harassment or workplace sexual misbehavior. Hammond also requested a protective order prohibiting the disclosure of certain information produced in discovery. Szany asserted that Garcia's entire disciplinary record was relevant and discoverable, and she objected to Hammond's proposed protective order.

         On December 4, 2018, the Court issued a preliminary order finding that, in the context of Garcia's internal affairs file, “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 any matter complained of by Szany” were relevant and proportional to the needs of the case. (Op. & Order 3-4, ECF No. 96). After ruling on relevance, the Court took the Motion for Protective Order under advisement and ordered Hammond to submit, for in camera review, all relevant documents and information from Garcia's internal affairs file over which Hammond claimed privilege. After in camera review, the Court ordered that all the relevant documents submitted from Garcia's internal affairs file were protected by law enforcement privilege and, consequently, that the internal affairs file did not need to be turned over in discovery. (Order 3, ECF No. 102). The Court also issued a Protective Order on December 14, 2018, which provided that “no portion of Confidential Matter protected by this Protective Order may be shown or disclosed to any person or entity, ” subject to enumerated exceptions. (Protective Order ¶ 3, ECF No. 103).

         2. Motion Practice on the In Camera Review Order

         The December 14, 2018 Opinion and Order concerning in camera review (the “In Camera Review Order”) led to additional motion practice. On January 21, 2019, Szany filed a Motion for Order to Show Cause, in which she argued that Hammond had violated the Court's In Camera Review Order. Specifically, Szany contended that Hammond was obligated to turn over complaints against and investigations of Garcia for violence and sexual misconduct. Szany's counsel expressed shock at Hammond's refusal to turn over this information, calling this position “unprecedented” in his experience, which spans over twenty years of legal practice. (Mot. Order Show Cause ¶ 9, ECF No. 112). Szany further called Hammond's conduct “outrageous and contemptuous.” Id. at ¶ 10. Szany argued that Hammond was ordered to tender to Szany: “(1) complaints against or investigations of Garcia for sexual harassment, sexual misconduct, or sexually-motivated violence toward any person; and, (2) complaints against or investigations of Garcia for violence toward coworkers.” Id. at ¶ 13. Szany further asserted: “In fact, a close read of Dkt 102 shows that a document with the header ‘Internal Affairs File' should have been tendered to Plaintiff nearly five weeks from today's date (January 21, 2019). Nothing but utter recalcitrance describes Defendant Hammond's conduct.” Id. at ¶ 15.

         Szany was unable to support these strong accusations. The Court denied the Motion for Order to Show Cause without prejudice, noting that Szany appeared to conflate the ruling that documents were relevant with a ruling that documents must be turned over. The Court had not ordered that Hammond must turn over the relevant documents from the internal affairs folder. Instead, the Court first ruled on relevance and later ordered that the relevant documents in Garcia's internal affairs file were shielded from discovery by the law enforcement privilege. The Court ordered that Szany was permitted to refile the motion if she identified relevant documents that were not turned over but should have been turned over under the Court's previous rulings.

         Szany refiled the motion, seeking documents that correspond to written entries on the document spanning Bates numbers 364-5. Hammond responded that it had turned over all of the documents that it was required to under earlier orders. The Court held a hearing on the motion on February 1, 2019. At that hearing, the Court reaffirmed that its prior definition of relevance in the preliminary order on the motion for protective order controlled and that accusations of generalized violence committed by Garcia fell outside of this definition. Szany's counsel indicated that “my sense is that any act by Mr. Garcia [by] which he allegedly struck a person or allegedly acted in a volatile way toward a person, any person, would be something that the Plaintiff is entitled to know about.” (Feb. 1, 2019 Hr'g Tr. 5:3-6, ECF No. 244). The Court indicated that prior orders “cabin [relevant] ‘violence' to two categories, and those are sexually-motivated violence towards any person or violence towards coworkers.” Id. at 5:13-15. The Court asked Szany's counsel to identify any part of an order issued in this case where the Court adopted Szany's broader definition of relevance regarding violence. Szany's counsel admitted that “I'm not sure that I'm able to.” Id. at 5:21. The Court confirmed with counsel for Hammond that all relevant documents from the internal affairs file had been either turned over to Szany or submitted to the Court for in camera review. The Court denied the refiled motion, noting that there were procedural deficiencies but ruling on the merits.

         On February 11, 2019, Hammond filed a Second Motion for Protective Order, asking the Court to reaffirm prior definitions of relevance and proportionality, forbid deposition questions regarding matters in Garcia's internal affairs file, and prevent questioning into off-duty conduct outside of the workplace between Hammond Police Department officers other than Szany and Garcia. Szany argued that the motion was a veiled motion for reconsideration of the Court's prior orders and that the motion sought to apply internal-affairs-file rulings outside of the internal-affairs-file context.

         The filings related to the Second Motion for Protective Order were cited in news coverage of this case that was published on the day that the motion was fully briefed. See (Reply Supp., ECF No. 155); (Mot. Rule Show Cause Ex. B, ECF No. 163-2). As discussed further below, Hammond relies heavily on this news coverage in its pending motion for a Rule to Show Cause. On March 5, 2019, [1] the Court granted in part and denied in part Hammond's Second Motion for a Protective Order, finding that the Court's earlier definition of relevance and proportionality remained in effect but also finding that the definition was tied to the specific context of Garcia's internal affairs file and needed to be modified when applied to other contexts, especially those involving allegations of sexual misconduct.[2]

         3. Motion Practice on December 14, 2018 Protective Order

         The Court's Protective Order restricting the disclosure of certain documents also led to motion practice, which often failed to comply with local rules. The Court advised the parties that sealed matters may not be submitted to the Court via email, (Minute Order, ECF No. 117), that requests to seal must be in line with the case law of the Seventh Circuit Court of Appeals, the local rules, and the CM/ECF Civil and Criminal User Manual, id., and that a party cannot file material under seal without first seeking leave of Court to seal the filings, e.g., (Order, ECF No. 166); (Minute Order, ECF No. 187); (Order, ECF No. 191).

         On February 13, 2019, Hammond filed a Motion for Leave to Disclose Confidential Record. In that motion, Hammond indicated that a document, later identified as bearing Bates number 367A (“Document 367A”), was responsive to a newspaper's public records request but was also subject to the Protective Order in this case. Hammond stated that Document 367A was subject to disclosure in response to a request under Indiana's Access to Public Records Act. The Court granted the request to disclose Document 367A.

         C. Previous Motion for Sanctions

         On November 5, 2018, Szany filed a Motion for Sanctions against Hammond for the purported undue delay in turning over audio recordings in discovery. In the motion, Szany wrote, “Defendant Hammond has been served with Requests for Production (RFP) to which the Defendant responded with certain written reports; however, without the accompanying the [sic] audio.” (Mot. Sanctions ¶ 1, ECF No. 88). Szany did not provide a copy of any request for production, though she represented that she informally requested audio recordings on October 24, 2018. She acknowledged that she received an email from Hammond's counsel in which counsel wrote, “I am happy to make these recordings available to you for review.” Id. at ¶ 7. This email was sent on October 30, 2018. (Resp. Mot. Sanctions Ex. C, ECF No. 91-3). Hammond countered that Szany never served a specific request for production for the recordings at issue and that it had objected to other requests for production.

         The Court denied Szany's motion, noting that she did not file a brief to accompany her motion, and finding that Federal Rule of Civil Procedure 37, which Szany cited in her motion, did not support her request. The Court also found that Hammond's actions did not provide cause for the Court to award sanctions pursuant to its discretion. In the Court's November 29, 2018 Order denying the motion, the Court noted that “the discovery at issue was obtained and made available to requesting counsel within one week of the initial request and on the same day as the meet and confer.” (Order 1-2, ECF No. 95). Though no objections or motion to reconsider were filed as to this order, Szany has tried to relitigate the issue through her first pending Motion for Sanctions.

         D. Other Case Filings

         Szany submitted multiple filings that failed to comply with the local rules of this district. Szany filed discovery motions on August 23, 2018, August 29, 2018, [3] October 24, 2018, and March 23, 2019. The Court denied all of these motions for various deficiencies regarding the certification requirement of Northern District of Indiana Local Rule 37-1. Szany also twice filed documents manually instead of electronically; electronic filing is required by Local Rule 5-1. See (Receipt of Manual Filing, ECF No. 120); (Notice of Manual Filing, ECF No. 141). And, Szany has a pattern of not filing supporting briefs with her motions as required by Local Rule 7-1, see, e.g., (Pl.'s Mot. Strike & Sanctions, ECF No. 233); (Pl's Mot. Sanctions, ECF No. 186); (Mot. Pl. Compel Def., ECF No. 67), though a May 4, 2019 motion complies with this local rule.

         One of the discovery motions mentioned above was a motion to take excess depositions. Szany made this request three times. See (Mot. Exceed Ten Deps., ECF No. 82); (Mot. Exceed Ten Deps., ECF No. 87); (Mot. Address Deficiencies, ECF No. 153). The first request violated Local Rule 37-1. The Court deemed the second request premature and explicitly noted that Szany was required to take ten depositions prior to seeking leave to take additional depositions. Szany filed her third request prior to taking ten depositions and failed to present argument on the elements of the standard the Court applied in its earlier ruling. Moreover, Szany did not so much as mention the previously ordered requirement to take ten depositions prior to seeking such relief.

         E. Civility and Rule 1

         At a hearing on March 7, 2019, the Court discussed the need for civility between the parties. This discussion did not have a noticeable effect. When questioned by the Court at another hearing held less than three weeks later on March 26, 2019, the parties agreed that the mandate in Federal Rule of Civil Procedure 1 that the Rules “be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding” was not being followed in this case. Fed.R.Civ.P. 1. The Court ordered counsel for the parties “to file a joint status report by next Thursday [April 4, 2019] indicating that they have met, they have conferred, and they have discussed Federal Rule of Civil Procedure 1.” See (Status Conference Mins., ECF No. 199 (quotation taken from the audio recording of the status conference)). Counsel for the parties were unable to file this relatively simple joint status report and instead filed separate reports. The Court, aware of its own burden under Rule 1 and not wanting to further drive up litigation expenses, excused this failure to file a joint status report.

         F. Pending Motions

         Szany filed the first pending Motion for Sanctions on February 26, 2019. Hammond filed a response on March 12, 2019. Szany filed a reply on March 17, 2019. District Court Judge James T. Moody referred this motion to the undersigned for a Report and Recommendation in an opinion and order dated February 27, 2019. This motion seeks relief based in part on the theory that Hammond failed to turn over Document 367A, which purports to document Garcia's suspension for allegations related to the underlying facts of this case.

         Hammond filed its Motion for Rule to Show Cause on February 28, 2019. Szany filed a response on March 13, 2019. No. reply was filed. Judge Moody referred this motion to the undersigned for a Report and Recommendation in an order dated April 10, 2019. This motion seeks sanctions for statements Szany's counsel made to a reporter.

         On April 15, 2019, this case was reassigned from Judge Moody to District Court Judge Philip P. Simon.

         On May 2, 2019, Szany filed the Motion to Strike and for Sanctions. Hammond filed a response on May 16, 2019. Szany filed a reply on May 22, 2019. Judge Simon referred this motion to the undersigned for a Report and Recommendation in an order dated May 6, 2019. This motion seeks to strike a supplement filed by Hammond in this case and further argues that the supplement contains exhibits that should have been turned over in discovery.

         Szany had filed another Motion for Sanctions on March 17, 2019.[4] After the motion was fully briefed, Szany sought to withdraw the motion on June 4, 2019. The Court granted that request on June 11, 2019.

         G. Hearing

         The undersigned held a hearing concerning the first pending motion for sanctions, the now-withdrawn motion for sanctions, and the motion for rule to show cause on April 23, 2019.

         1. Statements Regarding Plaintiff's First Pending Motion for Sanctions

         At the hearing, Szany reported that Garcia said at his deposition that he received a letter notifying him of the decision to suspend him and that he did not contest that he had, in fact, been disciplined. (Apr. 23, 2019 Hr'g Tr. 10:7-16, 12:16-18, ECF No. 228). Despite this, Szany asserted that her theory of the case against Hammond was that Hammond never actually disciplined Garcia for the alleged incident giving rise to this litigation. Szany reported that there was nothing in the personnel record to show that Garcia was disciplined. When questioned on whether this supposed theory of her case was consistent with her actions in discovery, Szany asserted that she sought “every single document Hammond has to prove that a suspension occurred, ” id. at 11:10, but she did not challenge Hammond's statements that neither paystubs nor payroll records were requested, see Id. at 10:25-11:9, 23:5-6. She also stated that “there's no payroll record whatsoever in the personnel jacket.” Id. at 12:23.

         Hammond reported that its counsel could not recall, prior to the production of Document 367A, there being any dispute regarding whether Garcia served the suspension, and counsel indicated that Garcia, Chief of Police Doughty, and Assistant Chief of Police Short testified to Garcia's suspension. Further, Hammond stated that, when asked by the media for a document showing that Garcia served the suspension, Hammond found Document 367A and disclosed it. Hammond acknowledged that due to “a clerical error” Document 367A was not in the personnel file as it should have been, so Hammond “labeled it 367A . . . . That's where it should have been in the personnel file.” Id. at 22:19-23:3.

         The Court sought clarification as to the degree of the initial inquiry Hammond made into whether the personnel record was complete prior to tendering it in discovery. Counsel for Hammond candidly reported,

We had a copy of what appeared to be the complete file. I can't say that we went through it page-by-page to see if we thought there was something missing. In reviewing it, it did not appear to have anything missing. Most of the file is background information, pictures, what sort of continuing training they've had. . . .
So we obtained it, saw what looked to be a typical personnel file, had no reason to think that there was something that wasn't there.

Id. at 26:23-27:12.

         2. Statements Regarding Hammond's Motion

         Hammond argues in its motion that Szany's counsel made inappropriate out-of-court statements to a reporter. The statements at issue are that (1) Szany believes there is another sexual harassment charge against Garcia, (2) she wants to question Garcia regarding discipline for improper use of a Taser while off-duty, (3) she wants to question Hammond employees about another alleged incident of sexual assault, and (4) Szany's counsel believes that he should be able to conduct discovery on generalized violence.

         At the hearing, Hammond agreed that contempt would “flow directly from statements that [Szany's counsel] made that were not authorized by the protective order and were traced back to documents produced by the parties.” Id. at 42:25-43:5. It also asserted that contempt “would also flow to testimony that was garnered based upon the personnel files and IA files or the documents that are subject to the protective order.” Id. at 43:6-8.

         Szany's counsel stated that the information that led to his first statement came from an outside source and “[a]bsolutely not from any [discovery] document whatsoever.” Id. at 46:10-11. Szany's counsel stated that the second and third statements were based on rumor. Id. at 47:25, 49:24. The fourth statement is Szany's counsel's belief regarding the scope of discovery, so there is no argument it originated from a disclosure subject to the protective order.

         At the hearing, Szany's counsel expounded on his comments regarding the Taser, saying, “I don't know if there was an allegation, say, by a male [that] Mr. Garcia put a Taser to his testicles. I don't know if a Taser was used preceding a sexual assault. I don't know if a Taser was used following a sexual assault. I had zero information.” Id. at 50:17-21. He proceeded to state that “at this point I believe I have more information.” Id. at 50:22. The Court asked, “what's your reasonable basis for believing that use of a Taser in any way, shape, or form was something that would be admissible at trial?” Id. at 53:16-18. Szany's counsel replied:

Reliable information that was given to me, my own experience as a policeman, my experience in representing hundreds of policemen, a Taser is one of those weapons typically used to touch the testicles. A police officer behaving badly with a Taser wouldn't define the conduct as a sexual assault, but it's certainly a way to send a message to a suspect that, “Hey, you shouldn't have run from me;” “Hey, you shouldn't have cursed at me.” It is a reasonable expectation by a lawyer who defends police officers on both sides to expect that a Taser would have been used in a way that would have been defined as sexual.

Id. at 53:20-54:5. Szany's counsel further stated that he believes, “based on my experience in defending policemen, based on my experience as a police officer, ” that there are complaints against or investigations of Garcia for ...


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