Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Donald v. Outlaw

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

August 6, 2019

WILLIE T. DONALD, Plaintiff,
v.
BRUCE OUTLAW, et al., Defendants.

          OPINION AND ORDER

          JOSHUA P. KOLAR, MAGISTRATE JUDGE

         This matter is before the Court on a Motion to Quash Subpoena [DE 92], filed by non-party the United States of America on April 5, 2019, and Plaintiff's Cross-Motion to Compel Special Agent in Charge Grant Mendenhall to Comply with Plaintiff's Fed.R.Civ.P. 45 Subpoena (“Cross-Motion to Compel”) [DE 101], filed by Plaintiff Willie T. Donald on April 20, 2019. For the following reasons, the Motion to Quash is granted and the Cross-Motion to Compel is denied.

         Donald was convicted of robbery and murder following a trial in June 1992. (Compl. ¶ 73, ECF No. 1). His convictions were subsequently overturned on January 25, 2016, and all charges against him were dismissed on January 28, 2016. Id. at ¶ 78. On January 24, 2017, Donald filed suit against the two police officers primarily responsible for his conviction and the City of Gary, among other parties. See generally Id. As discussed in more detail below, the gravity of Donald's claims weighs heavily in his favor, yet ultimately cannot justify the overly broad nature of his discovery request.

         In February of 2019, Donald served a subpoena on Federal Bureau of Investigation (FBI)

         Special Agent in Charge (SAC) Grant Mendenhall, seeking production of the following documents:

1. Any and all Documents relating to any investigation undertaken by the FBI or any of its counsel, consultants, employees, representatives, agents, contractors, or persons acting on its behalf: (a) relating to or involving allegations, evidence or suspicion of actual or potential criminal conduct or civil rights violations committed or engaged in by Defendant Bruce Outlaw, including but not limited to the investigation that resulted in the prosecution of Cory House, Kenneth Wilson and Derrick Earls; or (b) in which Outlaw was a subject or target of an investigation.
2. Any and all Documents relating to any investigation undertaken by the FBI or any of its counsel, consultants, employees, representatives, agents, contractors, or persons acting on its behalf: (a) relating to or involving allegations, evidence or suspicion of actual or potential criminal conduct or civil rights violations committed or engaged in by Defendant John E. Jelks, Jr.; or (b) in which Jelks was a subject or target of an investigation.
3. For the period January 1, 1987 through December 31, 1992, any and all Documents relating to any investigation undertaken by the FBI or any of its counsel, consultants, employees, representatives, agents, contractors, or persons acting on its behalf relating to or involving allegations, evidence or suspicion of actual or potential criminal conduct or civil rights violations committed or engaged in by Gary Police Department personnel and/or the Gary Police Department, including but not limited to documents relating to: (a) the investigation and prosecution of Cory House, Kenneth Wilson and Derrick Earls; and (b) John Bauswell.
4. To the extent not covered by Requests 1 through 3, above, any and all Documents relating to any investigation undertaken by the FBI or any of its counsel, consultants, employees, representatives, agents, contractors, or persons acting on its behalf relating to or involving evidence or suspicion of actual or potential criminal conduct or civil rights violations committed or engaged in by Gary Police Department personnel and/or the Gary Police Department, including but not limited to any of its officers (whether full-time, part-time or [auxiliary]), employees, contractors, informants and agents.

(Mem. Supp. Mot. Quash 2-3, ECF No. 93; Pl.'s Mem. Opp'n Mot. Quash Ex. 2 at 13-14, ECF No. 102-2). The United States of America, a third party not involved in the underlying claims Donald brings against former Gary police officers and the City of Gary, filed a Motion to Quash the subpoena on April 5, 2019, which it noted should be construed as a Touhy[1] response denying the subpoena requests. Donald then filed his Cross-Motion to Compel on April 20, 2019.

         Donald's Reply in support of his Cross-Motion to Compel, filed on May 10, 2019, included an exhibit which demonstrated Donald was in communication with the government regarding narrowing the subpoena requests. (Pl.'s Reply Ex. 1, ECF No. 120-1). This exhibit noted that Donald was withdrawing Request 4 of the subpoena, and amending Request 3 to read:

3. Any and all Documents relating to any investigation undertaken by the FBI or any of its counsel, consultants, employees, representatives, agents, contractors, or persons acting on its behalf relating to or involving evidence or suspicion of actual or potential criminal conduct or civil rights violations committed or engaged in by Gary Police Department personnel and/or the Gary Police Department during the period January 1, 1987 through December 31, 1992 (even if the investigation was opened subsequent to that period), including but not limited to documents relating to: (a) the investigation and prosecution of Cory House, Kenneth Wilson and Derrick Earls; and (b) John Bauswell.

Id. at 4.

         The Court sua sponte gave Donald and the government until May 29, 2019 to provide any supplemental briefing as to Donald's amended subpoena requests and/or to file notice as to whether efforts to resolve the issue had mooted the Motion to Quash and Cross-Motion to Compel. (May 15, 2019 Order, ECF No. 121). On May 29, 2019, the government filed a Sur Reply of the United States of America to Plaintiff's Modified Subpoena, noting that the issue had not been resolved.

         STANDARD OF REVIEW

         Donald and the government disagree as to the standard under which the Court should review the denial of the subpoena requests. The government asserts that SAC Mendenhall is an employee of the Department of Justice (DOJ) through his employment with the FBI and therefore the DOJ's Touhy regulations control his ability to respond to the subpoena. (Mem. Supp. Mot. Quash 5, ECF No. 93). The government argues that, per Touhy, the denial of the subpoena requests is an agency decision reviewable under the Administrative Procedure Act (APA) and, as such, the Court may not reverse the decision unless it was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Id. at 20-21 (citing Edwards v. U.S. Dept. of Justice, 43 F.3d 312, 314 (7th Cir. 1994) (citing 5 U.S.C. § 706(2)(A))).

         Donald, in turn, argues that this is not an administrative matter reviewable under the APA, but rather that compliance with the subpoena is governed by the Federal Rules of Civil Procedure. (Pl.'s Mem. Opp'n Mot. Quash 1, 5-8, ECF No. 102). Donald asserts that the Court should evaluate the denial under Rules 45 and 26, which govern subpoenas and the scope of discovery. Id.

         As noted in the relevant filings, and further confirmed by the Court's research, there is a circuit split regarding whether courts should look to the APA or Federal Rules of Civil Procedure when reviewing a federal agency's decision not to comply with a non-party subpoena. Complicating matters further, there is disagreement among the district courts in this circuit as to whether the Seventh Circuit Court of Appeals has settled the issue. The government points to Edwards, in which the court evaluated the DOJ's response to a non-party subpoena under the APA. (Mem. Supp. Mot. Quash 9, ECF No. 93 (citing 43 F.3d at 316-17)). Donald counters with FDIC v. Crowe Horwath LLP, in which a district court within the Seventh Circuit held that the Federal Rules of Civil Procedure, rather than the APA, govern when a litigant seeks to obtain documents from a non-party federal government agency. (Pl.'s Mem. Opp'n Mot. Quash 6-8, ECF No. 102 (citing No. 17 CV 04384, 2018 WL 3105987, at *4 (N.D. Ill. June 25, 2018))). The district court noted that Edwards was distinguishable in a critical way from the case before it:

[T]he case [in Edwards] originated in state court, and the litigant sought Department of Justice records pursuant to a state-court issued subpoena, which the Department resisted pursuant to an agency regulation. Edwards, 43 F.3d at 314. When the litigant moved to compel a response to the subpoena, the Justice Department removed the case to federal court under 28 U.S.C. § 1442, so the federal district court's jurisdiction over enforcing the subpoena was derivative of the state court's jurisdiction. Id. The Seventh Circuit held that the Department had not waived its sovereign immunity in state court, so the district court lacked “jurisdiction to compel the delivery of the [requested information] once the regulatory authority had denied the request.” Id. at 317. Because the district court was barred from directly enforcing the subpoena, the Seventh Circuit held that the proper course was to recast the state court litigant's motion to compel as an administrative request under the APA, which meant that the APA's “arbitrary and capricious” standard applied to the agency's decision to withhold the records. Id. at 314-15.
But the case at hand was originally filed in federal court, not state court, and Crowe sought documents from the FDIC-C pursuant to a federal subpoena under Rule 45. This Court has original jurisdiction over this case pursuant to 12 U.S.C. § 1819(b)(2)(A) and 28 U.S.C. § 1331, rather than derivative jurisdiction under 28 U.S.C. § 1442. So the holding in Edwards does not apply.

Crowe Horwath LLP, 2018 WL 3105987, at *4. The instant matter is distinguishable from Edwards for the same reason. Nonetheless, the court in Crowe Horwath LLP noted that several other courts in its district held differently, and that these courts found that, “under Edwards, district courts should review discovery requests to non-party federal agencies under the APA standard of review even when the case originated in federal court.” Id. at *5 n.8. A review of the applicable case law has convinced the Court that the matter is not fully settled in this circuit. Nonetheless, the Court need not decide whether the instant issue is governed by the APA or Federal Rules of Civil Procedure, because the outcome under both standards is the same. Before the Court addresses the standards under both the APA and the Federal Rules of Civil Procedure, however, further background is needed to accurately frame the parties' dispute.

         THE SUBPOENA AT ISSUE

         Not only is the law unsettled, but the parties also disagree as to whether this Court should review Donald's subpoena as it was served upon the government and reviewed under the applicable Touhy regulations or as he modified it after the arguments in this case were developed through the government's Motion to Quash, Donald's Cross-Motion to Compel, and the government's response to the Cross-Motion to Compel. Donald argues that the government objected solely to subpoena Request 4, and now that the request has been withdrawn the government's objections to the subpoena are moot. (Pl.'s Reply 3, ECF No. 120). The government responds that it is unsure how Donald “can modify the subpoena and ‘moot' the FBI's decision to decline production of documents unrelated to [his] prosecution under [Touhy].” (Sur Reply U.S. 3-4, ECF No. 124). The government notes that:

The subpoena [even absent Request 4] is not limited to documents relating to co-defendants Outlaw and Jelks or the Donald prosecution. It is not limited to police officers of GPD, but all personnel. The scope of Request No. 3 continues to be expansive. Plaintiff seeks any document relating to any investigation by the FBI or persons acting on its behalf relating to or acting on evidence or suspicion of actual or potential criminal conduct or civil rights violations committed or engaged in by GPD personnel or the GPD for the five-year period. The subpoena requests documents relating to suspicions. Once again, if a person from GPD was suspected but not charged, plaintiff seeks the documents. If a GPD officer was acquitted of a crime, the subpoena seeks the documents. If an officer was the subject to a call to the FBI relating some fanciful claim of wrongdoing, Request No. 3 demands the documents.

Id. at 4.

         The government further argues that Donald's modification of the subpoena was improper. Specifically, the government notes that Federal Rule of Civil Procedure 45(d)(3) identifies only three circumstances in which a Rule 45 subpoena may be modified, all of which require court intervention. Id. at 6. Rather than follow Rule 45, however, the government contends that Donald unilaterally modified the subpoena after briefing. Id. The government also takes issue with Donald's assertion that modifications were made in accordance with Rule 37 and Local Rule 37-1, since it is not a party to the underlying litigation. Id. at 7 (citing Pl.'s Reply Ex. 1, ECF No. 120-1). To the extent that Donald's modified subpoena is a new subpoena, the government claims it is deficient as to form and service, that it does not comply with the Touhy regulations, and that it improperly asks for production outside the 100-mile limit under Rule 45(c)(2)(A). Id. at 9-10. Finally, the government represents that after a review of Rule 45 and the scope of the modified subpoena, the FBI still believes the requests to be overbroad, not proportional, seeking irrelevant and/or privileged materials, and requiring a burdensome search. Id. at 10.

         Donald takes the position that “to the extent any burden is created by the scope of the [s]ubpoena's requests, fault lies with the government, ” since Donald “represented to both the Court and the government that [he] is willing to work with the government to narrow the requests.” (Pl.'s Mem. Opp'n Mot. Quash 13, ECF No. 102). As indicated above, one cannot question the gravity of the underlying claims Donald brings. However, this is but one factor the Court looks to in determining the reasonableness of discovery requests. It cannot be used to escape the obligation of a party seeking discovery to “take reasonable steps to avoid imposing undue burden or expense on a person subject to [a] subpoena.” Fed.R.Civ.P. 45(d)(1).

         Nor does the undeniably serious nature of Donald's claims justify the modification of a subpoena request, properly before the Court on a motion to compel, in a reply brief. The Court takes no position on whether the modified subpoena, if properly served, would be enforceable. To allow such a modification at this juncture would deprive the government of meaningful judicial review of a matter before the Court. Both parties brought the government's decision not to comply with the original subpoena before the Court, the government through a Motion to Quash and Donald through a Motion to Compel.

         While Donald, in his Motion to Compel, mentioned a general willingness to work with the government to narrow the requests, he nonetheless sought to compel compliance with the entire subpoena and did not specifically mention any possible modifications. Despite Donald's claims that he was willing to negotiate away the truly disputed terms of the subpoena, he was on notice as early as January of this year that the government objected to a request at least similar to the one contained in Request 4. (Pl.'s Mem. Opp'n Mot. Quash Ex. 4 at 2-3, ECF No. 102-4 (email from government's counsel to Donald's counsel stating, “Likewise paragraph 4 is overbroad and it is difficult to see how every investigation that the FBI may have undertaken where GPD was involved is relevant to this civil rights case”)). Donald points to no evidence that he withdrew this request prior to immediately before filing his Reply. And, the request was important enough to Donald that he specifically mentioned it in his Cross-Motion to Compel, where he stressed “[t]he [s]ubpoena's rider makes clear that it seeks information regarding ‘actual or potential criminal conduct or civil rights violations committed or engaged in by Gary Police Department personnel and/or the Gary Police Department.'” (Pl.'s Mem. Opp'n Mot. Quash 10, ECF No. 102 (citing Pl.'s Mem. Opp'n Mot. Quash Ex. 2 at 6-14, ECF No. 102-2)).

         With these facts, the Court will not simply parse the subpoena and enforce the production of some smaller subset of information than that which the entire subpoena seeks. See Fed. R. Civ. P. 45(d)(3)(A)(iv); Griffin v. Foley, 542 F.3d 209, 223 (7th Cir. 2008) (“Moreover, the district court was well within its discretion to quash the subpoena as unduly burdensome.”); Tiberi v. CIGNA Ins. Co., 40 F.3d 110, 112 (5th Cir. 1994) (“The district court's decision to quash the subpoena and to allow CIGNA to start anew on a clean slate instead of itself modifying the subpoena was within the court's sound discretion.”). The dispute before the Court is whether Donald's subpoena, as served, meets the requirements of Rules 45 and 26 of the Federal Rules of Civil Procedure (under Donald's interpretation of the law) or the APA (under the government's interpretation of the law).

         Because this subpoena's breadth determines the outcome under either standard, the Court will not enforce this subpoena. The Court will address the legal standards and the arguments of the parties in more detail below. However, it is important to note at the outset that Donald filed this lawsuit after spending more than two decades in prison on murder and robbery convictions that were vacated in 2016. Donald's Complaint tied his conviction to the misconduct of sworn police officers. Donald's claims are serious and justify placing a burden on parties and non-parties alike through valid-and balanced-discovery requests. The incredibly serious nature of Donald's claims weighs heavily in his favor under either of the legal standards proposed by the parties to this discovery dispute.

         If the government had simply ignored Donald's request, taken the position that searching its vast holdings at all was too burdensome, or even argued that only a very small set of potential documents would meet the legal standards that may require production, the Court could easily find that Donald was entitled to relief. Yet, those are not the facts or arguments before the Court. The government did search its holdings. It appeared willing to turn over any documents it had related to Donald's prosecution, yet found none. (Resp. Pl.'s Cross-Mot. Compel 3, ECF No. 114). Perhaps it would have even provided documents in response to a narrower request concerning ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.