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Szany v. Garcia

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

August 19, 2019

DENISE SZANY, Plaintiff,



         This matter is before me on Plaintiff Denise Szany's Partial Objection to the Report and Recommendation of Magistrate Judge Joshua Kolar. [DE 279.] Judge Kolar issued a Report and Recommendation on three pending motions: (1) Plaintiff's Amended Motion for Sanctions Against Defendant Hammond and Its Attorneys [DE 159]; (2) Defendant City of Hammond's Motion for Rule to Show Cause Why Plaintiff Should Not Be Held in Contempt [DE 163]; and (3) Plaintiff's Motion to Strike and for Sanctions [DE 233]. These three motions were referred to Judge Kolar for Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). [DE 161, 221, 242.] On July 3, 2019, Judge Kolar issued his Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(C), recommending a denial of Szany's motions and a partial grant of the City of Hammond's motion, requiring that Szany's counsel respond to a show cause order through declaration testimony. [DE 278.] Szany timely filed objections to the Report and Recommendation. [DE 279.] For the following reasons, I adopt Judge Kolar's Report and Recommendation in large part, but disagree with him on the City's motion, which I will deny as well.


         Denise Szany was at all relevant times a police officer with the Hammond, Indiana Police Department. Szany alleges that she was the victim of sexual harassment and assault at the hands of another police officer (defendant Jamie Garcia) and the City of Hammond. Judge Kolar's Report and Recommendation comprehensively recited the lengthy procedural history that got us to this point, and it need not be repeated here. [DE 278 at 1-13.]. Suffice it to say, discovery in this case has been contentious. Szany has accused the City of slow-walking discovery, concealing evidence, and even falsifying documents. She has filed numerous motions for sanctions, including some which were withdrawn, several which were denied because of violations of the Northern District of Indiana Local Rules, and the two at issue here. The City denies the characterization and instead says it has acted reasonably throughout, even if there were some justifiable delays in producing certain documents containing sensitive information. Indeed, it says that Szany is the one who has violated the rules and norms of federal litigation, filing then withdrawing numerous motions for sanctions and most relevant here for purposes of its motion, impermissibly litigating her case in the public eye through her lawyer's statements to the press which the City says violated the Court's Protective Order.

         With that general background in mind, it's time to discuss the specific issues before me. In October 2018, the City sought to shield Officer Garcia's internal affairs file from production by filing a motion for a protective order. While Judge Kolar determined that some of these documents were relevant to the claims and proportional to the needs of the case, the relevant documents from the internal affairs file were protected by law enforcement privilege. [DE 102.] Judge Kolar also entered a Protective Order in the case governing discovery generally and which forbade the dissemination of “Confidential Material, ” including information gleaned from confidential documents produced during litigation. [DE 103 at ¶ 3.] Those rulings and orders are not challenged or before me but are necessary to understand the situation at hand.

         The next key event and filing was the Motion for Leave to Disclose Confidential Record filed by the City in response to a local newspaper's public records request. [DE 142.] The issue was the document Judge Kolar and the parties refer to as Document 367A (the numbering based upon where the City said it “should” have been originally located in its files). It also came out that this document, which was a part of Officer Garcia's personnel file, had not been produced to Szany when the rest of the personnel file was produced on January 7, 2019. The Court granted the request to disclose Document 367A to the requesting newspaper. [DE 278 at 6.]

         This provides the relevant background to evaluate Judge Kolar's Report and Recommendation and Szany's attendant objections. Additional events, discussed below, involving Szany's statements to the press and the City's attachment of certain payroll records of Officer Garcia to filings after the close of discovery are also at issue, but repeating the details and timeline of them here is not necessary to decide the issues before me.


         When a party objects to a magistrate judge's report and recommendation, the district court “shall make a de novo determination of those portions of the report . . . or recommendations to which objection is made.” 28 U.S.C. §636(b)(1)(C). The district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id.; Fed.R.Civ.P. 72(a). Szany frames her objection as only “partial” but challenges Judge Kolar's ruling on each of the three motions at issue. As such, I will address each separate argument raised by Szany over the three motions, although the disjointed way the objections are presented makes this a somewhat arduous task.

         The first objection I will address is that her Motion for Sanctions [DE 159] should have been granted. This motion dealt primarily with the circumstances under which the piece of discovery known as Document 367A was produced. Document 367A is a letter from the Hammond Chief of Police requesting board approval of a disciplinary action taken against Officer Garcia. [See DE 144.] Szany argues that Judge Kolar's ruling on her Motion for Sanctions failed to “address Plaintiff's argument that the filing by Hammond was retaliatory.” She tells me it was retaliatory because shortly after filing her motion on May 2, Hammond responded by filing a “motion for sanctions against Plaintiff and her counsel.” [DE 279 at 2]. She cites to Docket Entry 185 at paragraph 2 in support of her argument. [DE 279 at 2, ¶ 6.] But I'm at a loss to see how that citation has anything to do with the allegation of “retaliation.” That docket entry isn't a motion-it's a piece of discovery in this case. Nor can I ascertain what “motion for sanctions” filed by the City after May 2, 2019 that Szany is referring to. My review of the docket does not show any affirmative motion for sanctions being sought by the City since that date. My best guess is that Szany is referring to the City's Motion for Rule to Show Cause [DE 163] which was filed after the City learned of comments made to the press which it believed violated the terms of the Protective Order. [DE 103.] But even still, that motion wasn't filed after Szany's Motion for Sanctions [DE 159], but in February 2019. Even assuming that is the motion Szany is referencing, I don't understand what Szany means when she says that the motion for sanctions was “retaliatory” beyond the fact that it filed a motion which Judge Kolar recommended be granted in part. In all events, Szany's argument that something Hammond did was “retaliatory” is vague, unsupported, underdeveloped, and therefore without merit.

         Szany's next objection is that she thinks the City and its attorneys acted in bad faith by claiming Document 367A was confidential and not producing it in a timely manner. [DE 279 at 2-3.] She claims this delay caused harm to her litigation efforts and obstructed her efforts to obtain discovery in this case. She argues that the City “falsely represented to the Court” that Document 367A was not a public document. [Id.] As Judge Kolar noted in his Report and Recommendation, however, the City made no such representations and Szany's arguments to the contrary are without any basis in the record. [DE 278 at 15.] Instead, as Judge Kolar noted, the City acknowledged that Document 367A was subject to a public records request but given its relevance to the litigation and the definition of “Confidential Material” within the Protective Order, it had concerns releasing the document. [Id.] Thus, there was no reason for sanctions on this basis.

         Concerning the timing of the production of Document 367A, I agree with Judge Kolar that Szany has failed to show that Document 367A was not produced in a timely fashion or that the production delay was the result of bad faith or wrongdoing. After the Court ordered production of Officer Garcia's personnel file on December 14, 2018, the City collected what it says it thought was the complete personnel file and produced it on January 7, 2019. [DE 278 at 16.] Document 367A was apparently missing but was then produced to Szany on February 13, 2019. [Id.] It was produced prior to the close of discovery and shortly after the production of Defendant Garcia's personnel file. That timeline belies any notion of an attempt to intentionally withhold the document and gain an unfair advantage during discovery.

         More importantly, Szany has not shown any prejudice as a result of the relatively short delay between the City's production of Garcia's personnel file and the production of Document 367A. After all, once she received the document, discovery was still open. She could have, for example, taken depositions or served interrogatories, and she could have sought leave of court if necessary. Instead, Szany took a different tack. She decided to skip those steps and file a motion for sanctions, and she lost. Any prejudice was thus of her own making.

         Next, Szany objects to the denial of her Motion to Strike and for Sanctions [DE 233] which relate to what she says was the City's failure to timely turn over what are known as Exhibits F and G. [DE 231-6 and 231-7.] These are payroll records and pay stubs for Officer Garcia which show that he served a five-day suspension without pay. [Id.] Szany moved to strike these documents and sanctions, arguing that these documents should have been produced in discovery. [DE 233.] As Judge Kolar noted, Szany failed to support her argument with any relevant case law beyond assertions of “7th Circuit and SCOTUS' pronouncements” and accordingly the argument can be considered waived. [DE 279 at 22]. See United States v. Berkowitz, 927 ...

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