United States District Court, E.D. Wisconsin
ESTATE OF DEREK WILLIAMS, JR., TANIJAH WILLIAMS, DEREK WILLIAMS III, and TALIYAH S. WILLIAMS, Plaintiffs,
CITY OF MILWAUKEE, JEFFREY CLINE, RICHARD TICCIONI, PATRICK COE, JASON BLEICHWEHL, ROBERT THIEL, TODD KAUL, ZACHARY THOMS, GREGORY KUSPA, CRAIG THIMM, CHAD BOYACK, and DAVID LETTEER, Defendants.
Stadtmueller U.S. District Judge.
February 14, 2017, Plaintiffs filed a motion to compel
seeking to overrule Defendants' objections to a certain
discovery request. On November 1, 2016, Plaintiffs issued an
interrogatory seeking a “list [of] Milwaukee police
officers, from 2006 to 2012, who have been identified as
potential problem officers by the MPD's Early
Intervention Program (EIP) and any other early warning
system.” (Docket #20-1 at 3). Defendants responded on
December 20 that “[t]his interrogatory is vague and
ambiguous as to the terms ‘potential problem
officers' and ‘any other early warning system.'
Furthermore, the EIP program does not ‘identify' or
label officers as ‘potential problem officers, '
and therefore the City cannot provide a response to this
describe the EIP program as “an automated proactive
risk analysis management tool designed to identify and assist
employees who show symptoms of job stress, training
deficiencies or personal problems that may affect job
performance.” (Docket #27 at 2). They assert that it is
a non-disciplinary program. Id. The EIP system
tracks “performance indicators” including
“(1) personnel investigations; (2) squad accidents; (3)
use of force incidents; (4) vehicle pursuits; and (5) sick
leave usage.” Id. at 2-3. An
“intervention alert” is created whenever too many
of these incidents occur in a short time span. Id.
at 3. The alert is investigated by a supervising officer and
usually involves the employee's cooperation. Id.
January 4, 2017, in an e-mail to Defendants seeking a more
complete response to the interrogatory, Plaintiffs
“clarified” the interrogatory as follows:
To be clear, Interrogatory Number 7 asks for a list of all
Milwaukee police officers, from 2006 to 2012, for whom an EIP
“intervention alert” was generated. For each
officer listed, please include the following information: (a)
the performance indicator(s) that generated the alert; (b)
the date the alert was generated; (c) the name of the
commanding officer(s) who were notified of the alert; (d)
whether a determination was made to complete an intervention;
and (e) the nature of the intervention. Also please produce
the "intervention alert" document that was
generated in each instance.
Id. Defendants answered this modified interrogatory
by claiming it was overly broad and a response would be
unduly burdensome. (Docket #20-2 at 3-4). They also asserted
that the request was not likely to lead to the discovery of
admissible evidence. Id. Defendants further cited
the need for confidentiality of the EIP alerts to maintain
the effectiveness of the program. Id. In the end,
Defendants limited their production to the EIP alerts
generated for the police officer defendants in this case, and
there was only one in the relevant time period. Id.
Plaintiff again attempted to convince Defendants to withdraw
their objections by e-mail on January 28, 2017. The
discussion did not lead to the production of any further
information. (Docket #21-1 at 3-5).
Rule of Civil Procedure (“FRCP”) 26(b)(1) governs
the disposition of this motion. It provides that
[p]arties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need not
be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). Plaintiffs argue that a complete
response to their modified interrogatory is necessary because
of the breadth of their Monell claim. Specifically, they
intend to prove this claim  by showing that if MPD had
effective early warning and disciplinary systems, those
systems would have flagged Defendants Cline, Bleichwehl,
Thoms, and Kuspa, and MPD could have then intervened in these
officers' behavior before they had a chance to violate
Derek Williams' constitutional rights. The information
requested in Interrogatory Number 7-a department wide list of
officers for whom “intervention alerts” were
generated by the EIP system during the five years preceding
the underlying incident including the “intervention
alert” documents themselves-is necessary for
Plaintiffs' counsel and their expert to demonstrate that
EIP was defective, how it was defective, and to properly
examine policymaker witnesses.
(Docket #20 at 5). Plaintiffs also contend that
Defendants' confidentiality concern is mooted by the
protective order outstanding in this case. (Docket #16).
response reasserts their objections. They first claim that
the request is overbroad because many intervention alerts
have nothing to do with the issues in this case, which are
the officer defendants' alleged use of excessive force
against, and deliberate indifference to, Derek Williams.
(Docket #27 at 7-8). They argue that because the EIP system
is non-disciplinary, it does actually establish a persistent
failure of supervision, monitoring, control, or discipline as
Plaintiffs must show to prove their Monell claim.
Id. Defendants further contend that a full EIP alert
production is simply a fishing expedition for Plaintiffs to
uncover unrelated police misconduct over the 2006 to 2012
time span. Id. at 8-9. The production would also
take an estimated 43 hours to compile. Id. at 11.
Finally, Defendants reiterate their confidentiality concerns.
Id. at 10-11.
reply that all EIP alerts, even those which seem facially
irrelevant, are important to prove their Monell
claim. For instance, if alerts generated because of excessive
sick leave or car accidents comprised the bulk of the alerts,
“it would indicate that EIP was ineffective at
identifying MPD officers with truly problematic behavior
involving the mistreatment of citizens.” (Docket #30 at
2). Additionally, they believe that the 43 hour production
estimate does not show an undue burden; “[t]he reality
is that complex litigation is often document intensive.
Indeed, the City would not bat an eye before producing
several boxes of files if this were a business transaction,
and there is no reason to apply a different standard just
because this is a civil rights case.” Id. at
Court must agree with Plaintiffs. They are the masters of
their Monell claim, and if the EIP alerts are the
method they have chosen to prove it, then those documents
meet the minimal relevance standard imposed by FRCP 26(b)(1).
See Kuttner v. Zaruba, 819 F.3d 970, 980 (7th Cir.
2016) (noting that while the old version of FRCP 26(b)(1)
permitted “discovery if it held reasonable prospects of
leading to admissible evidence, ” the new rule
nevertheless “provides that discovery need not be
admissible in evidence to be discoverable”) (quotation
omitted). Defendants may argue the faults in using the EIP
evidence to support those claims at summary judgment or
trial. Plaintiffs themselves may realize, after they and
their expert review the information, that it is not as
helpful as they might have otherwise expected. These points
are for another time, however; at this stage, Plaintiffs must
be permitted to explore the possibility. Defendants'
other concerns carry little weight. The protective order in
this case will protect the EIP documents from disclosure. The
burden of producing the EIP alerts, ...