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 27, 2017, Plaintiffs submitted an expedited motion
to compel the United States Attorney's Office for this
District (“USAO”) to produce a report of an
interview with Defendant Zachary Thoms (“Thoms”).
The FBI conducted the interview during the course of their
investigation into the events of Derek Williams' death.
Id. at 2. Upon review of the parties' briefing,
the Court noted that they had not addressed the full scope of
the relevant legal issues, and ordered further briefing.
(Docket #28). That briefing was completed on March 22, 2017.
See (Docket #29 and #31).
issued subpoenas to the FBI and the USAO to obtain the
documents they possessed related to their investigation,
including the Thoms interview report (referred to by the
parties, and hereinafter, as the “302 report”).
(Docket #24-2). In response, those agencies produced a
proffer letter the USAO had sent to Thoms prior to his
interview, assuring him that “the United States agrees
not to use any information furnished by your client during
the interview directly against him in any civil or criminal
proceedings.” (Docket #24-3 at 2).
asked for the 302 report itself. (Docket #24 at 3). The FBI
deferred the decision to produce the report to the USAO.
Id. The USAO's view was that
“Thoms[‘] interview was conducted under the
provisions and assurances of the proffer letter including the
provision that the United States will not use the interview
against Thoms in a criminal or civil proceeding. Since
Zachary Thoms is named a defendant in the estate's
lawsuit, we believe the release of the 302 could be viewed as
a violation of the proffer letter.” Id. The
USAO declined to produce the report.
argue that the USAO's position is groundless. First, they
posit that the 302 is relevant and discoverable under the
Federal Rules of Civil Procedure (“FRCP”).
(Docket #24 at 4). Second, Plaintiffs believe that the stated
basis for withholding the report is inapposite. The proffer
letter only prevents the United States from using the
information furnished in Thoms' interview against him,
and the federal government is not a plaintiff here.
Id. at 3-4. Finally, Plaintiffs maintain that even
if production of the 302 could be interpreted as violating
the proffer letter agreement, that is no reason to avoid
producing the report here. Id. at 4. In their view,
“[t]o the extent that the USAO is concerned that
producing the Thoms 302 will have some sort of chilling
effect on its ability to convince witnesses to provide
information via proffer, such an argument would be based on
pure speculation and cannot trump Plaintiffs' right to
discovery under the Federal Rules of Civil Procedure.”
USAO's initial response expounds on its earlier-quoted
objection. It cites the Department of Justice's
(“DOJ”) Touhy regulations, which
prohibit its employees from producing materials in cases
where the United States is not a party without prior approval
from the DOJ. (Docket #25 at 2); see 28 C.F.R.
§ 16.22(a); United States ex rel. Touhy v.
Ragen, 340 U.S. 462 (1951). The Touhy
regulations provide various factors for the DOJ to weigh when
considering a request to produce a document. 28 C.F.R. §
16.26(a)-(c). Without specifically connecting its analysis to
any of the Touhy regulation factors, the USAO
providing the 302 report would violate the terms and spirit
of the proffer letter. That is, the letter is intended to
encourage cooperation from targets or defendants in criminal
investigations. That cooperation is premised upon the
agreement that what is disclosed in the proffer session will
not be used against the cooperating target or defendant. It
is entirely likely that disclosure of the FBI 302 in this
instance would have a chilling effect in the future such that
targets and defendants are no longer willing to provide
useful information to the USAO and other law enforcement
(Docket #25 at 3).
parties' supplemental briefing addresses that which the
Court detected in its initial review of the applicable law-a
split of authority on the appropriate standard of review. The
District of Columbia and Ninth Circuits hold that this issue
should be assessed using FRCP 26 and 45. This is the same,
relatively low, bar for discovery that is applied to every
civil litigant, and centers on the subpoenaed party's
claim of privilege, undue burden, or lack of relevance.
Conversely, the Fourth and Eleventh Circuits maintain that an
agency's refusal to comply with a subpoena is entitled to
more deference. The standard they apply comes from the
Administrative Procedures Act (“APA”), which
provides that the agency's decision cannot be disturbed
unless it was arbitrary or capricious. 5 U.S.C. §
706(a)(A). As applied here, the USAO's decision
“will be upheld if it is reasonable and if the decision
is in accordance with the agency's Touhy
regulations.” Sauer Inc. v. Lexington Ins. Agency,
Inc., No. 5:13-CV-180, 2014 WL 5580954, at *4 (E.D. N.C.
Oct. 31, 2014). Though it appears the former standard is the
more modern view, and one which the Court would prefer to
adopt, the Court need not stake a claim to either, as
Plaintiffs' motion must be granted even under the more
restrictive APA standard. See In re Packaged Ice
Antitrust Litig., No. 08-MD-1952, 2011 WL 1790189 *2
(E.D. Mich. May 10, 2011).
supplemental brief largely restates their previous arguments.
(Docket #29). They also address the USAO's contention
that the normal discovery process may be used to gain the
same information contained in the 302 report. Plaintiffs
counter that Thoms was likely more forthcoming in providing
information for the 302 report than he would be in a
deposition in this case. Id. at 7-8. The USAO's
supplemental brief provides a slightly different formulation
of the reason for its non-disclosure:
The proffer letter provides that “[i]n exchange for
your client's truthful statement, the United States
agrees not to use any information furnished by your client
during the interview directly against him in any civil or
criminal proceedings.” Officer Thoms provided
information to the USAO and the FBI with the understanding
that the information provided would remain private or
confidential and possibly used against him only in very
limited situations that are detailed within the proffer
letter. The current civil proceeding in which neither
the USAO nor the FBI is a party is not one of those very
limited situations. It was reasonable for the USAO and FBI to
construe the proffer letter as precluding the release of
Officer Thoms' information as set forth in the 302
(Docket #31 at 4) (emphasis added).
reason fails to satisfy either standard of review. As with
the USAO's initial opposition, the supplemental brief
again fails to cite any of the Touhy factors.
Further, the USAO's position is dissonant with the
express terms of the proffer letter. The general
understanding of confidentiality expressed in the emphasized
portion of the above quotation is found nowhere in the
letter. Rather, the letter restricts itself to use of the 302
report as between Thoms and the United States. The letter
does not even suggest that the USAO's disclosure of the
302 report to Plaintiffs is improper. The United States is
not being compelled to “use any information . . .
directly against” Thoms; disclosure of the 302 report
is at best an indirect action against Thoms, and is certainly
not an instance where the United States is using
information against him. (Docket #24-3 at 2) (emphasis
added). The Court must conclude that the USAO has
“offered an explanation for its decision that runs
counter to the evidence before the agency, ” and
therefore it is arbitrary. Sauer, 2014 WL 5580954,
result comports with the nature of proffer letters. Proffer
letters are agreements between the United States and the
target defendant. United States v. Williams, 298
F.3d 688, 694 (7th Cir. 2002). Plaintiffs are not parties to the
agreement and are not bound by it. Whether disclosure of the
302 report has any chilling effect on proffer letters in the
future is not only speculative, but it also has no bearing on
whether Plaintiffs are entitled to discovery in this matter.
The USAO and any proffering defendants know (or should know)