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Lewis v. Henneman

United States District Court, W.D. Wisconsin

January 29, 2018

JAMES A. LEWIS, Plaintiff,


          JAMES D. PETERSON District Judge

         Several motions are before the court in this case brought by pro se plaintiff James A. Lewis, currently incarcerated at the Wisconsin Secure Program Facility (WSPF).

         I previously granted Lewis leave to proceed on First Amendment retaliation and Fourteenth Amendment equal protection claims against defendants, WSPF officials Chad Henneman, Lorie Iverson, and Laurie Neuroth, concerning harassment and discipline Lewis suffered in retaliation for his complaining about sexual harassment by Henneman. Lewis now moves to strike defendants' expert witnesses and extend the deadline for his response to defendants' summary judgment motion. Also, defendants have filed Henneman's disciplinary records under seal, as I directed them to do in response to Lewis's motion to compel. I will address each issue in turn.

         A. Motion to strike expert witnesses

          The court set a December 8, 2017 deadline for defendants to disclose their expert witnesses. Dkt. 13, at 5. But defendants did not disclose their expert witnesses-Lorie Iverson and Laurie Neuroth, two of the named defendants, and “any health care professional who treated plaintiff for medical or mental health care while plaintiff was incarcerated”-until December 18. Dkt. 26. Plaintiff James A. Lewis asks the court to bar Iverson and Neuroth from testifying as experts because of the late disclosure. Dkt. 27. Defendants explain that their late disclosure was accidental: their counsel recorded the disclosure deadline as December 18 instead of December 8. Even an accidental late disclosure could warrant striking an expert witness to avoid prejudice to the opposing party. Courts automatically strike expert witnesses not disclosed by the deadline “unless [the] non-disclosure was justified or harmless.” Musser v. Gentiva Health Servs., 356 F.3d 751, 758 (7th Cir. 2004).

         Lewis argues that I must bar defendants from testifying as experts solely because of the delay in disclosure. He points to another case, Lewis v. McLean, No. 14-cv-280 (W.D. Wis. filed Apr. 16, 2014), in which Magistrate Judge Stephen Crocker granted the defendants' motion to file certain security policies under seal as unopposed because the court had not yet received Lewis's opposition brief. No. 14-cv-280, Dkt. 67. Lewis argues that I must take the same hardline approach here, striking defendants' expert witness testimony simply because of the late disclosure. Overlooking the obvious differences between the motion to seal in the '280 case and the expert witness disclosures here, a common theme emerges: the lack of prejudice. In the '280 case, I disregarded the sealed materials when deciding the parties' summary judgment motions, see No. 14-cv-280, Dkt. 92, at 6, so there was no prejudice to Lewis. Here, Lewis has not identified any prejudice caused by the 10-day delay. Because the 10-day delay was harmless, I will deny Lewis's motion.

         B. Motion to compel production of disciplinary records

          In a December 14, 2017 order, I partially granted Lewis's motion to compel production of defendant Chad Henneman's disciplinary records and directed defendants to submit the disciplinary records for an in camera inspection to determine whether production is appropriate in light of defendants' security concerns. Dkt. 25. I also directed defendants to “explain specifically what information they don't want to reveal and why” and “how best to allow Lewis to review the relevant portions of these records without compromising [WSPF] security.” Id. at 3. Defendants have done so, and I have reviewed the records. I will order defendants to allow Lewis to review partially redacted copies of these records.

         Defendants first propose that they produce a three-page exhibit containing Henneman's “record of disciplinary actions” and a key to the Department of Corrections work rules numbering system. Dkt. 37-1. They propose redacting the day and month of Henneman's date of birth. I agree with the proposed redaction and will order defendants to produce the redacted exhibit to Lewis.

         Defendants argue that this “summary record contains sufficient information for Lewis's purposes.” Dkt. 36, at 2. I disagree. The summary record offers only the most broad description of Henneman's on-the-job misconduct-Lewis wants the details, and as I previously explained, he is entitled to them under Federal Rule of Civil Procedure 26(b)(1).[1] Those details are available in a 163-page exhibit containing the employee investigation reports relating to Henneman's disciplinary record. See Dkt. 37-2. Defendants propose allowing Lewis to review a heavily redacted version of this exhibit, but not retain a copy of it.

         As for the redactions, defendants want to redact “[i]nformation relating to staff vs. staff conflict” because “if any inmate knows about a staff member's conflict with other staff, the inmate may use that information to attempt to create additional discord among the staff.” Dkt. 36, at 3. They want to redact “all content in the investigatory interviews” because the “interviews contain detailed information about staff conflict and alleged misconduct between staff (other than Henneman) and inmates” and “not all the information discussed in the interviews related specifically to the event that prompted the disciplinary investigation in the first instance.” Id. at 4. They want to redact “[i]nformation that reveals internal staff discussions about how staff should interact with inmates” because “it contains internal staff communications about how to interact with inmates (and in some instances includes communications about how certain staff behavior may prompt violence from an inmate).” Id. They want to redact “personal statements that Henneman expressed through the investigation process that do not pertain to the specific actions being investigated” because inmates could use this information “to prey on Henneman's vulnerabilities.” Id. at 3-4. And they want to redact the names of all inmates and staff other than defendants, explaining that “Lewis does not need to know the identities of non-defendants who[] were part of an investigation.” Id. at 4.

         I would be sympathetic to defendants' security concerns if Henneman still worked at WSPF, but he doesn't. As a result, the majority of the proposed redactions appear unnecessary. But some of the other staff members named in the reports do still work at WSPF. I won't allow defendants to redact those staff members' names, as discovery of the identity of people who know of any discoverable matter “is so deeply entrenched in practice” that the Advisory Committee on the Rules of Civil Procedure found it no longer necessary to explicitly allow it in the current version of Rule 26(b)(1). Fed.R.Civ.P. 26 advisory committee's note to 2015 amendment. But I will allow defendants to redact personal information and those portions of the reports that contain detailed information about people other than Henneman because they are irrelevant to Lewis's claims and pose a heightened security risk. Specifically, defendants may redact the following portions of Dkt. 37-2:

• Henneman's address on pages 1, 69, and 70
• Pages 10-11, 72, 78-80, 86, 89, ...

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