United States District Court, E.D. Wisconsin
The ESTATE of SYLVILLE K. SMITH, by Personal Representative Mildred Haynes, Patrick Smith, and Mildred Haynes, on her own behalf, Plaintiffs,
CITY OF MILWAUKEE, WISCONSIN and DOMINIQUE HEAGGAN-BROWN, Defendants.
DECISION AND ORDER ON PLAINTIFFS' EXPEDITED
NON-DISPOSITIVE MOTION TO COMPEL DISCOVERY
August 13, 2016, Dominique Heaggan-Brown, then an officer of
the Milwaukee Police Department (MPD), shot and killed
Sylville K. Smith. Smith's parents, representing his
estate, have sued the City of Milwaukee (the
“City”) and Heaggan-Brown under 42 U.S.C. §
1983 and state common law, alleging Fourth and Fourteenth
Amendment violations and various state tort claims.
Plaintiffs seek to recover from the City under Monell v.
Dept. of Soc. Serv., 426 U.S. 658 (1976), alleging that
city customs, policies and practices caused the violations of
Mr. Smith's constitutional rights.
before me is the plaintiffs' Local Rule 7(h) expedited
non-dispositive motion to compel responses to plaintiffs'
requests for production nos. 24-26, 29, and 38-46 and
interrogatories nos. 9 and 11-12. ECF No. 23. These various
requests fall into the following four general categories: (1)
information related to the Collaborative Reform Initiative
(CRI); (2) information related to reviews or investigations
conducted by the City regarding police shootings and
incidents of unjustified use of force, and actions taken by
policymakers to prevent or reduce such incidents; (3)
information related to certain specific prior use-of-force
incidents involving MPD officers; and (4) information
regarding alleged sexual misconduct by Heaggan-Brown.
Plaintiffs assert that these discovery requests are relevant
to their Monell claims.
Federal Rule of Civil Procedure 26(b)(1), “parties 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.” Further,
“[i]nformation within this scope of discovery need not
be admissible in evidence to be discoverable.”
Fed.R.Civ.P. 26(b)(1). I have broad discretion when reviewing
a discovery dispute and “should independently determine
the proper course of discovery based upon the arguments of
the parties.” Gile v. United Airlines Inc., 95
F.3d 492, 496 (7th Cir. 1996). I am to consider “the
totality of the circumstances, weighing the value of material
sought against the burden of providing it, and taking into
account society's interest in furthering the
truth-seeking function in the particular case before the
court.” Patterson v. Avery Dennison
Corporation, 281 F.3d 676, 681 (7th Cir. 2002).
Discovery of information related to the Collaborative Reform
seek discovery of information related to the Collaborative
Reform Initiative (“CRI”). The CRI was a project
undertaken jointly by the MPD and the Community Oriented
Policing Services (COPS) unit of the U.S. Department of
Justice (DOJ) to review policing practices in the city and to
implement reforms. MPD Chief Edward A. Flynn requested the
review by DOJ in 2015 amid public outcry after federal
prosecutors declined to charge the MPD officer involved in a
highly publicized police shooting incident. Plaintiffs have
requested the following information:
• Interrogatory No. 11 asks for the
names of individuals associated with the City of Milwaukee or
the Police Department who participated in the CRI and details
about their participation.
• Interrogatory No. 12 asks for
information about changes made or considered to be made to
City and Police Department policies, practices, recruitment
and training programs as a result of the CRI.
• Document Request No. 44 asks for
“documents relating to the Collaborative Reform
Initiative, including but not limited to reports prepared by
the MPD or City of Milwaukee for the DOJ; reports prepared
for the MPD or City of Milwaukee by the DOJ; model policies
or rules provided by the DOJ; records of meetings or
conference calls; and all Communications between the City or
the Department, and the Department of Justice, regarding the
Collaborative Reform Initiative.”
• Document Request No. 45 asks for
“[a]ll Communications relating to request No. 44,
” including “any communications-whether by mail,
e-mail, text message, or other means-between the MPD, Chief
Flynn, or any other policy maker for the City of Milwaukee,
concerning the Department of Justice Collaborative Reform
Initiative, any reports (whether draft or final) written by
the Department of Justice, and any communications about
withdrawing from the Collaborative Reform Initiative.”
• Document Request No. 46 asks for
“[a]ll communications from the Department of Justice to
the City or the Department regarding the possibility of a
pattern-or-practice investigation into the Milwaukee Police
City objects to each of the above interrogatories and
requests for documents on relevancy grounds. Plaintiffs
contend that the requests above are reasonably calculated to
lead to the discovery of evidence relevant to their
Monell claims, which might include evidence that the
city was on notice that the police department had a
widespread practice of failure to adequately train, supervise
and discipline its officers and evidence of police department
policies and widespread practices in effect at the time of
Sylville Smith's killing.
City argues that its relevance objection is appropriate
because the CRI addressed more than just use-of-force and
deadly force issues. The City also asserts that a July 10,
2017, letter from the DOJ prohibits MPD leadership from
disclosing draft documents prepared by the COPS unit or its
contractor. ECF No. 25 at 1. The City has not made the letter
available to the plaintiffs or to this Court and has not
stated the legal authority on which the letter is premised.
have shown that the requested information may lead to the
discovery of admissible evidence relevant to plaintiffs'
Monell claims. The City's argument that the CRI
“addressed much more than use of force and deadly force
issues” is not a compelling reason to refuse
plaintiffs' CRI discovery requests because information
not directly tied to use of force or ...