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Estate of Smith v. City of Milwaukee

United States District Court, E.D. Wisconsin

April 17, 2018

The ESTATE of SYLVILLE K. SMITH, by Personal Representative Mildred Haynes, Patrick Smith, and Mildred Haynes, on her own behalf, Plaintiffs,
v.
CITY OF MILWAUKEE, WISCONSIN and DOMINIQUE HEAGGAN-BROWN, Defendants.

          DECISION AND ORDER ON PLAINTIFFS' EXPEDITED NON-DISPOSITIVE MOTION TO COMPEL DISCOVERY

          LYNN ADELMAN J.

         On 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.

         Now 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.

         Under 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).

         1. Discovery of information related to the Collaborative Reform Initiative.

         Plaintiffs 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 Department.”

         The 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.

         The 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.

         Plaintiffs 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 ...


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