MINUTE ENTRY

DANIEL E. KNOWLS, III, District Judge

The matters of the plaintiffs Motion to Quash Subpoena Duces Tecum and Motion to Compel Discovery was the subject of oral hearing before the undersigned Magistrate Judge, with counsel for the parties participating. Pursuant to the September 12, 2003 oral hearing and considering the dictates of the Federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g(f), which imposes a direct obligation on educational institutions which are recipients of certain federal funds, not to disclose educational records without consent of the student or the student's parents, this Court ruled in plaintiff's favor as to the motion to quash. Regarding the plaintiff's motion to compel, it is GRANTED IN PART and DENIED IN PART, all as more specifically detailed below.

BACKGROUND

The captioned proceeding filed pursuant to § 1983 on behalf of the plaintiff Bruce Betzer against the Sheriff of St. Bernard Parish, et al, for violations of his civil rights, assault and battery, negligence, false arrest, false imprisonment and intentional infliction of emotional distress. His claims arise out of an incident which occurred on May 17, 2002, while he was operating 2000 Dodge on Paris Road. The facts leading up to the stop on Judge Perez Dr. are disputed. According to the plaintiff, several marked cars approached and surrounded his vehicle. He was allegedly pulled from his car, beaten, threatened and verbally assaulted. After stitching and wound care at Charity, Betzer was transported to the St. Bernard Parish jail, booked and incarcerated. Plaintiff allegations against the St. Bernard Parish Sheriffs Department are that the use of excessive force is a common practice and in part the result of the Department's failure to supervise, adequately screen, hire, train and discipline its employees. Betzer alleges that at no time did he resist the arrest. Nonetheless, on August 7, 2003, the plaintiff was convicted of the charges of resisting an officer and reckless operation, i.e., the charges upon which he was arrested on May 17, 2002.

PLAINTIFF'S MOTION TO COMPEL DISCOVERY

Plaintiff contends that on April 29, 2003, he served Interrogatories and Request for Production of Documents upon defendants Jack Stephens, in his capacity as Sheriff of the St. Bernard Parish, Corporal Ricky Jackson and Deputy Robert Roger, Jr. After having failed to receive the defendants' responses within the legal delays, plaintiff filed a Motion to Compel. Counsel for the defendant agreed to a Consent Judgment that they would respond to the discovery and the oral hearing was cancelled. On July 9, 2003 defendants produced their responses to the written discovery requests. Plaintiff contends that the responses are insufficient.

The defendants argue that their responses were both complete and adequate and thus, the motion to compel supplemental responses should be denied. The plaintiff's requests at issue are listed individually and addressed below.

1. Discovery addressed the Jack Stephens, Sheriff of St. Bernard Parish

Interrogatory No. 1 : Requests information regarding all complaints for civil rights violations, excessive force or police brutality made against the defendants at any time.

Plaintiffs contend that the defendants response (i.e., "no sustained complaints against any of the defendants") is "non-responsive and inadequate" because plaintiff requested any and all complaints. Defendant responds that all non-sustained complaints were expunged from the defendant's records pursuant to the respective requests. Moreover, Sheriff Stephens argues that both officers were deposed and testified therein regarding any unsustained complaints of which they are aware. Finally, the defendant observes that, since the filing of the captioned lawsuit, the plaintiff has been convicted of the charges of resisting arrest and reckless operation, and thus, the only issue remaining is whether excessive force was utilized by the arresting officers. They further suggest that unsustained complaints that do not involve the allegation of excessive force or that occurred after the incident involving the plaintiff could not possibly relevant to the claims before this Court. If they are required to supplement, the defendants assert that they should only be required to supplement with information regarding complaints of excessive force that predated the plaintiff's arrest and that do not involve ongoing criminal investigations.

The Court disagrees with the defendant's position in part, because the information sought goes to the issue of pattern and practices of the Sheriff's Department. Accordingly, the Court issues the following order, to wit.

IT IS ORDERED that the defendants motion to compel is GRANTED IN PART as to Interrogatory No. 1 and that the defendants shall supplement their response to include information or documents available regarding unsustained complaints of excessive force involving the defendant officers, whether predating or postdating the plaintiff's arrest, with the exception that the production need not include instances involving ongoing criminal investigations. The aforesaid information shall be produced subject to a confidentiality agreement.

Interrogatory No. 2 : Requests information as to whether any investigation ever resulted from the complaints asserted in Interrogatory No. 1.

Plaintiff again submits that the defendant's response that there were "no sustained complaints" is insufficient. Plaintiff contends that complaints were not sustained based only on the Department's own internal affairs investigation. This is, according to the plaintiff, the Sheriff's Department's own self-serving view, because it determines which complaints are without merit. Plaintiff submits that he is entitled to know if an investigation resulted, otherwise the defendants could conceal their inadequate/self-serving procedure for investigating complaints of this nature. The defendant submits that both Roger and Jackson testified in their depositions regarding both the FBI investigations and Internal Affairs investigations conducted by the St. Bernard Parish Sheriffs Department. Sheriff Stephens argues that the officer's deposition testimony regarding unsustained complaints should be deemed sufficient and that the plaintiff's request for a supplemental response should be denied.

The Court is not persuaded by the defendant's argument that the plaintiff's discovery request should be satisfied by the alleged offending officers' deposition testimony. To the extent that information exists within the Sheriff's Department's custody and control, the information shall be produced. Accordingly, IT IS ORDERED that the plaintiff's Motion to Compel is GRANTED IN PART as to Interrogatory No. 2 and thus, to the extent that information exists regarding any of the unsustained complaints against the defendant officers, the Sheriff's Department shall supplement its response, except in cases involving an ongoing criminal investigation.

Interrogatory No. 6 : Requests that the St. Bernard Parish Sheriff's Office provide the Court and docket number of each and every lawsuit filed against the St. Bernard Parish Office for the past ten (10) years.

Plaintiff submits that the defendant's response that these complaints are all a matter of public record equally accessible by the plaintiff is not sufficient. The plaintiff points out that the disposition of these matters by settlement or otherwise are not necessarily public and equally available to the plaintiff. Plaintiff seeks all of the information, not just that which is contained in the public record.

The defendants objection is that the request is overly broad and burdensome and that information available in the public record is equally available to the plaintiff. Defendant points out that only in plaintiff's memorandum has information regarding the settlement of any lawsuit been specifically requested. Defendants submit that this information is not relevant and is clearly inadmissible under Rule 408.

IT IS ORDERED the plaintiff's Motion to Compel is DENIED as to the Interrogatory No. 6. Interrogatory No. 7: Requests information on how records and statistics are maintained in the St. Bernard Parish Sheriff's Office concerning claims of brutality.

Plaintiff submits that the answer provided by the defendants is non-responsive. The Sheriff's Department's response was that the Internal Affairs Department of the St. Bernard Parish Sheriff's Office investigates complaints and maintains files on sustained complaints and that Harold Hughes is the custodian of the records. Plaintiff argues that this does not address protocol and procedures used to maintain records and statistics and submits that a detailed written explanation be given for the procedure, system or methodology used to maintain records and statistics concerning claims of police brutality and excessive force in the St. Bernard Parish Sheriff's Office.

IT IS ORDERED that the plaintiff's Motion to Compel is GRANTED IN PART as to Interrogatory No. 7, in that Sheriff's Department shall definitively identify whether records and/or statistics are kept concerning unsustained complaints, for what period of time they are maintained, and any procedures or policies of the Parish Sheriff's Department regarding expungement of records. Most notably, the defendant officer's letters requesting expungement of their records, specifically refer to "guidelines of the St. Bernard Parish Sheriff's Department." The Sheriff's Department shall produce the "guidelines" pursuant to which the defendant officers' records were in fact expunged of past unsustained complaints. Any further detail delineating an explanation as to the methodology of record keeping is more appropriately the subject of a 30(b)(6) deposition. Interrogatory No. 11 : Identify each and every officer involved in any way in stopping, subduing, arresting, searching, interrogating and/or supervising on the scene or participating in any subsequent investigation or providing facts related to this incident.

Plaintiffs take issue with the Sheriff Stephen's objection (i.e., "overly broad and unduly burdensome"). Nonetheless, the defendant fully answered the question supplying no less than ten (10) names, noting that it would supplement the response if any other names came to light during the course of discovery.

IT IS ORDERED that the plaintiff's Motion to Compel is DENIED as to Interrogatory No. 11.

Request for Production No. 2: Requests production of the complete personnel file and all Internal Affairs files on Ricky Jackson, Robert Roger, Jr., Gabe Campo, Jonathan Burnette and Mark Jackson maintained by the office of Jack Stephens, in his capacity as Sheriff of St. Bernard Parish.

Plaintiff submits that the defendant's objection is without merit. Sheriff Stephens objected to the production of the non-defendants personnel files (i.e., Gabe Campo, Jonathan Burnette and Mark Jackson's files), arguing that the request is not reasonably calculated to lead to the discovery of admissible evidence. Sheriff Stephens notes that the production of these records could invade the privacy of individuals who are not parties to this lawsuit.

Plaintiff cites case emanating from the Eastern District of Louisiana, involving similar situations in which the court has ordered production of all complaints, subject to the removal of home addresses, telephone and social security numbers and medical records, along with the removal of all information regarding pending criminal investigations. See Chauvin v. Harry Lee, 2000 WL 1537988 * 1 (E.D.La.) (Wilkinson, M.J.); Chauvin v. Harry Lee. 2000 WL 567006 (E.D.La); Cannon v. Lodge, 1999 WL 600374 (E.D.La); see also Walters v. Breaux, 200 F.R.D. 271 (W. D. La. 2001).

Defendant points out that the Chauvin case is factually distinguishable, because it did not concern unnamed defendants. Moreover, Sheriff Stephens highlights that the plaintiff has deposed all three of the these officers and has not seen fit to name one of them as defendants in his case. It is Sheriff Stephens' position that the plaintiff's request for the personnel files of Gabe Campo, Jonathan Burnette and Mark Jackson strays far afield of the claims and issues in this case.

Information which may be contained in the personnel files of non-defendant officers is not reasonably related to any claim, issue or defense in this case. Accordingly,

IT IS ORDERED that the plaintiff's Motion to Compel further discovery is DENIED IN PART and GRANTED IN PART as to Request for Production No. 2. Insofar as plaintiff seeks IAD and personnel files of non-defendant officers, the motion to compel is DENIED. Regarding the unsustained complaints regarding the named defendants, the defendant reiterates that the records of Ricky Jackson and Robert Roger, Jr. have been expunged, seemingly indicating they have no records of unsustained complaints regarding the named defendants. To the extent that information is contained in LAD files or personnel files regarding unsustained complaints on the defendant officers, the Motion to Compel is GRANTED and Sheriff Stephens shall supplement his response in that regard, deleting all reference to ongoing criminal investigations. If the requested records are no longer available because all such records have been expunged, Sheriff Stephens shall supplement his response accordingly. Request for Production No. 5 : Requests copies of all complaints or allegations of policy misconduct against any named defendant.

The defendant's response was "no sustained complaints." Plaintiff calls for supplemental responses in line with precedents in Chauvin and Walters, supra. Defendant again asserts that there is no information on unsustained complaints retained regarding the two defendant deputies, because their records have been expunged.

The plaintiff notes that while the defendant officer's personnel records may have been expunged, there is no statute or authority either permitting or sanctioning the expungement of information and records, which comprise the Internal Affairs Department (IAD) files. Most notably, the plaintiff highlights the fact that the La.Rev.Stat. § 40:2533(C), which at one time permitted the expungement of information of officer's personnel files, was repealed in 1995. Plaintiff argues that the expungement of records is an illegal policy, practice or procedure of the St. Bernard Parish Sheriffs Department, which warrants further discovery/investigation in light of the allegations of his complaint against the Sheriffs Department.

In D'Antoni v. Kenner Police Officer Anthony Roach, 1997 WL 627601 (E. D. La.), Magistrate Judge Wilkinson explained:

The Fifth Circuit's opinion in Coughlin makes it clear that no blanket privilege exists under the federal common law for either personnel files or IAD records.

* * *

Special caution should be exercised in recognizing a privilege in a civil rights case because "application of the federal of privilege, rather than state law, in civil rights actions is designed to ensure that state and county officials may not exempt themselves from the very laws which guard against their unconstitutional conduct by claiming that state law requires all evidence of their alleged wrongdoing to remain confidential. To invoke a privilege against disclosure of law enforcement records, the City must make a "'substantial threshold showing' that specific harms are likely to result from the disclosure."

IT IS ORDERED that the Motion to Compel is GRANTED as to Request for Production No. 5. More particularly, if any complaint, sustained or unsustained, has not been expunged and is contained in either or both the defendant officers' personnel records or the Sheriff Department's IAD files, they are within the scope of Fed.R.Civ.P. 26 and discoverable. The defendant shall advise of the existence of any such records and provide copies to the plaintiff within ten (10) days of the date of the entry of this order.

Request for Production No. 8 : Requests copies of any and all rules, regulations and/or policies concerning or relating to the handling and/or charging of individuals who allegedly resist arrest, commit flight from an officer and/or commit a battery on a deputy.

Defendant's response was that the deputies are trained through the State of Louisiana Peace Officers Standards and Training Council (POST). Plaintiff submits that the response is inadequate because the defendant does not identify or produce any documents pertaining to rules or regulations in possession of the Sheriff or his department.

Defendant argues that he does not author or produce POST materials. Sheriff Stephens explains that training materials are provided by the Training Council and protected from disclosure pursuant to La.Rev.Stat. 44:3.

IT IS ORDERED that to the extent that the Sheriff's Department has rules, regulations and standards or policies applicable to the handing and/or charging of individuals who resist arrest, inter alia, Sheriff Stephens shall produce such rules, regulations and policies available from within the Sheriff's Department pursuant to a confidentiality agreement. If the Sheriff's Department has no such written rules, regulations, standards or policies, it shall supplement its response accordingly.

Request for Production No. 10 : Requests copies of all insurance policies affording coverage to any defendant herein.

Plaintiff notes that while the defendant has responded that they have requested the policies, however, Sheriff Stephens has not yet produced any insurance policies.

IT IS ORDERED that the plaintiff's Motion to Compel is GRANTED as to Request for Production No. 10 and thus, the Sheriff Stephens shall produce copies of any such policy within ten (10) days of the date of the entry of this order.

Request for Production No. 14 : Requests photographs of Ricky Jackson, Robert Roger, Jr., Jonathan Burnette and Mark Jackson.

Plaintiff notes that black and white photographs were produced of the two named defendants. However, plaintiff argues that photographs of Burnette, Campo, and Mark Jackson should also be produced, but the Sheriff's Department refuses to do so.

Defendant objects to producing photographs of the three deputies who were not named defendants. The Sheriff's Department highlights the fact that three are currently police officers and it may well constitute a risk to their security to comply with the plaintiff's request for photographs.

IT IS ORDERED that the plaintiff's Motion to Compel a supplemental response as to Request for Production No. 14 is DENIED.

Request for Production No. 17 : Any and all radio transmission tapes, logs or other records of radio transmissions involving the chase, apprehension or the arrest of plaintiff on May 17, 2002 by member of the St. Bernard Sheriff's Office.

The defendant submits that copies of the radio transmission tapes in this matter which had not been received at the time that defendants' discovery responses were initially provided were recently obtained and will be provided.

IT IS ORDERED that the plaintiff's Motion to Compel is GRANTED as Request for Production No. 17 and the defendants shall supplement their response with copies of all radio transmissions, loges or other records of the subject May 17, 2002 within ten (10) days of the date of the entry of this order.

Request for Production of Document No. 20 : Requests production of any and all information, documents, public statements that relate to a "Blue Light Bandit" or any individual impersonating an officer.

Sheriff Stephens response is that no such information is within the possession or control of the Sheriffs Department at this time. Plaintiff complaint is that Sheriff has failed to advise whether any such information will be forthcoming in the future. Sheriff Stephens submits that the information is presently unavailable, but the response will supplemented if any such information is located.

IT IS ORDERED that the plaintiff's Motion to Compel is DENIED as to Request for Production No. 20. However, it is understood and expected that the defendant shall supplement its response should any information or documents relating to the "Blue Light Bandit" become available.

2. Discovery Addressed to the Defendant Officers

Requests for Production No. 2: Requests copies of the deputies' entire personnel files.

Plaintiff submits that the files produced do not include copies of their respective letters requesting expungement. Defendants submit that they have in fact produced copies of the officers' letter requests seeking expungement of their records and that this correspondence is appended to their Memorandum in Opposition to the Motion to Compel as Exhibits B and C. The requests for expungement are dated October 7, 1997 (Jackson's letter) and March 23, 2000 (Rogers' letter), i.e., after the effective date of the 1995 Act repealing L.R.S. § 40:2533(C).

IT IS ORDERED that as to Request for Production No. 2, the plaintiff's Motion to Compel is DISMISSED AS MOOT. This order issues based upon the defendants' representations that the entire files as they are currently constituted (i.e., expunged) have been produced, including copies of the officers' letters requesting expungement. Requests for Production No. 14: Requests production of any and all cellular phone bills, logs, contracts that relate in any way to the cellular phone used by Ricky Jackson on May 17, 2002.

Defendant Ricky Jackson responded that he is not in possession of these documents at this time. The Sheriff notes that it does not issue cell phones to its deputies and thus, it does not have possession of any cellular telephone bills. The officers submit that they have none, have been unable to locate any, and cannot produce what they do not have in their possession.

IT IS ORDERED that the plaintiff's Motion to Compel is GRANTED as to Request No. 14 in that, to the extent that the information may be readily accessible to or within the defendant officer's control. In other words, if Officer Jackson had a cell phone on the date in question and it was activated with service, the defendant officer shall request the information from his cell phone service provider and provide copies of the information to the plaintiff within twenty (20) days of the date of the entry of this order. In the event that Officer Jackson takes the position that he had no cell phone or cell phone serviceon the date in question, then he shall supplement his response accordingly and do so within ten (10) days of the date of the entry of this order.

Accordingly,

IT IS ORDERED that the plaintiff's Motion to Compel is GRANTED IN PART and DENIED IN PART, all as more specifically provided herein above.

IT IS FURTHER ORDERED that the plaintiff's Motion to Quash SDT is GRANTED.