282 F.R.D. 201
S.D. Ind.2012Background
- Plaintiffs served non-party subpoenas on the Prosecutor and the City seeking all documents related to the January 22, 2012 incident and surrounding bullying reports, including reports, statements, and communications.
- The Prosecutor and City asserted blanket privileges (law enforcement investigatory, attorney work product, deliberative process) and asserted documents were available from other sources and burdensome to produce.
- The court conducted an in camera review of some documents and evaluated statutory protections for grand jury transcripts, child abuse reports, and presentence materials.
- The matter involves a non-party subpoena under Fed. R. Civ. P. 45 and the balancing of privilege against plaintiffs’ need for discovery.
- The court applied the Frankenhauser ten-factor test to law enforcement investigatory privilege and considered statutory disclosure provisions under Indiana law.
- The court granted in part and denied in part the subpoenas, ordered redactions where necessary, and directed amended privilege logs and protective measures for minor witnesses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether attorney work product privilege bars disclosure | Plaintiff argues non-parties cannot assert work product | Prosecutor asserts work product protection for its files | Work product privilege does not apply to non-parties here |
| Whether law enforcement investigatory privilege shields records | Privilege should protect materials related to investigation | Privilege applies to investigative files | Frankenhauser-based balancing shows privilege does not apply in this case |
| What disclosures are required under statute for grand jury and child services records | Statutes require disclosure with protective redactions | Some materials are confidential under statute | Some documents disclosed with redactions; others remain confidential or require separate judicial handling |
| Undue burden/availability from other sources | Docs are in Prosecutor/City possession and already organized | Production would be burdensome and available elsewhere | Subpoena not unduly burdensome; non-privileged docs must be disclosed |
| Protective order and handling of minor witness identities | Need for transparency and witness questioning | Protect identities of minor witnesses | Protective order to shield identities; amended logs required to determine confidentiality |
Key Cases Cited
- Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211 (U.S. 1979) (grand jury transcript disclosure standards; particularized need required)
- Frankenhauser v. Rizzo, 59 F.R.D. 339 (E.D. Pa. 1973) (ten-factor balancing test for law enforcement privilege)
- Jones v. City of Indianapolis, 216 F.R.D. 440 (S.D. Ind. 2003) (overbreadth of blanket privilege assertions; need for specificity)
- Anderson v. Marion Cty. Sheriffs Dept., 220 F.R.D. 555 (S.D. Ind. 2004) (discovery and privilege standards in Indiana federal practice)
- United States v. Nixon, 418 U.S. 683 (U.S. 1974) (basic principle that privileges are disfavored and must be justified)