UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TERI A. JORDAN, as Personal 

Representative for MICHAEL MILLER,

Deceased,

Plaintiff, No. 14-13796

v. District Judge Gerald E. Rosen

Magistrate Judge R. Steven Whalen

CITY OF TAYLOR, ET AL.,

Defendants.

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OPINION AND ORDER

For the reasons discussed below, Plaintiff’s Motion to Compel Production of the

Internal Investigation Documents [Doc. #24] is GRANTED IN PART AND DENIED IN

PART.

I. BACKGROUND

At approximately 3:00 p.m. on September 9, 2012, Michael Miller was arrested at

a Kmart in Taylor, Michigan after officers of the Taylor Police Department were

dispatched to respond to a possible retail fraud. Mr. Miller informed the officers that he

had taken a high dose of Vicodin. Mr. Miller was placed in a detoxification cell at the

station house. He was later found unresponsive during officers’ rounds, and emergency

medical assistance arrived after 9:00 p.m. Although EMS technicians performed CPR and

obtained a pulse, Mr. Miller died after being taken to the hospital.

Plaintiff seeks discovery of Taylor Police Department documents generated during

an internal affairs investigation into the incident. The Defendants object based on the

deliberative process privilege. The Defendants provided the documents to the Court for

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in camera review.

II. LEGAL PRINCIPLES

In Liuzzo v. United States, 508 F.Supp. 923, 937 (E.D.Mich.1981), the Court held

that the deliberative process privilege protects from discovery “intra-governmental

documents reflecting advisory opinions, recommendations and deliberations comprising

part of a process by which governmental decisions and policies are formulated.” To come

within the protection of the deliberative process privilege, the material must of necessity

be “deliberative” or “evaluative.” In the oft-cited case of Kaiser v. Aluminum & Chemical

Corp. v. United States, 141 Ct.Cl. 38, 157 F.Supp. 939, 946 (1958), the Court explained

that while the privilege applies to “confidential intraagency advisory opinions,” it does

not extend to “objective facts” upon which an agency's decisions are based. In Ostoin v.

Waterford Twp. Police Dept., 189 Mich.App. 338, 471 N.W.2d 668 (1991), the Court

explained:

“Whether applied to administrative litigation against the federal government

or civil rights litigation against police departments, the central question in

the application of the privilege is whether the material sought is factual or

evaluative. See McClelland v. Andrus, 196 U.S.App.D.C. 371, 379-381,

606 F.2d 1278 (1979)....The purpose of the deliberative-process privilege is

to foster freedom of expression among governmental employees involved in

decision making and policy formulation. Accordingly, factual material falls

outside the scope of the privilege; to be protected, the material must

comprise part of the deliberative or evaluative process. McClelland, supra,

196 U.S.App.D.C., p. 380, 606 F.2d 1278. Moreover, the privilege

protecting deliberative and evaluative data may be overcome by a sufficient

showing of need. Liuzzo v. United States, 508 F.Supp. 923, 938

(E.D.Mich.1981); McClelland, supra, 196 U.S.App.D.C., p. 382, 606 F.2d

1278.”

See also Lewis v. City of Detroit, 234 F.R.D. 157, 160 (E.D.Mich.2006)(the privilege

does not extend to the facts upon which an agency's decisions are based).

 Factual material may be withheld only when it “is so inextricably connected to the

deliberative material that its disclosure would reveal the agency's decision making

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processes ... or when it is impossible to segregate in a meaningful way portions of the

factual information from the deliberative information.” Moody v. Michigan Gaming

Control Bd., 2013 WL 3013862, *4 (E.D.Mich. 2013)(quoting Nadler v. United States

Dep't of Justice, 955 F.2d 1479, 1491 (11th Cir.1992)). 

III. DISCUSSION

I have now reviewed the Taylor Police Department documents in camera, and it is

clear that, with two small exceptions, the material is purely factual. Bates Nos. 1-4 are

summaries of interviews of officers that had knowledge of the events giving rise to this

lawsuit. The officers state what they observed and what they did on the night in question.

The statements are in no way deliberative, nor do they reveal the Taylor Police

Department’s deliberative or evaluative process. Pages 1-4 are therefore discoverable.

However, page 5 does constitute evaluative opinions, and is protected from disclosure.

Pages 6 through 28 are the written statements of both police witnesses and

personnel at Kmart. Again, with one small exception, the witnesses merely recount what

they saw and what they did. This factual material is discoverable. See Ostoin, 471 N.W.2d

at 669 (witness statements gathered during an internal affairs investigation are

discoverable). However, the statement of Officer Yunk at page 17, question 23

constitutes an evaluative opinion, and may be redacted.

IV. CONCLUSION

Accordingly, Plaintiff’s motion [Doc. #24] is GRANTED as to all the material that

was submitted for in camera review, except for Bates No. 5 and Bates No. 17, question

and answer 23. The Defendants may redact those portions of the documents.

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Within 14 days of the date of this Order, the parties may file objections to this

Order. If timely objections are filed, the records need not be produced until after the

objections are resolved.

IT IS SO ORDERED.

s/ R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Dated: May 19, 2015

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was sent to parties of record

on May 19, 2015, electronically and/or by U.S. mail.

s/Carolyn M. Ciesla 

Case Manager to the

Honorable R. Steven Whalen

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