UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

SOUTHWEST METALS, 

INC. and JOSEPH FAWAZ, 

 Plaintiffs, 

v. 

CITY OF DETROIT, et al. , 

 Defendants. 

 

Case No. 2:15-cv-11080 

District Judge Marianne O. Battani 

Magistrate Judge Anthony P. Patti 

___________________________________/ 

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFFS’ 

JULY 26, 2016 AMENDED MOTION TO COMPEL DISCOVERY (DE 34) 

I. BACKGROUND 

 Plaintiffs filed the instant motion to compel on July 26, 2016, seeking a 

Court order requiring that Defendants do the following: 1) produce Sergeant 

Rebecca McKay for deposition; 2) produce Sergeant Bernadette Dunbeck for 

deposition; 3) supply the last known address of retired officer Derek Hassan; and 

4) turn over an unredacted copy of Sergeant Bernadette Dunbeck’s police report 

(“the Dunbeck report”). (DE 34.) On August 25, 2016, this matter came before 

me for a hearing, during which I made the following rulings: 1) that Defendants’ 

counsel must either certify that he is entitled to accept subpoenas on behalf of 

Officer Hassan or provide Officer Hassan’s contact information to Plaintiffs’ 

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counsel on or before September 1, 2016; 2) that Defendants must produce Sergeant 

McKay for deposition after the conclusion of the state court criminal proceeding; 

3) that Officer Hassan’s deposition must take place on the same day as Sergeant 

McKay’s, the order to be determined by Plaintiffs; and 4) that Defendants are 

entitled to depose Plaintiff Fawaz at some point after Sergeant McKay’s 

deposition. (See DE 55.) 

 Thus, the only remaining issue was whether Defendants were required to 

turn over to Plaintiffs an unredacted copy of the Dunbeck report, with Dunbeck’s 

deposition delayed until the issue could be decided. Finding the briefing on this 

question inadequate, I ordered that each party submit supplemental briefing on the 

issue of the deliberative process and law enforcement privileges as they related to 

internal police investigative reports. Defendants were also required to provide a 

redacted and unredacted copy of the report for an in camera review. Both parties 

timely submitted the required briefing, and Defendants provided the documents 

necessary for an in camera review. (DE 56 and 57.) 

II. DISCUSSION 

 The Dunbeck report is a 58-page internal affairs summary of the results of 

an investigation into the conduct of Detroit Police Sergeant Rebecca McKay, 

initiated when Plaintiff Fawaz made a complaint about her. (See DE 38-5 at 2-59 

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3 

(Redacted Dunbeck Report)).1 Defendants provided the report to Plaintiffs, but 

redacted certain information based on the claims of privilege outlined below. (See

DE 56-8 (Summary of Redactions).) 

A. Deliberative Process Privilege 

The deliberative process privilege protects “documents reflecting advisory 

opinions, recommendations and deliberations comprising part of a process by 

which governmental decisions and policies are formulated.” NLRB v. Sears, 

Roebuck & Co., 421 U.S. 132, 149 (1974). “The primary purpose served by the 

deliberative process privilege is to encourage candid communications between 

subordinates and superiors.” Schell v. U.S. Dep't of Health & Human Servs., 843 

F.2d 933, 939 (6th Cir. 1988). “The deliberative process privilege rests on the 

obvious realization that officials will not communicate candidly among themselves 

if each remark is a potential item of discovery and front page news, and its object 

is to enhance ‘the quality of agency decisions’ . . . by protecting open and frank 

discussion among those who make them within the government.” Dep’t of Interior 

& Bureau of Indian Affairs v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 9 

(2001). 

The privilege, however, is not absolute and is narrowly construed. Gen. 

Motors Corp. v. United States, No. 07-14464, 2009 WL 5171807, at *1 (E.D. 

 

1

 Attached to this report are an additional 18 pages and a one-page letter from Sgt. 

Dunbeck to Joseph Fawaz. (See 56-8 at 1 n.2.) 

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Mich. Dec. 23, 2009) (Roberts, J.). Here, I am informed by an oft-cited decision 

which reflects upon “sources of confusion in analysis of assertions of privilege by 

law enforcement agencies,” in part, as follows: 

Similarly, courts could apply the “deliberative process” privilege to 

most kinds of information generated by police departments only if 

they are willing to stretch, in some instances almost beyond 

recognition, the policy rationale that supports that privilege. As 

originally developed, the deliberative process privilege was designed 

to help preserve the vigor and creativity of the process by which 

government agencies formulate important public policies. See, e.g., 

Branch v. Phillips Petroleum Co., 638 F.2d 873, 881–82 (5th 

Cir.1981). The principal idea that inspires the privilege is that the 

people who contribute to policy formulation will be less afraid to offer 

honest (albeit painful) analyses of current and contemplated policies, 

and will be less shy about suggesting bold, creative (and sometimes 

hairbrained) policy alternatives, if they know that their work is not 

likely to be disclosed to the public. As I will suggest below, it is not at 

all clear to me that the basic assumption that informs this body of law 

is well-made. For present purposes, however, the point is this: the 

rationale that supports this privilege should fix the limits of its reach. 

The “deliberative process” privilege should be available only to 

communications that contribute to a deliberative process. 

Kelly v. City of San Jose, 114 F.R.D. 653, 658–59 (N.D. Cal. 1987) (Brazil, M.J.) 

(emphases in original). In addition, as described more recently by our Court of 

Appeals: 

To come within [the] deliberative process privilege, a document must 

be both “predecisional,” meaning it is “received by the decisionmaker 

on the subject of the decision prior to the time the decision is made,” 

and “deliberative,” the result of the consultative process. Although 

this privilege covers recommendations, draft documents, proposals, 

suggestions, and other subjective documents that reflect the opinions 

of the writer rather than the policy of the agency, the key issue in 

applying this exception is whether disclosure of the materials would 

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expose an agency’s decisionmaking process in such a way as to 

discourage discussion within the agency. 

Rugiero v. Dep’t of Justice, 257 F.3d 534, 550 (6th Cir. 2001) (internal quotations 

and citations omitted). 

 In this case, the parties are generally in agreement about these legal 

standards, but dispute whether the privilege applies to the redacted portions of the 

report at issue here and, if so, whether the qualified nature of the privilege can be 

overcome. First, as a preliminary matter, Defendants argue that the deliberative 

process privilege can be asserted by counsel - a position which Plaintiffs dispute – 

but, alternatively, provide an affidavit asserting the privilege from DeShaune Sims, 

a Commander in the Professional Standards Bureau of the Internal Affairs Section 

of the Detroit Police Department. (Compare DE 56 at 8-9, DE 57 at 2-3; see also

DE 56-7.) Having reviewed the affidavit, I conclude that it cures any defect in the 

assertion of such privilege by counsel and provides factual support for the privilege 

asserted. Accordingly, I conclude that Defendants have properly asserted the 

privilege, without having to determine who has standing to assert it. 

 Second, Defendants assert that the privilege applies to portions of internal 

affairs reports containing advisory opinions, recommendations, or deliberations, 

and therefore applies to certain redacted portions of the Dunbeck report. (DE 56 at 

7, citing Perry v. City of Pontiac, 07-14036, 2011 WL 4345239, at *6 (E.D. Mich. 

Sept. 16, 2011) (Lawson, J.)). Plaintiffs counter that the Dunbeck report contains 

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“purely factual investigative materials,” and not advisory opinions protected by the 

privilege. (DE 57 at 5, citing id.) Thus, the only dispute is not over whether the 

privilege generally applies to a police department’s internal investigation reports, 

or to the specific portions of the Dunbeck report (if any) containing advisory 

opinions, recommendations, or deliberations, but whether the specific redacted 

portions of the report at issue are purely factual in nature.2

 

 Defendants have provided the Court with redacted and unredacted copies of 

the Dunbeck report for an in camera review, and claim the deliberative process 

privilege for the redacted portions of pages 55-57 and 59.3

 (See DE 56-8.) The 

title of the section beginning on page 55 has been entirely redacted and will be 

referred to as the “Issues” section. The other two sections at issue are labeled 

“Conclusion and Recommendation.” and “Second Endorsement.” (See DE 38-5 at 

55-57 and 59.) I will address each section in turn. 

1. “Issues” Section of Report (DE 38-5 at 55-56) 

 

2

 In any case, the Court is satisfied that the deliberative process privilege could 

apply to internal affairs reports of police departments, based upon Perry and other 

authorities cited in the Defendants’ briefs. 

3

 There are two page numbers on the reports—one typewritten and one handwritten 

in the upper right hand corner of the page. For the purposes of this order, the Court 

will refer to the handwritten numbers, which includes the transmittal letter as page 

1. This manner of referencing the page numbers is consistent with the case 

management pagination in DE 38-5. (See also DE 56-8 at n. 2.) 

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The information in this section is not protected by the deliberative process 

privilege, because it consists only of factual investigative information. It merely 

summarizes who Sergeant McKay interviewed during her investigation, the facts 

on which she based her determinations, and the actions taken by Sergeant McKay 

during the investigation. See EEOC v. Peoplemark, Inc., No. 1:08-cv-907, 2010 

WL 748250, at *2 (W.D. Mich. Feb. 26, 2010).

4

 There is nothing in this section 

that is in any way deliberative. Nor would it expose the agency’s decision-making 

process in such a way as to discourage discussion within the agency. As such, I 

conclude that this section should be unredacted in its entirety and provided to 

Plaintiffs, because it is not protected by the deliberative process privilege. 

2. “Conclusion and Recommendation” Section of Report (DE 

38-5 at 56-57) 

To be clear, Defendants assert both the deliberative process privilege and the 

informant privilege to justify the redactions on these pages. (DE 56-8 at 2.) Here, 

too, I conclude that the deliberative process privilege does not apply to the 

redacted information in this section. It is merely a summary of the internal affairs 

 

4

 In the context of an internal investigation, an example of items not protected by 

the privilege include: “who the [agency] interviewed during its investigations; who 

conducted the investigations; the facts on which the [agency] based its cause 

determinations; the documents or testimony on which the [agency] based its 

finding of fact included in the determination; the actions taken during the 

investigation by the [agency], the communications between the [agency] and 

witness . . .; and the dates on which the investigations were started and finished.” 

Peoplemark, 2010 WL 748250 at *2

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investigation, contains only factual information, and is devoid of advisory 

opinions. As such this section should be unredacted and provided to Plaintiffs. 

However, the provisions relating to the confidential informant (seemingly limited 

to six lines in the second full paragraph) are protected by the law enforcement 

privilege, as noted below, and may remain redacted to the extent that they would 

identify this individual. 

 3. “Second Endorsement” Section in Report (DE 38-5 at 59) 

 As to this 10-line redaction, Defendants only assert the deliberative process 

privilege. (DE 56-8 at 2.) This is the closest case for applying the privilege in the 

Dunbeck report. However, construing the privilege narrowly, this paragraph is not 

protected. It contains the results of the investigation into Sergeant McKay’s 

conduct. It could be argued that it contains the opinion of Captain Brian Mounsey 

as to Sergeant McKay’s compliance with department policy. However, a closer 

reading reveals that it merely summarizes the facts on which Captain Mounsey 

based his determination. The Court further notes an inconsistency in Defendants’ 

redactions to this section. Defendants released the first and third paragraphs of the 

Second Endorsement, which contain Captain Mounsey’s findings and 

recommendations. The Court fails to see why findings and recommendations in 

the second paragraph, along with factual summaries, should not similarly be 

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produced. As such, this paragraph should likewise be unredacted and provided to 

Plaintiffs in its entirety. 

 B. Law Enforcement Privilege 

Defendants assert the “informant privilege” with regard to certain 

information redacted from 18 pages in this report. (See DE 56-8 at 1-2.) Plaintiffs 

do not directly contest the portions of the Dunbeck report that Defendants claim 

are protected by the law enforcement privilege. (Compare DE 56 at 10-13, DE 57 

at 5-7.) Nonetheless, having performed an in camera review of the unredacted 

report at issue here, and having made the foregoing rulings that the deliberative 

process privilege does not apply to the above-discussed redactions, the Court feels 

compelled to specifically address Defendants’ assertion of the “informant 

privilege” as to certain redactions that appear on pages 50 and 56 (DE 38-5 at 50, 

56). 

The law enforcement privilege preserves the government’s ability to 

“withhold from disclosure the identity of persons who furnish to law enforcement 

personnel information concerning violations of the law.” Holman v. Cayce, 873 

F.2d 944, 946 (6th Cir. 1989) (citing Roviaro v. United States, 353 U.S. 53, 59 

(1957) and 8 C. Wright & A. Miller, Federal Practice and Procedure § 2019 

(1970)). Here, the privilege is properly asserted as to the redacted portions of the 

Dunbeck report referring to the identity of the confidential informant. In 

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particular, I note Defendants have fairly asserted the “informant privilege” as to the 

six lines redacted from the final paragraph on Page 50 (DE 38-5 at 50) and the 

second through fifth sentences of the second full paragraph on Page 56 (DE 38-5 at 

56.) (See DE 56-8 at 2.) In other words, even in the portions of the Dunbeck 

report to be unredacted as set forth above, Defendants may retain the redactions 

that would identify the confidential informant to whom they allude in their brief. 

C. Purely personal information 

 Finally, Plaintiffs argue that, even if a qualified privilege applies to the 

redacted information at issue, their need for and interest in the information 

outweighs the need to shield it. (DE 57 at 5-7.) In light of my conclusion that the 

information at issue is not protected by the deliberative process privilege, in large 

part the Court need not address this argument. Notwithstanding the foregoing, any 

provisions relating to the confidential informant are protected by the law 

enforcement privilege, as noted above, and may remain redacted to the extent that 

they would identify this individual. 

 Moreover, to the extent, if at all, the parties disagree about whether 

Defendant City of Detroit properly redacted other private and confidential 

information contained within the Dunbeck Report (compare DE 56 at 13-15, DE 

57 at 5-7), such as “pension numbers, social security numbers, addresses, 

telephone numbers and birth dates[,]” Defendants may retain their redactions of 

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such private information (see DE 38-5 at 60), consistent with any applicable 

Freedom of Information statutes. 

III. ORDER 

 In sum, Plaintiffs’ motion to compel is granted in part and denied in part. 

Specifically, as outlined in my August 26, 2016 interim order, the following must 

be done: 1) Defendants’ counsel must either accept subpoenas on behalf of Officer 

Hassan or immediately provide Officer Hassan’s contact information to Plaintiffs’ 

counsel; 2) Defendants must produce Sergeant McKay for deposition after the 

conclusion of the state court criminal proceeding; 3) Officer Hassan’s deposition 

must take place on the same day as Sergeant McKay’s, the order to be determined 

by Plaintiffs; and 4) Defendants are entitled to depose Plaintiff Fawaz after the 

McKay and Hassan depositions have occurred. (DE 55.) 

Additionally, Defendants must (at least two weeks prior to the McKay and 

Hassan depositions) provide Plaintiffs with a copy of the Dunbeck report that has 

been unredacted consistent with this order. 

Finally, nothing in this order shall be interpreted as excusing the parties’ 

compliance with any obligations which may otherwise arise in this federal court 

civil matter under the Federal Rules of Civil Procedure, the Local Rules of the 

Eastern District of Michigan, or case management orders, with regard to witnesses’ 

identities and contact information, subject to any legitimate privileges. 

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Defendants’ counsel must certify to Plaintiffs’ counsel in writing that he (defense 

counsel) will accept service of any subpoenas on behalf of any present or former 

City of Detroit employees whose contact information is withheld. 

IT IS SO ORDERED. 

Dated: September 29, 2016 s/Anthony P. Patti 

 Anthony P. Patti 

 UNITED STATES MAGISTRATE JUDGE 

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

on September 29, 2016, electronically and/or by U.S. Mail. 

 s/Michael Williams 

 Case Manager for the 

 Honorable Anthony P. Patti 

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