IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

EDWARD J. COPE, : Civil No. 4:12-CV-2382

:

Plaintiff : (Judge Brann)

:

v. : (Magistrate Judge Carlson)

:

GRETCHEN BROSIUS, et al., :

:

Defendants :

MEMORANDUM AND ORDER

I. Factual Background

This is a civil rights action brought by a local police officer against his

employers relating to numerous disputesthatCope has had with his employers, fellow

police officers, and Northumberland’s municipal leaders. These disputes have

myriad, interlocking aspects in Cope’s view and date back to at least the fall of 2009.

From Cope’s perspective most of the disputes relate to Cope’s efforts to speak out on

matters that he deems to be of public concern, and actions he perceives that were

taken in retaliation for this speech. 

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This case has been marked by frequent, and acrimonious, discovery disputes,

and now comes before the Court for resolution of the latest iteration of these disputes, 

as set forth in the plaintiff’s third motion to compel. (Docs. 112 and 114.)1

Having carefully reviewed the parties’ latest submissions, for the reasons set

forth below, the motion to compel will be GRANTED, in part, and DENIED, in part.

II. Discussion

Several basic guiding principles inform our resolution of the instant discovery

dispute. At the outset, Rule 37 of the Federal Rules of Civil Procedure governs

motions to compel discovery, and provides that:

(a) Motion for an Order Compelling Disclosure or Discovery

(1) In General. On notice to other parties and all affected persons, a

party may move for an order compelling disclosure or discovery. . . . 

Fed. R. Civ. P. 37(a).

The scope of what type of discovery may be compelled under Rule 37 is

defined, in turn, by Rule 26(b)(1) of the Federal Rules of Civil Procedure, which

defines relevant discoverable evidence. Further, rulings regarding the proper scope

While both of these documents have been identified as motions to compel

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on the docket, in fact Doc. 114 is a response in opposition to the motion to

compel.

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of discovery, and the extent to which discovery may be compelled, are matters

consigned to the court’s discretion and judgment. Thus, it has long been held that

decisions regarding Rule 37 motions are “committed to the sound discretion of the

district court.” DiGregorio v. First Rediscount Corp., 506 F.2d 781, 788 (3d Cir.

1974). Similarly, issues relating to the scope of discovery permitted under Rule 26

also rest in the sound discretion of the court. Wisniewski v. Johns-Manville Corp.,

812 F.2d 81, 90 (3d Cir. 1987). Thus, a court’s decisions regarding the conduct of

discovery, and whether to compel disclosure of certain information, will be disturbed

only upon a showing of an abuse of discretion. Marroquin-Manriquez v. I.N.S., 699

F.2d 129, 134 (3d Cir. 1983).

This far-reaching discretion extends to rulings by United States Magistrate

Judges on discovery matters. In this regard:

District courts provide magistrate judges with particularly broad

discretion in resolving discovery disputes. See Farmers & Merchs. Nat'l

Bank v. San Clemente Fin. Group Sec., Inc., 174 F.R.D. 572, 585

(D.N.J.1997). When a magistrate judge's decision involves a

discretionary [discovery] matter . . . , “courts in this district have

determined that the clearly erroneous standard implicitly becomes an

abuse of discretion standard.” Saldi v. Paul Revere Life Ins. Co., 224

F.R.D. 169, 174 (E.D.Pa.2004) (citing Scott Paper Co. v. United States,

943 F.Supp. 501, 502 (E.D.Pa.1996)). Under thatstandard, a magistrate

judge's discovery ruling “is entitled to great deference and is reversible

only for abuse of discretion.” Kresefky v. Panasonic Commc'ns and

Sys. Co., 169 F.R.D. 54, 64 (D.N.J.1996); see also Hasbrouck v.

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BankAmerica Hous. Servs., 190 F.R.D. 42, 44-45 (N.D.N.Y.1999)

(holding that discovery rulings are reviewed under abuse of discretion

standard rather than de novo standard); EEOC v. Mr. Gold, Inc., 223

F.R.D. 100, 102 (E.D.N.Y.2004) (holding that a magistrate judge's

resolution of discovery disputes deserves substantial deference and

should be reversed only if there is an abuse of discretion).

Halsey v. Pfeiffer, No. 09-1138, 2010 WL 3735702, *1 (D.N.J. Sept. 17, 2010).

This discretion is guided, however, by certain basic principles. Thus, at the

outset, it is clear that Rule 26's broad definition of that which can be obtained through

discovery reaches nonprivileged matters that are relevant to a party’s claim or

defense. Therefore, valid claims of relevance and privilege still cabin and restrict the

court’s discretion in ruling on discovery issues.

A party moving to compel discovery bears the initial burden of proving the

relevance ofthe requested information. Morrison v. Philadelphia Housing Auth., 203

F.R.D. 195, 196 (E.D.Pa. 2001). Once that initial burden is met, “the party resisting

the discovery has the burden to establish the lack of relevance by demonstrating that

the requested discovery (1) does not come within the broad scope of relevance as

defined under Fed.R.Civ.P. 26(b)(1), or (2) is of such marginal relevance that the

potential harm occasioned by discovery would outweigh the ordinary presumption in

favor of broad disclosure.” In re Urethane Antitrust Litigation, 261 F.R.D. 570, 573

(D.Kan. 2009).

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With these legal guideposts in mind, we turn to consideration of the various

discovery requests set forth in this motion to compel.

In his motion to compel Cope first seeks a fully executed copy of the

defendants’ prior response to interrogatories. In this regard, the plaintiff

acknowledges receiving a response to this discovery request in March of 2013, but

alleges that it was not fully executed. To the extent that the plaintiff seeks a fully

executed and signed copy of this longstanding response this motion is GRANTED.

Second, the plaintiff seeks copies of notes and minutes of meetings from 2002

to the present where “police department polices [sic]” were considered. The

defendant’s response to this request was to direct the plaintiff to the website where

all minutes are maintained and to identify those instances where it was believed that

minutes would reflect consideration of police policies. While we regard thisresponse

as generally adequate, out of an abundance of caution and fairness we will ORDER

defendants to forward copies of all pertinent minutes, notes and records of meetings

in its possession, custody and control which are responsive to this request to the

plaintiff.

The plaintiff then seeks interview notes, reports and other documents relating

to an investigation conducted by a third party for the defendant Borough. It is

represented that this report has been released in a redacted form, but the parties

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dispute whether the redactions are adequate or appropriate. The parties also dispute

whether the report is privileged, although any privilege may have been waived by the

release of the report. In order to address these questions, IT IS ORDERED that the

defendants shall provide the Court copies of the redacted and unredacted report for

our in camera inspection.

The plaintiff also seeks the complete personnel file of several defendants. To

the extent that Cope claims that he is entitled to wholesale discovery of these

personnel files because these individuals forfeited their privacy rights when theywere

sued by Cope, we disagree. Defendants and witnesses do not forfeit their personal

privacy in personnel records when they are sued. Quite the contrary, courts have long

recognized that:

Although personnel files are discoverable, they contain confidential

information and discovery of them should be limited. See, e.g., ReaganTouhy v. Walgreen Co., 526 F.3d 641, 648 (10th Cir.2008) (“Personnel

files often contain sensitive personal information ... and it is not

unreasonable to be cautious about ordering their entire contents

disclosed willy-nilly.... This is not to say personnel files are

categorically out-of-bounds.”); Miles v. Boeing Co., 154 F.R.D. 112,

115 (E.D.Pa.1994) (“[P]ersonnel files are confidential and discovery

should be limited.”). The Court must weigh the right to relevant

discovery against the privacy interest of non-parties. The Court finds

that Plaintiff is not entitled to the entire personnel records of all the

individuals without a more particularized showing of relevance

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Harris v. Harley-Davidson Motor Co. Operations, Inc, No. 09-1449, 2010 WL

4683776, *5 (M.D.Pa Nov. 10, 2010). Miles v. Boeing Co., 154 F.R.D. 112, 115

(E.D. Pa. 1994)(“personnel files are confidential and discovery should be limited.”).

Here, the plaintiff simply asserts in general terms his belief that wholesale disclosure

of these files will reveal relevant information. This is an insufficient showing in our

view. Therefore, in the absence of a more narrowly tailored request, or a more

fulsome explanation of relevance, the motion to compel is DENIED in this regard.

The plaintiff also seeks copies of certain use of force policies in various

electronic formats, including a thumb drive and electronic copies of these policies in

their native format including all metadata. The defendants have responded by voicing

a complete willingness to provide this information once the parties agree upon a

protocol for handling this electronic data. This seems a prudent request, since the

plaintiff’s discovery demand seeks information relating to the integrity of these

electronic records or their alteration. The plaintiff, however, has disagreed and

declined to discuss any protocol for release of this information. We believe that the

defendants are well-advised to insist upon an appropriate procedural protocol when

handling this data, and agree that they may make this disclosure contingent upon the

parties agreeing upon such a protocol. Therefore, this request will be DENIED. The

parties may return to this Court is they are unable to agree upon such a protocol.

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Finally, the plaintiff seeks an award of attorneys’ fees, insisting that such fees

are mandatory. We disagree. In this setting, where we have granted the motion in

part and denied it in part, the award of fees rests in our sound discretion. “If the

motion is granted in part and denied in part, the court may. . . , after giving an

opportunity to be heard, apportion the reasonable expenses for the motion.” Fed. R.

Civ. P., Rule 37(a)(5)(B). In this case, in the exercise of our discretion we will direct

that each party bear its own costs associated with this discovery litigation.

Having resolved these matters fully, the defendants’ request for a telephonic

conference is DENIED.

An appropriate form of order follows:

III. Order

AND NOW this 11th day of February 2016, IT IS ORDERED that the

plaintiff’s motion to compel, (Docs. 112 and 114.) is GRANTED, in part, and

DENIED in part as follows:

1. To the extent that the plaintiff seeks a fully executed and signed copy

of the longstanding response to interrogatories provided in 2013 this

motion is GRANTED.

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2. IT IS ORDERED that the defendants shall forward copies of all

pertinent minutes, notes and records of meetings in its possession,

custody and control which are responsive to the plaintiff’s request for

copies of notes and minutes of meeting from 2002 to the present where

“police department polices [sic]” were considered. 

3. IT IS ORDERED that the defendants shall provide the court copies of

the redacted and unredacted interview notes, reports and other

documentsrelating to an investigation conducted by a third party for the

defendant Borough report for our in camera inspection

4. The motion to compel production of personnel files is DENIED.

5. The plaintiff’s request for copies of certain use of force policies in

various electronic formats, including a thumb drive and electronic

copies of these policies in their native format including all metadata is

DENIED since the defendants have responded by voicing a complete

willingness to provide this information once the parties agree upon a

protocol for handling this electronic data, which the plaintiff has

declined to do to date, but the defendants shall produce this information

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once the parties agree to an appropriate disclosure protocol. The parties

may return to this Court isthey are unable to agree upon such a protocol. 

6. The plaintiff’s request for attorneys’ fees is DENIED. Each party will

bear its own costs associated with this discovery litigation.

7. The defendants’ request for a telephonic conference is DENIED since

this order resolves this dispute.

S/Martin C. Carlson

Martin C. Carlson

 United States Magistrate Judge

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