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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

KIRK HOMOKY, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) 2:12-cv-491 

 ) 

JEREMY OGDEN, et al., ) 

 ) 

 Defendants. ) 

OPINION AND ORDER 

 This matter is before the court on the Motion for Rule to Show Cause [DE 38] filed by 

the plaintiff, Kirk Homoky, on June 25, 2014. For the following reasons, the motion is 

DENIED. 

Background 

 The plaintiff, Kirk Homoky, took the deposition of Sergeant Tim Manteuffel of the Porter 

County Sheriff’s Department on May 1, 2014. At his deposition, Manteuffel testified that audio 

from the interrogation room was available at all times, even when the room was empty, and that 

the officers had a device at their desks that allowed them to hear what was going on in the 

interrogation room at all times. The real-time audio was not controlled by an on and off switch. 

However, he further stated that there was an on and off switch in the commander’s office for 

recording. Any time an interview was conducted, the recording device was turned on. 

 Following Manteuffel’s deposition, Homoky served the Porter County Police Department 

with a subpoena to produce the audio recording pertaining to Homoky from November 14, 2012. 

The Sheriff’s Department turned over a CD-DVD of the interview. Homoky’s counsel reviewed 

the recording but determined that there were missing parts and that there was evidence of 
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splicing. Homoky now moves for an order for the Sheriff’s Department and Manteuffel to show 

cause as to why they should not be held in contempt for failing to produce the complete audio 

recording. 

Discussion 

 Federal Rule of Civil Procedure 45(g) states that the court “may hold in contempt a 

person who, having been served, fails without adequate excuse to obey the subpoena or an order 

related to it.” “To prevail on a request for a contempt finding, the moving party must establish 

by clear and convincing evidence that (1) a court order sets forth an unambiguous command; (2) 

the alleged contemnor violated that command; (3) the violation was significant, meaning the 

alleged contemnor did not substantially comply with the order; and (4) the alleged contemnor 

failed to make a reasonable and diligent effort to comply.” United States S.E.C. v. Hyatt, 521 

F.3d 687, 692 (7th Cir. 2010). After the court identifies an unequivocal command that the party 

violated, the burden then shifts, and the party opposing the motion must demonstrate why he is 

unable to comply with the order. United States v. Rylander, 460 U.S. 752, 757, 103 S.Ct. 1548, 

75 L.Ed.2d 521 (1983). The court should not take the authority to hold a party in contempt 

lightly and should do so only when it is necessary to induce performance of a court order. 

Electrical Workers Pension Trust Fund of Local Union # 58 v. Gary's Electrical Service Co., 

340 F.3d 373, 378 (6th Cir. 2003) (citing Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 

450, 31 S.Ct. 492, 55 L.Ed. 797 (1911)). 

 Homoky has not demonstrated that the Sheriff’s Department violated a command. Upon 

receiving the subpoena, the Sheriff’s Department turned over the audio recording from the 

interrogation room. Homoky complains that some audio is missing from the CD-DVD and 

because Sergeant Manteuffel stated that the audio always was turned on, that the additional audio 
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exists and should have been made available. However, Homoky mischaracterizes Manteuffel’s 

testimony. Manteuffel did not state that the audio in the interrogation room always was 

recorded. Rather, he stated only that the officers always could log-in from their desk to hear the 

real-time audio in the interrogation room. This is not the same as recording the audio. In fact, 

Manteuffel made it clear that the recording device was turned on and off by a switch near the 

commander’s office. The Sheriff’s Department responded to the motion to show cause, 

explaining that the beginning of the audio was not available because the on switch had yet to be 

activated. The Sheriff’s Department offered to make the hard drive available for inspection by 

Homoky’s counsel, but Homoky’s counsel did not accept the invitation. Homoky has not 

demonstrated that any additional audio likely exists, and the court cannot compel the Sheriff’s 

Department to turn over evidence that it does not possess. Under these circumstances, it appears 

that the Sheriff’s Department complied with the subpoena. Therefore, the Motion for Order to 

Show Cause [DE 38] is DENIED. 

 ENTERED this 18th day of August, 2014 

/s/ Andrew P. Rodovich 

United States Magistrate Judge