UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

WILLIE JOYNER,

CIVIL ACTION NO. 08-14480

Plaintiff,

DISTRICT JUDGE JULIAN COOK

v.

MAGISTRATE JUDGE DONALD A. SCHEER

DETROIT POLICE OFFICER 

R. STEWART, et al.,

Defendants.

_________________________________/ 

ORDER GRANTING PLAINTIFF’S MOTION TO

COMPEL INTERNAL AFFAIRS DOCUMENTS

Plaintiff’s Motion to Compel Internal Affairs Documents was filed on July 29, 2009.

Defendants filed a Response and token Brief (“Defendants rely on all applicable Federal

Rules of Discovery”) on August 11, 2009. The parties appeared for hearing on September

8, 2009. 

Defendants are represented by Assistant Corporation Counsel for the City of Detroit.

The Defendants testified in deposition that an internal affairs investigation was conducted

with respect to their contact with Plaintiff on April 27, 2008. Plaintiff served each Defendant

with the following Request for Production of Documents: 

1. Please produce any and all documents in the possession,

custody or control of Defendants, including investigation

reports, witness statements, studies, findings, notes, PCL

records, arrest records, booking records, jail records, video

tapes and photographs regarding the arrest which is the

subject matter of this lawsuit.

In response, each Defendant provided the following response, under oath:

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Officer (Welcome/Stewart) does not have possession, control,

custody or even access to any of the documents requested.

However, the law department has provided any and all

documents related to this matter by attaching those documents

to the co-Defendants response to your discovery request.

(See Exhibit D to Plaintiff’s Motion). No documents relating to an internal affairs

investigation of the Defendants was produced by the City.

In Defendants’ Response to Motion to Compel Internal Affairs Documents, their

counsel asserted (correctly) that Plaintiff’s requests for internal affairs investigative

documents should have been directed to the City. Counsel further represented, however,

that “[t]he City of Detroit is more than willing to produce any internal affairs documents that

are not privileged or covered by protective order.” Nonetheless, no documents were

produced. In the List of Unresolved issues submitted to the bench on September 4, 2009,

counsel again asserted that “Defendants have no objection to producing internal affairs

documents. They reserve the right to request an in camera inspection.” Defendants’

assertions clearly imply that they have possession, custody and/or control of at least some

of the documents included in the internal affairs investigation. Nonetheless, no documents

have been produced.

Based upon the foregoing facts, IT IS HEREBY ORDERED that Defendants shall

produce to counsel for Plaintiff any documents in their possession, custody or control which

were included in the Detroit Police Department Internal Investigation. 

IT IS FURTHER ORDERED that any privilege flowing to the individual Defendants

has been waived by their failure to assert it in conformity with the Federal Rules of Civil

Procedure. 

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Having considered this motion further since the date of the hearing, the court finds

that the official records of the Detroit Police Department Internal Investigation in question

are the property of the City, and may be subject to a deliberative process privilege.

Accordingly, it is ordered that Plaintiff may seek production of the documents by the City

of Detroit pursuant to Subpoena. 

Although I find that Defendants’ Answers to Plaintiff’s Discovery Requests were

misleading and incomplete, no attorney fee or other sanctions will be imposed upon the

defense. Defendants are admonished, however, that any future failure on their part to

comply with their discovery obligations under the Rules of Civil Procedure or the Orders of

this court may result in a Report and Recommendation that their Answer be stricken, and

that judgment by default on the issue of liability be rendered for Plaintiff.

s/Donald A. Scheer

DONALD A. SCHEER

UNITED STATES MAGISTRATE JUDGE

DATED: September 21, 2009

______________________________________________________________________

CERTIFICATE OF SERVICE

I hereby certify on September 21, 2009 that I electronically filed the foregoing paper

with the Clerk of the Court sending notification of such filing to all counsel registered

electronically. I hereby certify that a copy of this paper was mailed to the following nonregistered ECF participants on September 21, 2009: None.

s/Michael E. Lang 

Deputy Clerk to 

Magistrate Judge Donald A. Scheer

(313) 234-5217

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