Opinion
Civil Action 2:14-cv-611
03-13-2015
SHANNON SHERIDAN, Plaintiff, v. SHERIFF PAT KELLY, Defendant.
Judge George C. Smith
OPINION AND ORDER
Plaintiff Sheridan brings this action under 42 U.S.C. § 1983, alleging that Defendant Pat Kelly unlawfully removed him from his position of Deputy Sheriff in retaliation for exercising his right to engage in protected political speech under the First Amendment. This matter is before the Court for consideration of the City of Athens Police Department's ("APD") Motion to Quash Subpoena Duces Tecum (ECF No. 16) and Plaintiff Sheridan's Response in Opposition (ECF No. 17).
I.
On December 22, 2014, Plaintiff Sheridan served a subpoena duces tecum on APD. In his subpoena duces tecum, Plaintiff Sheridan requests that APD produce certified copies of the following:
All documents pertaining to an allegation of assault made against Joel Kelly by Josh Wise in an incident alleged to have occurred at Leghorns' Restaurant; including but not limited to incident reports, witness statements, dispatch logs, photographs, and other relevant documents.(Exhibit 1, ECF No. 16-1.)
On January 7, 2015, the records clerk at the APD responded as follows:
Our files show no records of the following request:
All documents pertaining to an allegation of assault made against Joel Kelly by Josh Wise in an incident alleged to have occurred at
(Exhibit 2, ECF No. 16-1.)Leghorn's Restaurant, including but not limited to incident reports, witness statements, dispatch logs, photographs, and other relevant documents.
This does not preclude the possibility of unlisted arrests, expunged/sealed records or criminal investigation information with this or other departments.
On January 9, 2015, Plaintiff Sheridan wrote a letter to the custodian of records at APD and indicated that he would seek an order compelling compliance with the subpoena if he did not receive a response by January 16, 2015. (Exhibit 3, ECF No. 16-1.) On January 12, 2015, Plaintiff Sheridan's counsel acknowledged receiving APD's January 7, 2015 response and asserted that he was "hard-pressed to accept that the [APD] has no records related to the incident referenced in the subpoena." (Exhibit 4, ECF No. 16-1.) He further asserted that "[c]ertainly records pertaining to this matter exist, and it is respectfully requested that they be produced no later than Friday, January 16, 2015." Id.
On January 16, 2015, the APD filed a Motion to Quash Subpoena Duces Tecum, contending that the January 7, 2015 response from the record clerk adequately answered Plaintiff's subpoena. APD further asserted that "as set forth by the Records Clerk, that statement does not preclude the possibility of unlisted arrests, expunged/sealed records or criminal investigation information." (APD's Mot. to Quash 3, ECF No. 16.) APD contends that such information would be "protected matter" not subject to disclosure under Federal Rule of Civil Procedure 45(d)(3)(A)(iii). Id.
Plaintiff Sheridan agreed he would not challenge the timeliness of the instant Motion to Quash because the Chief City Prosecutor did not become aware of the subpoena until January 15, 2015. (APD's Mot. to Quash 2, ECF No. 16.)
On January 20, 2015, Plaintiff Sheridan filed his Response in Opposition to APD's Motion to Quash. (ECF No. 17.) In his Response, Plaintiff first pointed out that APD did not object on the basis of relevance. Plaintiff then asserted that the records requested ought to exist, given that the investigation had been specifically referenced in media reports. Finally, he asserted that APD has not expressly claimed that the records are privileged under federal law. Plaintiff explained that the requested records are relevant to the broader issues of Defendant Kelly's alleged history of engaging in retaliatory actions and how Defendant Kelly disciplined other members of the Athens County Sheriff's Department, including his son Joel Kelly, for similar misconduct.
On March 10, 2015, the parties convened for a telephonic status conference to discuss the instant Motion to Quash. During the conference, counsel for APD indicated that its official position is that the records do not exist. APD also cited Ohio Revised Code Section 2953.54, which prevents it from producing certain sealed records, or acknowledging that such records exist. Ohio Rev. Code § 2953.54.
II.
Rule 45 of the Federal Rules of Civil Procedure governs third-party subpoenas. Fed. R. Civ. P. 45. Rule 45 permits parties in legal proceedings to command a non-party to attend a deposition, produce documents, and/or permit inspection of premises. Fed. R. Civ. P. 45(a)(1). The Rule provides that the non-party commanded to produce documents may serve an objection on the party or attorney designated in the subpoena within the earlier of fourteen days after the subpoena is served or the time specified for compliance. Fed. R. Civ. P. 45(c)(2)(B).
The Federal Rules of Civil Procedure guide this Court in its determination of the appropriate scope of subpoenas. Rule 45(c)(1) provides that "[a] party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena." Fed. R. Civ. P. 45(c)(1). "[T]he issuing court must quash or modify a subpoena that . . . subjects a person to undue burden." Fed. R. Civ. P. 45(c)(3)(A)(iv); see also Info-Hold, Inc. v. Sound Merch., Inc., 538 F.3d 448, 457 (6th Cir. 2008) (quoting Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007)) ("'[D]istrict courts have discretion to limit the scope of discovery where the information sought is overly broad or would prove unduly burdensome to produce.'") In considering whether the discovery sought is unduly burdensome, the Court considers whether "the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, and the importance of the discovery in resolving the issues." Fed. R. Civ. P. 26(b)(2)(C)(iii); Surles, 474 F.3d at 305 (same).
III.
APD asserts that records related to the allegation of assault against Joel Kelly do not exist. Plaintiff contends that the records must exist. Plaintiff relies on media reports that indicate that Joel Kelly was charged with assault and that he pled guilty to persistent disorderly conduct. (ECF No. 17-7.) APD maintains its original assertion that the records do not exist and again refers the Court to Ohio Revised Code Section 2953.54.
Section 2953.54 provides as follows:
(A) . . . [U]pon the issuance of an order by a court under division (B) of section 2953.52 of the Revised Code directing that all official records pertaining to a case be sealed and that the proceedings in the case be deemed not to have occurred:
(1) Every law enforcement officer possessing records or reports pertaining to the case that are the officer's specific investigatory work product and that are excepted from the definition of "official records" contained in section 2953.51 of the Revised Code shall immediately deliver the records and reports to the officer's employing law enforcement agency. Except as provided in division (A)(3) of this section, no such officer shall knowingly release, disseminate, or otherwise make the records and reports or any information contained in them available to, or discuss any information contained in them with, any person not employed by the officer's employing law enforcement agency.
Ohio Rev. Code § 2953.54.(2) Every law enforcement agency that possesses records or reports pertaining to the case that are its specific investigatory work product and that are excepted from the definition of "official records" contained in section 2953.51 of the Revised Code, or that are the specific investigatory work product of a law enforcement officer it employs and that were delivered to it under division (A)(1) of this section shall, except as provided in division (A)(3) of this section, close the records and reports to all persons who are not directly employed by the law enforcement agency and shall, except as provided in division (A)(3) of this section, treat the records and reports, in relation to all persons other than those who are directly employed by the law enforcement agency, as if they did not exist and had never existed. Except as provided in division (A)(3) of this section, no person who is employed by the law enforcement agency shall knowingly release, disseminate, or otherwise make the records and reports in the possession of the employing law enforcement agency or any information contained in them available to, or discuss any information contained in them with, any person not employed by the employing law enforcement agency.
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(B) Whoever violates division (A)(1), (2), or (3) of this section is guilty of divulging confidential information, a misdemeanor of the fourth degree.
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Given the language of Section 2953.54 and the nature of the media reports related to the incident, the Court logically concludes that Joel Kelly's conviction has been expunged and sealed by the state court. Under Ohio law, law enforcement agencies are to treat expunged records as if they do not exist. This Court cannot compel records that do not exist and will not compel APD to violate the statute. Under these circumstances, if Plaintiff requires the records described in his subpoena duces tecum, his remedy is to request that the state court unseal them. Accordingly, APD's Motion to Quash is GRANTED.
Newspaper reports indicate that Joel Kelly accepted a plea agreement and pleaded guilty to persistent disorderly conduct. The article further indicated that Athens County Municipal Judge William Grim "said Joel Kelly can petition to have the conviction expunged after a year." (Pl.'s Resp. in Opp to APD's Mot. to Quash Exhibit 7, ECF No. 17-7.)
The Court emphasizes that at no point did counsel for APD run afoul of the statute. She was diligent in her duty not to disclose any records or even indicate that they exist.
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IT IS SO ORDERED. Date: March 13, 2015
/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge