Opinion
Cause No. IP01-0571-C-T/G, IP 01-0571-C-T/K
December 21, 2001
ORDER ON DEFENDANT'S MOTION FOR A PROTECTIVE ORDER AND DEFENDANT'S MOTION FOR AN EXTENDED PROTECTIVE ORDER (DOCUMENT NUMBERS 25 AND 30)
Though this Entry is a matter of public record and is being made available to the public on the court's web site, it is not intended for commercial publication either electronically or in paper form. The reason for this caveat is to avoid adding to the research burden faced by litigants and courts. Under the law of the case doctrine, the ruling or rulings in this Entry will govern the case presently before this court. See, e.g., Trs. of Pension, Welfare, Vacation Fringe Benefit Funds of IBEW Local 701 v. Pyramid Elec., 223 F.3d 459, 468 n. 4 (7th Cir. 2000); Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995). However, a district judge's decision has no precedential authority and, therefore, is not binding on other courts, on other judges in this district, or even on other cases before the same judge. See, e.g., Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1998) ("a district court's decision does not have precedential authority"); Malabarba v. Chicago Tribune Co., 149 F.3d 690, 697 (7th Cir. 1998) ("district court opinions are of little or no authoritative value"); United States v. Articles of Drug Consisting of 203 Paper Bags, 818 F.2d 569, 571 (7th Cir. 1987) ("A single district court decision . . . has little precedential effect. It is not binding on the circuit, or even on other district judges in the same district."). Consequently, though this Entry correctly disposes of the legal issues addressed, this court does not consider the discussion to be sufficiently novel or instructive to justify commercial publication of the Entry or the subsequent citation of it in other proceedings.
This cause is before the court on Defendant Robert Knight's motion for protective order filed October 22, 2001, and Knight's motion for extended protective order filed October 30, 2001. For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART Knight's motions.
I. Background
Felling's Complaint against Knight alleges generally that on December 1, 1999, Knight subjected him to assault, battery and unlawful termination. The Complaint sets forth the following specific causes of action against Knight: (1) a violation of 42 U.S.C. § 1983 regarding the Fourth Amendment right to be free from illegal seizures; (2) a violation of 42 U.S.C. § 1983 regarding the substantive Fourth Amendment right to be free from physical abuse; (3) assault; (4) battery; and (5) outrage. In his Complaint, Felling references eighteen alleged acts of violent/unusual/explosive behavior by Knight. These alleged acts range from (most recently) a 1999 confrontation during which Knight allegedly put a chokehold on a fellow restaurant patron, to (most removed in time) a 1975 incident in which Knight threw a reporter out of the locker room. (Compl. ¶ 8.)
By way of his October 22, 2001 motion for protective order (Doc. #25), Knight seeks to ". . . prevent any discovery or questioning propounded to Knight, either written or during deposition, regarding the eighteen incidents listed in the Complaint or any other incident not directly related to the alleged incident occurring on December 1, 1999, between Felling and Knight." (Def.'s Mot. for Protective Order at 6.) By way of his October 30, 2001 motion for an extended protective order (Doc. #30), Knight seeks to extend the reach of his requested protective order not just to discovery or questioning propounded to Knight, but to any other witnesses. (Def.'s Mot. for Extended Protective Order at 4.)
In support of these motions, Knight asserts that, pursuant to Fed.R.Evid. 404(a), evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion. Knight also argues that, pursuant to Fed.R.Evid. 404(b), evidence of other wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. Knight also contends that the information sought would cause great annoyance, embarrassment, undue burden, and expense, is irrelevant, and is not reasonably calculated to lead to the discovery of admissible evidence. (Def.'s Mot. for Protective Order at 6.) Felling responds that the eighteen incidents are relevant and probative as to the reasonableness element of his assault claim, and that Knight's citation to Fed.R.Evid. 404 is misplaced. (Plf.'s Resp. In Opp'n to Def.'s Mot. for Protective Order at 2-3.)
II. Preliminary Matters
A. Local Rule 37.1 Dispute
Knight states in both motions that his counsel "has attempted in good faith to confer with counsel for Plaintiff in an effort to resolve the disputed items in this motion and has been unable to reach an agreement." (Def.'s Mot. for Protective Order at 1; Def.'s Mot. for Extended Protective Order at 1.) Felling disputes this assertion. (Plf.'s Resp. In Opp'n to Def.'s Mot. For Protective Order at 4-5.) The court finds Knight's assertions in this regard factually deficient and insufficient to meet the requirements of L.R. 37.1. On the other hand, the briefs leave little doubt the parties will not reach mutual agreement on the issues raised. Therefore, the court will address the underlying issues rather than deny Knight's motion solely on the basis of a procedural shortcoming. To hold otherwise would do little other than delay resolution of these issues, which have now been fully briefed. See Fisher v. Nat'l R.R. Passenger Corporation, 152 F.R.D. 145, 149 (S.D.Ind. 1993) ("Where a previous error is the result of negligence or other nonculpable conduct, and when a motion involves important issues which may affect the outcome of case, like [a] motion to compel, the dispute is better decided on the merits than on procedural grounds."). But see Servin v. GATX Logistics, Inc., 187 F.R.D. 561, 563 (N.D.Ill. 1999), quoting Waldridge v. American Hoechst Corp., 24 F.3d 918, 923 (7th Cir. 1994) (failure to comply with the local rules is not merely a "harmless technicality," but can be a "fatal" mistake).
B. Proper Standard for Discovery
In addressing the pending motions, the court must first set forth the proper standard for discovery. In this regard, Knight asserts, "Fed.R.Civ.P. 26(b)(1) allows for discovery of any matter, not privileged, which is relevant to the subject matter involved in the pending litigation." (Def.'s Mot. for Protective Order at 4.) Actually, Rule 26(b)(1) was amended effective December 2000, and the amended language differs from the language Knight quotes. This amendment actually favors Knight's attempt to limit discovery. The amended rule narrows the scope of discovery to "any matter, not privileged, that is relevant to the claim or defense of any party." See Builders Ass'n of Greater Chicago v. City of Chicago, 2001 WL 1002480, *1 (N.D.Ill. Aug. 30, 2001). The advisory committee notes explain the amended rule was intended to narrow somewhat the information discoverable under Rule 26(b)(1). Nevertheless, Rule 26(b)(1) goes on to state, "Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." With this standard in mind, the Court now addresses the merits of the issues before it.
III. Discussion
Felling seeks discovery on eighteen prior incidents of what he contends are acts of violence exhibited by Knight in an effort to bolster his assault claim. "Assault, unlike battery, is effectuated when one acts intending to cause a harmful or offensive contact with the person of the other or an imminent apprehension of such contact." Cullison v. Medley, 570 N.E.2d 27, 30 (Ind. 1991), citing Restatement (Second) of Torts § 21 (1985). "It is the right to be free from the apprehension of a battery which is protected by the tort action which we call an assault." Id. See also Contreras v. Suncast Corp., 129 F. Supp.2d 1173, 1182 (N.D. Ill. Feb. 12, 2001) (definining assault as "an intentional, unlawful offer of corporal injury by force, or force unlawfully directed, under such circumstances as to create a well-founded fear of imminent peril, coupled with the apparent present ability to effectuate the attempt if not prevented."). In deciding whether the eighteen alleged incidents are relevant to his assault claim, the Court must determine if Felling's fear of Knight was well-founded or reasonable at the time of the December 1 incident. In making these inquiries, Felling's state of mind determines which, if any, of the eighteen incidents are relevant to his claim.
Perhaps Felling's outrage claims might also bolster the relevance of some of these incidents but that argument was not made. Nonetheless, if any of the matters are not relevant to the assault claim, they could not be relevant to the outrage claim either.
As noted above, Knight's request for a protective order relies in substantial part on Fed.R.Evid. 404(a) and 404(b). Knight contends that pursuant to Fed.R.Evid. 404(a), evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, and that pursuant to Fed.R.Evid. 404(b) evidence of other wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. The Seventh Circuit Court of Appeals has established a four-pronged analysis to determine the admissibility of Rule 404 evidence. See United States v. Zapata, 871 F.2d 616, 620 (7th Cir. 1989).
The Court need not delve into this analysis, however, because Felling has waived any Rule 404 argument that he may have had. On this point, Felling unequivocally states in his response brief:
Mr. Felling seeks discovery about Mr. Knight's violent past to show Mr. Felling's fear was justified with respect to his Assault claim and not to convince the jury that because Mr. Knight was violent in the past, he committed violent acts against Mr. Felling on December 1, 1999. Therefore, Mr. Knight's citation to Fed.R.Evid. 404 is misplaced and inapposite under the circumstances.
(Plf's Resp. in Opp'n to Def.'s Mot. for Protective Order at 3 (emphasis in original).)
As a result, the discovery at issue is potentially relevant only to the extent it is probative of the reasonableness of Felling's claimed fear of Knight. Felling does not take issue with this conclusion; he embraces it. (See Plf.'s Resp. in Opp'n to Def.'s Mot. for Protective Order at 4.) Given that this is the only potential relevance of the disputed information, Felling cannot be permitted unfettered discovery in this area. The relevant subject of inquiry about these matters is what reasonably was in Felling's mind as of the confrontation on December 1, 1999, not what others may have known about these matters. What Knight and others may know about a 1981 incident in which Knight allegedly stuffed an LSU fan in a trash can, a 1985 incident in which Knight threw a chair across the Assembly Hall basketball court, or any of the other referenced incidents may not necessarily have any relevance to whether in December 1999 Felling was justifiably in fear of Knight.
Some of the eighteen incidents cannot possibly have relevance for the purpose Felling proffers because they do not even suggest violent actions by Knight toward a person. In no way could the following matters justify fear by Felling that Knight would commit violence on his person on December 1, 1999:
. . .
d. Mr. Knight was fined $10,000.00 by the Big Ten for verbal abuse by berating referee Ted Valentine, whose officiating Mr. Knight called "the greatest travesty" he had seen in his coaching career. Mr. Knight received three technical fouls and was ejected by Valentine during the second half of a loss to Illinois.
e. Sophomore Jason Collier left the I.U. men's basketball team in mid-season saying he was tired of the verbal abuse by Mr. Knight and that basketball was no longer fun for him.
. . .
g. The NCAA fined Indiana $30,000 in 1995 after Mr. Knight verbally abused a media liaison during a postgame news conference at the NCAA Tournament.
. . .
k. Mr. Knight refused to let his team finish an exhibition game against the Soviet Union in 1987 after he was ejected for arguing with a referee. The game was declared a forfeit. He was later reprimanded by I.U. Later in the year, he was fined $10,000 by the NCAA for punching the scorer's table during an NCAA Tournament game against LSU.
. . .
n. In 1984, Mr. Knight verbally abused Michigan coach Bill Frieder by calling him a "chicken [expletive] SOB" twice on the court during a game and once in the postgame press conference.
(Plf.'s Compl. at 3-4.)
None of these incidents, no matter how uncivil, are in any way suggestive of actions by Knight that were violent toward the physical integrity of any person. Felling's effort to include these incidents in this suit might have been supported by a purpose when Indiana University was a defendant, but they have no relevant purpose now that Knight is the sole defendant. No relevant purpose, that is, unless harassment, annoyance and wasting time and money is relevant — and they are not. Consequently, as to these five incidents, the requests for a protective order are GRANTED. Counsel for Plaintiff Felling are ORDERED not to question any deposition witnesses about these five incidents and are not to pursue any paper discovery about them either.
With respect to four of the alleged incidents, Felling's Complaint refers to matters which purportedly took place either after Knight is alleged to have violated a person's physical integrity or are entirely independent from the purported acts of violence. Specifically, those allegations are highlighted below (by bolding and underlining):
a. After a win against Northwestern University in 1999 in which fans of the Northwestern University team chanted, "Who's your daddy?" at Mr. Knight, he pointed to the scoreboard and yelled, "Who's your daddy now? You guys are [expletive] losers!" Mr. Knight and Northwestern University men's basketball coach Kevin O'Neill then got into a physical confrontation.
. . .
h. In 1994, Mr. Knight head-butted Sherron Wilkerson while screaming at him on the bench. Mr. Knight claims it was not intentional. After the next game, I.U.'s home finale against Wisconsin, Mr. Knight took the public address microphone and recited a profane verse directed at his critics .
I. In 1993, Mr. Knight was suspended for one game after a sideline tirade in a 101-82 victory over Notre Dame . Mr. Knight screamed at his son, Pat, and kicked him in the leg. When fans behind the Indiana bench booed, Mr. Knight turned and responded with an obscenity .
. . .
o. In 1981, Mr. Knight irritated Purdue fans and officials by bringing a donkey onto his TV show wearing a Boilermakers cap . Later, in Philadelphia for the Final Four, Knight was involved in a hotel shoving match with an LSU fan, who said Knight stuffed him in a garbage can.
(Plf.'s Compl. at 2-4 (emphasis added).)
These highlighted matter are not concerned with actions of violence by Knight and are not relevant. With regard to Knight's conduct after the purported physical contact, if it is possible, is even less relevant. Consequently, the requested Protective Order is GRANTED as to the highlighted matters above. Counsel for Plaintiff Felling are ORDERED not to question any deposition witnesses about these four incidents and are not to pursue any paper discovery about them either.
This is not to say, however, that there can be no discovery whatsoever from Knight, or others concerning the remaining thirteen incidents. Rather, discovery can be had only to the extent that it goes to Felling's state of mind for purposes of his assault claim against Knight.
Thus, if witnesses were present for the incidents in question, and if Felling also was present for the incidents in question, it would be fair game for Felling to obtain discovery from these individuals in an effort to support his description of what he observed on these occasions and thereby bolster his assault claim. However, if Felling was not present, any information about these incidents from Knight, Davis, Trelor, or others could be relevant only to the extent that these individuals told Felling what they saw occur (or simply related to Felling what they had heard about the incidents, assuming they had not personally witnessed the incidents). Counsel should keep in mind, though, that what is relevant about these incidents is not what truly occurred, but rather, what may have been reasonably in Felling's mind about these matters as of the December 1 confrontation.
Hearsay concerns are not be a proper basis to exclude discovery into these matters. Fed.R.Evid. 803(3) sets forth the "state of mind" hearsay exception. See, e.g., Foo v. Trustees, Indiana University, 88 F. Supp.2d 937, 942 (S.D.Ind. 1999) (Tinder, J.) ("If the statement were being offered for the truth of the matter asserted, it would be inadmissible hearsay. But the court finds that this statement is nonhearsay, offered to show its effect on the listener.").
Also, Felling lists the dispositions that followed several incidents. (See e.g. ¶ 8 L and P, Compl. at 3-4.) Whether Knight was suspended, prosecuted and/or extradited is also irrelevant and should not be the subject of discovery.
Finally, Knight also contends that the information sought would cause great annoyance, embarrassment, undue burden, and expense. (Def.'s Mot. for Protective Order at 6.) Knight has not set forth any compelling argument as to why allowing limited questioning, in accordance with the limitations set forth in this order, would result in undue burden and expense. Annoyance and embarrassment, on the other hand, are a possible offshoot of the discovery sought. However, the court does not believe that the potential for annoyance and embarrassment on these discovery matters, with the limitations set forth, is so high as to justify further limiting discovery. This is particularly so given that each of the incidents in question already has received substantial media play, be it at the time of their alleged occurrence, at the time of the media whirlwind immediately before and after Knight's termination, or at various points in between.
IV. Conclusion
Accordingly, Knight's motion for a protective order and for an extended protective order is GRANTED IN PART and DENIED IN PART. Discovery shall be limited to the portions of the thirteen incidents as explained above. The court grants Knight's motion to the extent it seeks discovery that goes beyond Felling's state of mind for purposes of his assault claim against Knight. Thus, Felling can obtain discovery from Knight with respect to incidents for which Felling was present. In addition, if third parties were present for the incidents in question, and if Felling also was present for the incidents in question, Felling may obtain discovery from these individuals as to these incidents as well. Felling is entitled to this discovery in an effort to bolster his assault claim. However, if Felling was not present for the incidents in question, discovery is limited in those instances to what these individuals communicated to Felling concerning these incidents. Knight's motions are denied in all other respects.
ALL OF WHICH IS ORDERED.