United States District Court, S.D. West Virginia, Charleston Division
L. Tinsley, United States Magistrate Judge.
John David Lilly (“Plaintiff”) brings this
excessive force case pursuant to 42 U.S.C. § 1983 and
West Virginia state law, alleging that he was unlawfully
sprayed with pepper spray and beaten by Defendants Coty Crum
and Zachary Lilly (collectively, “Defendants”)
while handcuffed in the back of a police cruiser. (ECF No.
1.) On June 20, 2019, Plaintiff issued a subpoena to the
Logan County Sheriff's Department (“LCSD”),
which employed Defendants at the time of the incident alleged
in the complaint and which is not a party to this case. (ECF
No. 14-1.) Plaintiff seeks information related to
Defendants' employment with LCSD, including
Defendants' personnel files, performance reviews,
documentation of any disciplinary action, and related
information. (ECF No. 14-2.) Before this Court is
Defendants' motion to quash the subpoena. (ECF No. 17.)
characterize the subpoena to LCSD as a “fishing
expedition” and argue that the subpoena seeks private
personnel information and information that is not relevant to
Plaintiff's claims for excessive force. (Id. at
3-6.) Plaintiff responds that Defendants have no standing to
challenge the subpoena and that the requested information is
relevant to his excessive force claims. (ECF No. 20 at 3-8.)
Defendants' Standing to Challenge Subpoena
argues that Defendants have no standing to challenge the
subpoena because it was not issued to them and they have no
privilege in the information sought. (Id. at 3-4.)
“Ordinarily, a party does not have standing to
challenge a subpoena issued to a nonparty unless the party
claims some personal right or privilege in the information
sought by the subpoena.” United States v.
Idema, 118 Fed.Appx. 740, 744 (4th Cir. 2005). An
individual has a sufficient personal interest in his or her
own personnel records as to permit him or her to intervene to
prevent the disclosure of such records. See, e.g.,
EEOC v. Bojangles' Rests., Inc., No.
5:16-CV-654-BO, 2017 WL 2889493, at *3 (E.D. N.C. July 6,
2017); Brown v. Mountainview Cutters, LLC, No.
7:15-CV-00204, 2016 WL 3045349, at *2 (W.D. Va. May 27,
2016); Solais v. Vesuvio's II Pizza & Grill,
Inc., No. 1:15-CV-227, 2015 WL 6110859, at *14 (M.D.
N.C. Oct. 16, 2015); Kohari v. Jessie, No., 2014 WL
1338558, at *2 (S.D. W.Va. Apr. 3, 2014); Litten v.
Quicken Loans, Inc., No. 1:13-cv-192, 2014 WL 12844182,
at *4 (N.D. W.Va. Feb. 19, 2014); Robinson v. Quicken
Loans, Inc., No. 3:12-cv-00981, 2012 WL 6045836, at *2
(S.D. W.Va. Dec. 5, 2012); Singletary v. Sterling Transp.
Co., 289 F.R.D. 237, 239-40 (E.D. Va. 2012). Thus,
Plaintiff's argument that Defendants lack standing to
challenge the subpoena is without merit.
Relevance of Requested Information
argue that the information sought by the subpoena is not
relevant to Plaintiff's excessive force claims. (ECF No.
17 at 4, 6.) Plaintiff responds that other “complaints
of excessive force against Defendants (and any resulting
investigations and/or discipline) [are] relevant and
discoverable” and admissible at trial in an excessive
force case. (ECF No. 20 at 7.) Indeed, when a plaintiff
alleges that he is a victim of excessive force at the hands
of an officer, similar complaints of excessive force against
that same officer bear on the plaintiff's allegations.
See, e.g., Buskirk v. Wiles, No.
3:15-cv-03503, 2016 WL 7118288, at *10 (S.D. W.Va. Dec. 6,
2016) (ordering production of “performance reviews,
citations/commendations, reprimands, or disciplinary actions
for any improper use of force”); Gemaehlich v.
Johnson, No. 7:12-cv-263, 2013 WL 1249037, at *4 (W.D.
Va. Mar. 26, 2013) (ordering production of similar complaints
of excessive force); Hackett v. Lusk, No.
3:10-cv-00781, 2011 WL 13232151, at *3 (S.D. W.Va. May 11,
2011) (ordering production of “personnel files of
officers in the department, as well as complaints pertaining
to issues of excessive force” as relevant to negligent
hiring, training, and supervision claims against police
department (internal footnote omitted)); Wolfe v.
Green, 257 F.R.D. 109, 113 (S.D. W.Va. 2009)
(“Thus, since 2003 it has been the law of this
District, in § 1983 cases, that police officers'
personnel files and internal affairs files will be disclosed
to plaintiffs' counsel, with appropriate
protections.”). Accordingly, to the extent the subpoena
requests information relating to complaints of excessive
force against Defendants that are similar to the allegations
in Plaintiff's complaint-that is, complaints that
Defendants unlawfully used pepper spray or beat handcuffed
individuals in a police cruiser-Plaintiff is entitled to that
information. For each item in the subpoena, LCSD is
ORDERED to produce information related to
any such complaints made within the two years preceding the
incident involving Plaintiff.
to the extent the subpoena seeks information beyond any
factually similar complaints of excessive force against
Defendants that were made within the two years prior to the
incident alleged in Plaintiff's complaint, such
information is of limited relevance to Plaintiff's
allegations. See Gemaelich, 2013 WL 1249037, at *4
(explaining that relevance of evidence increases when it is
factually similar and temporally close to act being proved).
Plaintiff is not entitled to such information.
foregoing reasons, Defendants' motion to quash (ECF No.
17) is GRANTED IN PART and DENIED IN
PART. LCSD is ORDERED to respond to
the subpoena as set out herein within thirty (30) days of the
date of this Order.
IS SO ORDERED.
Clerk is DIRECTED to send a copy of this
Order to counsel of record ...