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Mannina v. District of Columbia

United States District Court, District of Columbia

May 6, 2019

VICTORIA MANNINA, Plaintiff,
v.
DISTRICT OF COLUMBIA, et al., Defendants. April 2017 Informal Request Alleged Corresponding Document Request No. April 2017 Informal Request Alleged Corresponding Document Request No.

          MEMORANDUM OPINION

          ROBIN M. MERIWEATHER UNITED STATES MAGISTRATE JUDGE

         Plaintiff Victoria Mannina (“Plaintiff” or “Ms. Mannina”) filed a Motion to Compel Production of Documents Withheld by Defendant as Privileged, or in the Alternative, for In Camera Review of Withheld Documents (“Motion”). See generally Pl.'s Mot., ECF No. 83. In that motion, Ms. Mannina challenges Defendant District of Columbia's (“Defendant” or “the District”) assertion of the deliberative process and attorney-client privileges to redact and withhold several documents. On March 29, 2019, the Court issued an Order that partially granted and partially denied the Motion. See ECF. No. 118. This Memorandum Opinion provides the rationale for that ruling in greater detail.

         BACKGROUND

         I. Factual Background[1]

         This case arises from the suicide of Paul Mannina (“Mr. Mannina”), while he was in the custody of the District of Columbia Department of Corrections (“DOC”). Mr. Mannina was arrested on June 7, 2013, after being admitted to a hospital emergency room with high levels of alcohol, opiates, and Tylenol in his system and for a “change in mental state.” 2d Am. Compl. ¶¶ 14, 16, ECF No. 33. On June 13, 2013, Mr. Mannina was arraigned, before the D.C. Superior Court, for one count of first-degree burglary while armed and one count of third degree sexual abuse while armed. Id. ¶¶ 11, 18. The Pretrial Services Agency (“PSA”) officer, who had met with Mr. Mannina prior to the arraignment, reported that Mr. Mannina had thoughts and attempts regarding harming himself. Id. ¶ 18. The court denied release, and Mr. Mannina returned to D.C. Superior Court on June 17, 2013 for a preventive detention hearing. Id. ¶¶ 19, 24. In an updated report, the PSA officer restated concerns regarding Mr. Mannina's attempts to harm himself. Id. ¶ 24. The court ultimately ordered detention. Id. ¶ 25. On June 18, 2013, Mr. Mannina committed suicide while in DOC custody, using a razor. Id. ¶ 35.

         Ms. Mannina brings this action as Mr. Mannina's widow and the representative of Mr. Mannina's estate. Id. ¶ 1. Ms. Mannina alleges that the District of Columbia violated Mr. Mannina's civil rights under 42 U.S.C. § 1983 by depriving him of his Fifth Amendment due process rights and also raises tort claims under theories including negligence and wrongful death. See Id. ¶¶ 36-54. Several of those claims rest on the premise that the District failed to adequately respond to or mitigate the risk that Mr. Mannina would attempt to commit suicide.

         II. Relevant Procedural Background

         The instant dispute concerns the District's assertion of privilege to withhold and redact records that were produced in response to Ms. Mannina's informal discovery requests. Pursuant to Federal Rule of Civil Procedure 34, Ms. Mannina served two sets of requests for production of documents on the District, comprising twenty-five requests.[2] See Joint Status Report, Ex. E(“Def.'s Resp. to 1st Set RFP”), ECF No. 52-6 (filed under seal) (the District's Responses to Plaintiff's First Set of Request for Production of Documents: Requests # 1-21) & Ex. F (“Def's Resp. to 2nd Set RFP”), ECF No. 52-7 (filed under seal) (the District's Response to Plaintiff's Second Request for Production of Documents: Requests # 22-25).[3] The District responded to these requests on December 19, 2016 and March 8, 2017, respectively, and produced additional material in July 2017. See id.; see also Def.'s Opp'n to Pl.'s Mot. (“Def.'s Opp'n”) at 2, ECF No. 85.

         Ms. Mannina then continued to request information from the District, including between March 2017 and May 2017, through a series of “informal discovery requests.”[4] See Def.'s Opp'n at 3; Def.'s Notice Regarding Pl.'s Informal Doc. Requests (“Def.'s Notice I”) at 2, ECF No. 58; Pl.'s Report to Ct. Regarding Informal Doc. Request Spreadsheet, Ex. 1, ECF No. 82-1. Ms. Mannina contends that these additional requests correspond to and sought additional information regarding her formal requests for production. See Pl.'s Notice Regarding Informal Disc. Requests to Def. (“Pl.'s Notice I”), ECF No. 56; Pl.'s Notice Regarding Def.'s Deficient Doc. Resps. (“Pl.'s Notice II”) at 3-4, ECF No. 68. The District contends that the informal requests went “far beyond” Ms. Mannina's formal document requests. Def.'s Notice I at 2. Nevertheless, the District responded to Ms. Mannina's informal requests, including those made between March and May 2017. See Def.'s Opp'n at 3. The District initially produced records in response to these informal requests in August and September 2017, and the District included a privilege log with its September 2017 production. See Id. In November and December 2017, the District produced additional documents previously withheld, including a revised privilege log. See Id. The instant motion concerns documents that the District redacted and withheld on the December 2017 privilege log. See Def.'s Sur-Reply to Pl.'s Mot. (“Def.'s Sur-Reply”) at 3, ECF No. 88.

         On October 27, 2017, the Honorable Ketanji Brown Jackson referred this matter to the undersigned for management of discovery. See 10/27/2017 Min. Order; 10/27/2017 Random Case Referral. After several status reports from the parties and a discovery status conference held on January 17, 2018, the Court set a schedule to assist the parties in clearly identifying the scope and nature of their numerous discovery disputes. See Order, ECF No. 53. In response to this Order, the parties filed several notices concerning Ms. Mannina's interrogatories and requests for production, and the District's assertions of privilege.[5] After reviewing these filings, the Court set a briefing schedule for the instant Motion to Compel, which has been fully briefed. See 5/24/2018 Min. Order; see generally Pl.'s Mot.; Def.'s Opp'n; Pl.'s Reply to Def.'s Opp'n (“Pl.'s Reply”), ECF No. 86; Def.'s Sur-Reply.

         After briefing was completed, the Court requested additional information from the District and reviewed the withheld documents in camera. See Order, ECF No. 99 (requesting clarification and supplementation of affidavits); Order, ECF No. 110 (requesting additional information and documents for in camera review); 3/18/2019 Min. Order (requesting information regarding Docs. 74, 75, and 76). The District timely provided all requested information, and Ms. Mannina responded to some of the District's supplemental filings. See Def.'s Resp. Regarding Privilege Designations, ECF No. 106; Def.'s Notice of Filing, ECF No. 111; Def.'s Resp. to Ct.'s Feb. 21, 2019 Order, ECF No. 114; Pl.'s Resp. to Def.'s Resp. to Ct.'s Feb. 12 and Feb. 21, 2019 Order, ECF No. 115.

         LEGAL STANDARD

         Under Federal Rule of Civil Procedure 37, a party propounding discovery may request an order from the court compelling disclosure or discovery from the opposing party when, inter alia, the opposing party does not produce documents requested under Rule 34. Fed.R.Civ.P. 37(a)(3)(B)(iv). The moving party “bears the initial burden of explaining how the requested information is relevant, ” and of proving that the challenged discovery responses were incomplete. Jewish War Veterans of the U.S., Inc. v. Gates, 506 F.Supp.2d 30, 42 (D.D.C. 2007); Equal Rights Ctr. v. Post Props., Inc., 246 F.R.D. 29, 32 (D.D.C. 2007); see also Alexander v. FBI, 193 F.R.D. 1, 3 (D.D.C. 2000). The non-moving party must then explain “why discovery should not be permitted.” Jewish War Veterans, 506 F.Supp.2d at 42.

         When a party claims a privilege as the basis for withholding documents, that party “bears the burden of proving the communications are protected.” Felder v. Washington Metro. Area Transit Auth., 153 F.Supp.3d 221, 224 (D.D.C. 2015) (internal quotation marks omitted) (quoting In re Lindsey, 158 F.3d 1263, 1270 (D.C. Cir. 1998)). To carry that burden, the party asserting the privilege must “present the underlying facts demonstrating the existence of the privilege, ” and “conclusively prove each element of the privilege.” In re Lindsey, 158 F.3d at 1270 (internal quotation marks and citations omitted). “[T]he proponent of a privilege . . . ‘must offer more than just conclusory statements, generalized assertions, and unsworn averments of its counsel.'” United States v. ISS Marine Servs., Inc., 905 F.Supp.2d 121, 127 (D.D.C. 2012) (internal quotation marks omitted) (quoting In re Veiga, 746 F.Supp.2d 27, 33-34 (D.D.C. 2010). If the party asserting the privilege fails to present sufficient facts to allow the Court to “state with reasonable certainty that the privilege applies, this burden is not met.” FTC v. TRW, Inc., 628 F.2d 207, 213 (D.C. Cir. 1980) (emphasis added).

         DISCUSSION

         I. What may be Compelled Under Rule 37

         Federal Rule of Civil Procedure 37 governs motions to compel discovery responses, and provides in relevant part that:

A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if:
(iv) a party fails to produce documents or fails to respond that inspection will be permitted -- or fails to permit inspection -- as requested under Rule 34.

Fed. R. Civ. P. 37(a)(3)(B). By its express terms, Rule 37 only authorizes the Court to compel a party to respond to document requests issued under Rule 34. See Id. Consequently, “before a party may succeed on a motion to compel discovery, that party ‘must first prove that it sought discovery' in the manner required by the rules of procedure.” Camiolo v. State Farm Fire & Cas. Co., 334 F.3d 345, 359-60 (3d Cir. 2003) (quoting Petrucelli v. Bohringer & Ratzinger, GMBH, 46 F.3d 1298, 1310 (3d Cir. 1995)); cf. Koehler v. United States, No. 90-2384 (RCL), 1991 WL 277542, at *2 (D.D.C. Dec. 9, 1991) (denying motion to compel where plaintiff sought production of nine documents withheld as privileged where plaintiff had never requested those documents through discovery).

         As Ms. Mannina's motion does not identify the specific discovery request or requests to which the motion to compel pertains, the Court must first confirm whether and to what extent the documents that the District has withheld or redacted as privileged correspond to a discovery request propounded in accordance with Federal Rule of Civil Procedure 34. This task is complicated by the fact that the District has produced numerous documents in response to Ms. Mannina's informal discovery requests whose relation to formally served discovery is in dispute. Thus the Court must resolve two questions: (1) which document requests are at issue in the parties' dispute about privilege? and (2) does Rule 34 require the District to produce non-privileged records in response to that document request?

         The District asserts that its December 2017 privilege log contains all the disputed privilege designations, and Ms. Mannina has not disputed that assertion. See Def.'s Sur-Reply at 3 & n.4. The District further explains that the documents on its December 2017 privilege log were produced in August and September 2017 in response to informal document requests that Ms. Mannina made between March and May 2017. See Def.'s Opp'n at 3. The parties' email correspondence from May 2017 reveals that the search terms used to identify the documents that the District released in August and September 2017 match the search terms that Ms. Mannina asked the District to use to find records responsive to certain April 2017 Informal Requests.[6]

         Accordingly, the Court concludes that the discovery requests at issue in this Motion originate from Ms. Mannina's April 2017 Informal Requests. See Def.'s Notice I, Ex. 1 at 7-8, rows 25-29, ECF No. 58-1; Pl.'s Report to the Ct. Regarding Informal Doc. Req. Spreadsheet, Ex. at 12-13 (“Informal Req. Chart”), ECF No. 82-1. The relevant April 2017 Informal Requests sought:

• All email correspondence from 2008 to the present regarding suicide prevention, training, and suicide attempts
• All email correspondence regarding the Leslie [sic] Hayes Report from 2013 to present
• All email correspondence regarding the suicide task force from 2008 to present
• [A]ll email correspondence regarding the distribution, use, or control of razor blades from 2008 to present
• All email correspondence regarding Paul Mannina from June 2013 to present

Informal Req. Chart at 12-13.

         Next, the Court must determine whether any of these informal discovery requests fall within the scope of Ms. Mannina's formally served Rule 34 document requests. If the District produced records voluntarily outside of any formal request, Rule 37 does not authorize the Court to compel a further response regardless of the applicability of any privileges asserted by the District. Ms. Mannina contends that the informal requests constitute a narrowing of her formal discovery requests. See Pl.'s Reply at 3 (noting that “[i]n almost all instances, the so-called informal requests were not new requests but merely attempts to prod the District to do what it had failed to do”). The District disagrees, indicating that many of the informal requests were outside the scope of the original requests. See Def.'s Opp'n at 3 & n.3 (citing Def.'s Responsive Notice Regarding Pl.'s Doc. Reqs., ECF No. 65) (noting with respect to the informally requested “nine years' worth of emails” that “Plaintiff s original requests plainly did not seek these documents.”).

         To evaluate which, if any, of the pertinent informal requests are within the scope of Ms. Mannina's formal document requests, the Court looks to the parties' submissions identifying the informal document requests and any allegedly corresponding formal document requests; the District's chart identifying the document requests to which the challenged documents on the privilege log respond; and the content of each request. See Order at 4-5, ¶¶ D. 1-D.7, ECF No. 53; Informal Req. Chart. The District has confirmed that most of the disputed documents were produced in response to the April 2017 informal requests regarding (1) suicide prevention, training, and suicide attempts; and (2) the DOC Suicide Prevention Task Force (“Task Force”). See Notice of Filing, Ex. A (“Def.'s Suppl. Chart”), ECF No. 111-1. The remaining documents were produced voluntarily because they were located through email search terms but were not actually responsive to any of the informal requests. See Def.'s Resp. to Ct.'s Feb. 21, 2019 Order at 1, ECF No. 114.

         Ms. Mannina alleges that the pertinent April 2017 informal requests correspond to the following formal Requests for Production:

April 2017 Informal Request
Alleged Corresponding Document Request No.

All email correspondence from 2008 to the present regarding suicide prevention, training, and suicide attempts.

13 - All Documents identifying, discussing or describing Decedent's suicide.

15 - All Documents describing mental health and suicide prevention training requirements for The District, including records of such training.

16 - All Documents, written materials, and protocols used by The District in mental health or suicide prevention training.

17 - All audits, reports or evaluations of the effectiveness of mental health and suicide prevention training of The District and employee of The District, including any evaluation identifying (a) whether the required training was effective; (b) whether the required training failed in any way to meet The District' requirements; (c) whether Defendant met its own training requirements; (d) what criticisms or failures The District identified in its mental health and suicide training; (e) identifying any Person or Persons who received mental health and suicide prevention training; (f) identifying any Person or Persons who received mental health and suicide prevention training but did not receive all of the required training; and (g) any Person or Persons who should have received mental health and suicide prevention training but did not receive it.

April 2017 Informal Request
Alleged Corresponding Document Request No.

All email correspondence regarding the suicide task force from 2008 to present

13, 15, 16, 17

See supra

6 - All Documents and Communications, whether in Person, by telephone, or by some other means, whether in a discussion, meeting or other setting, relating to the subject matter of this litigation, the Complaint, the Answer, the Documents requested herein, and/or the Subject Products, between, among, by, or with any Persons, including but not limited to: Defendants; Defendants' employees, former employees, agents, and/or representatives; and customers or users.

         See Informal Req. Chart at 12, rows 25, 27; see also Def.'s Resp. to 1st Set RFP, ECF No. 52-6.[7]The Court agrees that both informal requests are within the scope of at least one formal document request, and therefore, may be compelled; however, the Court makes this determination without deciding which formal request(s), as Plaintiff failed to make this argument in her briefing. Therefore, the District has an obligation to produce the non-privileged documents responsive to those requests and may be compelled to produce or un-redact any improperly withheld documents.

         Several privilege log entries concern documents that “were not directly responsive to the informal requests, ” and therefore are outside the scope of Rule 37. Def.'s Resp. to Ct.'s Feb. 21, 2019 Order at 1, ECF No. 114. Although Ms. Mannina contends that the fact that the District found these documents and included them on the privilege log proves that they are responsive to a document request, she has neither identified the formal or informal document requests to which those documents pertain, nor provided any evidence that rebuts the District's description of its search and production. See Pl.'s Resp. to Def.'s Resp. to Ct.'s Orders of Feb. 12 & Feb. 21, 2019 at 1-2, ECF No. 115. As the District voluntarily produced those ...


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