ROBERT B. WILLIAMS, Plaintiff v. THOMAS O. WINN and TIA CLARK, Defendants Case No. 18-11060 United States District Court, E.D. Michigan, Southern Division Filed October 23, 2019 Davis, Stephanie D., United States Magistrate Judge ORDER ON MOTION TO COMPEL (Dkt. 28) A. Procedural History *1 Plaintiff, Robert B. Williams, a prisoner in the custody of the Michigan Department of Corrections (MDOC) filed this complaint on April 2, 2018 against two MDOC employees, alleging violations of his civil rights. ECF No. 1. District Judge Matthew F. Leitman referred this matter to the undersigned for all pretrial proceedings. ECF No. 7. Williams' complaint included claims alleging violations of due process, equal protection, and the First Amendment. His claims for due process and First Amendment retaliation were dismissed, leaving only his equal protection claim standing. ECF No. 22. Williams filed a motion to compel discovery from defendants on July 3, 2019. ECF No. 28. Defendants filed their response on July 17, 2019. ECF No. 29. Williams filed a reply on August 6, 2019. ECF No. 30. For the reasons set forth below, the Court GRANTS in part and DENIES in part plaintiff's motion to compel discovery. B. Factual Background In June 2017, Williams filed an application to participate in the Paws for a Cause program. ECF No. 1, PageID.6, ¶ 1. According to the complaint, Clark permanently denied Williams the opportunity to participate in the program, concluding that he did not meet the criteria for the program because he was serving a sentence for domestic violence. ECF No. 1, PageID.6, ¶ 2. Williams says that, according to program criteria, prisoners serving sentences for criminal sexual conduct, animal cruelty, torture, domestic violence, stalking, or kidnapping are not permitted to participate. ECF No. 1, PageID.6, ¶ 3. On September 8, 2017, Williams lodged a formal complaint or request for corrective action with Winn against Clark for the denial, alleging discrimination. ECF No. 1, PageID.6, ¶ 4. On September 19, 2017, Winn gave Williams a written response, which provided that “you do not have a right to participate in any of the dog programs. It is a privilege. You are not owed an explanation as to why you are not a dog handler and do not expect one. Thank you for your interest.” ECF No. 1, PageID.7, ¶ 7. Williams alleges that Winn's response is “tantamount to directly participating in permanently denying plaintiff the ability of having 900 dog program applied to him, in the same fashion as it is to those who are similarly situation.” ECF No. 1, PageID.7, ¶ 8. Williams alleges that Clark participated in the decision to deny his application and Winn was the ultimate decision-maker, who approved the denial. ECF No. 1, PageID.7, ¶¶ 9-10. Williams alleges that defendants apply a different standard to white applicants versus black applicants. ECF No. 1, PageID.7, 11. He alleges that of the 23 participants in the program, 16 are white, two are Hispanic, four are black, and one is Indian. ECF No. 1, PageID.7, ¶ 12. Williams also alleges that Donald Hall, a white prisoner, was approved for the dog program, despite having prior gang activity, which should have precluded him, based on the program criteria. ECF No. 1, PageID.8, ¶ 13. Williams alleges that prisoner Peterson, who is also white, was approved for the program despite being convicted of murdering his girlfriend. ECF No. 1, PageID.8, ¶ 14. Williams also identifies two other white prisoners, LeFleur and Adamowicz, who were approved to participate in the dog program, despite not meeting the program criteria. ECF No. 1, PageID.8, ¶¶ 15-16. According to the Complaint, defendants have a practice of applying the dog program criteria differently (with favor) to whites. ECF No. 1, PageID.8, ¶ 17. *2 On November 30, 2017, Williams was directed to report to his unit's officer station to see Clark. ECF No. 1, PageID.10, ¶ 26. Clark told Williams that as a result of his complaint and grievances, the dog program criteria was being changed. Williams reports that he told Clark that using the new criteria against him was an adverse action and a retaliatory act. Williams maintained that the old criteria should be applied to his application. ECF No. 1, PageID.10, ¶ 27. The new criteria now precluded prisoners from participating in the dog program who have a history of criminal sexual conduct, animal cruelty, dog fighting, torture, domestic violence, stalking/harassing, child abuse, kidnapping, and murder/homicide involving an ex or current partner, spouse, family member or in-law. ECF No. 1, PageID.11, ¶ 28. Williams contends that the original criteria should apply to him, because that is what was in effect when he applied, and he exhausted his administrative remedies since he is serving a sentence for second degree murder. ECF No. 1, PageID.11, ¶ 30. A copy of his judgment of sentence was attached to his grievance, which supports his allegation that, but for his complaint, Winn would not have permanently denied him an opportunity to participate in the program. ECF No. 1, PageID.11, ¶ 31. Clark told Williams that the decision to permanently deny him the ability to participate in the dog program was because he killed his girlfriend. Williams maintains that this untrue and the Basic Information Report characterizes their relationship as “acquaintance.” ECF No. 1, PageID.11, ¶ 32. Williams has propounded a number of discovery requests to which the defendants have objected on various grounds. The substance of the various requests and the defendants' responses to them are discussed in the analysis below. C. Discussion 1. Legal Standard The Federal Rules of Civil Procedure were written to facilitate the discovery of relevant evidence proportional to the needs of each case. Rule 26 authorizes relatively expansive discovery, subject to the considerations set forth in Rule 26(b)(1). Further, courts have broad discretion over discovery matters, Trepel v. Roadway Express, Inc., 194 F.3d 708 (6th Cir. 1999), and an order of the same is overruled only if there is an abuse of discretion.[1] In assessing the proportionality, the court should look to: the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. State Farm Mut. Auto Ins. Co. v. Pointe Physical Therapy, LLC, 255 F.Supp.3d 700, 704 (quoting Rockwell Med., Inc. v. Richmond Bros., Inc., 2017 WL 1361129, at *1 (E.D. Mich. Apr. 14, 2017) (quoting Fed. R. Civ. P. 26(b)(1)). 2. Analysis and Conclusions a. Copying Costs As an initial matter, defendants contend that Williams must pay $.25 per page in copying costs for the responsive documents they have identified in their discovery responses. According to defendants, they should not be required to subsidize Williams' discovery expenses, citing Coates v. Kafczynski, 2006 WL 416244, 2 (W.D. Mich. Feb. 22, 2006) (Enslen, J.) (internal quotations and citations omitted); see also Shoucair v. Snacker, 2009 WL482689 (E.D. Mich. Feb. 25, 2009) (Whalen, M.J.). These decisions are inapposite because they relate to the subsidizing of depositions costs sought by the prisoner-plaintiffs, not copying costs incurred in answering ordinary discovery requests. This Court has rejected defendants' argument multiple times in the past, finding it inconsistent with the general rule that “the party responding to a discovery request bears the cost of compliance.” Miller v. Klee, Case No. 17-11006 (E.D. Mich.), ECF No. 58, PageID.413[2] (quoting Lillard v. Univ. of Louisville, 2015 WL 3480571, at *6 (W.D. Ky. June 2, 2015) (citing Medtronic Sofamor Danek, Inc. v. Michelson, 229 F.R.D. 550, 553 (W.D. Tenn. 2003)); see also Laethem Equip. Co. v. Deere & Co., 261 F.R.D. 127, 145 (E.D. Mich. 2009) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978)) (“ ‘the presumption is that the responding party must bear the expense of complying with the discovery requests.’ ”). Indeed, defendants' interpretation of the unpublished decision Smith v. Yarrow, 78 Fed. Appx. 529 (6th Cir. 2003) as requiring a prisoner to fund the costs of discovery is perhaps overstating the court's conclusion. In making the unremarkable observation that the “district court did not abuse its discretion by requiring Plaintiff to fund his own litigation efforts,” the Smith v. Yarrow Court found that there is no constitutional or statutory requirement for the government to fund an indigent prisoner's discovery requests. Id. at 544; see also, Miller v. Klee, Case No. 17-11006, ECF No. 61, J. Lawson (rejecting the existence of any bright line rule and observing, “In Yarrow, the Sixth Circuit merely acknowledged, as widely recognized elsewhere in the case law and explicitly embodied in Rule 26(c)(1), that a district court has discretion to shift the costs of discovery under appropriate circumstances in any civil case, and no rule of constitutional law establishes an exception to that principle in a lawsuit brought by an indigent prisoner plaintiff.”). Significantly, the cases on which the Smith v. Yarrow Court relied are distinguishable from the present circumstances. In Johnson v. Hubbard, 698 F.2d 286, 289 (6th Cir. 1983), abrogated on other grounds by L&W Supply Corp. v. Acuity, 475 F.3d 737 (6th Cir. 2007), the court held that “[w]itness fees clearly fall in the category of items such as trial transcripts, depositions, and other documents, which the constitution does not require a court, or in practical terms, the federal government, to pay for at the request of the indigent party.” And, in Giles v. Tate, 907 F. Supp. 1135, 1138 (S.D. Ohio 1995), the court merely concluded that a “prisoner does not have an unlimited right to free copying” at the prison. None of these cases contradict the general notion that the responding party must bear the cost of compliance with discovery requests. *3 While neither party addresses the issues of proportionality or cost-shifting, a review of those principles reveals no reason to depart from the general notion that the responding party bears the costs of compliance with discovery requests. As explained in Wilmington Trust Co. v. AEP Generating Co., 2016 WL 860693, at *2 (S.D. Ohio Mar. 7, 2016), courts have, in evaluating the proportionality issue, suggested that both parties have some stake in addressing the various relevant factors. Id. (citing Oracle America, Inc. v. Google, Inc., 2015 WL 7775243, *2 (N.D. Cal. Dec. 3, 2015) (observing that “[n]either party submitted a proper analysis of the Rule 26 proportionality factors” and that the moving party, Oracle, “did not fully address any of the proportionality factors, including the importance of the requested discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit”– leaving the court in the position of having to “make its best judgment based on the limited information before it”)). The court observed that a responding party still must meet its burden of explaining how costly or time-consuming responding to a set of discovery requests will be, because that information is ordinarily better known to the responder than the requester. Id. However, once that information is presented, both sides are required to address the issue of proportionality, “especially since the requesting party can explain as well as the responder – and perhaps better – why the information it is seeking is important to resolving the case and why it would be a good use of the other party's resources to search for it.” Id. Here, defendants offer no reasons why the costs of providing responsive documents should be shifted to Williams in this instance. ECF No. 29. There is nothing particularly costly, time-consuming, or unusual about a party having to bear the costs of providing paper copies in litigation to the requesting party. Moreover, it seems evident that as a pro se prisoner, Williams does not have the same access to information or resources as defendants. Indeed, unlike his own medical records or other documents to which he might be entitled to access irrespective of litigation, the discovery at issue here pertains to documents which plaintiff has no independent authority to access. Also, and importantly, the records requested, and which defendants have agreed to provide, appear focused on the issues at stake in this controversy. For these reasons, the Court concludes that production of the above records is proportional to the needs of this case and that defendants should bear the costs of responding to Williams' discovery requests. Defendants must provide copies of the pertinent documents within 14 days of entry of this Order. b. RFP No. 1 In this request, Williams asks for all emails referencing himself sent to or received from Warden Winn, Clark, Prisoner Counselor Rievert, Deputy Warden Foy, Deputy Warden Bond, Deputy Warden Warren, Grievance Coordinator R. Vittow, and Director Heidi Washington, from June 16, 2017 through the date the request was received. Defendants object for several reasons, including that they do not have possession, custody or control of non-defendant documents and that the request is overly broad and unduly burdensome and will result in many irrelevant search results unrelated to Williams' denial of entry into the dog program. Defendants also object to the extent that Williams seeks documents created after he was denied entry to the problem in September 2017. ECF No. 29-1, PageID.373-374. Defendants also indicate that they are searching for relevant documents and will provide them after receipt of payment for copying charges. The undersigned agrees with defendants that Williams may not seek documents from non-parties via a discovery request to defendants. However, a reasonable and diligent search of defendants' email records should produce any responsive documents in their possession, custody, or control. The undersigned also agrees that emails created after September 2017 are unlikely to be related to the parties' dispute. Accordingly, the time frame for this request is narrowed from June 16, 2017 to September 30, 2017. In providing an amended response and as part of their Rule 26(g) certification, defendants' counsel must outline what efforts were made to locate responsive emails, which custodians' email records were searched, and then produce all responsive documents. Fed.R.Civ.P. 26, advisory committee notes, 1983 Amendment (Rule 26(g) of the Federal Rules of Civil Procedure certification requirement “obliges each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection” and by signing a Rule 26(g) certification, an attorney “certifies that [he or she] has made a reasonable effort to assure that the client has provided all the information and documents available to [the client] that are responsive to the discovery demand.”). As set forth above, defendants may not impose copying costs on Williams. Defendants must provide an amended response to Request Nos. 1 and 3[3] and copies of the responsive documents within 14 days of entry of this Order. c. Request Nos. 2, 4, and 5. *4 In these requests, Williams asks for information regarding five prisoners who were approved for the dog program (Hall, Peterson, LaFleur, Adamowicz, and Burges), including pre-sentence investigation reports, “Basic Information Sheets,” and dog program applications, the Security Threat Group file for prisoner Hall, and the processed unit 900 dog program applications of plaintiff and prisoner Dunson. ECF No. 29-1, PageID.374-376. Defendants object to these requests because they invade the privacy rights of third-parties and present a security risk to third-parties and MDOC personnel. Defendants say the requested information contains personal information about third-parties and MDOC investigations that could be used by Williams, a Level IV prisoner, against the third-parties or subject them to higher risk of violence. Williams seemingly concedes that producing such documents to him is problematic and indicates that if any responsive documents are “confidential,” he would like defendants to provide them to the court for review. Id; see also ECF No. 30, PageID.395-396. Williams would like the court to compare his pre-sentence report to the pre-sentence reports of prisoners who were admitted to the program, to determine if reliance on his pre-sentence report to deny him entry to the dog program was rational or merely a pretext for race discrimination. ECF No. 30, PageID.397. As an initial matter, the Court cannot resolve either this discovery dispute or decide the merits of Williams' equal protection claim simply by taking ex parte evidence, as suggested by Williams. The primary case on which Williams relies is inapposite because it addresses the in camera review of privileged matters, which is not at issue in this case. See Jabara v. Webster, 691 F.2d 272, 274 (6th Cir. 1982) (District Court properly reviewed evidence in camera where it was protected by state secret privilege).[4] Here, there is no state secret or military privilege asserted; rather, defendants merely raise a safety and security issue. As explained in Lawrence v. Thompson, courts have long recognized the “dangers supposed to arise from the taking of ex parte evidence.” 2016 WL 355087, *2 (W.D. Ky. Jan. 28, 2016) (quoting Patapsco Ins. Co. v. Southgate, 30 U.S. 604 (1831); and citing Chaplin v. Kirwin, 1 U.S. 187 (1786)). Indeed, courts caution that when a decision-maker relies on ex parte evidence in reaching his conclusion, a violation of the other party's right to procedural due process may occur. Id. (citing Tenn. Secondary School Athletic Ass'n v. Brentwood Acad., 551 U.S. 291 (2007); Kenny A. ex. rel. Winn v. Perdue, 547 F.3d 1319, 1326-27 (11th Cir. 2008) (noting that “the district judge failed to comprehend the due process implications of what he was doing” when he reached a decision based on ex parte evidence)). Accordingly, a party retains “the right to know what information is being submitted to the decision-maker and the opportunity to challenge the reliability of the government's sources as well as provide contrary information.” Id. (quoting United States v. Accetturo, 783 F.2d 382, 390 (3d Cir. 1986)). Based on the foregoing, Williams cannot overcome the safety and security issue raised by defendants in opposing production of certain documents by submitting them to the Court for use in some future proceeding. However, it is well-established, at least in the context of a motion for a protective order, that federal courts have often found good cause to limit discovery when such discovery “implicate[s] the safety and security of prisons and jails.” Johnson v. CoreCivic, Inc., 2019 WL 2158239 (W.D. Tenn. Apr. 3, 2019) (quoting Shadburne v. Bullitt Cty., Ky., 2017 WL 6391483, *3 (W.D. Ky. Dec. 14, 2017); see also Doe v. Anderson, 2017 U.S. Dist. LEXIS 152770, *13 (E.D. Mich. Sept. 20, 2017) (stating that a protective order was proper and refusing to modify it because the defendants provided “several examples of situations in which the disclosure of the protected records could place the security of the prisons and/or the safety of MDOC employees and their families at risk.”). Here, though, defendants have not filed a motion for protective order. They do argue that “[r]eleasing this information to a current inmate who is at Security Level IV, would place prisoners and prison personnel at grave risk.” ECF No. 29, PageID.367. Defendants assert that providing inmates with information regarding other inmates, especially private information, could be used to gain control over others and lead to violence. Id. Defendants also argue that Williams has not shown a need for the requested information, that the benefit of disclosure is greatly outweighed by the burden to the safety and security of the prison, and that other means of discovery are available to Williams that do not threaten safety and security. According to defendants, in response to his interrogatories and requests for admission, Williams has received information about the requested inmates' convictions without compromising personal information that could threaten the safety and security of the prison, other prisoners and MDOC personnel. ECF No. 29, PageID.367-368. *5 Williams contends that he has demonstrated a need for the pre-trial sentence reports because defendant Clark's reliance on Williams' pre-sentence report to deny him entry into the dog program “is a pretext designed to mask discrimination.” ECF No. 30, PageID.396. Williams argues that he has evidence of a disproportionate number of white prisoners approved for the dog program, which is significant because inmate Hall has a prior gang activity history, inmate Peterson was convicted of murder of his girlfriend and inmate LaFleur is currently serving a sentence for kidnapping. Williams contends that such information is contained in the inmates' pre-sentence reports but was disregarded when they were admitted to the dog program because they are white. ECF No. 30, PageID.396-397. While defendants have not formally moved the court for a protective order, the Court can, by analogy, rely on cases limiting discovery based on prison safety and security and concludes that defendants' objection to the documents sought by Williams is reasonable, particularly since Williams does not actually dispute that turning the documents over to him presents a safety and security risk. Defendants also raise a valid point that Williams has other options for obtaining the same information without the production of the documents requested. While defendants' argument suggests that Williams has already received the information he seeks regarding other prisoners in the responses to the requests for admission and interrogatories, the Court disagrees that such information has already been provided. ECF No. 29-1. However, Williams may still pose[5] additional interrogatories or depositions on written questions to defendants in order to obtain information contained in the requested documents, without presenting the same security and safety risk. See e.g., Lovett v. Barney, 2016 WL 1441472, *1-2 (S.D. Ohio Apr. 8, 2016) (In lieu of an in-person deposition, plaintiff could obtain discovery needed through depositions by written questions, and other written discovery permitted under the Federal Rules). Accordingly, the motion to compel is denied in this regard, without prejudice to Williams' right to seek information contained in the records discussed above via alternate discovery methods that do not pose the same security risks. d. Request No. 6 In request No. 6, Williams asks for a copy of the Michigan Department of Corrections Collective Bargaining Agreement (MDOC CBA). ECF No. 29-1, PageID.376. Defendants object to this request because the MDOC CBA is wholly unrelated to the issue in this suit – namely, Williams' race-based Equal Protection claim. The undersigned agrees and concludes that defendants need not produce this document because its discovery is not proportional to the needs of this case. IT IS SO ORDERED. Footnotes [1] In deciding discovery disputes, a magistrate judge is entitled to that same broad discretion, and her order is overruled if the district court finds an abuse of discretion. 12 Wright, Miller & Marcus, Federal Practice and Procedure § 3069, 350 n. 20 (2d ed. 1997 & Supp. 2010) (citing cases). An abuse of discretion exists when the court applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact. Todd v. RBS Citizens, N.A., 2010 WL 3943545, at *2 (W.D. Mich. 2010) (citing First Tech. Safety Sys., Inc. v. Depinet, 11 F.3d 641, 647 (6th Cir. 1993)). [2] Objections overruled, Miller v. Klee, Case No. 17-11006, ECF No. 61; see also Draughn v. Bouchard, Case No. 15-14446 (E.D. Mich.), ECF No. 105. [3] Defendants did not object to providing responsive documents to Request for Production No. 3. Rather, they only indicated that they were searching for responsive documents and required advanced payment for copying costs. ECF No. 29-1, PageID.375. Accordingly, an amended response to this requests is also required, along with copies of all responsive documents. [4] Williams also cites United States v. Reynolds, 345 U.S. 1 (1953), which upheld the military secrets privilege. An in camera review of documents does not appear to have occurred in this case. [5] Discovery in this case remains open until December 26, 2019. ECF No. 27.