I. RELEVANT BACKGROUND

Plaintiffs' motion to compel arises after a protracted discovery process, including extensive electronic discovery efforts by Defendants and non-party DCS. As the result of their electronic discovery, Defendants and DCS produced a considerable number documents at the end of 2012 and through the middle of 2013. However, DCS, withheld certain documents claiming the deliberative process privilege, the work product doctrine, and the attorney-client privilege. DCS provided privilege logs identifying documents and the applicable privilege.

In the instant motion, Plaintiffs contend that 612 of the withheld documents are relevant to their claim that the DCS Defendants deprived them of their constitutional rights, including the right to due process, and to the DCS Defendants' affirmative defense of qualified immunity. The DCS Defendants do not appear to challenge the relevance of the 612 documents. Instead, they argue that the documents are privileged and that Plaintiffs have not established that they cannot obtain equivalent information from other sources without undue hardship.

II. ANALYSIS

Fed. R. Civ. P. 26 (b)(1) permits discovery into “any matter, not privileged, that is relevant to the claim or defense of any party.” This Court has broad discretion when deciding whether to compel discovery and may deny discovery to protect a party from oppression or undue burden. Fed. R. Civ. P. 26(c); Sattar v. Motorola, Inc., 138 F.3d 1164, 1171 (7th Cir. 1998); Gile v. United Airlines, Inc., 95 F.3d 492, 495-96 (7th Cir. 1996). In ruling on a motion to compel, “a district court should independently determine the proper course of discovery based upon the arguments of the parties.” Gile, 95 F.3d at 496.

To secure discovery from a non-party, parties must issue a subpoena to the non-party. Fed. R. Civ. P. 45(a)(2)(C); Highland Tank & Mfg. Co. v. PS Int'l, Inc., 227 F.R.D. 374, 379 n.7 (W.D. Pa. 2005). Subpoenas for production of documents separate from a subpoena commanding attendance must be issued “from the court for the district where the production or inspection is to be made.” Fed. R. Civ. P. 45(a)(2)(C).[1] If the responding non-party objects to producing information requested through the subpoena, the serving party may, on notice to the responding non-party, ask the court to issue an order compelling the responding non-party to produce the requested documents. Fed. R. Civ. P. 45(d)(2)(B)(i). Parties must file motions to compel discovery from non-parties in the court where the discovery will be taken. Fed. R. Civ. P. 37(a)(2). Only the court that issues a subpoena may enforce it unless the non-party consents to an alternative court’s jurisdiction. Highland Tank, 227 F.R.D. at 381 (citing Fincher v. Keller Indus., Inc., 129 F.R.D. 123, 125 (M.D.N.C. 1990)).

*2 In this case, the subpoena directed at non-party DCS was issued by the Southern District of Indiana on October 27, 2011, presumably because DCS would be producing the documents in its offices located in the Southern District. Doc. No. 182-2 at 4–6. As such, jurisdiction for a motion to compel DCS to comply with the subpoena would have been proper in the Southern District of Indiana. Plaintiffs, however, brought their motion to compel based on the Southern District subpoena here in the Northern District of Indiana. Because non-party DCS did not raise any jurisdictional challenge to Plaintiffs' motion to compel, the Court presumes that DCS has consented to the jurisdiction of this Court and addresses the motion to compel as follows.

A. The parties fail to provide sufficient information for the Court to determine the extent to which the DCS Defendants' arguments in opposition to the motion to compel reflect non-party DCS’s interests in the withheld documents.

As a threshold matter, the parties dispute whether the DCS Defendants were the proper respondents to the instant motion to compel. This issue carries some importance because if the DCS Defendants do not have sufficient interest in the withheld documents, DCS may have waived any argument in opposition to the instant motion directed at it by not responding to the motion itself. Unfortunately, neither the parties' arguments nor the privilege logs clarify things on this front for the Court.

While it seems plausible that some of the withheld documents are of concern to the individual DCS Defendants, the Court cannot discern which DCS Defendants would have a sufficient interest in which documents to justify their objection to DCS’s production of them. Moreover, the Court is confused by a hypothetical statement included in the DCS Defendants' response brief, which suggests that “the documents are all ‘DCS documents’ not documents of the individual defendants.” Doc. No. 181 at 12. If these are all DCS documents, why did DCS fail to file their own response to the motion to compel directed at it? The Court would not be surprised if there is sufficient overlap between the interests of DCS and the DCS Defendants in some or all the withheld documents to justify the DCS Defendants' objection and DCS’s failure to respond to the motion. However, neither the motion briefs nor the privilege logs make that sufficiently clear.

Even so, because counsel for DCS Defendants also represent DCS, the Court will assume that DCS’s interests are adequately addressed through the DCS Defendants' response brief and will address the privilege arguments as follows.

B. Privileges

A person commanded to produce documents or tangible things, including electronically stored information, by subpoena (“the Responding Party”) may serve an objection to production on the party who served the subpoena (“the Serving Party”). Fed. R. Civ. P. 45(c)(2)(B). Because privileged matter does not fall within the proper scope of discovery under Fed. R. Civ. P. 26(b)(1), assertions of privilege constitute legitimate objections to production in response to a subpoena. However, the Serving Party may seek a court order compelling production of allegedly privileged matter at any time upon notice to the Responding Party. Fed. R. Civ. P. 45(c)(2)(B)(i). Plaintiffs have done just that.

1. Burden of proof

In the face of a motion to compel, “[t]he burden ‘rests upon the objecting party to show why a particular discovery request is improper.’ ” Gingerich v. City of Elkhart Prob. Dep't, 273 F.R.D. 532, 536 (N.D. Ind. 2011) (quoting Gregg v. Local 305 IBEW, Cause No. 1:08–CV–160, 2009 WL 1325103, at *8 (N.D. Ind. May 13, 2009) (citations omitted)). To meet its burden, the objecting party must show with specificity that the discovery request is improper. Id. (citing Cunningham v. Smithkline Beecham, 255 F.R.D. 474, 478 (N.D. Ind. 2009)). Rule 26 supports this approach by requiring parties that withhold information otherwise discoverable on the grounds of privilege to expressly claim the privilege and to describe the nature of the withheld information in such a way that the privileged information is not revealed but is sufficient for the parties to assess the propriety of the claim of privilege. See Fed. R. Civ. P. 26(b)(5)(A). This is typically accomplished through the production of a privilege log.

*3 Even if the Responding Party meets its burden, the court may order production of even privileged documents if the Serving Party “shows a substantial need for the ... material that cannot be otherwise met without undue hardship.” See Fed. R. Civ. P. 45(c)(3)(C)(i). In reaching its decision on the motion to compel, the court must consider “the totality of the circumstances, weighing the value of material sought against the burden of providing it, and taking into account society’s interest in furthering the truth-seeking function in the particular case before the court.” Berning v. UAW Local 2209, 242 F.R.D. 510, 512 (N.D. Ind. 2007) (examining Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002)) (internal quotations and citations omitted).

In this case, DCS must demonstrate that the privileges it invoked apply specifically to each of the 612 documents that Plaintiffs have requested. This is where DCS has failed. DCS attempted to explain the applicability of the privileges to each document through its privilege logs and then through the DCS Defendants' overview of protected materials included in the their response to the instant motion as well as through the affidavit of DCS Assistant Deputy Director Allison Chaney. However, DCS’s efforts fell short. The logs are so overbroad and vague that neither Plaintiffs nor the Court can discern who authored the requested documents; to whom the requested documents were directed; or the topic of the requested documents. Without that, the Court cannot apply the legal standard for each privilege to each requested document in order to determine whether the privileges apply. As discussed below, these shortcomings are fatal to all three privileges that DCS asserted.

2. The Deliberative Process Privilege

“The deliberative process privilege protects communications that are part of the decision-making process of a governmental agency.” United States v. Farley, 11 F.3d 1385, 1389 (7th Cir. 1993). The privilege fosters candid communication among government officials as they make decisions by limiting the public disclosure of those communications. Anderson v. Marion Cnty. Sheriff’s Dep't, 220 F.R.D. 555, 560 (S.D. Ind. 2004). However, for the privilege to apply, “a document must be both predecisional in the sense that it is actually antecedent to the adoption of an agency policy, and deliberative in the sense that it is actually related to the process by which policies are formulated.” Enviro Tech Int'l, Inc. v. U.S. E.P.A., 371 F.3d 370, 375 (7th Cir. 2004) (internal quotations and citations omitted).

In asserting the privilege, the government bears the burden of establishing its applicability to particular documents or communications. United States v. Lake Cnty. Bd. of Comm'rs, 233 F.R.D. 523, 526 (N.D. Ind. 2005); Anderson, 220 F.R.D. at 561. To meet its burden, the government must meet the following three requirements:

Anderson, 220 F.R.D. at 561. If the government meets that burden, the requesting party may then attempt to show that it has a particularized need for the documents. Anderson, 220 F.R.D. at 561 (citing K.L., L.F., and R.B. v. Edgar, 964 F. Supp. 1206, 1209 (N.D. Ill. 1997)). The court should consider the following factors in reaching its conclusion:

In re Subpoena Duces Tecum Served on the Office of the Comptroller of the Currency, 145 F.3d 1422, 1424 (D.C. Cir. 1998).

In this case, DCS, the governmental entity asserting the privilege, has not met its burden. DCS did provide an affidavit from Allison Chaney, an Assistant Deputy Director for DCS, in an attempt to meet the burden. The affidavit does formally claim the privilege as to 113 documents identified by Bates Numbers. The affidavit states that the identified documents “contain agency discussion and deliberations regarding the fatality review of Jessica Salyer and related decisions including, but not limited to, discussions regarding cause of death and determining whether to detain siblings or substantiate abuse or neglect prior to the final agency determination on each of these issues.” Doc. No. 173-7 at 2. Chaney went on to aver that disclosure would hinder future frank discussions of similar policy decision-making processes because the communications directly reflect routine decision-making processes at DCS. Id.

The affidavit accomplishes part, but not all, of its intended goal of justifying the application of the privilege. Of concern is the fact that Chaney’s affidavit references routine decision-making processes, such as determinations regarding the cause of death, detention, and substantiation of abuse or neglect, and states that candid discussion about future similar routine decision-making process would be hindered if the identified communications were disclosed. The Court does not doubt that the identified documents relate to routine decision-making. What is not clear, however, is how or if those routine decision-making processes equate with the formulation of policy that the privilege protects. Chaney’s statements are very broad and do not provide the precise and certain reasons for preserving the confidentiality of the communications at issue. SeeAnderson, 220 F.R.D. at 562. Moreover, DCS has not shown that the communications represent anything but factual material related to the routine decision-making processes used during the fatality review at issue in this case. Because factual or objective material are not protected by the privilege, the Court is not convinced that the privilege applies here. See id.

Even if DCS met its initial burden, the Court is left to ponder whether Plaintiffs have a particularized need for the communications at issue. Here again, DCS’s vague broad privilege logs and Chaney’s overbroad affidavit do not provide the Court with sufficient information to determine the relevance of the communications to this action. Even so, Plaintiffs' argument that the allegations in this case go directly toward the intent of the DCS Defendants' during the “routine” decision-making processes that Chaney references carries some sway.

As in every Section 1983 case against state officials in their individual capacities, determining whether the conduct at issue was malicious, reckless, and outside the scope of employment is central to the analysis. Moreover, there is no doubt that allegations of such misconduct by state officials is very serious because of the potential effect on other families within the State facing the death of a child and potential abuse and neglect charges. As a result, the Court would likely find that the deliberative process privilege does not apply to the requested documents and communications if it could find sufficient support for the proposition that the requested documents were relevant to those issues. Such a conclusion would be consistent with decisions by other courts finding that the privilege does not apply in Section 1983 cases. E.g., Evans v. City of Chicago, 231 F.R.D. 302, 318 (N.D. Ill. 2005); Anderson, 220 F.R.D. at 563. However, DCS has not provided sufficient information in their privilege logs or in Chaney’s affidavit to support such a finding at this point.

3. Work Product Doctrine

*5 “Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent).” Fed. R. Civ. P. 26(b)(3)(A); see also United States v. Nobles, 422 U.S. 225, 238–39 (1975) (“It is therefore necessary that the doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself.”). The purpose of the work product doctrine is twofold: (1) it protects an attorney’s thought processes and mental impressions against disclosure; and (2) it limits the circumstances in which attorneys may “piggyback” on the fact-finding investigations of opposing counsel. Sandra T.E. v. South Berwyn School Dist. 100, 600 F.3d 612, 622 (7th Cir. 2010) (citing Hickman v. Taylor, 329 U.S. 495 (1947)). However, such materials may be discovered if “(i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has a substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A). For instance, documents or communications prepared in the ordinary course of business are discoverable. Binks Mfg. Co. v. Nat'l Presto Indus., Inc., 709 F.2d 1109, 1119 (7th Cir. 1983).

“[T]he threshold determination in any case involving an assertion of the work product privilege ... is whether the materials sought to be protected from disclosure were in fact prepared in anticipation of litigation.” Id. at 1118. “[T]he party seeking to assert the work product privilege has the burden of proving that at the very least some articulable claim, likely to lead to litigation, has arisen.” Id. at 1119 (internal quotation omitted). While litigation need not be imminent, the primary motivating purpose behind creation of a document or investigative report must be to aid in possible litigation. Id. The fact that litigation did in fact occur is insufficient to establish a reasonable anticipation of litigation under Rule 26. Id. In addition, “[a] third party who is neither a party to nor interested in the action may not assert the work product doctrine to protect its files or documents, even if the person is a party to a closely related lawsuit.” Davis v. Carmel Clay Sch., 282 F.R.D. 201, 205 on reconsideration in part, 286 F.R.D. 411 (S.D. Ind. 2012).

Here, Plaintiffs first argue that DCS is a third party, not sufficiently interested in this case to justify application of the work product doctrine. Like the DCS Defendants, the Court disagrees. The DCS Defendants are employed by DCS. The DCS Defendants and DCS are represented by the same counsel. Moreover, the outcome of this case could require DCS to review and possibly modify the policies and procedures at issue in this case. Therefore, DCS is an interested party and may assert the work product doctrine in response to Plaintiffs' non-party request for production.

In asserting the doctrine, however, DCS must demonstrate that the documents and communications at issue were prepared in anticipation of litigation and were not simply produced as part of the ordinary course of business at the agency. This is where DCS fails. Once again, DCS’s deficient privilege logs do not provide sufficient information about who authored or received which documents; the topic of the documents; or a clear description of the connection between the documents and impending litigation. The DCS Defendants contend that many of the documents are entitled to protection under the doctrine because they were prepared during the investigation and prosecution of collateral administrative proceedings resulting from Jessica Salyer’s case even if not prepared specifically in anticipation of this litigation. DCS gives some clues but not enough for the Court to determine whether the requested documents constitute work product worthy of protection. Without that, the Court cannot reach any conclusion as to whether DCS’s claim of work product protection is outweighed by Plaintiffs' substantial need for the requested documents.

4. Attorney Client Privilege

*6 “The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). The attorney-client privilege exists where:

United States v. White, 950 F.2d 426, 430 (7th Cir. 1991). Unlike the work product doctrine, the attorney-client privilege protects communications from disclosure regardless of any anticipation of litigation. Colman v. Heidenreich, 381 N.E.2d 866, 869 (Ind. 1978).

The party asserting the privilege has the burden of demonstrating that it applies. Valero Energy Corp. v. U.S., 569 F.3d 626, 630 (7th Cir. 2009). The attorney-client privilege “is in derogation of the search for the truth and therefore, must be strictly confined.” In re Grand Jury Proceedings, 220 F.3d 568, 571 (7th Cir. 2000). “The essential prerequisites to invocation of the privilege are to establish by a preponderance of the evidence: (1) the existence of an attorney-client relationship and (2) that a confidential communication was involved.” Snedeker v. Snedeker, No. 2:10-CV-189, 2011 WL 3555650, at *1 (S.D. Ind., Aug. 11, 2011).

To evaluate whether certain communications are protected by the attorney-client privilege, the Court needs assorted information as to who authored or spoke the communications and the purpose of the communications. From the deficient privilege logs presented, the Court cannot determine if the requested documents and information included communications to or from DCS or the DCS Defendants to their counsel, or even their counsel’s representative, seeking legal advice. If the communications focused on business advice or other types of facts rather than legal advice, the Court would be reluctant to attach the privilege. See In re Vioxx Products Liability Litigation, 501 F. Supp. 2d 789, 797 (E.D. La. 2007).

Similarly, there is insufficient information for the Court to determine whether the crime-fraud exception to attorney-client privilege applies in this case. “The crime-fraud exception helps to ensure that the attorney-client privilege does not protect communications made ‘in furtherance of a crime or fraud.’ ” United States v. Boender, 649 F.3d 650, 655–56 (7th Cir. 2011) (citing United States v. Zolin, 491 U.S. 554, 563 (1989); United States v. BDO Seidman, LLP, 492 F.3d 806, 818 (7th Cir. 2007)). To overcome the privilege based on the crime-fraud exception, the moving party must “present prima facie evidence that gives color to the charge by showing some foundation in fact.” BDO Seidman, 492 F.3d at 818. Then, the asserting party is afforded the opportunity to explain the evidence offered against the privilege. Id. In determining whether to accept or reject the proffered explanation, the court may, if necessary, examine the privileged communications directly to determine whether they further a crime or fraud. Boender, 649 F.3d at 655–56. However, there must be a “showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.” Zolin, 491 U.S. at 572.

*7 Plaintiffs attempt to meet their burden by alleging fraud and citing DCS’s history of contempt or failure to comply with Plaintiffs' discovery requests in collateral administrative and criminal proceedings as well in this action. Based on this conduct, Plaintiffs argue that in camera review of the privileged communications is warranted to ascertain whether the crime-fraud exception applies. Moreover, Plaintiffs contend that their case rests on the DCS Defendants' decision-making process and the requested documents relate directly to how the DCS Defendants interpreted their powers and responsibilities at the time they made their decisions. The DCS Defendants' reject Plaintiffs' argument for application of the crime-fraud exception stating that Plaintiffs have failed to establish the prima facie case of fraud that is their burden. These arguments, however, are premature. Because the DCS Defendants have provided insufficient information to determine what the content of the communications at issue is, the Court cannot make any determination as to the applicability of the privilege. Moreover, Plaintiffs' argument for in camera review is not persuasive without further understanding of the content of the communications at issue.

C. Statutory Obligations

Beyond challenging the DCS Defendants' assertion of the deliberative process privilege, the work product doctrine, and the attorney-client privilege, Plaintiffs also argue that Indiana statutes mandate that DCS produce most of the 612 documents at issue in the instant motion. Plaintiffs based their argument on the disclosure requirements established in chapter 18 of title 31, article 33 of the Indiana Code. Ind. Code Section 31-33-18-1deems any information obtained, reports written or photographs taken as part of investigations into “the death of a child determined to be a result of abuse, abandonment, or neglect” confidential and undiscloseable. Under the same statutory scheme, however, the same documents described above must be disclosed to several specifically identified persons or entities including “[e]ach parent, guardian, custodian, or other person responsible for the welfare of a child named in a report or record and an attorney of the person described under this subdivision, with protection for the identity of reporters and other appropriate individuals.” Ind. Code § 31-33-18-2(8). As such, Plaintiffs are entitled to any of the documents which reference Jessica Salyer. See Davis v. Carmel Clay Sch., 282 F.R.D. 201, 209 on reconsideration in part, 286 F.R.D. 411 (S.D. Ind. 2012).

The DCS Defendants do not even raise, much less develop, any argument in their response brief rejecting its disclosure obligations under Indiana statutes. Undeveloped arguments are waived. Kochert v. Adagen Med. Int'l, Inc., 491 F.3d 674, 679 (7th Cir. 2007) (citing Wang v. Gonzales, 445 F.3d 993, 999 (7th Cir. 2006); Weinstein v. Schwartz, 422 F.3d 476, 477 n. 1 (7th Cir. 2005)). Therefore, DCS must produce any documents relating to Jessica to comply with its statutory obligations. However, once again, the Court cannot specify which documents must be produced because there is insufficient information in the logs to reach any such conclusion.

III. CONCLUSION

DCS must comply with its statutory obligations to disclose all documents relating to Jessica Salyer. However, the Court cannot ascertain which documents those are based on the deficient privilege logs and briefs. Similarly, the Court cannot determine whether any of the 612 requested documents at issue in the instant motion are privileged and undiscoverable based on the deliberative process privilege, the work product doctrine, or the attorney-client privilege.

Because of these shortcomings, the Court DENIES Plaintiffs' motion to compel. [Doc. No. 171]. The Court AFFORD DCS thirty (30) days to supplement its privilege log, serving it on Plaintiffs by March 18, 2014. Should the DCS Defendants have an interest in preventing the disclosure of any of the documents or communications at issue here, they may also serve a privilege log on Plaintiffs by March 18, 2014. After reviewing any supplemented privilege log that DCS may provide and any privilege log that may be served by the DCS Defendants, Plaintiffs may renew their motion to compel should they deem such a motion necessary.

*8 The parties are ADVISED that in camera review of a substantial number of documents, such as the 612 documents challenged in the instant motion, may be beyond the capacity of the Court’s available resources. As a result, the Court REMINDS the parties that the Court may appoint a special master to “address pretrial ... matters that [it] cannot ... effectively and timely address[ ]....” Fed. R. Civ. P. 53(a)(1)(C). Should the Court turn to a special master, the master’s compensation will likely be borne by the parties. SeeFed. R. Civ. P. 53(g)(2).

SO ORDERED.

The Court here cites the previous version of Fed. R. Civ. P. 45despite substantive changes to the rule that became effective December 1, 2013. Because Plaintiffs' subpoena and request for non-party production of documents was issued on October 27, 2011, and because Plaintiffs filed the instant motion to compel on October 30, 2013, before the new rule took effect, the Court will apply the previous version of the rule in this case.