WILLIAM BARNHOUSE, Plaintiff, v. CITY OF MUNCIE, et al., Defendants. DELAWARE COUNTY PROSECUTOR'S OFFICE, Interested Party. No. 1:19-cv-00958-TWP-DLP United States District Court, S.D. Indiana, Indianapolis Division Filed July 07, 2020 Pryor, Doris L., United States Magistrate Judge Order *1 This matter comes before the Court on the Plaintiff's Motion to Compel the Delaware County Prosecutor's Office to Comply with Document Subpoena, Dkt. [110], and the Delaware County Prosecutor's Office's Non-Party Motion to Quash Subpoena, Dkt. [113]. I. Factual Background In 1992, Plaintiff William Barnhouse was convicted of rape and criminal deviate conduct in Delaware County, Indiana and sentenced to 80 years in prison. (Dkt. 73 at 15). On March 1, 2017, after DNA testing excluded him as the source of DNA collected from the victim, (Dkt. 73 at 17), Plaintiff and the Delaware County Prosecutor's Office (“DCPO”) jointly filed a motion to vacate Plaintiff's judgments of conviction. (Dkt. 73 at 17). On March 8, 2017, the Delaware County Circuit Court vacated the sentence and ordered Mr. Barnhouse's immediate release. (Dkt. 110-1 at 1). On May 10, 2017, Mr. Barnhouse's 1992 rape and criminal deviate conduct case was dismissed without prejudice. (Dkt. 110-1 at 3). On July 30, 2019, the Plaintiff initiated the present civil rights lawsuit against the City of Muncie, individual Muncie police officers, and employees of the Indiana State Crime Lab, (Dkts. 1, 73), alleging that they took advantage of his mental deficiencies to secure an inculpatory statement, fabricated an identification of Mr. Barnhouse by the victim, and withheld exculpatory information from the DCPO. (Dkt. 73).[1] In his amended complaint, Mr. Barnhouse maintains that by relying on this false information, the DCPO secured a wrongful conviction against him in 1992. During a 1989 rape prosecution, it was discovered that Mr. Barnhouse suffered from a chromosomal condition, Klinefelter's Syndrome, and could not produce sperm. (Dkt. 73 at 8; Dkt. 110 at 3). In the 1989 rape prosecution, the rape kit indicated the presence of sperm, but testing established that due to Plaintiff's chromosomal condition, Mr. Barnhouse could not produce sperm. (Dkt. 110 at 3). Thus, the court dismissed his charges. (Dkt. 110 at 3). In 1992, Mr. Barnhouse was charged with a different rape. (Dkt. 110 at 3). In the 1992 case, similar to the 1989 investigation, the presence of seminal material was found in the rape kit. (Dkt. 110 at 3). Mr. Barnhouse claims that members of the law enforcement community knew that he could not have physically committed the 1992 rape because of the presence of seminal material in the rape kit. (Dkt. 73 at 2, 7-8). Further, Plaintiff claims that after receiving inconclusive serology test results, the Muncie police used Defendant Carl Sobieralski, an Indiana Crime Lab forensic hair examiner, to bolster false evidence against the Plaintiff. (Dkt. 73 at 13). Specifically, the Plaintiff asserts that despite Defendant Sobieralski's knowledge of problems associated with microscopic hair comparison, he withheld that information from the prosecution and Plaintiff's counsel. (Dkt. 73 at 13). *2 On September 6, 2019, Plaintiff issued a non-party subpoena by certified mail to the DCPO[2] seeking the following documents for the 1992 criminal investigation and prosecution:[3] 1. The Delaware County Prosecutor's Office's trial file for the prosecution of William Barnhouse in State of Indiana v. William Barnhouse, 18D02-9204-CF-46. 2. The Delaware County Prosecutor's Office's post-conviction file for the prosecution of William Barnhouse in State of Indiana v. William Barnhouse, 18D02-9204-CF-46. (Dkt. 110-2 at 4). On September 24, 2019, Deputy Attorney General Aleksandrina Pratt, of the Indiana Attorney General's Office (“DCPO Counsel”), provided a letter with a response to the subpoena on behalf of the DCPO. (Dkt. 113-1). In the letter, DCPO Counsel indicated that due to the age of the case, the 1992 trial file had been destroyed. (Dkt. 113-1 at 1). In regard to the 1992 post-conviction file, DCPO Counsel argued that the subpoena was subject to being quashed because it required compliance beyond the geographic limit specified in Rule 45 and required the disclosure of privileged or other protected matter, specifically, “prosecutor notes and internal memoranda which reflect the thought processes and legal strategies of attorneys.” (Dkt. 113-1 at 1). On October 3, 2019, Plaintiff issued another subpoena by certified mail to the DCPO, seeking the following documents for the 1989 and 1990 investigations and prosecutions of Mr. Barnhouse: 1. The Delaware County Prosecutor's Office's trial file for the prosecution of William Barnhouse in State of Indiana v. William Barnhouse, 18C01-8906-CF-29.[4] 2. The Delaware County Prosecutor's Office's post-conviction file for the prosecution of William Barnhouse in State of Indiana v. William Barnhouse, 18C01-8906-CF-29. 3. The Delaware County Prosecutor's Office's trial file for the prosecution of William Barnhouse in State of Indiana v. William Barnhouse, 18D02-9008-CF-30.[5] 4. The Delaware County Prosecutor's Office's post-conviction file for the prosecution of William Barnhouse in State of Indiana v. William Barnhouse, 18D02-9008-CF-30. (Dkt. 110-2 at 4). On December 10, 2019, DCPO Counsel addressed Mr. Barnhouse's subpoenas, stating: With respect to Case No. 18D02-9008-CF-30, the Delaware County Prosecutor's Office has no documents that are responsive to this request. With respect to Case No. 18C01-8906-CF-29, the Delaware County Prosecutor's Office has some documents related to the case. We are in the process of gathering these documents and determining if any are protected from disclosure. With respect to Case No. 18D02-9204-CF-46, the Delaware County Prosecutor's Office has no trial file but has an extensive post-conviction relief file. We are in the process of gathering these documents and determining which documents are protected from discovery. (Dkt. 110-4 at 1). In the letter, DCPO Counsel also asserted that the Plaintiff's subpoena subjected the DCPO to an undue burden. (Dkt. 110-4 at 2). DCPO Counsel explained that portions of the Plaintiff's subpoena request encompassed prosecutor notes and internal communications between prosecutors which were irrelevant to Mr. Barnhouse's present lawsuit, and thus imposed an undue burden. (Dkt. 110-4 at 2). The letter also suggested that certain subpoenaed documentation was protected under deliberative privilege. (Dkt. 110-4 at 2). *3 In response to Mr. Barnhouse's subpoena requests, on January 31, 2020, the Indiana Attorney General's Office provided the 1989 trial and post-conviction files and portions of the 1992 post-conviction file. (See Dkt. 110-4 at 3). In her letter dated January 31, 2020, DCPO Counsel explained that certain records which contained prosecutorial notes and communications between prosecutors were being withheld because they were “not relevant to the underlying investigation” and producing them would impose an “undue burden” on the DCPO, a non-party. (Dkt. 110-4 at 3). DCPO Counsel also noted that she was withholding a 2017 email exchange between the Delaware County Prosecutor and Defendant Carl Sobieralski on a “deliberative privilege basis.” (Dkt. 110-4 at 3). On February 7, 2020, Plaintiff's Counsel sent correspondence to DCPO Counsel explaining that “neither relevance nor undue burden” was a “basis to withhold responsive, nonprivileged documents.” (Dkt. 110-4 at 4). To the extent that the DCPO was withholding the documents based on privilege,[6] counsel for Mr. Barnhouse requested a privilege log to assess the validity of the privilege claims. (Dkt. 110-4 at 4). DCPO Counsel responded in a letter dated February 18, 2020, stating that “the prosecutorial notes and internal prosecutorial communications [were being] withheld on the basis of relevancy, not privilege. Therefore, a privilege log is inadequate and not required.” (Dkt. 110-4 at 6). DCPO Counsel did not, however, address the withheld 2017 email exchange between the Delaware County Prosecutor and Defendant Sobieralski. On March 30, 2020, Mr. Barnhouse filed a Motion to Compel non-party DCPO to produce the withheld documentation. (Dkt. 110). On April 17, 2020, DCPO Counsel filed a Motion to Quash and Response in Opposition to Plaintiff's Motion to Compel asserting that the withheld documents are privileged work product, irrelevant, and impose an undue burden. (Dkt. 113 at 3-5). On June 24, 2020, the Undersigned ordered an in camera inspection of the withheld documents. (Dkt. 119). II. Legal Standard Rule 26(b)(1) of the Federal Rules of Civil Procedure permits discovery into “any nonprivileged matter that is relevant to any party's claims or defenses and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). A party may file a motion to compel under Rule 37 when the responding party fails to produce documents or provides incomplete disclosures or answers. Fed. R. Civ. P. 37(a). Magistrate judges enjoy extremely broad discretion in controlling discovery. Jones v. City of Elkhart, Ind., 737 F.3d 1107, 1115 (7th Cir. 2013). Relevance for purposes of discovery is construed broadly to encompass “any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.” Chavez v. DaimlerChrysler Corp., 206 F.R.D. 615, 619 (S.D. Ind. 2002). Although there is a strong public policy in favor of disclosure of relevant materials, Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002), Rule 26 of the Federal Rules of Civil Procedure limits the scope of discovery “if the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive ...” Fed. R. Civ. P. 26(b)(2). When determining whether to compel or restrict discovery, the Court considers “the totality of the circumstances, weighing the value of the material sought against the burden of providing it, and tak[e] into account society's interest in furthering the truth seeking function in the particular case before the court.” Patterson, 281 F.3d at 681. *4 “The limits and breadth of discovery expressed in Rule 26 are [also] applicable to non-party discovery under Rule 45.” Noble Roman's Inc. v. Hattenhauer Distrib. Co., 314 F.R.D. 304, 307 (S.D. Ind. 2016). Federal Rule of Civil Procedure 45 permits a party to a lawsuit to issue a subpoena for the production of documents to a non-party. See Fed. R. Civ. P. 45. On timely motion, a court must quash or modify a subpoena that “subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(iv). III. Discussion The DCPO has asserted two main objections in support of its Motion to Quash and contention that the withheld 1992 post-conviction documents sought by Mr. Barnhouse in the September 6, 2019 subpoena are not discoverable. The DCPO argues that this withheld information is privileged and that because the withheld documents are irrelevant to the Plaintiff's claim, production would impose an undue burden on the DCPO. (Dkt. 113). A. Work Product Privilege The DCPO argues that the withheld documents are protected by the work product privilege. (Dkt. 113 at 4-5). Under Rule 26, 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. Fed. R. Civ. P. 26(b)(3)(A). To assert this privilege, the respondent must be a party to the lawsuit or a representative of a party to the lawsuit. Fed. R. Civ. P. 26(b)(3). Here, the DCPO, a non-party, is unable to meet this requirement because it is neither a party nor a representative of a party to this lawsuit. Moreover, “the work product privilege is unavailable when a prosecutor in a prior criminal investigation later objects to discovery by a litigant in a subsequent and related civil lawsuit.” See Davis v. Carmel Clay Sch., 282 F.R.D. 201, 205 (S.D. Ind. 2012), on reconsideration in part, 286 F.R.D. 411 (S.D. Ind. 2012); Ostrowski v. Holem, No. 02 C 50281, 2002 WL 31956039 at *4 (N.D. Ill. Jan. 21, 2002); Hernandez v. Longini, No. 96 C 6203, 1997 WL 754041 at *2 (N.D. Ill. Nov. 13, 1997). Even though the DCPO attempts to distinguish the present case from the holding in Davis by arguing that Mr. Barnhouse's underlying 1992 criminal case was dismissed without prejudice, (Dkt. 113 at 5), the Court finds this argument unpersuasive. The express language of Rule 26(b)(3) does not extend the work product privilege to persons who may become a party or who may become a representative of a party. Thus, the Undersigned finds the work product privilege inapplicable. B. Undue Burden The DCPO also argues that Mr. Barnhouse's subpoena should be quashed because it imposes an undue burden on a non-party. (Dkt. 113 at 3-4). While a respondent's non-party status is a significant factor that a court must consider when determining whether a burden imposed by a subpoena is undue, this factor is not absolute. The court may examine a number of factors, including relevance, the need of the party for documents, the breadth of the document request, the time period covered by it, the particularity with which the documents are requested, and the burden imposed. WM High Yield v. O'Hanlon, 460 F. Supp. 2d 891, 895-896 (S.D. Ind. 2006). A respondent seeking to quash a subpoena must establish undue burden with a particularized showing. CSC Holdings, Inc. v. Redisi, 309 F.3d 988, 993 (7th Cir. 2002). *5 In support of its Motion to Quash, the DCPO argues that the subpoena imposes an undue burden because it would require the Prosecutor to disclose withheld documents – prosecutorial notes and internal prosecutorial communications related to Mr. Barnhouse's post-conviction relief proceedings from 2015 to 2017 – that are irrelevant to Mr. Barnhouse's present case. (Dkt. 113 at 3-4). The DCPO maintains that these withheld documents do not meet the test for relevancy because they are not likely to lead to the discovery of admissible evidence. (Dkt. 113 at 4). The DCPO argues that the withheld documents are irrelevant because they do not relate to whether the City of Muncie and the Muncie Police Department fabricated and suppressed evidence in his 1992 criminal prosecution, (See Dkt. 113 at 4), and only demonstrates the Prosecutor's investigation of the case. In his Motion to Compel, Mr. Barnhouse contends that the Prosecutor's view of the evidence is highly relevant to the underlying facts of his lawsuit and will assist him in identifying witnesses and discovery that are otherwise unavailable. (Dkt. 110 at 5-6). Mr. Barnhouse maintains that the Prosecutor's views of the evidence from his 1992 criminal prosecution are relevant to the “presence of [the] absence of probable cause, the reliability of the police investigation, and the veracity of [the State's] witnesses.” (Dkt. 110 at 6). In this wrongful conviction lawsuit, the Plaintiff seeks evidence of the named Defendants’ knowledge that he could not have committed the 1992 rape. (Dkt. 110 at 6).[7] Mr. Barnhouse argues that the prosecutor's notes and communications may reveal the extent of the named Defendants’ knowledge that Mr. Barnhouse could not have physically committed the crime due to his genetic condition, and the decision to arrest, charge, and prosecute him anyway. (Dkt. 110 at 6). According to Mr. Barnhouse, the DCPO is the only party in possession of documentation related to his 1992 criminal prosecution. (Dkt. 110 at 6). There are no police reports detailing the Muncie Police Department's 1992 criminal investigation other than a one-page report. (Dkt. 110 at 6). Here, unlike the non-party in Davis, the DCPO relied on information from the named Defendants to charge and prosecute Mr. Barnhouse. While it is the named Defendants’ knowledge at issue in this case, the DCPO case files and notes are relevant to what statements and evidence of the named Defendants the DCPO relied on in making its decision to prosecute Mr. Barnhouse. Moreover, the 1992 post-conviction file is the only contemporaneous record that still exists today. Upon weighing all the factors, the Court finds that the Plaintiff's subpoena request does not impose an undue burden on the DCPO. As Mr. Barnhouse argues, the prosecutor's notes and internal communications are relevant to the City of Muncie, law enforcement agency, and the crime lab's knowledge and investigation of Mr. Barnhouse's 1992 criminal investigation, and thus are discoverable because they may lead to the discovery of admissible evidence. In addition, the breadth of Mr. Barnhouse's request is limited; there are no other contemporaneous records of Mr. Barnhouse's case still available; and the withheld documents cover a short time period between 2015 and 2017. (Dkt. 113 at 2, 4). When examining the Rule 45 factors, the Court finds that the DCPO has failed to demonstrate how the production of this “small number” of non-privileged documents withheld from a previously produced file imposes an undue burden. (See Dkt. 113 at 2, 4). IV. Conclusion *6 Because the Delaware County Prosecutor's Office has failed to establish that the work product privilege applies or demonstrate an undue burden, the Delaware County Prosecutor's Office's Non-Party Motion to Quash Subpoena, Dkt. [113], is DENIED. Mr. Barnhouse's Motion to Compel the Delaware County Prosecutor's Office to Comply with Document Subpoena, Dkt. [110], is GRANTED. The Delaware County Prosecutor's Office is ordered to turn over to Plaintiff the entire 1992 post-conviction file for Case Number 18D02-9204-CF-46, including all prosecutorial notes and internal communications, within fourteen (14) days from the date of this order. SO ORDERED. Distribution: Service will be made electronically on all ECF-registered counsel of record via email generated by the Court's ECF system. Footnotes [1] In his amended complaint, Mr. Barnhouse brings various claims arising under 42 U.S.C. § 1983, a municipal liability claim against the City of Muncie, a claim arising under § 504 of the Rehabilitation Act of 1973, and a number of state law claims. (Dkt. 73 at 21-38). [2] Delaware County is located in Muncie, Indiana. Delaware County, Indiana, https://www.co.delaware.in.us/government/ (last visited July 7, 2020). [3] Plaintiff was convicted of rape and criminal deviate conduct and later exonerated under case number 18D02-9204-CF-46 (hereinafter the “1992 Case.”). (Dkt. 110-1 at 3). [4] The DCPO charged Plaintiff with rape in 18C01-8906-CF-29 (hereinafter the “1989 Case”). As noted above, these charges were later dismissed. (Dkt. 110 at 3). [5] The DCPO conducted a 1990 criminal prosecution against the Plaintiff in 18D02-9008-CF-30. For reasons noted below, these files are not the subject of the pending cross motions. [6] DCPO Counsel's January 31, 2020 correspondence failed to identify whether she was withholding prosecutorial notes and documentation from the 1989 case files or the 1992 post-conviction file. In her Motion to Quash and Response to the Plaintiff's Motion to Compel, filed on April 17, 2020, DCPO Counsel clarifies for the first time that the Indiana Attorney General withheld prosecutorial notes and internal prosecutorial memoranda from the DCPO 1992 post-conviction file for Mr. Barnhouse. (Dkt. 113 at 2). [7] The Seventh Circuit has made clear that fabricating evidence can support a due process claim under § 1983. Saunders-El v. Rohde, 778 F.3d 556, 559 (7th Cir. 2015); Fields v. Wharrie, 740 F.3d 1107, 1114 (7th Cir. 2014); Petty v. City of Chi., 754 F.3d 416, 422 (7th Cir. 2014); Whitlock v. Brueggemann, 682 F.3d 567, 580 (7th Cir. 2012).