I. Introduction

*1 Plaintiff Chad Hayse, the former Chief of Police of the Defendant City of Melvindale, sues Melvindale, its city council, and the members of the city council, under 42 U.S.C. § 1983. [ECF No. 1]. He alleges that defendants violated his Fourteenth Amendment due process rights by removing him as police chief based upon false charges of misconduct, and after “sham proceedings.” [Id.]. According to plaintiff, defendants were motivated to remove him because he suspended Officer Matthew Furman, who wrote a high number of civil infraction tickets and caused a large amount of vehicle towing—actions that furthered defendants’ debt reduction plan. [Id.].

Before the Court are three motions: plaintiff's motion to compel the depositions of attorneys Lawrence Coogan and Raymond Guzall, [ECF No. 35]; his motion to compel responses to his first set of interrogatories and requests to produce documents, [ECF No. 37]; and defendants’ motion to quash subpoenas for Furman's “private” psychological records, [ECF No. 47].[1] The Court held a hearing on April 5, 2018, and ruled as described below.

II. Analysis

Lawrence Coogan is Melvindale's corporation counsel, and Raymond Guzall is an attorney who refereed plaintiffs’ removal hearing. [ECF No. 40-5]. Plaintiff filed a motion to compel Coogan's and Guzall's deposition, stating that defendants had refused to stipulate to them. [ECF No. 35]. In response, defendants argued that the requested depositions should not be compelled because Coogan's communication with them is protected by the attorney-client privilege, and because Guzall's testimony is insulated by a mediation privilege. [ECF No. 40]. Defendants argue that, at the very least, plaintiff should be required to make a proffer of the testimony he intended to elicit from these witnesses. [Id.]. Plaintiff replies that he intends to question Coogan about communications that are not privileged: “communications with clients not seeking legal advice; communications with non-clients, and client communications involving third-parties; and communications with Plaintiff.” [ECF No. 43, PageID 1292]. He states that the mediation privilege does not apply because the removal hearing was not a mediation or any form of alternative dispute resolution. [Id., PageID 1291-92]. The Court agrees with plaintiff.

Municipalities may assert attorney-client privilege in civil proceedings, but the privilege is “narrowly construed because it reduces the amount of information discoverable during the course of a lawsuit.” Ross v. City of Memphis, 423 F.3d 596, 603 (2005) (citations and internal quotation marks omitted). The need for narrow construction is particularly strong in the governmental context because recognizing the privilege “stands squarely in conflict with the strong public interest in open and honest government.” Reed v. Baxter, 134 F.3d 351, 356 (6th Cir. 1998). It is therefore “appropriate to recognize a privilege ‘only to the very limited extent that ... excluding relevant evidence has a public good transcending the normally predominant principal of utilizing all rational means for ascertaining truth.’ ” Id. at 356, (quoting Trammel v. United States, 445 U.S. 40, 50 (1980)).

*2 Defendants bear the burden of establishing that an attorney-client privilege exists. In re Grand Jury Investigation No. 83-2-35, 723 F.2d 447, 450 (6th Cir. 1983) (“The burden of establishing the existence of the privilege rests with the person asserting it.”).

Reed, 134 F.3d at 355–56.[2] At the hearing, defendants agreed that Coogan's communications with clients not seeking legal advice, his communications with non-clients, his communications that included third-parties, and his communications with plaintiff would not constitute privileged communications.

Even still, defendants requested that the Court preclude Coogan's deposition or preemptively determine which questions will be allowed. Granting either of these requests would contravene the requirement that a municipality's attorney-client privilege be recognized under limited, narrowly-construed circumstances. And requiring plaintiff to have his questions approved prior to the deposition would improperly place the burden on him to establish that his questions do not infringe on defendants’ privilege. It is defendants who bear the burden to demonstrate that an answer to a particular question falls within one of the limited categories deemed to be protected by a privilege. In re Grand Jury Investigation No. 83-2-35, 723 F.2d at 450.

Defendants may object to testimony that is covered by a privilege at Coogan's deposition, Federal Rule of Civil Procedure 30(c)(2), but they are warned that they should act with care if they instruct a deponent not to answer a question. Should defendants be found to have unreasonably instructed Coogan to not answer questions, necessitating a second deposition, they will be ordered to pay for the extra costs.

Defendants’ argument with respect to Guzall is even more wanting. They rely upon Folb v. Motion Picture Indus. Pension & Health Plans, 16 F. Supp. 2d 1164 (C.D. Cal. 1998), to assert a mediation privilege. Despite asserting this privilege, defendants describe plaintiff's removal hearing as a “two day disciplinary hearing,” not as a mediation, which is one reason that Folb is distinguishable. [ECF No. 40, PageID 1122]. The other reason is that defendants do not claim to have had any confidential communication with Guzall. In Folb, the court identified several factors to be considered when determining whether an asserted testimonial privilege is a public good, including “whether the asserted privilege is ‘rooted in the imperative need for confidence and trust.’ ” Id. at 1171, (quoting Trammel, 445 U.S. at 51). The Folb court concluded that the mediation privilege “is rooted in the imperative need for confidence and trust among participants.” Id. at 1176.

*3 Here, defendants do not assert that they had any confidential communication with Guzall, and they acknowledged at the hearing that plaintiff's removal hearing was open to the public. Defendants also claim that Guzall represented both them and plaintiff, [ECF No. 40, 1127], negating that defendants had a relationship with Guzall built on confidentiality. In the absence of confidential communication, no testimonial privilege can attach. Defendants’ arguments that Guzall's deposition should be precluded or limited are baseless.

Plaintiff's motion to compel these deposition is therefore granted.

Furman, through defense counsel, moves to quash plaintiff's subpoenas for Furman's “private” psychological records. [ECF No. 47]. At the heart of the dispute is whether the records were ever, indeed, “private.” In his response, plaintiff explains that, in his role as police chief, he had ordered Furman to undergo psychological evaluation and therapy due to ongoing behavior problems. He also argues that the records are relevant to demonstrate that his discipline against Furman was warranted, and that his removal for instilling that discipline was wrongful. The Court finds that the psychological records are relevant, and that they were never regarded as “private,” and thus no privilege attached.

Plaintiff satisfies the “extremely low bar” for demonstrating relevance under Federal Rule of Evidence 401. In re Ford Motor Co. Spark Plug & 3–Valve Engine Prod. Liab. Litig., 98 F.Supp.3d 919, 925 (N.D. Ohio 2014) (noting Rule 401 deems relevant evidence if it has “any tendency to make a fact more or less probable”) (emphasis supplied in In re Ford).” Based on the evidence presented to the Court, it appears that Furman's records will have some tendency to support plaintiff's argument that Furman had psychological deficiencies that impacted his performance as an officer.

By affidavit, Joseph Zambo, Ph.D., states that Dr. Thomas Clark evaluated Furman in 2015, and then referred him to Dr. Zambo for therapy. [ECF No. 58-5]. According to Dr. Zambo, he required Furman to sign a waiver, which he verbally reviewed with Furman, permitting Zambo to share “information about his formulations and understandings” about Furman's mental condition with Furman's employer. [Id.]. Zambo states that, pursuant to the waiver, “I discussed my formulations and understandings of Furman's mental condition with [plaintiff] on at least one occasion, including my conclusions that Furman needed assistance in developing and executing proper discretion when interacting with the public pursuant to his duties as a Melvindale Police Officer.” [Id.].

The following year, Lt. Welch wrote plaintiff a memo stating that Furman had forcibly dragged a woman out of her car and onto the hood of her car in front of her small children. [ECF No. 58-5, PageID 1591]. Furman had ordered the woman out of her car so that it could be towed for lack of insurance, but she had resisted removing the children in traffic, and told Furman that she had a ride coming for them shortly. [Id.]. The woman came to the station to complain about the incident, and said that she would be going to the hospital for evaluation of her hurt arm, and would be consulting an attorney. [Id.].

In his memo, Lt. Welch relayed his concerns that Furman had used physical force for an incident that did not require an arrest, and put small children out on the street. [Id., PageID 1592]. Welch wrote that he and others had repeatedly spoken to Furman about using discretion, to no avail. [Id.]. He stated that Furman had also towed the car of an elderly woman whose only source of income was Social Security; Welch gave her his own money so that she could get her car back. [Id.]. Welch concluded, “There is a serious problem here with the lack of discretion and common sense. I believe my efforts to coach and counsel Furman on his behavior are largely ignored. I feel that while he is working, I cannot trust him to do the right thing.” [Id.].

*4 Following Welch's memo, plaintiff suspended Furman for three days. [ECF No. 58-5, PageID 1589-90]. Plaintiff also ordered that a supervisor would have to approve Furman ordering a tow truck, and only after Furman notified the supervisor of “the conditions that merit towing the vehicle including: driver gender and age, number of occupants and their ages, the reason for the tow, if the driver is the registered owner and if any of the occupants have warrants for their arrest. The supervisor will determine if a tow truck will be dispatched.” [ECF No. 58-9]. This order formed part of the basis for defendants’ charge against plaintiff that he improperly issued discipline against Furman. [See ECF No. 40, PageID 1112, 1119; ECF No. 58-2, PageID 1561]. Defendants assert that the order that Furman notify his supervisor of the driver's gender and age was unlawful and discriminatory in nature. [Id.].

A few months after the towing incident, in July 2016, a Melvindale officer who is a certified pressure point control tactics (PPCT) instructor, Brandon Nolin, sent an investigator with the Michigan State Police an email describing an arrest of a larceny suspect. [ECF No. 58-5, PageID 1595-96]. Nolin said that the suspect was not resisting, but that Furman had placed him in an improper and excessive wrist lock, and then caused the suspect to hit his head on the door frame of the patrol car. [Id.]. After the suspect complained, Furman allegedly told him that he should learn how to walk. [Id.]. Nolin later observed dried blood and a one inch cut on the suspects head. [Id.]. Nolin reported the incident to plaintiff. [Id.]. Plaintiff then notified Melvindale's mayor that he had suspended Furman for two incidents of excessive force, and that Furman faced criminal charges and potential termination of his employment. [Id., PageID 1593].

Defendants contend that plaintiff's suspension of Furman following the July 2016 incident was procedurally improper; they state that plaintiff never provided Furman with written notice of the charges or disciplinary action, and did not complete suspension paperwork. [ECF No. 40, PageID 1120]. Following plaintiff's removal, an interim police chief reviewed Furman's grievance regarding the suspension and reinstated him. [ECF No. 40-4]. This incident was also cited as a grounds for plaintiff's removal. [ECF No. 40, PageID 1120; ECF No. 58-2, PageID 1566].

Since plaintiff's removal, Furman has been promoted to corporal, and defendants describe him as simply a “stern administrator of traffic enforcement.” [ECF No. 40, PageID 1119]. Plaintiff argues that defendants removed him to protect Furman, who “almost single-handedly brought in more than $20,000 a month via his towing activity—sometimes towing up to eight cars in a single day.” [ECF No. 58, PageID 1537]. This is the crux of the dispute between the parties, deeming relevant any evidence tending to show that Furman had psychologically-based deficiencies that impacted his performance, and was not simply a stern administrator who was wrongly disciplined by plaintiff. But the relevance of the psychological records is of no import if they are protected by the psychotherapist-patient privilege.

The psychotherapist-patient privilege protects confidential communications patients make to licensed psychiatrists, psychologists, and social workers in the course of diagnosis or treatment. Jaffee v. Redmond, 518 U.S. 1, 15 (1996). Plaintiffs argue that defendants placed Furman's psychological records at issue, but Furman is not a party, so he cannot be said to have placed his mental health at issue. Griffin v. Sanders, 914 F. Supp. 2d 864, 868 (E.D. Mich. 2012) (waiver cannot be premised on the basis that a nonparty placed her records at issue). And plaintiff's asserted need for the records is immaterial if a privilege exists. “Making the promise of confidentiality contingent upon a trial judge's later evaluation of the relative importance of the patient's interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege.” Jaffe, 518 U.S. at 17. See also Hibbs v. Marcum, No. 3:16-CV-146-TBR-LLK, 2018 WL 953347, at *3 (W.D. Ky. Feb. 20, 2018) (“The Supreme Court specifically rejected a balancing of the need for the information against the need for confidentiality as a test for determining whether the privilege applied.”).

*5 But in order for Furman to sustain his burden of demonstrating that his records are privileged, he must show that he had an expectation that his records would not be disclosed to others. “[S]ince Jaffe, federal courts have generally held that mental health records must be protected from discovery unless it can be demonstrated that the patient has no reasonable expectation that the communications will remain private.” Hibbs, 2018 WL 953347 at *3. “The consistent thread that runs through all of these cases is that the threshold requirement for the existence of the psychotherapist patient privilege is that there be an expectation by the patient that the communications with the psychotherapist will remain with the psychotherapist and will not be disclosed to others.” Scott v. Edinburg, 101 F. Supp. 2d 1017, 1020–21 (N.D. Ill. 2000).

Here, Furman submitted a declaration stating that he “gave verbal permission to Dr. Zambo and Dr. Clark to provide my employer with their opinions of whether I was fit for duty, as required by my employer.” [ECF No. 63-3, PageID 1835]. Furman wrote that he expected his communications with the doctors to be confidential except for “limited disclosure necessary for my employment,” and that he notified the doctors in March 2018 that he did not give permission for the release of his patient file. [Id.]. There are two problems with Furman's declaration.

First, Furman's declaration suggests that he had the power to retroactively effect confidentiality on documents that were not previously privileged. He is wrong. If it was clear to Furman when he was evaluated and treated by Dr. Clark and Dr. Zambo that his records would be reportable to his employer, including plaintiff, he had no expectation of privacy, and no privilege attached. Hibbs, 2018 WL 953347 at *3; Scott, 101 F. Supp. 2d 1017 at 1020–21. It is true that if, as Furman alleges in his declaration, he only understood that his fitness for duty would be disclosed, other records would be privileged. Hibbs, 2018 WL 953347 at *4. But the second problem with Furman's declaration is that that is not what he said in his earlier deposition.

During his deposition, Furman indicated that he understood that the city would be “the recipient of the documents and results” of his treatment with Dr. Zambo since it was for “job purposes.” [ECF No. 58-3, PageID 1581]. Furman testified that, when someone is sent to a doctor for job purposes, “[t]he candidate, or whoever is sent, generally does not get a copy of anything.” [Id.]. Furman's testimony that he expected his employer—and only his employer—to receive any documents and results from his psychological testing and treatment directly contradicts Furman's declaration that he expected his employer to receive only opinions about his fitness for duty from Dr. Zambo and Dr. Clark. [ECF No. 63-3, PageID 1835]. His testimony directly contradicts his declaration that he otherwise expected confidentiality. [Id.].

Furman has not explained the disparity between his deposition testimony and his declaration, and it is possible that his declaration was offered to create a sham privilege. Aerel, S.R.L. v. PCC Airfoils, L.L.C., 448 F.3d 899, 908 (6th Cir. 2006) (court should strike post-deposition affidavits that contradict prior testimony in order to create sham issues of fact). The Court will refrain from concluding that Furman intended to create a sham privilege. But because of Furman's testimony that he expected his employer to receive the documents and results of his testing and treatment, the Court does find that he failed to sustain his burden of showing that he expected confidentiality such that his psychological records are privileged. Furman's motion to quash is denied.

*6 Plaintiff moves to compel defendants’ responses to his first set of interrogatories and requests to produce documents. Since December 2015, the rule has been that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case” after consideration of several proportionality factors, which are identified as “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.” Fed. R. Civ. P. 26(b)(1). Neither party addressed the proportionality factors, but the available information is sufficient to make judgments about the proportionality factors.

The first factor relates to the importance of the issues at stake in this action, and it weighs plaintiff's favor because he is seeking to vindicate his civil rights. Hon. Elizabeth D. Laporte, Jonathan M. Redgrave, A Practical Guide to Achieving Proportionality Under New Federal Rule of Civil Procedure 26, 9 Fed. Cts. L. Rev. 19, 61 (2015) (fact that claim is subject to fee shifting provision of 42 U.S.C. § 1988 is “a strong indication of the importance of the public policy implications of the case.”).

With respect to the second factor—the amount in controversy—plaintiff did not make a specific monetary demand in his complaint, but he requested lost wages, and exemplary and punitive damages. [ECF No. 1, PageID 13]. In addition, even a relatively low amount in controversy is not determinative when an important legal right is implicated. Laporte, 9 Fed. Cts. L. Rev. at 60-61.

The next two factors are the parties’ relative access to relevant information and their resources. There is no dispute that the defendants have greater access to all of the requested discovery, except that plaintiff agreed during the hearing that he could download minutes of meetings from the internet, and the request for production of those minutes was withdrawn. It also appears to be indisputable that defendants have greater resources than plaintiff.

The last factor is whether the burden or expense of the proposed discovery outweighs its likely benefit. “[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.” State Farm Mut. Auto. Ins. Co. v. Pointe Physical Therapy, LLC, No. 14-11700, 2017 WL 2616938, at *2 (E.D. Mich. June 12, 2017), aff'd, 2017 WL 3116261 (E.D. Mich. July 21, 2017). See also Rule 26 advisory committee notes (2015) (“A party claiming undue burden or expense ordinarily has far better information—perhaps the only information—with respect to that part of the determination.”). Here, for the reasons described below, defendants waived any objection that the requested discovery is too burdensome.

Defendants’ responses to plaintiffs’ discovery requests began with an omnibus list of meaningless boilerplate objections, and they reiterated objections in responses to almost every individual request. [ECF No. 37-4, 37-5]. The objections to almost every request for production of document (RFP) said, “Defendants object to this request as it is overbroad and unduly burdensome as stated and as such is not reasonably calculated to lead to discovery of admissible evidence.” [ECF No. 37-5]. Defendants supplemented their responses to the RFPs, but without removing the earlier boilerplate objections, and sometimes adding new objections. [ECF No. 37-12].

Defendants’ boilerplate objections rely on an outdated version of Rule 26(b)(1). Fischer v. Forrest, No. 14CIV1304PAEAJP, 2017 WL 773694, at *2 (S.D.N.Y. Feb. 28, 2017) (“reasonably calculated to lead to admissible evidence” language no longer in Rule 26(b)(1), and use of language in objection is improper); Cratty v. City of Wyandotte, ––– F.Supp.3d ––––, 2017 WL 5589583, at *2 (E.D. Mich. Nov. 8, 2017) (same). And generally, defendants’ reliance on boilerplate objections is improper and could expose them to sanctions. Liguria Foods, Inc. v. Griffith Labs., Inc., 320 F.R.D. 168, 192 (N.D. Iowa 2017) (“NO MORE WARNINGS. IN THE FUTURE, USING ‘BOILERPLATE’ OBJECTIONS TO DISCOVERY IN ANY CASE BEFORE ME PLACES COUNSEL AND THEIR CLIENTS AT RISK FOR SUBSTANTIAL SANCTIONS.”); Strategic Mktg. & Research Team, Inc. v. Auto Data Sols., Inc., No. 2:15-CV-12695, 2017 WL 1196361, at *2 (E.D. Mich. Mar. 31, 2017) (“Boilerplate or generalized objections are tantamount to no objection at all and will not be considered by the Court.”).

*7 Defendants also failed to provide any evidence to support their claim of undue burden. A party objecting to a request for production of documents as burdensome must submit affidavits or other evidence to substantiate its objections. In re Heparin Products Liab. Litig., 273 F.R.D. 399, 410-11 (N.D. Ohio 2011); Bros. Trading Co. v. Goodman Factors, No. 1:14-CV-975, 2016 WL 9781140, at *1 (S.D. Ohio Mar. 2, 2016).

Another problem with defendants’ responses is that they repeatedly stated that, subject to their objections, they would or may provide some discovery. This is improper because the 2015 discovery amendments included this requirement: “An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.” Fed. R. Civ. P. 34(b)(2)(C). The advisory committee expected that “[t]his amendment should end the confusion that frequently arises when a producing party states several objections and still produces information, leaving the requesting party uncertain whether any relevant and responsive information has been withheld on the basis of the objections.” Rule 34, advisory committee notes (2015).

A final concern was that, at the hearing, defense counsel repeatedly answered that she did not know whether requested discovery existed or how it could be accessed, meaning that she signed the supplemental response to the RFPs, [ECF No. 37-12], without having made a reasonable inquiry. Rule 26(g) requires attorneys to sign discovery responses to certify that to the best of their “knowledge, information, and belief formed after a reasonable inquiry,” the responses were complete, correct at the time made, consistent with the law and nonfrivolous. An objective standard, the “duty of ‘reasonable inquiry’ is satisfied if the investigation undertaken by the attorney and the conclusions drawn therefrom are reasonable under the circumstances.” Fed. R. Civ. P. 26 Advisory Committee Notes (1983 Amendment).

As a result of these multiple failures, the Court evaluated the outstanding discovery requests identified by the parties for relevance only. Any other objection was waived.

The above discovery must be produced no later than APRIL 26, 2018.

Since plaintiff's motion to compel discovery responses has been granted in part and denied in part, the Court has the discretion to impose monetary sanctions. Federal Rule of Civil Procedure 37(a)(5)(C). The Court declines to do so here, for two reasons. First, plaintiff did not request such sanctions at the hearing; his primary interest was getting the requested discovery. Second, the costs to defendants that will result from having waived objections to burdensomeness may be higher than if they had sufficiently supported those objections. But defendants are warned that future violations of the discovery rules will result in sanctions, including reimbursement of costs plaintiff incurred as a result of preparing and filing the instant motion to compel.

Federal Rule of Civil Procedure 1 was “amended to emphasize that just as the court should construe and administer these rules to secure the just, speedy, and inexpensive determination of every action, so the parties share the responsibility to employ the rules in the same way.” Fed. R. Civ. P. 1, advisory committee notes (2015). Amended Rule 1 is intended to discourage “over-use, misuse, and abuse of procedural tools that increase cost and result in delay.” Id. The advisory committee notes, “Effective advocacy is consistent with – and indeed depends upon – cooperative and proportional use of procedure.” Id. Defendants should be aware that, when all or virtually all of their responses to discovery requests begin with “objection,” they are not engaging in cooperative and proportional use of procedure.

III. Conclusion

The Court GRANTS plaintiff's motion to compel depositions of Lawrence Coogan and Raymond Guzall [ECF No. 35]; GRANTS IN PART AND DENIES IN PART plaintiff's motion to compel discovery responses [ECF No. 37]; and DENIES defendants’ motion to quash subpoena for psychological records [ECF NO. 47].

The parties are warned that the filing of objections to a magistrate judge's ruling on a non-dispositive motion does not stay the parties’ obligations under the order. See E.D. Mich. LR 72.2 (“When an objection is filed to a magistrate judge's ruling on a non-dispositive motion, the ruling remains in full force and effect unless and until it is stayed by the magistrate judge or a district judge.”).