*1 Before the undersigned are three motions to compel filed by Plaintiff Jason Hinson (“Hinson”): a motion to compel discovery from Defendant Kyle Martin (“Martin”) [doc. #100], a motion to compel discovery from Desoto Parish Sheriff's Office (“DPSO”) [doc. #101], and a second motion to compel discovery from Defendant Martin and DPSO [doc. #107].

For the reasons assigned below, Hinson's motions are GRANTED IN PART AND DENIED IN PART.[1]

Hinson, acting pro se, filed the instant civil rights complaint pursuant to 42 U.S.C. § 1983 on February 10, 2017. Hinson's claims arise from his apprehension on February 22, 2016, on a felony warrant after he evaded DPSO deputies. Hinson alleged that his Fourth and Eighth Amendments rights were violated both during the apprehension and after he was subdued. He alleges that he was subjected to excessive force and that he was bitten by a police dog before and after being handcuffed. Hinson also alleged that he had been kicked after being restrained. Hinson brought suit against the dog handler, Martin, a DPSO deputy, and Rodney Arbuckle (“Sheriff Arbuckle”), the DeSoto Parish Sheriff.

On May 22, 2017, Magistrate Judge Karen L. Hayes issued a Report and Recommendation recommending that (1) all Hinson's claims against Sheriff Arbuckle be dismissed with prejudice as frivolous and for failing to state a claim for which relief may be granted in accordance with the provisions of 28 U.S.C. § 1915; (2) Hinson's request for injunctive relief/termination of officers be denied and dismissed; and (3) Hinson's claim of illegal search and seizure be dismissed with prejudice as frivolous and for failing to state a claim on which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2). (May 22, 2018, Report & Recommendation [doc. # 5]). The court also ordered service on the lone, remaining Defendant, Martin. (May 22, 2017, Mem. Order [doc. # 6]).

On October 23, 2017, Martin filed his answer to the complaint. (Answer [doc. # 12]).

On March 23, 2018, the District Court adopted the Report and Recommendation and dismissed all Hinson's claims against Sheriff Arbuckle as well as the other identified claims. (March 23, 2018, Order [doc. # 20]).

On April 24, 2018, Martin moved for summary judgment, invoking the doctrine of qualified immunity and urging dismissal of the remaining excessive force claim. On May 15, 2018, Hinson filed his opposition brief. [doc. # 38]. As part of his opposition, Hinson asserted additional state law tort claims of battery and negligence.[2] Id. On June 22, 2018, Martin filed his reply. [doc. # 41]. On July 10, 2018, Magistrate Judge Hayes issued a Report and Recommendation [doc. #42] recommending that the motion be denied. On February 26, 2019, after considering objections, the District Court adopted the Report and Recommendation and denied the motion. [doc. #44].

*2 Martin appealed to the United States Court of Appeals for the Fifth Circuit. The Fifth Circuit affirmed in part and reversed in part, holding that Martin was entitled to qualified immunity as to Hinson's Eighth Amendment claim and “Fourth Amendment excessive force claims to the extent they rely on Martin's conduct in apprehending Hinson, before Hinson was subdued,” Hinson v. Martin, 853 F. App'x. 926, 933 (5th Cir. 2021). Specifically, the Fifth Circuit found that it was “objectively reasonable for Martin to deploy Rex to conclude Hinson's evasion,” and, thus, Martin was entitled to qualified immunity for the “initial dog bite that brought [Hinson] to the ground.” Id. at 931. However, the Fifth Circuit affirmed the denial of summary judgment for Martin's alleged conduct after Hinson was subdued, finding that “a jury could reasonably conclude that ordering Rex to continue biting Hinson after he was subdued, and kicking him after he was handcuffed, constituted excessive force in violation of Hinson's Fourth Amendment rights.” Id. at 933. Accordingly, on remand, the District Court dismissed Hinson's claims against Martin consistent with the Fifth Circuit's opinion and found that three claims remain for trial: (1) the Fourth Amendment excessive force claim relating to Martin's conduct after Hinson was subdued; (2) the Louisiana law battery claim against Martin; and (3) the Louisiana law negligence claim against Martin. [doc. #55]. No claims remain against Sheriff Arbuckle, nor are there any claims against DPSO.

After remand, counsel was appointed to represent Hinson. The case is set for trial on June 6, 2023, before Judge Elizabeth E. Foote. The discovery completion deadline was set for October 7, 2022. Upon Hinson's motion, the deadline for the completion of non-expert discovery was extended by the undersigned for 30 days for the limited purpose of conducting the deposition of the designated Rule 30(b)(6) deponent and filing any related motions. [doc. #102].

On October 7, 2022, Hinson filed the first motions to compel [doc. #s 100 & 101]. On October 28, 2022, Martin and DPSO filed an opposition to the two pending motions [doc. #105]. On November 4, 2022, Hinson filed a reply in support of his motions [doc. #106].

On November 22, 2022, Hinson filed the second motion to compel discovery [doc. #107]. On November 28, 2022, Martin and DPSO filed an opposition [doc. #108]. On December 2, 2022, Hinson filed a reply memorandum [doc. #109].

The motions are now ripe.

Rule 26(b)(1) of the Federal Rules of Civil Procedure provides:

Fed. R. Civ. P. 26(b)(1). A “party” or “person” from whom discovery is sought “may move for a protective order in the court where the action is pending ... The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” FED. R. CIV. P. 26(c).

Hinson seeks discovery from Martin, the sole Defendant in this matter, under Federal Rule of Civil Procedure 34. Hinson further seeks production of documents and materials from DPSO, a non-party under Federal Rule of Civil Procedure 45. Under both rules, the review is the same when, as here, the subpoena has been issued as a “discovery device.” Am. Fed'n of Musicians of the United States & Canada v. Skodam Films, LLC, 313 F.R.D. 39, 44–45 (N.D. Tex. Dec. 3, 2015) (“When a subpoena is issued as a discovery device, relevance for purposes of the undue burden test is measured according to the standard of [Rule] 26(b)(1).”) (citations omitted). Thus, applying the standards of Rule 26(b)(1) is the practical way to proceed, as Hinson is not entitled to enforce his subpoena against DPSO “based on a greater scope of relevance than should apply to any discovery against [a] party.” Id.

“[W]hile the moving party carries the burden of establishing that information sought in discovery is, in fact discoverable, the responding party may counter with a showing that, among other things, the information is irrelevant or disproportionate to the needs of the case.” Dixon v. Spurlin, No. 1:18-CV-00133, 2020 WL 6707325, at *8 (W.D. La. Nov. 13, 2020) (citing Firefighters' Retirement Sys. v. Citco Grp. Ltd., No. CV 13-373-SDD-EWD, 2018 WL 276941, at *4 (M.D. La. Jan. 3, 2018)). That is, a “party may... resist discovery[,]” but “ ‘must show specifically how ... each interrogatory [or request for production] is not relevant or how each question is overly broad, burdensome or oppressive.’ ” O'Bryant v. Walgreen Co., 802 F. App'x 826, 833 (5th Cir. 2020) (quoting McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990) and (citing Fed. R. Civ. P. 26(b)(1)). “Merely stating a topic is unduly burdensome is insufficient to meet the standard of Rule 26(c).” Boudreaux v. Sch. Bd. of St. Mary Par., No. 6:65-CV-11351, 2022 WL 1541620, at *6 (W.D. La. May 16, 2022) (citations omitted).

A. First Motions to Compel Against Martin and DPSO

*3 In his first motion to compel against Martin and DPSO, Hinson seeks production of the same three items:

[doc. #100, p. 1; doc. #101, p. 1].

On February 10, 2022, Hinson submitted his First Requests for Admissions, Interrogatories, and Production to Martin. Among other requests, in Request for Production (“RFP”) No. 26, Hinson sought medical records relating to care received by officers bitten by Rex; in RFP No. 32, Hinson sought “[a]ll policies, procedures, rules, manuals, instructions, or orders issued, adopted, or enforced by the sheriff of DeSoto Parish at any time on or after January 1, 2010, regarding the use of force, the use of force continuum, or the use of K-9 dogs to detect, apprehend, or detain a person”; and in RFP No. 33, Hinson sought the complete personnel file of Defendant Martin. [doc. #100, Exh. A].

On March 17, 2022, Hinson submitted his First Subpoena to Produce Documents, Information, or Objects to DPSO [doc. #101, Exh. A]. Those requests tracked the RFPs to Martin. In RFP No. 23, he sought medical records relating to care received by officers bitten by Rex; in RFP No. 29, Hinson sought “[a]ll policies, procedures, rules, manuals, instructions, or orders issued, adopted, or enforced by the sheriff of DeSoto Parish at any time on or after January 1, 2010, regarding the use of force, the use of force continuum, or the use of K-9 dogs to detect, apprehend, or detain a person”; and in RFP No. 30, Hinson sought the complete personnel file of Defendant Martin. [doc. #101, Exh. A].

On March 21, 2022, Martin responded to the discovery requests propounded to him. [doc. #100, Exh. C]. With regard to RFP No. 26, the medical records, Martin objected that the request was overly broad, unduly burdensome, sought irrelevant information, and was not proportional to the needs of this case, which “involves a single incident that occurred on February 22, 2016.” Id. Martin further objected that the request was unduly burdensome “because it would require searching through years of records that cannot be easily searched to find any responsive documents.” Id. Finally, Martin objected that the request sought “confidential and privileged medical information.” Id. Martin then pointed to previously produced materials that were responsive.

With regard to RFP No. 32, the policies request, Martin objected that the request was overly broad and unduly burdensome, objecting specifically that a “request for a more than 12-year period of policies of the [DPSO] is outside the scope of what is relevant for this case, which is based on a February 22, 2016 incident” and that the “policies are confidential and privileged, and are subject to the law enforcement privilege.” Id. Martin did, however, produce responsive policies in effect on February 22, 2016. Id.

With regard to RFP No. 33, Martin objected that his personnel file contains “confidential and privileged materials in which [he] has a privacy interest.” Id. (citing Broderick v. State Dept. of Environmental Quality, 761 So. 2d 713, 715 (La. App. 1 Cir. 5/12/2000); East Bank Consol. Sp. Serv. Fire Prot. Dist. v. Crossen, 892 So. 2d 666, 670 (La. App. 5 Cir. 12/28/2004); In re Xarelto (Rivaroxaban) Products Liability Litigation, 313 F.R.D. 32, 35–39 (E.D. La. Jan. 26, 2016)).

*4 On April 1, 2022, DPSO responded to the subpoena issued to it. [doc. #101, Exh. C]. With regard to RFP Nos. 23, 29, and 30, DPSO raised the same objections that Martin raised to the discovery propounded to him.

On June 2, 2022, Hinson submitted his Second Requests for Admissions, Interrogatories, and Production to Martin. [doc. #100, Exh. B]. In RFP No. 2, Hinson again sought Martin's entire personnel file. In RFP No. 6, Hinson requested “[d]ocuments sufficient to show all [DPSO] policies and procedures that were in force on February 22, 2016, including the Sherriff's Office's employee handbook, concerning the Use of Force and/or K9 policies.” Id. (emphasis added). In RFP No. 7, Hinson requested DPSO's internal investigations and disciplinary process, and in RFP No. 8, Hinson requested DPSO's document retention and reporting procedures. Id.

On July 5, 2022, Martin responded to Hinson's June 2, 2022 Requests. [doc. #100, Exh. D]. With regard to RFP No. 2, Martin again objected on the basis of confidentiality, privilege, breadth, and burden. In addition to reiterating his previous specific objections, Martin noted the breadth of the request, given his 17-year career in law enforcement. Id. He also pointed out that he had already produced his training records and training certifications. Id. In response to RFP No. 6, Martin objected to the extent that Hinson sought DPSO policies in effect on February 22, 2016, that do not concern the use of force or canines and noted that those policies which do concern the use of force and canines have already been produced. Id. In response to RFP Nos. 7 and 8, Martin objected to production of DPSO's policies on internal investigation and discipline process and document retention and reporting on the bases of relevance and that the requests are unduly broad, overly burdensome, and out of proportion to the needs of the case, “as this case is based on a single incident that occurred on February 22, 2016.” Id.

On July 14, 2022, Hinson submitted his Second Subpoena to Produce Documents, Information, or Objects to DPSO. [doc. #101, Exh. B]. In RFP No. 2, Hinson reiterated his requests for medical records, including “on-duty injury forms,” related to injuries from Rex; in RFP No. 3, he again sought Martin's personnel file; and in RFP No. 6, he requested “[a]ll DPSO Policies and procedures that were in effect on February 22, 2016, including the DPSO's Operations Manual, Employee Handbook, and any other materials that contain the DPSO's use of Force Policies and use of K9 policies.” [doc. #101, Exh. B (emphasis added)].

On August 5, 2022, Hinson's counsel sent a letter, via email, to Martin's counsel to address the contested document production. [doc. #100, Exh. E]. On August 15, 2022, Martin's counsel responded via email. [doc. #105, Exh. 2]. As part of his response, counsel requested a draft protective order from Hinson's counsel. Id. On August 26, 2022, Hinson's counsel emailed Martin's counsel contending that he had received no response. [doc. #105, Exh. 2].

On August 15, 2022, DPSO responded to the Second Subpoena. [doc. #101, Exh. E]. With regard to RFP No. 2, the medical records, DPSO raised the same objections raised by Martin, but agreed to provide responsive documents “with redaction of personal identifying information, if a protective order can be agreed upon.” Id. With regard to RFP No. 3, Martin's personnel file, DPSO raised the same objections previously raised by it and by Martin, but again offered to provide responsive documents “with redaction of personal identifying information, if a protective order can be agreed upon.” Id. Finally, with regard to RFP No. 6, DPSO raised objections previously made by it and Martin, but noted that it had previously provided DPSO's use of force (Policy 98.002 “Use of Force, Intervention Options, Subject Management”) and canine (Policy 98.053 “Canine Unit”) policies that were in effect on February 22, 2016. Id. With the August 15 responses, DPSO also produced the remainder of the last subsection of Policy 98.002 in effect on February 22, 2016, which had been inadvertently omitted from the March 2022 production.

*5 Counsel for Hinson and counsel for Martin and DPSO met and conferred on September 1, 2022, to discuss outstanding discovery requests and objections. During the conference, the parties reached agreement on the following issues:

Following the meet and confer, Plaintiff's counsel sent e-mail correspondence memorializing the agreements made and requesting a response if Defendant's counsel disagreed. [doc. #100, Exh. F].

On September 22, 2022, Defendant Martin and DPSO produced other versions of the use of force and canine unit policies. On September 30, 2022, Defendant Martin and DPSO also produced documents relating to other occasions on which the dog Rex bit any person after having been commanded to do so.

However, counsel did not reach agreement on a protective order, and, thus, neither Martin nor DPSO has produced Martin's complete personnel file or medical records concerning injuries received by Defendant Martin or other officers following bites from Rex. [doc. #100, Exh. G; doc. #101, Exh. G].

B. Rulings on First Motions to Compel

1. Martin's complete DPSO personnel file

Hinson moves to compel the production of Martin's DPSO personnel file. Hinson, who has been employed in law enforcement for 17 years, has been employed by DPSO for 14 years. In seeking production of the entire personnel file, Hinson asserts that he has a “legitimate interest in understanding Kyle Martin's practice of deploying canines in the field throughout his career and whether he had a basis to know from prior experiences that Rex was likely to cause serious injury to suspects.” [doc. #100-1, p. 13].[3] The request is not burdensome because it is in the control of DPSO and Martin (as DPSO's designated representative). They protest that Martin and DPSO have not made specific objections, and, therefore, the objections are waived.

*6 If the court disagrees and proceeds further, Hinson cites to authority for his position that Martin's file is a public record, and he is not entitled to a blanket privilege that prevents discovery. Id. at pp. 14-16 (citing LA. CONST., ART. XII, § 3; LA. REV. STAT. § 44:1 (2020)). Rather, the personnel file should be produced in its entirety because Hinson cannot obtain the documents from other sources, and Martin's privacy interests, on balance, must give way to Hinson's legitimate interest in file documents, “such as training records, employment applications, oral or written letters of reprimand, internal investigations findings or reports, formal or informal complaints, and any documents relating in any way to the criticism or discipline of Martin[,]” all of which he argues are “highly relevant to assessing the reasonableness of Defendant Martin's actions.” [doc. #100-1, p. 17]. Hinson further contends that the documents sought are “highly relevant to assessing the reasonableness of Defendant Martin's actions,” including “whether he had a basis to know from prior experience that Rex was likely to cause serious injury to Plaintiff, or whether the injuries caused during the incident were part of a pattern of behavior that resulted in other injuries, complaints, or disciplinary actions.” Id.

In opposition, Martin and DPSO argue that Hinson seeks “an unredacted copy of Lieutenant Martin's entire personnel file, covering his 17 years of service as a law enforcement officer, with no protective order whatsoever.” [doc. #105, p. 19]. They argue that they have extensively and specifically objected to the requests for Martin's entire personnel file. Id. (citing Doc. #100-5, p. 31; Doc. #100-6, pp. 13-14; Doc. #101-5, pp. 14-15 ; Doc. #101-7, p. 4).

Martin and DPSO rely on several arguments in support of their position. First, they contend that Martin has privacy rights in his personnel file under the United States and Louisiana Constitutions. [doc. #105, pp. 19–20 (citing ACLU of Miss. v. State of Miss., 911 F.2d 1066, 1067–1070 (5th Cir. 1990); Mitchell v. City of Central, 2021 WL 4256470 at *8–12 (M.D. La. Sept. 17, 2021) (denying government officials' motion to dismiss and finding that plaintiff, a former police captain, stated a claim for violation of his constitutional right to privacy when one official released an unredacted resignation letter and other information, including sensitive personal information, medical information, and unsubstantiated allegations of misconduct); LA. CONST. ART. I, § 5 ( “Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy”); East Bank Consol. Sp. Serv. Fire Prot. Dist. v. Crossen, 04-838 (La. App. 5 Cir. 12/28/2004), 892 So. 2d 666.

They further contend that Martin's personnel file is irrelevant because Martin's discipline for some policy of the DPSO is not a jury issue in this case, and Hinson's stated purpose will not be met because “there are no documents concerning any correction, criticism, reprimand, discipline, or punishment directed at Lieutenant Martin which relate in any way to canine Rex,” other than the instant lawsuit and the case of Isaac Charleston v. Jayson Richardson, in his capacity as Sheriff of DeSoto Parish, Case Number 79560, 42nd Judicial District Court, DeSoto Parish, Louisiana. [doc. #105, p. 27]. Hinson is already aware of that lawsuit. Likewise, there are no complaints in his file, and there are no documents regarding discipline imposed on Martin regarding Rex. Martin and DPSO point out that the importance of the file is questionable when no request was made for it until after Martin's deposition, years into this lawsuit.

Finally, Martin and DPSO argue that the request for production of the entire personnel file is overly broad and out of proportion to the needs of the case because it contains no temporal limitation, noting that courts in this circuit routinely reduce the temporal scope of similarly overbroad requests for personnel files, even when plaintiffs have alleged Monell/official capacity claims.

The undersigned finds that Martin and DPSO have not waived their objections to the production of Martin's entire personnel file. They made specific objections to its production in its entirety, as well as to the production without redaction and without a protective order. Further, if there was some conciliatory agreement to its production under a jointly agreed protective order, the parties never made that agreement.

*7 While the parties and non-party DPSO may not agree to the limits of the privacy rights at issue, even Hinson acknowledges that Martin has some privacy rights at stake. Those interests are of particular significance to DPSO, which as a non-party is asked to release Martin's personnel file. Understandably, the DPSO, then, is unwilling to provide the file without some privacy protections and/or order of the Court.

It is undisputed that the federal constitution provides a “degree of constitutional protection for individuals from public dissemination of sensitive personal information,” and an individual has a constitutionally protected “interest in avoiding disclosure of personal matters.” See ACLU of Miss. v. State of Miss., 911 F.2d 1066, 1067–1070 (5th Cir. 1990). Even if a personnel file may contain some public records, it may also contain records that are of a personal nature, such as documents pertaining to medical conditions. Further, Louisiana law does not provide to the contrary. Rather, the Public Records Law, LA. REV. STAT. § 44:1 (2020), codifying LA. CONST., ART. XII, § 3, has exceptions, including the law enforcement privilege, and must be balanced against the right to privacy under LA. CONST., ART. I, § 5 (“Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.”). Ultimately, the rights of a government entity to maintain confidentiality in personnel and investigative files is determined by balancing the government's interest in confidentiality against the litigant's need for the documents.[4] Walters v. Breaux, 200 F.R.D. 271, 272 (W.D. La. Apr. 18, 2001) (citing Coughlin v. Lee, 946 F.2d 1152 (5th Cir. 1991); D'Antoni v. Roach, No. Civ. A. 97-1799, 1997 WL 627601 (E.D. La. Oct. 10, 1997)).

In this case, the undersigned will not order the production of an unredacted and unprotected copy of Martin's 14-year personnel file. No citation to authority should even be necessary for any lay person, much less those trained in the law, to recognize that providing an unredacted, unprotected copy of a law enforcement officer's personnel file could result in potential harm to him or his family. Indeed, the Court does not allow the release of documents with sensitive personal information from any person. While the file is in the possession of the DPSO and/or Martin, and, thus, should not be overly burdensome to make the file available, other concerns predominate here.

*8 Even if no privilege or protection at all applies, the undersigned finds that the production of Martin's entire DPSO personnel file is overly broad and would result in the production of information of only limited (or no) relevance and is not proportional to the needs of the case. For example and without even examining the file, the undesigned can reasonably deduce that the file may contain changes to insurance benefits or beneficiaries, requests for leave (whether medical, personal, or for vacation or the like), or other payroll, insurance, or benefits changes. The facts of this case implicate Martin's use of excessive force, both personally and through his direction of a canine, and those documents have no relevance to the claims or defenses.

As noted above, Hinson states that he has a legitimate interest in file documents, “such as training records, employment applications, oral or written letters of reprimand, internal investigations findings or reports, formal or informal complaints, and any documents relating in any way to the criticism or discipline of Martin[,]” as relevant to “the reasonableness of ... Martin's actions, ” including “whether he had a basis to know from prior experience that Rex was likely to cause serious injury to Plaintiff, or whether the injuries caused during the incident were part of a pattern of behavior that resulted in other injuries, complaints, or disciplinary actions.” [doc. #100-1, p. 17]. Hinson's stated purpose can be accomplished without production of the entire 14-year file. Martin's training and certification documents have already been produced. DPSO and Martin further respond that “there are no documents concerning any correction, criticism, reprimand, discipline, or punishment directed at Lieutenant Martin which relate in any way to canine Rex.” [doc. #105, p. 27 (citing Doc. #100-5 at p. 30 of 33; Doc. #101-5 at p. 13 of 17). Nevertheless, as Hinson points out, there may be “complaints or disciplinary measures imposed on Martin related to his use of canines other than Rex, or related to his practice of using force generally while employed at DPSO.” [doc. #107, p. 11]. Hinson also point out that there may also be “internal investigations or unofficial complaints concerning ... Martin's use of Rex.” To the extent such documents exist, Hinson is entitled to production of these documents, and it will be ordered. These documents will be produced with the redaction of personally identifiable information and subject to a protective order.

Thus, to the extent that Hinson moves to compel the production of Martin's personnel file from Martin and/or DPSO, the motion is GRANTED IN PART AND DENIED IN PART, and DPSO and Martin are required to produce any documents contained in Martin's personnel file, including oral or written letters of reprimand, internal investigations findings or reports, formal or informal complaints, and any documents relating in any way to the criticism or discipline of Martin, that relate to his handling of Rex, his handling of canines other than Rex, or his practice of using force generally while employed at DPSO.

Simultaneously with the filing of this Memorandum Order, the undersigned has issued a Protective Order addressing the discovery production in this matter. Subject to that protective order and redaction of personally identifiable information, Martin and DPSO shall produce the identified documents from Martin's DPSO personnel file to Hinson no later than January 27, 2023.

2. Complete DPSO policy manual or handbook in effect on February 22, 2016

Hinson next seeks production of the complete DPSO policy manual or handbook in effect on February 22, 2016. There is no dispute that DPSO has produced all policies relating to the use of canines and use of force for the effective date, as well as prior policies. However, Hinson seeks the remainder of the handbook and specifically seeks DPSO's policies on internal investigations and document retention.

*9 Hinson argues that his excessive force claim against Martin “implicates numerous DPSO policies beyond use of force procedures, including policies regarding emergency care provided by officers, procedures for calling emergency medical services following an injury, incident reporting and documentation procedures, and procedures concerning the complaint and disciplinary process related to use of force incidents.” [doc. #106, p. 9]. He contends that the complete policy manual should be produced “because it contains relevant policies officers would have been required to follow during and after a use of force incident involving the deployment of a canine.” Id.

DPSO and Martin contend that the “vast majority” of the remaining policies are not relevant to Hinson's claim and that production of the entire manual or handbook could result in disclosure of confidential and sensitive information regarding law enforcement tactics. For example, DPSO and Martin point to a number of policies regarding the security of office business, jail operations, juvenile procedures, attendance, sick leave, maternity leave, funeral leave, family and medical leave, military leave, compensation, accidental discharge of a firearm, and the SWAT team.

First, in ruling on the Motions to Compel, the wording of Hinson's requests to Martin and DPSO, at least initially, suggested that they were seeking exactly what they have been given: policies “regarding the use of force, the use of force continuum, or the use of K-9 dogs to detect, apprehend, or detain a person” and the DPSO “policies and procedures that were in force on February 22, 2016, including the Sherriff's Office's employee handbook, concerning the Use of Force and/or K9 policies.” At least in the second subpoena to DPSO, however, those requests were expanded to state that Hinson seeks “[a]ll DPSO Policies and procedures that were in effect on February 22, 2016, including the DPSO's Operations Manual, Employee Handbook, and any other materials that contain the DPSO's use of Force Policies and use of K9 policies.” [doc. #101, Exh. B (emphasis added)]. Additionally, Hinson specifically requests production of DPSO's internal investigations and disciplinary process and document retention and reporting. In any regard, at this point, Hinson clearly seeks all DPSO policies/manuals/handbooks, and DPSO and Martin object to the production or disclosure of policies other than those already produced.

The undersigned finds that the entire DPSO policy manual or set of policies is not discoverable, nor is Hinson entitled to discovery of the additional policies on internal investigations and disciplinary process and on document retention and reporting. Hinson has no remaining claims in this matter for an unconstitutional policy, custom, or practice; for failure to train, hire, or supervise; or for vicarious liability against Sheriff Arbuckle. Hinson's only claims are against Martin for his actions related to Rex's biting of Hinson and for his own actions in allegedly kicking Hinson, both after Hinson was subdued and/or handcuffed. While Hinson is correct that documents or materials do not have to be admissible in evidence to be discoverable, an evaluation under Rule 26 does require that the materials sought be relevant to a claim or defense, and it is beyond dispute that many of the policies are not.

The undersigned has also considered the argument that Hinson is entitled to discover other specific policies regarding emergency care provided by officers and procedures for calling emergency medical services following an injury. However, Hinson's claims against Martin (and Martin's defense of those claims) are limited to his federal Fourth Amendment excessive force claim “ordering Rex to continue biting Hinson after he was subdued, and kicking him after he was handcuffed” and his related state law claims of negligence and battery. While certainly the incident reports, medical records, and the like for this particular incident are relevant and have been provided,[5] the undersigned fails to discern how these policies are, as Hinson argues, “directly relevant to [his] excessive force claim,” nor are they important to resolving the issues. Hinson's claims are limited to Martin's actions prior to the provision of medical care, and, thus, general policies on providing or calling for medical care are not discoverable.

*10 After considering those factors identified in Rule 26, the undersigned finds that the discoverable DPSO policies with regard to Hinson's claims of excessive force, negligence, and battery against Martin have already been identified and produced: the general Use of Force policy and the Canine Unit policy. No further production is warranted. Accordingly, to this extent, Hinson's Motions to Compel are DENIED.[6]

3. Medical Records for Defendant Martin and Officer Pearah's medical treatment following bites from Rex

Hinson moves to compel the production of medical records for Martin and Officer Pearah related to treatment following bites from Rex. While Martin and Office Pearah, who is not a party to this litigation, have a protected privacy interest in their medical records, that information is clearly relevant to the issues in a case involving Rex's biting of Hinson and where Hinson further alleges that Martin also acted with negligence. To the extent that Hinson moves to compel the production of these documents, the motion is GRANTED. To the extent that Hinson moves for said production, either without a protective order or on the terms of his own proposed order, the motion is DENIED. Simultaneously with the filing of this Memorandum Order, the undersigned has issued a Protective Order addressing the discovery production in this matter. Subject to that protective order and redaction of personally identifiable information, Martin and DPSO shall produce the aforementioned records to Hinson no later than January 27, 2023.

C. Ruling on Second Motion to Compel

In his Second Motion to Compel [doc. #107], Hinson asserts that Martin and DPSO failed to disclose additional documents/other items regarding other bite incidents involving the dog at issue, Rex, until November 17, 2022, that these documents/items were properly requested in discovery, that counsel for Martin and DPSO agreed to produce responsive documents/items previously, and that they should be compelled to produce those documents/items immediately. Hinson further asserts that he was willing to have the production under an interim order of confidentiality, but that Martin and DPSO still have not made the production.

*11 In opposition to that motion, Martin and DPSO respond that, first, the Fifth Circuit has already ruled that Martin's use of Rex to apprehend Hinson was objectively reasonable and dismissed Hinson's excessive force claim based on “Martin's conduct in apprehending Hinson, before Hinson was subdued.” [doc. #108, p. 1 (quoting Hinson, 853 F. App'x. at 931, 933)]. Nevertheless, on September 1, 2022, counsel agreed to produce materials related to other incidents in which Rex had been used to apprehend criminal suspects like Hinson “ ‘with redactions of personal identifying information of the person involved in the incidents at issue (addresses, phone numbers, dates of birth except for year, and personal identification numbers such as social security or driver's license numbers)’.” [doc. #108, pp. 1–2]. On September 30, 2022, they produced incident reports, arrest reports, and drone video from these other incidents. Id. at p. 2.

However, defense counsel has videos, audio recordings, and photographs related to other incidents in which Martin had used Rex to apprehend criminal suspects after the February 22, 2016 apprehension of Hinson, and counsel asserts that he notified Hinson's counsel on November 17, 2022, after he spent a considerable amount of time reviewing and evaluating the materials. Because these materials contain personal, confidential information and photographs depicting the suspect's medical condition, defense counsel believes that DPSO would violate the privacy rights of the persons so depicted and cannot produce the materials without release from the individuals or an order of production from the Court with certain additional, listed protections.

Martin and DPSO have responded to the motion. They do not specifically object to the production of the identified items. Rather, defense counsel indicates that he and Hinson's counsel had a phone call on November 22, 2022, in which he provided additional details, but explained he did not think he could redact the information from video and audio recordings and that there are privacy concerns with the photographs. He suggested a phone call to the undersigned, but Hinson filed the instant second motion to compel. Counsel reiterates that privacy concerns are heightened by the ACLU's use of a publicly accessible website to provide information about this case. [doc. #108, pp. 5-6 (citing https://www.aclujusticelab.org/case/case-41-hinson-v-martin/ (last accessed November 25, 2022))]. Under the circumstances, Martin and DPSO request that “either: (a) the materials at issue in the Second Motion to Compel only be ordered to be produced after Hinson obtains an executed release from the individuals involved in those incidents; or (b) if the Court orders production of these materials, the Court impose protections limiting their use.” [doc. #108, p. 6]. Specifically, Martin and the DPSO request that any order of production require “(a) clear marking of these materials as “confidential” or “subject to protective order;” (b) return of these materials at the end of the litigation; and (c) nondisclosure and nonuse of these materials outside the context of this litigation.” Id.

In reply, Hinson reiterates its previous arguments and states that the motion was filed promptly, so as “to properly tee the matter up for the Court with briefing.” [doc. #109, p. 3]. Hinson argues that, because these responsive materials were withheld, his counsel was unable to ask fact witnesses any questions about these materials “including questions about Defendant Martin's knowledge of Rex's behavior when apprehending suspects and injuries likely to result from apprehensions involving Rex.” Id. Hinson contends that he has been “substantially prejudiced” by the delay because he may need to re-depose witnesses, and his expert will need to review the new materials. Finally, Hinson argues that the responsive materials do not implicate legitimate privacy concerns because they are in the nature of the facts of an arrest to which constitutional protections do not attach.

*12 First, Martin and DPSO do not object to the production of the materials to Hinson. Rather, the only objection is to the protection afforded the materials to be produced. Under these particular circumstances and where no motion was pending, a telephone conference would have resolved this issue, and the materials could have been ordered produced the same day. Instead, the production has been further delayed with three rounds of briefs.

Second, the parties dispute the privacy protections. Hinson characterizes the dash cam video and audio and photographs of the injuries to suspects in unrelated cases as akin to “’the fact of' [an] ‘arrest,’ ” and, thus, not afforded constitutional protections. [doc #109, p. 5 (quoting Paul v. Davis, 424 U.S. 693, 712–13 (1976))]. He argues further that arrest and criminal history records are public records to which no constitutional privacy interests attach. Id. at pp. 5–6 (citing Lott v. City of Lubbock, No. 98-10447, 1999 WL 500689, at *2 (5th Cir. 1999) (other citations omitted); Nilson v. Layton City, 45 F.3d 369, 372 (10th Cir. 1995)). Hinson analogizes the materials to be produced to booking information, which the Eastern District of Louisiana, has found no general privacy right under the United States Constitution. Id. at p. 6 (citing Payne v. City of Hammond City, No. 15-1022, 2017 WL 1164343, at *6–8 (E.D. La. Mar. 29, 2017)). Hinson further notes that the Eastern District has found no privacy interest implicated when an individual was videotaped in a public area where others could witness the incident. Id. (citing Desroche v. Strain, 507 F. Supp. 2d 571, 584–85 (E.D. La. Aug. 16, 2007)). Finally, while acknowledging that persons may have a privacy interest in medical information, Hinson points out that this interest depends on the conditions, and he argues that no such privacy interests are implicated in the facts and circumstances of this case. Id.

Unsurprisingly, Martin and DPSO disagree. They contend that there is a recognized privacy interest of citizens “ ‘to be free from the government disclosing private facts.’ ” [doc. #108, p. 4 (quoting American Civil Liberties Union of Miss., Inc., 911 F.2d at 1069 (quoting Ramey v. City of Hedwig Village, 765 F.2d 490, 492 (5th Cir. 1985))]. Additionally, they point to a case in the Middle District of Louisiana in which a former police captain brought suit against the city and its officials for releasing an unredacted resignation letter containing information about his alcoholism and unsubstantiated claims against him of misconduct. Id. at pp. 4–5 (citing Mitchell v. City of Central, Civil Action No. 20-294-JWD-RLB, 2021 WL 4256470 (M.D. La. Sept. 17, 2021)).

The identified materials at issue in the Second Motion to Compel are not entirely analogous to any of the cases cited by the parties. Certainly, these are not mere booking photos and information to which it is clear a right to privacy does not apply. Martin and DPSO already provided incident reports, arrest reports, and drone video that they did not believe implicated privacy rights, so the undersigned does not operate under the presumption that they act in bad faith by failing to produce the contested materials. Thus, the question of whether these third parties have privacy rights under the United States Constitution or state law or some other source was certainly not clear, and DPSO reasonably believed that they needed some protection from suit, via releases from the third parties or a Court order prior to producing the materials. If contacted, the undersigned would have granted such an order the same day to protect DPSO against lawsuits and to have the materials provided to Hinson immediately. It is unclear to the undersigned why that would not have resolved the privacy issues unless Hinson wishes to publish or disseminate the materials.

*13 Additionally, these are materials to be produced as part of the discovery process, not a determination as to whether they will be admitted into the judicial record. See Binh Hoa Le v. Exeter Fin. Corp., 990 F.3d 410, 419 (5th Cir. 2021) (“material filed with discovery motions is not subject to the common-law right of access....”). Under Rule 26, Hinson may obtain discovery without a determination as to whether those materials are ultimately admissible into the judicial record. As the Fifth Circuit has explained:

Id. Thus, once the parties in this matter move to the adjudicative stage, judges must serve as “the public interest's principal champion” and “zealously guard the public's right of access to judicial records—their judicial records—so ‘that justice may not be done in a corner.’ ” Id. at 421 (quoting NEW JERSEY PROVINCIAL CHARTER CH. 23, July 29, 1674, reprinted in 5 FRANCIS NEWTON THORPE, THE FEDERAL AND STATE CONSTITUTIONS, COLONIAL CHARTERS, AND OTHER ORGANIC LAWS 2551 (1909)). In this particular case, the determination will be left to Judge Elizabeth Foote, as the presiding trial judge, whether materials involving incidents with Rex after the instant apprehension took place are admissible into evidence at trial. Yet, if these materials are released at this time, without protection, the undersigned cannot ignore the fact that they may be made available for public view on the ACLU's website, and DPSO may well be subject to a lawsuit under state or federal law by the persons whose records are released and who have not consented to their release or use.

At this discovery stage, based on the information provided in the briefing, the undesigned cannot determine with exactness whether the dash cam and audio recordings implicate privacy interests. For example, the undersigned does not have the information on each incident as to where the apprehension took place. Was it in public or in the suspect's back yard? Moreover, the third-party suspects certainly do have privacy interest in their own medical conditions and treatments. These persons are not parties to this lawsuit, and there has been no consent to the public dissemination.

Under these circumstances, Hinson's Second Motion to Compel is GRANTED IN PART and DENIED IN PART. The motion is GRANTED to the extent that he seeks production of the identified items. The motion is DENIED to the extent that the materials are sought without a protective order at this time. As with the other identified productions in this case, these items, too, will be produced no later than January 27, 2023, under a protective order entered simultaneously with this Memorandum Order.[7] The undersigned expresses no opinion as to whether these items may ultimately be admitted into evidence and become part of the adjudicative record, only that the items are subject to the protective order during the discovery process.

D. Attorneys' Fees and Costs

*14 Hinson also moves for attorneys' fees and costs related to the filing of the three motions. However, as to the first Motions to Compel, the undersigned has ordered only limited relief and finds that the positions taken by DPSO and Martin were not unjustified or unreasonable. If the resulting productions require further depositions or supplementation of Hinson's expert report, the undersigned will consider a motion for costs and/or fees at that time. The undersigned notes, however, that depositions upon written questions and/or by zoom are available to avoid unnecessary expenses.

Further, as to the Second Motion to Compel, these issues could have been addressed without extensive briefing, and it is unclear how Hinson and counsel were harmed if they wished to question Martin about his knowledge at the time Hinson was apprehended. The additional materials to be produced, according to DPSO and Martin, occurred after Hinson's apprehension. Accordingly, all requests for attorneys' fees and costs are denied at this time.

Accordingly, for the reasons set forth above,

IT IS ORDERED that Hinson's motions to compel [doc. #s 100, 101 & 107] are GRANTED IN PART AND DENIED IN PART as set forth above.

IT IS FURTHER ORDERED that Hinson's request for attorneys' fees and costs are DENIED AT THIS TIME.

In Chambers, at Monroe, Louisiana, on this 17th day of January, 2023.