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Littlepage v. Dukes

United States District Court, W.D. Kentucky, Owensboro Division

January 15, 2019



          H. Brent Brennenstuhl United States Magistrate Judge


         Before the Court is the motion of Defendant William Dukes, Jr. for a protective order, DN 34. Plaintiff Jeffery Littlepage has filed a response at ¶ 35 and Dukes has replied at ¶ 36.

         Nature of the Case

         DEFENDANT Dukes was employed as a police officer by the City of Providence. Littlepage alleges that Dukes assaulted him and otherwise used excessive force under color of law in violation of Littlepage's constitutional rights. He has also asserted claims under state law for assault and malicious prosecution. In addition to suing Dukes in his individual capacity, he has asserted an official-capacity claim against the City of Providence (DN 1).

         Dukes was indicted by a grand jury of this judicial district and charged with two counts of deprivation of rights under color of law in violation of 18 U.S.C. § 242 and one count of document falsification under 18 U.S.C. § 1519. (see United States v. William Dukes, Jr., No. 4:17-cr-00010-JHM-1 at ¶ 1). These charges relate to the events complained of in this civil action. Dukes was tried before a jury and convicted of one count of deprivation of rights under color of law and acquitted of the two remaining charges (Id. at ¶ 50). Dukes has appealed his conviction, which is pending before the United States Court of Appeals for the Sixth Circuit (Id. at ¶ 79).

         Dukes' Motion

         Included among requests for production Littlepage submitted to Dukes are requests for “copies of all statements . . . including but not limited to any Grand Jury . . .” and “copies of all reports prepared by any law enforcement agencies concerning the incident described in the Complaint, including the Federal Bureau of Investigation or United States Department of Justice . . .” (DN 34-2). Dukes moves for a protective order that he not be compelled to produce these documents.

         As to the grand jury transcripts, Dukes contends that secrecy of grand jury proceedings is accorded strong protection. Dukes asserts that, under Fed. R. Crim. P. 6(e) a party seeking grand jury material must demonstrate that the material is needed to avoid possible prejudice in another judicial proceeding, the need for disclosure is greater than the need for continued secrecy and the request for production is structured to cover only that portion which is necessary. Dukes cites Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211, 222 (1979) in support.

         Applying this test, Dukes contends that Littlepage cannot demonstrate, other than as a matter of convenience, that the transcripts are necessary to avoid injustice in this action. Any information contained in the grand jury transcript, Dukes argues, is equally available through other discovery methods in this case. Dukes concludes that the need for disclosure does not outweigh the need for continued secrecy. Additionally, Dukes asserts that Littlepage's request for the entirety of grand jury material cannot be considered as structured to cover only the portion which may be necessary.

         Turning to Littlepage's request for law enforcement reports, Dukes contends that the reports are subject to a qualified privilege afforded statements by informers to law enforcement agencies. Dukes cites Cullen v. Margiotta, 811 F.2d 698, 715 (6th Cir. 1987) for the proposition that a party seeking production of such reports must demonstrate that the information is both relevant and essential to presentation of the case on the merits and that need for disclosure outweighs the need for secrecy. Dukes states that Littlepage cannot demonstrate that the reports are essential because the information is available through other discovery means, such as witness interviews and depositions.

         Littlepage's Response

         Littlepage responds to Dukes motion regarding the grand jury transcript by attempting to rebut an argument which Dukes did not make. He discusses whether grand jury proceedings are privileged as a matter of Kentucky state law as set forth in a treatise on Kentucky jurisprudence and a state case dealing with privilege as a matter of public policy. See Tabor v. Commonwealth, 625 S.W.2d 571 (Ky. 1981). Dukes does not address federal precedent dealing with the specific topic of grand jury protection, other than to cite In re Grand Jury Proceedings (Greenberg), (No No. in Original), 1982 U.S. Dist. LEXIS 18355 (D. Conn. June 25, 1982) for the proposition that Dukes does not have standing to object to the production of grand jury material. The quotation which Littlepage offers from that case is taken out of context. That case dealt with the question of whether a religion-based claim of parent-child privilege afforded a mother a right to refuse to testify against her daughter before the grand jury and bears no relevance to the question of whether Dukes has standing to oppose production of a grand jury transcript. The only criteria Littlepage appears to address for overcoming the presumptive secrecy of grand jury proceedings is the need for disclosure versus the need for secrecy, in that he asserts the underlying criminal proceedings are now complete.

         As to the issue of production of the law enforcement reports, Littlepage devotes three sentences to arguing, without citation to authority, that Dukes does not have standing to assert the privilege and his argument is “not covered ...

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