United States District Court, W.D. Kentucky, Owensboro Division
JEFFERY W. LITTLEPAGE PLAINTIFF
WILLIAM DUKES, Jr, Individual capacity and CITY OF PROVIDENCE, KENTUCKY DEFENDANTS
MEMORANDUM OPINION AND ORDER
Brent Brennenstuhl United States Magistrate Judge
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 ¶
of the Case
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).
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).
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.
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.
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.
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.
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.
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