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Grimes v. Bessner

United States District Court, E.D. Michigan, Southern Division

November 28, 2017

MONIQUE GRIMES, as Personal Representative of the Estate of DAMON GRIMES, Deceased, Plaintiff,
v.
TROOPER MARK BESSNER, et al., Defendants.

          ORDER DENYING MOTION TO QUASH AND GRANTING IN PART MOTION TO STAY [#19] AND STAYING ACTION UNTIL DECEMBER 31, 2017

          GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Presently before the Court is Non-Party State of Michigan and the Michigan State Police's (“MSP”) Motion to Quash the Plaintiff's October 4, 2017 Subpoena and Stay this Action, filed on October 18, 2017.[1] Plaintiff filed a Response in Opposition on November 6, 2017, and the MSP filed a Reply on October 9, 2017. A hearing was held on November 14, 2017. For the reasons that follow, the Court will deny MSP's Motion to Quash and will grant in part the MSP's request to stay the instant proceedings.

         II. FACTUAL BACKGROUND

         Plaintiff's son was killed during an encounter with former MSP Trooper, Defendant Mark Bessner, on August 26, 2017. Bessner deployed his Taser directly at Plaintiff's son, who was riding an ATV at the time. The Taser caused Plaintiff's son to lose control of the ATV and he was propelled into the rear end of another vehicle.

         Bessner, as well as reportedly two other officers, have resigned from the MSP as a result of this incident. Investigations by the Detroit Police Department, the Michigan State Police and the Wayne County Prosecutor's Office are purportedly ongoing.

         Plaintiff initiated the instant lawsuit on August 30, 2017 asserting Fourth Amendment claims against Bessner. Also, on August 30, 2017, Plaintiff sent FOIA letters to the City of Detroit and the MSP requesting that all evidence be preserved and requesting that all records relating to the case be produced to Plaintiff's counsel.

         On September 27, 2017, the MSP responded to Plaintiff's FOIA letter and indicated that the request was granted as to “existing, non-exempt records in the possession of the Michigan State Police that fall within the scope of your request.” The MSP further advised that a processing fee of $5, 331.20 to search, retrieve, review, examine and exempt material and upon payment of half of this amount, the MSP would begin processing the request. The MSP estimated that it would take 90 days to produce the documents that were subject to the FOIA request.

         Plaintiff also sought the name of the MSP Trooper who was in the car with Bessner during the incident on August 27, 2017. The MSP, however, failed to provide this information to Plaintiff's counsel, which resulted in Plaintiff's counsel having to prepare and file a Motion to Perpetuate Testimony of MSP Lietenant Neil Donahue for the limited purpose of identifying the MSP Trooper who was in the car with Bessner. The MSP has since provided the name to Plaintiff's counsel and Plaintiff has withdrawn the Motion to Perpetuate Testimony.[2]

         Due to the astronomical fee amount requested by the MSP to process Plaintiff's FOIA request, Plaintiff served Rule 45 Subpoenas on the MSP and the State of Michigan seeking the same information and documents sought in the FOIA letter. The MSP moved to quash the subpoenas on October 18, 2017.

         III. LAW & ANALYSIS

         A. Motion to Quash

         Federal Rule of Civil Procedure 45(d)(3) governs quashing or modifying a subpoena and obligates the district court to quash or modify a subpoena that:

(i) fails to allow a reasonable time to comply;
(ii) requires a person to comply beyond the geographical limits specified in Rule 45(c);
(iii) requires disclosure of privileged or other protected matter, if no exception ...

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