United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER
STEVEN WHALEN UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiff Sylvia James' Motion to Compel
Discovery and for Sanctions as to Defendant Judicial Tenure
Commission (“JTC”) [Doc. #112].
Sylvia James is a former Michigan state court judge who was
removed from office by the Michigan Supreme Court in 2012
following an investigation and recommendation by the Michigan
Judicial Tenure Commission (“JTC”). She filed the
present action against the JTC and other Defendants under 42
U.S.C. § 1983, alleging violation of her rights under
the Equal Protection Clause of the Fourteenth Amendment. Ms.
James is an African-American female. The gist of her claim is
that the JTC chose not to recommend discipline of Caucasian
judges who were alleged to have engaged in similar judicial
has been a more or less continuous discovery dispute
involving Plaintiff's requests to obtain JTC files and
information involving other judges against whom formal
complaints were made, including judges against whom the JTC
decided not to file a formal complaint. At a status
conference held on May 12, 2016, it was agreed that the JTC
would produce redacted files to Plaintiff, and provide to the
undersigned Magistrate Judge a list of formal complaints
filed in the last ten years that are coded 5, 7, 13, and 14.
I would then review the list and identify the sex and race of
each judge, after which I would provide to the parties a list
that would show the case number, the gender, and the race of
each judge, but not the name of the judge. See Transcript
of Status Conference [Doc. #94], at 22-23, Pg. ID
2302-2304. On February 1, 2017, I provided counsel for both
parties a list of 69 cases.
ascertained that it had not received redacted versions of
some of the files on my list, as well as other JTC files that
had been omitted, apparently inadvertently. In addition,
while almost all of the files that were produced consisted of
approximately five pages each, consisting of the request for
investigation and the JTC's response to the judge
outlining the grievance, Plaintiff received five JTC files
that were much more voluminous information, including meeting
minutes, voting records, and correspondence of Paul Fisher
(the former Director) and the judges against whom the
grievances were filed. The JTC asserted that these five files
were produced inadvertently, and sought a clawback of the
documents, claiming privilege.
seeks information from the JTC files beyond the five pages of
documents that have been provided. The JTC asserts that
portions of the file are protected by the deliberative
process privilege. In a previous Opinion and Order [Doc.
#78], I noted that Plaintiff was seeking purely factual
material from the JTC, but held that under the deliberative
process privilege, “Plaintiff is not entitled to
‘staff memoranda to the Commission, reports and
recommendations prepared by or at the request of the
Commission, and minutes or other documents reflecting the
deliberations and votes of Commissioners.'”
(Quoting Lawrence v. VanAken, 2004 WL 228989, *7
(W.D. Mich. 2004)). In this motion, Plaintiff concedes that
she is not entitled to documents that fall within the
deliberative process privilege. I reiterate, however, that
the privilege does not extend to objective facts contained in
the files. See Lewis v. City of Detroit, 234 F.R.D.
157, 160 (E.D.Mich. 2006)(the privilege does not extend to
the facts); Kaiser v. Aluminum & Chemical Corp. v.
United States, 141 Ct.Cl. 38, 157 F.Supp. 939, 946
addition, Plaintiff is not entitled to discovery of
correspondence or other communication between the JTC and the
target judges concerning settlement discussions. In
Goodyear Tire & Rubber Co. v. Chiles Power Supply,
Inc., 332 F.3d 976, 981 (6th Cir. 2003), the Sixth
Circuit recognized a “settlement privilege.”
(“The public policy favoring secret negotiations,
combined with the inherent questionability of the
truthfulness of any statements made therein, leads us to
conclude that a settlement privilege should exist, and that
the district court did not abuse its discretion in refusing
to allow discovery.”).
the JTC asserts work product privilege as to portions of its
files. The JTC agrees to provide a privilege log as to that
category of documents, but states that because it cannot
share the contents of its investigative file with Mr. Fisher,
its former Director, Mr. Fisher cannot provide a privilege
log as to documents otherwise protected by the deliberative
process privilege. The JTC, however, can certainly do so.
Plaintiff's motion to compel [Doc. #112] is GRANTED to
the extent that the JTC will produce the requested files, if
any, that have not yet been produced. Material to which
deliberative process privilege, work product privilege, or
settlement privilege is claimed may be
redacted. The JTC will also produce a privilege log
as to any material to which it claims
request for sanctions is DENIED.
documents produced under this Order are subject to a
protective order whereby they will not be disclosed to any
person or entity not involved in the prosecution or defense
of this lawsuit, nor used for any purpose other than
preparation, litigation, trial, and appeal of this action. At
the conclusion of this litigation, the documents will be
returned to the JTC.