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Reid v. City of Detroit

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

January 4, 2020

JUSTIN REID and STEPHEN McMULLEN, Plaintiffs,
v.
CITY OF DETROIT, et al., Defendants.

          Sean F. Cox, District Judge.

          ORDER REGARDING SUPPLEMENTAL BRIEFING (ECF NOS. 67 & 68) AND PLAINTIFF'S REQUEST TO ADMIT NO. 2 AND REQUIRING AN IN CAMERA INSPECTION

          Anthony P. Patti, U.S. Magistrate Judge.

         A. Background

         On November 12, 2019, the Court entered an order denying without prejudice Plaintiffs' motion to compel the deposition of Defendants' “source of information #2499.” (ECF Nos. 52, 60.) In pertinent part, it stated:

Although Plaintiffs' request is premature based on the current offerings, it may be renewed with a more robust and specific record that is developed with the use of discovery devices, such as Interrogatories or Requests for Admission, to determine whether SOI #2499 exists, is alive, and/or was utilized in this case. Plaintiffs may also seek the depositions of Leavells himself (if he can be successfully subpoenaed) and/or his fellow narcotics crew members. In other words, there may be a time when the SOI's deposition will be ordered subject to various protective procedures.

(ECF No. 60, PageID.1220 (emphasis added).)

         On December 1, 2019, Plaintiffs filed a second amended complaint, wherein Plaintiff alleges in part:

Defendant Leavells falsely testified to facts in the affidavit in support of the search warrant of Plaintiff's business. In particular, Defendant Leavells provided false testimony regarding information he alleges he received from a source of information (“SOI 2499”) and otherwise fabricated the bases of probable cause by falsely testifying as to a controlled buy between SOI 2499 and a “seller” at Plaintiff's premises.

(ECF No. 63 PageID.1246 ¶ 21). On December 13, 2019, Defendants filed an answer to the second amended complaint, wherein they stated, inter alia: “Defendants can neither admit nor deny the allegations contained in paragraph 21, as they are without knowledge or information sufficient to form a belief about their truth or falsity.” (ECF No. 66, PageID.1264 ¶ 21.)

         B. Instant Matter

         Meanwhile, on December 7, 2019, Defendant City of Detroit served responses to two requests to admit, one of which concerned SOI# 2499 and another which concerned Defendant Leavells's January 8, 2014 affidavit. (ECF No. 67-2; see also ECF No. 52-2.) At the same time the City of Detroit served its discovery responses, Defendants also informed the Court, via letter, that they wished “to submit Detroit Police Department files for SOI# 2499 and SOI# 2449 for in-camera review so as to preserve privilege and keep any identity or identities secret.”

         On December 9, 2019, via email, Plaintiffs registered their belief that this issue should be addressed through motion practice and further informed the Court of their intention “to renew our motion to compel the deposition in light of the Defendants' answers to our Request to Admit.”

         The Court noticed a telephonic status conference, which was conducted on December 12, 2019. (ECF Nos. 64, 65.) On December 17, 2019, Plaintiff Reid filed a supplemental brief, which addresses: (1) the second amended complaint (ECF 63); (2) Plaintiff Reid's declaration (ECF No. 67-6); (3) Defendants' answers to the Requests to Admit (ECF 67-2); (4) Detroit Police Department Chief Craig's public statements; and, (5) informant's privilege law. (ECF No. 67, PageID.1281-1290.) Defendants filed a supplemental response on January 2, 2010, arguing that: (1) Plaintiff failed to comply with the meet and confer requirement; (2) Plaintiff failed to make a substantial preliminary showing that a false statement, with the requisite level of intent, was included in the affidavit supporting the warrant at issue; and, (3) an order compelling the deposition of SOI# 2499 is not justified at this juncture, although an in camera inspection of related files is appropriate.

         C. ...


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