Parra v. Jackson , 2023 Ohio 216 ( 2023 )

[Cite as Parra v. Jackson, 2023-Ohio-216.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
ANDREA PARRA, :
Plaintiff-Appellee, :
No. 111295
v. :
FRANK G. JACKSON, ET AL., :
Defendants-Appellees. :
[Appeal by Cuyahoga County Prosecutor’s Office]
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
RELEASED AND JOURNALIZED: January 26, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-19-924682
Appearances:
The Pattakos Law Firm LLC, and Peter Pattakos, for
appellee Andrea Parra.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Nora E. Poore, Michael J. Stewart, and Anthony
T. Miranda, Assistant Prosecuting Attorneys, for
appellant.
LISA B. FORBES, J.:
Appellant Cuyahoga County Prosecutor’s Office (“CCPO”) appeals the
trial court’s decision denying in part its motion for a protective order. After a
thorough in camera review of the documents in question, we affirm the trial court’s
order in part and reverse in part.
I. Facts and Procedural History
Following the murder of Antonio Parra (“Antonio”), his mother
Andrea Parra (“Parra”) filed a complaint against the former mayor of Cleveland
Frank G. Jackson and the former Cleveland Chief of Police Calvin D. Williams
alleging claims for wrongful death, intentional infliction of emotional distress, and
obstruction of justice. Parra averred that “Mayor Jackson’s and Chief Williams’s
intentional dereliction of their duties in covering up for gang-related crimes
involving the Mayor’s grandsons respectively caused, and exacerbated the damage
arising from, [Antonio’s] murder.” Parra also claims that both defendants
obstructed the investigation into Antonio’s murder.
Parra served a subpoena on CCPO seeking production of various
documents. Pertinent to this appeal, Parra requested the following:
3. All documents or things relating to the Parra Investigation, including
the CCPO’s complete file relating to the Investigation, and all official or
unofficial notes, letters, emails, text messages, camera footage, or other
recorded communications by any CCPO or other governmental official,
employee, or agent relating thereto.
***
5. All documents or things relating to the July 17, 2019 Incident,
including the CCPO’s complete file relating to the Incident, and all
official or unofficial notes, letters, emails, text messages, camera
footage, or other recorded communications by any CCPO or other
governmental official, employee, or agent relating thereto.
***
8. All documents or things relating to a report issued by the City of
Cleveland’s Fire Department concerning a vehicle that was found on
fire on August 30, 2019, at 9217 Holton Avenue, Cleveland, Ohio 44101,
including, without limitation, all related dash camera and body camera
footage.
Request Nos. 3 and 8 relate to the investigation of Antonio’s murder. Request
No. 5 relates to an open juvenile delinquency case involving gang activity.
CCPO objected to each of these requests asserting that the
documents requested were protected from disclosure by the law enforcement
investigatory privilege.
Parra subsequently filed a motion to compel production of the
documents sought in request Nos. 3, 5, and 8 of the subpoena to CCPO on July 2,
2021.1 On July 9, 2021, CCPO filed a motion to quash the subpoena and a motion
for a protective order asserting that request Nos. 3, 5, and 8 were not subject to
production under the law enforcement investigatory privilege.2
1 Parra’s motion to compel also sought documents responsive to subpoena request
No. 6, which sought documents related to the former mayor’s grandson, Frank Q. Jackson.
Frank Q. Jackson died on September 19, 2021. Several cases and investigations involving
him were abated by his death. As a result, CCPO supplemented its production to Parra.
The parties agree that request No. 6 is not at issue in this appeal.
2 CCPO also asserted work-product privilege related to certain documents. The
trial court ordered the work-product documents were not subject to production. Those
documents are not at issue in this appeal.
On September 6, 2021, the trial court ordered CCPO to “produce all
of the documents in its possession that are responsive to Parra’s subpoena requests
numbered 3, 5, * * * and 8 for an in camera inspection by the court.”
After conducting an in camera review of the documents responsive to
request Nos. 3, 5, and 8, the trial court granted in part and denied in part CCPO’s
motion for a protective order, ordering CCPO to produce various specific documents
while concluding that others were protected. It is from this order that CCPO
appeals.
II. Law and Analysis
CCPO raises the following two assignments of error that we will
analyze together for ease of discussion:
The trial court erred in ordering CCPO to provide the plaintiff in a civil
case records relating to an open ongoing homicide investigation
because the records are protected by the law-enforcement investigatory
privilege.
The trial court erred in ordering CCPO to provide the plaintiff in a civil
case records relating to an open pending juvenile delinquency case
because the records are protected by the law-enforcement investigatory
privilege.
A. Standard of Review
“Appellate courts generally review a discovery dispute under an
abuse-of-discretion standard, but if the dispute involves an alleged privilege, it is a
question of law, subject to de novo review.” Friedenberg v. Friedenberg, 161 Ohio
St.3d 98, 2020-Ohio-3345, 161 N.E.3d 546, ¶ 22, citing Ward v. Summa Health
Sys., 128 Ohio St.3d 212, 2010-Ohio-6275, 943 N.E.2d 514, ¶ 13. Courts of appeals
across the state conduct a de novo review when the law enforcement investigative
privilege is at issue. See, e.g., J&C Marketing, L.L.C. v. McGinty, 2013-Ohio-4805,
4 N.E.3d 1063, ¶ 9 (8th Dist.), aff’d, J&C Marketing, L.L.C. v. McGinty, 143 Ohio
St.3d 315, 2015-Ohio-1310, 37 N.E.3d 1183; Autumn Health Care of Zanesville,
L.L.C. v. DeWine, 10th Dist. Franklin No. 14AP-593, 2015-Ohio-2655, ¶ 12;
Nationwide Agribusiness Ins. Co. v. Heidler, 12th Dist. Clinton Nos. CA2018-06-
003, CA2018-07-004, CA2018-09-012, and CA2018-09-015, 2019-Ohio-4311, ¶ 39.
Parra asserts that the correct standard of review is an abuse-of-
discretion standard. We disagree. Here, the dispute relates to the alleged law
enforcement investigatory privilege; therefore, we review de novo whether the
documents the trial court ordered CCPO to produce are privileged.
B. Law Enforcement Investigatory Privilege
Civ.R. 26(B) states:
Parties may obtain discovery regarding any nonprivileged matter that
is relevant to any party’s claim or defense and proportional to the needs
of the case * * *.
“The common law recognizes a qualified privilege for law
enforcement investigatory information, including confidential sources, surveillance
information, and law-enforcement techniques and procedures.” J&C Marketing,
L.L.C, 143 Ohio St.3d 315, 2015-Ohio-1310, 37 N.E.3d 1183, at ¶ 17. “A strong
presumption militates against lifting the privilege.” Id. at ¶ 18, citing Dinler v. New
York (In re New York), 607 F.3d 923, 929 (2d Cir.2010). The privilege, however,
must “‘give way’” when the information is “‘relevant and helpful to the defense of an
accused, or is essential to a fair determination of a cause * * *.’” Id. at ¶ 18, quoting
Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).
“[I]nformation related to a law-enforcement investigation is
protected from disclosure in civil litigation unless the party seeking discovery
demonstrates that it has a compelling need for the information and that that need
outweighs the public’s interest in keeping the information confidential.” J&C
Marketing L.L.C. at ¶ 22. In Henneman v. Toledo, 35 Ohio St.3d 241, 241, 520
N.E.2d 207 (1988), the Ohio Supreme Court adopted the ten-factor balancing test
articulated in Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D.Pa.1973), to analyze
whether the requesting party’s compelling need for the information outweighs the
public’s interest in protecting it. See also J&C Marketing, L.L.C.
The Frankenhauser factors are:
(1) the extent to which disclosure will thwart governmental processes
by discouraging citizens from giving the government information; (2)
the impact upon persons who have given information of having their
identities disclosed; (3) the degree to which governmental self-
evaluation and consequent program improvement will be chilled by
disclosure; (4) whether the information sought is factual data or
evaluative summary; (5) whether the party seeking the discovery is an
actual or potential defendant in any criminal proceeding either pending
or reasonably likely to follow from the incident in question; (6) whether
the police investigation has been completed; (7) whether any
intradepartmental disciplinary proceedings have arisen or may arise
from the investigation; (8) whether the plaintiff’s suit is non-frivolous
and brought in good faith; (9) whether the information sought is
available through other discovery or from other sources; and (10) the
importance of the information sought to the plaintiff’s case.
Frankenhauser at 344.
Before weighing the Frankenhauser factors, we note that the three
disks provided to the trial court for in camera inspection contain thousands of
documents, videos, audio files, and photographs. After conducting its in camera
review, the trial court ordered production of thousands of pages of documents and
other materials including the following: 911 calls; photos of suspects, crime scenes,
and surveillance; social-media posts; video-surveillance footage; weapons test-fire
results; criminal and juvenile delinquency histories; school records; phone
extractions; search warrants; grand jury subpoenas; police notes and evaluations;
police reports; HIPAA authorization forms; witness statements; rosters of gang
members; “gang reports”; and emails.
The materials the trial court ordered produced identify witnesses and
persons of interest, and disclose police impressions and evaluations reflected in
timelines, investigative summaries, and communication charts, among other
information. Additionally, we note that there are discrepancies within the trial
court’s production order. For example, the trial court ordered CCPO to produce
documents on Disk 1 Bates-stamped 976-983. However, it granted CCPO’s request
for a protective order regarding the very same documents found on Disk 2.
After conducting our own in camera review, we turn to the
Frankenhauser factors to determine whether Parra’s need for the disputed
information is compelling and outweighs the public’s interest in keeping it
confidential. The Frankenhauser factors will be analyzed out of order for ease of
discussion.
At the outset, we note that there is little case law in Ohio analyzing or
applying the law enforcement investigatory privilege, none of which addresses facts
similar to this case. However, in Pinner v. Hartford Life & Acc. Co., S.D.Ind.
No. 1:09-cv-00201-WTL-JMS, 2009 U.S. Dist. LEXIS 151039, 9 (Nov. 20, 2009),
the Southern District of Indiana utilized the Frankenhauser factors when a plaintiff
in a civil case requested the complete investigatory file for an open, ongoing
homicide investigation.
In Pinner, a life insurance company requested the police
department’s investigatory file related to the murder of one of its insureds, asserting
that it needed the information to determine coverage because it suspected the
insured was committing a felony at the time of his death that would preclude
coverage under the policy. After weighing all ten of the factors, the Pinner Court
determined that the public interest in keeping all of the documents at issue
confidential outweighed the plaintiff’s need. The court found that
The nature of the crime and of the information presented for in
camera review make even an attorneys’-eyes only protective order
insufficient to guard against the potential harm that disclosure might
entail, to cooperating witnesses and to the [police department’s] overall
investigation—particularly given [the plaintiff’s] meager investigation.
Pinner at 9. We find Pinner helpful to our in camera review given the similar nature
of the requested documents.
We begin by analyzing the first two Frankenhauser factors together
because they are closely related. These factors relate to witnesses, information they
have given to law enforcement, and the impact that production of documents in a
civil case may have on both law enforcement and the witnesses. When analyzing
these two factors in relation to documents subpoenaed from an open homicide
investigation file, the Pinner Court found:
When witnesses cooperate with law enforcement, they risk potential
retaliation. Where, as here, the perpetrator is a violent individual, that
risk may well be a substantial one. So long as [the] killer remains at
large, disclosing witness identities and/or information traceable to
particular witnesses would discourage future cooperation and would
jeopardize the safety of those witnesses who have already cooperated
with the police.
Pinner at 4. Here, the perpetrator of Antonio’s murder has yet to be apprehended.
As noted by the trial court, the documents responsive to Parra’s requests disclose
detailed information related to suspects involved in that violent crime, as well as
gang members and gang activity. We find that, while the perpetrators of the violent
crimes remain at large, the disclosure of witness identities or other information
traceable to a witness could discourage witness cooperation in the future and
jeopardize witness safety.
Under the third and seventh factors, courts consider “the degree to
which governmental self-evaluation and consequent program improvement will be
chilled by disclosure” and whether the investigation relates to disciplinary
proceedings. Frankenhauser, 59 F.R.D., at 344. CCPO concedes that the third and
seventh factors do not apply to this case. CCPO stated that “this matter does not
involve a government self-evaluation” and that “[t]he underlying records do not
involve an intradepartmental disciplinary proceeding or disciplinary investigation.”
We agree. None the documents requested by Parra relate to intradepartmental
disciplinary proceedings or “governmental self-evaluation.”
The fourth factor considers whether the information requested is
“factual data or evaluative summary.” Frankenhauser at 344. When a civil litigant
attempts “to free ride on [law enforcement’s] investigatory legwork * * * its claim to
discover even factual data” is “severely undercut[.]” Pinner, S.D.Ind. No. 1:09-cv-
00201-WTL-JMS, 2009 U.S. Dist. LEXIS 151039, at 6. Our review of the documents
at issue reveals that the disks contain both types of information. That a particular
individual or fact is being scrutinized during an ongoing investigation is inextricably
intertwined with CCPO’s evaluation of information it is gathering, making it
virtually impossible to separate factual from evaluative information. Even
documents reflecting primarily factual data may reveal CCPO’s evaluative or
investigative strategies. Parra seeks all documents — both factual and evaluative —
related to Antonio’s ongoing murder investigation and to the pending juvenile
delinquency case. Due to the interconnected and overlapping factual and evaluative
nature of the information in the documents, to the extent it would even be possible,
it would be a significant burden to separate evaluative summary from factual data.
Next, we consider the fifth factor, whether Parra is or may become a
potential criminal defendant with respect to the underlying investigation. Here,
neither party argues that Parra is a possible suspect in either Antonio’s homicide or
the open juvenile delinquency case. Nothing in the record indicates that it is likely
that she will become one in the future.
In contrast to this case, in J&C Marketing, L.L.C., 2013-Ohio-4805,
4 N.E.3d 1063, this court partially upheld a trial court’s order that lifted the law
enforcement investigatory privilege when the civil litigant requesting the documents
was a potential criminal defendant. In that case, the civil litigants operated
sweepstakes cafés that received cease-and-desist letters from CCPO claiming that
the cafes were suspected of violating “several Ohio gambling laws” and that they
must cease operation or face criminal prosecution. Id. at ¶ 2. In determining that
the trial court correctly ordered disclosure of documents subpoenaed from CCPO,
this court found that some of the factual information requested was “directly
relevant to the alleged conduct of the internet sweepstakes cafés involved in this case
because any factual disputes regarding the nature of their business must necessarily
be resolved prior to the ultimate resolution of the legal question at the heart of this
declaratory judgment action.” Id. at ¶ 25. The Ohio Supreme Court affirmed this
court’s opinion, noting that in J&C Marketing, the civil plaintiffs’ “interests in
obtaining discovery [were] also strong, because by issuing the cease-and-desist
letter, the prosecuting attorney in effect shut down [their] business, even though the
business had never even been charged with violating the law.” J&C Marketing
L.L.C., 143 Ohio St.3d 315, 2015-Ohio-1310, 37 N.E.3d 1183, at ¶ 20. Here, Parra’s
interest in proving her wrongful death, intentional infliction of emotional distress,
and obstruction of justice claims does not carry with it the same need demonstrated
by the J&C Marketing plaintiffs who were potential criminal defendants.
The sixth factor instructs us to consider whether the police
investigation has been completed. Frankenhauser, 59 F.R.D. at 344. As stated, both
the investigation into Antonio’s homicide and the juvenile delinquency case are
open and ongoing. We note that CCPO has produced documents to Parra from its
case files when the prosecutions have been completed or when investigations have
closed. For example, when Frank Q. Jackson died, CCPO closed several of its
investigations related to him and produced documents where the investigations
were abated by his death.
CCPO claims that the eighth factor, which considers whether the case
is nonfrivolous and was brought in good faith, does not apply to the facts of this case.
We disagree. CCPO states that “as a non-party to the underlying case [it] will not
weigh into the debate as to whether Parra’s complaint is frivolous or brought in bad
faith” and argues that requiring a lawsuit to be “‘non-frivolous’ is a low bar.”
Nonetheless, whether Parra’s case is nonfrivolous is one of the factors the Ohio
Supreme Court instructs this court to consider. Nothing in the record indicates
Parra’s case is frivolous or was brought in bad faith.
Under the ninth factor, the court reviews “whether the information
sought is available through other discovery or from other sources.” Frankenhauser,
59 F.R.D. at 344. Here the record reflects that a similar subpoena was issued to the
Cleveland Police Department. Whether the police department produced documents
was not part of the record. Furthermore, while the record reflects that Parra has
issued written discovery requests to defendant Frank G. Jackson, the specifics of
those requests and whether any documents or written responses were produced is
not part of the record before this court. The record is also silent as to whether any
discovery was issued to Calvin Williams or whether any depositions have been
taken. Thus, Parra has not demonstrated that she is unable to receive information
elsewhere.
Finally, the court must consider the importance of the information
sought to this litigation. Frankenhauser, 59 F.R.D. at 344. CCPO asserts that the
requested information is not important to Parra’s claims because she “has failed to
establish how the investigation records relate to” them. We agree. Parra’s claims
for wrongful death, intentional infliction of emotional distress, and obstruction of
justice are based on her allegations that the former mayor obstructed the
prosecution of his grandson for an assault of an 18-year-old and that both
defendants interfered in the investigation of Antonio’s murder. The substance of
the entirety of CCPO’s files, which include its investigative tactics, theories,
evaluations, and processes, is not likely to lead to the discovery of admissible
evidence related to Parra’s claims.
After conducting our independent in camera review of the documents
requested by Parra, weighing all of the Frankenhauser factors, and acknowledging
the strong presumption against lifting the privilege, we find that Parra has not
established a compelling need for the requested documents that outweighs the
public’s interest in keeping the vast majority of them confidential. We find that the
protective order in place is not strong enough to outweigh the public’s interest in
keeping this information confidential. See Pinner, S.D.Ind. No. 1:09-cv-00201-
WTL-JMS, 2009 U.S. Dist. LEXIS 151039, at 9 (“The nature of the crime and the
information presented for in camera review make even an attorneys’-eyes-only-
protective order insufficient * * *.”). (Emphasis deleted.)
However, we find that email communications between Parra’s
counsel and CCPO found at documents Bates-stamped 46-49, 51-52 from Disk A,
the Parra Investigation Disk are factual in nature and nothing in the record suggests
that they were used in the CCPO criminal investigations. Therefore, the public does
not have an interest in keeping them confidential. These documents should be
produced.
Accordingly, CCPO’s first assignment of error is sustained in part and
overruled in part. CCPO’s second assignment of error is sustained.
Judgment affirmed in part and reversed in part. This matter is
remanded to the trial court for proceedings consistent with this opinion.
It is ordered that appellant and appellee share costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
LISA B. FORBES, JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., and
MICHELLE J. SHEEHAN, J., CONCUR