Sixth Circuit Reinstates Rape Kit Claims Against Memphis

(CN) – A federal judge prematurely dismissed a rape victim’s gender discrimination claims against the city of Memphis over its handling of rape kits, a divided Sixth Circuit panel ruled Thursday, remanding the case for further discovery.

Three Jane Does brought a class action against Memphis in 2013, claiming its police department had failed to submit more than 15,000 rape kits for DNA testing.

They said the city had violated their 14^th Amendment equal protection rights by maintaining a policy or custom of providing less protection to rape victims than victims of other crimes, due to their gender.

Their attorneys in 2014 asked for records on each rape kit the city had collected since 1980 and whether the kits were submitted for DNA testing.

They also asked for information about DNA collected for crimes other than sexual assault for that time period, in hopes of proving their discrimination theory.

U.S. District Judge John Fowlkes Jr. curtailed the request’s scope, ordering Memphis to produce data about rape kits collected between Jan. 1, 1987 and June 1, 2014.

The city gave the Does’ counsel a spreadsheet with some information in early 2015 with the caveat that the “the only way to verify its accuracy is to review each investigative file” and said the spreadsheet would be updated as records were verified.

With discovery still incomplete in summer 2015, the city’s attorneys said they could get all the requested data to the Does by May 2016 and repeated that statement at a December 2015 status conference.

But the city moved for summary judgment the next month before finally handing over the full investigative file of Jane Doe No. 2, and three years worth of data constituting the majority of the 7,200 pages of spreadsheets, with details of 15,465 criminal investigations, it provided to the Does.

Judge Fowlkes dismissed the case in 2017. He granted the city’s motion to strike all class allegations in May 2018.

In an order denying the challengers’ motion to reconsider, Fowlkes refused to allow more discovery. He said they already had spent nearly two years on “expensive and rigorous discovery.” Memphis claims it spent $1 million producing the spreadsheet data.

Fowlkes held that no amount of additional discovery would allow the rape victims to prove their claims had a common basis needed to certify a class action, because Memphis detectives and police supervisors had discretion on whether to submit a rape kit for DNA testing, and when to do so, and there is a multitude of reasons for not testing, or not timely testing, rape kits.

Jane Doe No. 2 appealed to the Sixth Circuit. The other women did not appeal because it came out that their rape kits had been sent for testing shortly after they were assaulted.

Doe No. 2 was raped in 2003, but the city did not send her rape kit in for testing until 2013. The results came back in 2014, according to the case record.

Her attorney Robert Spence Jr. said in a January 2019 hearing before a Sixth Circuit panel that Memphis had repeatedly failed to respond to his discovery requests, even after he filed motions to compel.

Sixth Circuit Judge Eric Clay, a Bill Clinton appointee, agreed with Spence on Thursday in a 20-page majority opinion in which he stated that Memphis’ conduct is redolent of gamesmanship.

“Defendant’s delay in producing discovery suggests that it could have been hoping to obtain summary judgment before having to comply in full with plaintiffs’ discovery requests,” Clay wrote.

He continued: “Defendant’s repeated assurances that it would comply by May 2016 before it moved for summary judgment in January 2016 further suggests the possibility of a strategic delay motivated by a desire to deprive plaintiffs of a full opportunity for discovery.”

The court reversed and remanded, ordering Fowlkes to allow more discovery. Clay said to save time and money, rather than producing all the requested investigative files, the city could provide a cross-section of the files.

The court also opened the door for the rape victims to pursue class certification.

“The investigative files might reveal evidence of gender-motivated discrimination. If so, this evidence could allow plaintiffs to find further class representatives and could ultimately result in certification of a class,” Clay wrote.

Sixth Circuit Judge Helene White joined in the majority.

In a 7-page dissent, Sixth Circuit Judge David McKeague said the majority had gone too far in ordering more discovery. He said they should have let Fowlkes interpret their opinion to decide if it is necessary.

Neither Memphis' legal department nor the challengers' attorney Spence immediately responded Friday morning to requests for comment.

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