Opinion
Civil Action No. 3:02-CV-2340-H
June 5, 2003
ORDER
Before the Court are Defendant Alejandro Suarez's In Camera Submission Pursuant to Court's December 26, 2002 Order, submitted on January 21, 2002, and City of Terrell's Documents and Items Submitted for In Camera Inspection, submitted on January 22, 2003.
I. BACKGROUND
On October 24, 2002, Jessica Frierson (Plaintiff), an officer with the Terrell Police Department, initiated this civil action against the City of Terrell (City) and another officer, Alejandro Suarez (Officer), for alleged harassment under 42 U.S.C. § 1983. On or about October 10, 2001, Officer was indicted in state court on a class A misdemeanor charge of Official Oppression for the same alleged harassment.
Officer is the defendant in State of Texas v. Alejandro Suarez, Cause No. 20,718, in the 86th Judicial District Court, Kaufman County, Texas. The relevant portion of the crime with which he is charged states "A public servant acting under color of his office or employment commits an offense if he: . . . (3) intentionally subjects another to sexual harassment." TEX. PEN. CODE ANN. § 39.03 (Vernon 1994).
On December 3, 2002, Officer filed a Motion for Protective Order and to Stay Discovery or Alternative Motion for Extension of Time to Serve Objections and Responses to Discovery (Officer Mot). In that motion, he requested a stay of all discovery in this case under FED. R. CIV. P. 26(c) pending the outcome of the criminal proceedings. (Officer Mot. at 5.) Alternatively, Officer requested that the Court grant him an extension of thirty days to respond or object to Plaintiff's discovery requests, and that the Court issue a protective order shielding Officer from having to produce information that he believed would implicate his Fifth Amendment privilege against self-incrimination in the state criminal proceeding. Id. at 8-9. On the same day, City filed its Motion and Brief to Strike Discovery Requests (City Mot). City primarily requested that the Court strike Plaintiff's discovery requests because they were mailed prematurely. (City Mot. at 1-2.) Plaintiff responded to both motions on December 9, 2002, and sought an order compelling City to produce all requested items.
The Court held a hearing on this matter December 20, 2002. During the hearing, City stated that it was willing to produce all responsive information, even that which might implicate Officer's privilege. Officer objected to City's production of documents that might implicate his Fifth Amendment privilege. Officer admitted, however, that some of the requested documents — for instance, his regularly maintained personnel file and some internal investigative materials — were discoverable and did not implicate his Fifth Amendment privilege. Based on the motions, the response, and the oral arguments, the Court orally ruled that it would be inappropriate to stay all discovery in this case. Officer and City were ordered to jointly review their respective discovery requests in order for Officer to determine which of City's responsive information implicated his privilege, and both defendants were ordered to submit to the Court for in camera review all responsive information that Officer believed would implicate his Fifth Amendment privilege. The submissions were to describe in detail, with supporting case law, how each item implicated Officer's privilege. Id. The Court also ordered City and Officer to produce all responsive non-objectionable documents to Plaintiff within thirty days. On December 24, 2002, the Court issued a written Order to that effect. (Ord. at 1-2.)
Officer and City timely submitted separate sets of items for in camera review. However, only Officer provided argument on how the requested items would implicate his Fifth Amendment privilege. Because City did not object to production, it saw no reason to present argument. The defendants' in camera submissions and Officer's argument are now before the Court and ripe for determination.
II. ANALYSIS
When the Fifth Amendment privilege is invoked in a civil proceeding to avoid discovery, a court must conduct a "particularized inquiry, deciding in connection with each specific area that the questioning seeks to explore, whether or not the privilege is well-founded." SEC v. First Financial Group of Texas, Inc., 659 F.2d 660, 668 (5th Cir. 1981). "Even where a party has a legitimate claim of privilege with respect to certain questions or lines of inquiry, that person may not be entitled to invoke his privilege to remain totally silent. Only where the court finds that he could `legitimately refuse to answer essentially all relevant questions,' because of the threat of incrimination from any relevant questioning is a person totally excused from responding to relevant inquiries. Otherwise, a person is entitled to invoke the privilege `(O)only as to genuinely threatening questions. . . .'" Id. at 668-69 (quoting United States v. Melchor Moreno, 536 F.2d 1042, 1049 (5th Cir. 1976)). "A blanket assertion of the privilege without inquiry by the court, is unacceptable." United States v. Goodwin, 625 F.2d 693, 701 (5th Cir. 1980). The court may conduct an in camera review of the items at issue to determine if the privilege applies. See id. If, after such a review, the court finds that the privilege is well-founded, the court may stay or postpone civil discovery or issue a protective order. See United States v. Kordel, 397 U.S. 1, 9 (1970), quoted in Gordon v. FDIC, 427 F.2d 578, 580 n. 4 (1970) (noting that the "appropriate remedy would be a protective order under Rule 30(b), which would postpone civil discovery until termination of the criminal action.") (footnote added); see also Wehling v. Columbia Broadcasting Sys., 608 F.2d 1084, 1088-89 (5th Cir. 1980) (staying civil discovery until termination of the criminal action); accord Volmar Distribs., Inc. v. The New York Post Co., 152 F.R.D. 36, 39 (S.D.N.Y. 1993) (stating choices and staying discovery entirely); Nowaczyk v. Matingas, 146 F.R.D. 169, 178-79 (N.D. Ill. 1993) (denying motion to stay civil discovery but granting protective order to restrict disclosure of items discovered).
In 1970, the protection provisions of Rule 30(b) were transferred to Rule 26(c). Rule 26(c) now authorizes the Court to stay civil discovery as justice requires. See FED. R. CIV. P. 26(c); see also Federal Open Market Committee of Federal Reserve System v. Merrill, 443 U.S. 340, 356 (1979) ("Federal Rule Civ. Proc. 26(c)(7), which replaced former Rule 30(b) in 1970, was intended . . . to `reflec[t] existing law.'").
A. Stay of Discovery
In deciding whether to stay discovery in light of a party's Fifth Amendment privilege, a court must balance the interests of the party asserting the privilege against any prejudice resulting to the other parties. See Wehling, 608 F.2d at 1089. To achieve that balance, this Court uses a six-factor test: "(1) the extent to which the issues in the criminal case overlap with those presented in the civil case; (2) the status of the criminal case, including whether the defendants have been indicted; (3) the private interests of the plaintiffs in proceeding expeditiously, weighed against the prejudice to plaintiffs caused by the delay; (4) the private interests of and burden on the defendants; (5) the interests of the courts; and (6) the public interest." Librado v. M.S. Carriers, Inc., 2002 WL 31495988, at * 1 (N.D. Tex. Nov. 05, 2002); see also Heller Healthcare Finance, Inc. v. Boyes, 2002 WL1558337, at *2-3 (N.D. Tex. July 15, 2002). If these factors show that discovery implicates the party's privilege, a court may stay discovery. See Librado, 2002 WL 31495988, at *3 (staying discovery from employee and any discovery causing "undue prejudice" to employer by reason of employee's unavailability as witness or assistant in defense); see also Heller, 2002 WL 1558337, at *4 (staying one defendant's redeposition until acquitted or found guilty in concurrent criminal proceedings).
1.
The most important factor is the degree to which the civil issues overlap with the criminal issues. See Volmar Distribs., Inc., 152 F.R.D. at 39, cited in Librado, 2002 WL 31495988, at *2. "If there is no overlap, there would be no danger of self-incrimination and accordingly no need for a stay." Librado, 2002 WL 31495988, at *2. In the instant case, Plaintiff concedes that Officer's civil and criminal issues overlap. (Resp. at 5.) Indeed, there is no question that issue of sexual harassment complained of in the instant suit overlaps the state charge of sexual harassment. This overlap weighs in favor of a stay.
2.
"The second factor to be considered is the status of the criminal case." Librado, 2002 WL 31495988, at *2. "A stay of a civil case is most appropriate where a party to the civil case has already been indicted for the same conduct for two reasons: first, the likelihood that a defendant may make incriminating statements is greatest after an indictment has issued, and second, the prejudice to the plaintiffs in the civil case is reduced since the criminal case will likely be quickly resolved due to Speedy Trial Act considerations." Id. Officer was indicted in the state criminal case on October 10, 2001. Plaintiff assumes that, given the passage of time, Officer has waived his right to a speedy trial under Texas law. (Resp. at 5.) As of the date of the hearing, the case had not yet been set for trial. Officer's indictment and the pending status of the criminal case weigh in favor of a stay.
A copy of the indictment was included as Exhibit C to Officer's Motion for Protective Order and to Stay Discovery or Alternative Motion for Extension of Time to Serve Objections and Responses to Discovery.
3.
The Court also weighs Plaintiff's interests "in proceeding expeditiously against the prejudice that will be caused by the delay that will result from the stay." Librado, 2002 WL 31495988, at *2. Plaintiff asserts that the criminal case has been pending for over a year and that it "may be postponed indefinitely" because there is no trial setting. (Resp. at 5.) While it is highly unlikely that the case would postponed "indefinitely," as of the date of this Order, there is no indication of when the criminal case would end. If Officer is convicted, his Fifth Amendment privilege may continue throughout the pendency of his direct appeal. Cf. Librado, 2002 WL 31495988, at *2. Because the issuance and duration of a stay are committed to the Court's sound discretion, and because the imposition of a stay lasting throughout the duration of Officer's direct appeal (if he is convicted) would likely be unduly burdensome to Plaintiff's interests, the Court contemplates that the stay granted today will remain in effect only through sentencing. See id. If he is acquitted, the stay will terminate upon the return of a not guilty verdict. See id. If the charges are dropped, the stay terminates on the dismissal of the charges.
It is worth noting that the majority of the information that Officer provided to the Court for in camera review was similar to the information provided by City. Although Plaintiff may not proceed expeditiously against Officer while the stay is in place, Plaintiff's prejudice is mitigated by being able to discover most of the same information from City, with the exception of compelled statements as set forth below. See id. at *3. Therefore, this factor does not necessarily weigh against a stay.
4.
The Court has also considered the private interest of Officer in securing the stay and the burden that would result if the stay were denied. See id. As discussed above, absent a stay, Officer faces a conflict between asserting his Fifth Amendment privilege and fulfilling his legal obligations in civil discovery. See id. The Court is not persuaded that the interests of justice require that all discovery be halted, however. See id. at *2. As noted above, some non-privileged information was discoverable from City and Officer. The Court discerns no substantial prejudice to Plaintiff from granting a partial stay to postpone the remainder of discovery from Officer alone, rather than staying all discovery. Accordingly, Officer's interest weighs in favor of a stay. See id.
5.
The Court concludes that granting a stay will not unduly interfere with the management of its docket. The Court's interests do not weigh against a stay. See id.6.
The public has an interest in the just and constitutional resolution of disputes with minimal delay. See id. To promote prompt resolution of this case, while maintaining the integrity of Officer's privilege, it is appropriate to stay discovery to the extent that Plaintiff is precluded from obtaining any remaining discovery from Officer until after his sentencing, acquittal, or the charges are dropped. This stay does not "impose an undue hardship" on Plaintiff and it would allow for a constitutional resolution of the concurrent disputes while protecting Officer from unnecessary adverse consequences. See Wehling, 608 F.2d at 1089 (citing Dienstag v. Bronsen, 49 F.R.D. 327, 329 (S.D.N. Y. 1970) (staying civil discovery pending the termination of criminal proceedings); Paul Harrigan Sons, Inc. v. Enterprise Animal Oil Co., 14 F.R.D. 333, 335 (E.D.Pa. 1953) (same); and National Discount Corp. v. Holzbaugh, 13 F.R.D. 236 (ED. Midi. 1952) (same)). The public's interest weighs in favor of a stay.After due consideration of all factors, all remaining discovery from Officer shall be stayed pending resolution of the criminal proceedings.
B. Protective Order
1. Documents Produced by City
City submitted six categories of materials for in camera review pursuant to Officer's objection that they implicate his Fifth Amendment privilege because the statements were compelled during the internal affairs investigation.
a. Applicability of Privilege to Compelled Statements
This case is unique in that it is a federal civil action against a police officer who is currently under indictment in state court and who has already provided compelled statements to internal affairs investigators. Officer objects to Plaintiff's discovery from City on grounds that his statements to the internal affairs investigators and City's act of producing those statements would implicate his privilege in the criminal proceeding if discovered. While it is clear that Officer's Fifth Amendment privilege would be implicated if discovery from him is not stayed, it is not clear that his privilege would be implicated by allowing Plaintiff to discover his statements to the internal affairs investigators, City, or the Terrell Police Department in this civil case.
The Fifth Amendment privilege is intended to protect an individual from being compelled to "furnish a link in the chain of evidence needed to prosecute" him for a crime. Hoffman v. United States, 341 U.S. 479, 486-87 (1951) (emphasis added). In order to "sustain the privilege, it need only be evident from the implications of the question . . . that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." Id. at 486-87 (emphasis added). Such "injurious disclosure" is protected because it "may provide or assist in the collection of evidence admissible in a prosecution for past or present offenses." Marchetti v. United States, 390 U.S. 39, 52 (1968) (emphasis added). If the internal affairs investigators, City, or the Terrell Police Department have provided Officer's statements to the prosecution, then allowing the Plaintiff to discover them in this case would not unconstitutionally furnish or disclose them to prosecution.
Assuming that the prosecution possesses or obtains Officer's statements, its use of those statements is restricted by the Supreme Court's decision in Garrity v. New Jersey, 385 U.S. 493 (1967), which "prevents any statements made in the course of the internal affairs investigation from being used against [police] officers in subsequent criminal proceedings." In re Federal Grand Jury Proceedings, 975 F.2d 1488, 1490 (11th Cir. 1992). Officer's statement to the internal affairs investigators reflects that it was given under a "Garity [sic] Warning," and that if he refused to answer, he could be subject to termination. (Off. Sub. at Ex. B-1.) This warning specifically advised Officer that his statement "cannot be used against [him] in any criminal proceeding." Id. In an analogous situation, the Ninth Circuit held "that the protection of the Fifth Amendment privilege, when applied to statements by police officers in internal affairs files, must focus on the use of those statements against the officers who gave them. The statements are not privileged from production to a subpoenaing authority. But the Fifth Amendment guards against any improper use of them." In re Grand Jury Subpoena, 75 F.3d 446, 448 (9th Cir. 1996); see also Grand Jury Subpoenas Dated Dec. 7 and 8, Issued to Bob Stover, Chief of Albuquerque Police Dept. v. U.S., 40 F.3d 1096, 1103 (10th Cir. 1994) ("The time for protection will come when, if ever, the government attempts to use the information against the defendant at trial. We are not willing to assume that the government will make such use, or if it does, that a court will allow it to do so."). According to these cases, the Fifth Amendment privilege is implicated by the prosecution's use, not possession, of Officer's statements.
Because neither side has had an opportunity to brief this issue, the parties shall be allowed ten days from the date on which this Order is filed to provide additional briefing supported by case law, Rather than provide additional briefing, City shall cooperate with Officer in detailing which items have been provided to or are available to the prosecution. After reviewing the briefs, and especially the authorities cited therein, the Court will determine whether production of Officer's compelled statements to the Plaintiff in this civil case implicates his Fifth Amendment privilege.
b. Documents Which do not Contain Compelled Statements
The threshold issue in determining if the privilege is well-founded is whether or not the contents of these items contain Officer's compelled statements. See United States v. Doe, 465 U.S. 605, 610 (1984). The Court has made a "particularized inquiry" into Officer's objections and determined that not all of City's submissions contain Officer's compelled oral or written statements or compelled statements that were recorded or summarized by an internal affairs investigator. See First Financial Group of Texas, Inc., 659 F.2d at 668. Following is a table evidencing the documents submitted by City, and the specific items that contain Officer's compelled statements or statements that may implicate Officer's Fifth Amendment privilege: No. Description of Category Items Containing Officer's Compelled Statements th
Pursuant to the Court's Order, dated April 16, 2003, City was ordered to provide this Dictaphone tape to Officer in a format by which Officer could identify its objectionable portions. In lieu of resubmitting the entire Dictaphone tape, City was ordered to provide the Court with only the objectionable portions. City timely submitted the objectionable portions to the Court on one audio cassette tape labeled COT 0289. Concurrently, City submitted Officer's objections. Thus, the Court limits its review of the Dictaphone tape to only those portions of it that Officer found objectionable.
c. Act of Production
Officer also objects that the City's act of responding to Plaintiff's request for production is a privileged "act of production" protected by the Supreme Court's decision in United States v. Hubbell 530 U.S. 27 (2000). The Hubbell case arose out of the investigation by Independent Counsel Kenneth Starr into President Bill Clinton and Hillary Clinton's involvement in what was commonly called the "Whitewater investigation." Hubbell, 530 U.S. at 30-31. During the investigation, the government served Webster Hubbell, an attorney associated with the Clintons, with a broadly-worded subpoena duces tecum seeking production of eleven broad categories of documents. Id. at 31. The government did not describe the requested items with any particularity. Id. In his testimony before the grand jury, Mr. Hubbell asserted his Fifth Amendment privilege and refused "to state whether there are documents within my possession, custody, or control responsive to the Subpoena." Id. The government granted immunity "to the extent allowed by law" to gain the responsive documents, but later used those same documents to obtain a second indictment against Mr. Hubbell. Id. On Mr. Hubbell's motion, the district determined that the government had violated its grant of immunity and dismissed the second indictment. Id. The government appealed. The appellate court reversed, deciding that the district court should have addressed "the extent of the Government's independent knowledge of the documents' existence and authenticity, and [Mr. Hubbell's] possession or control of them." The case was remanded, and the government petitioned the Supreme Court for certiorari.
In the meantime, on remand, the government entered into a plea agreement with Mr. Hubbell; portions of the agreement were contingent on the outcome of the petition for certiorari. Id. at 33-34. Despite the plea agreement, the Supreme Court granted the government's petition to "determine the precise scope of a grant of immunity with respect to the production of documents in response to a subpoena." Id. at 34. The Supreme Court explained that "the act of producing documents in response to a subpoena may have a compelled testimonial aspect. We have held that `the act of production' itself may implicitly communicate `statements of fact.' By `producing documents in compliance with a subpoena, the witness would admit that the papers existed, were in his possession or control, and were authentic'" Id. This "act of production" doctrine, as it is commonly referred to, clarifies that the act of responding to a compelled request may have a privileged testimonial effect if it "could provide a prosecutor with a lead to incriminating evidence,' or a `link in the chain of evidence needed to prosecute.'" Id.
Officer analogizes his case to Hubbell, and argues that City's act of producing certain items gives the prosecutor a "lead to incriminating evidence' or a `link in the chain of evidence need to prosecute." (Officer Sub. at 30-31.) Officer claims that the City's act of producing these items unconstitutionally compels his privileged testimony. In Hubbell, the privileged testimony arose out of the defendant's act of identifying and gathering his documents responsive to a very broad subpoena directed to him. Plaintiff's relevant requests for production are directed to City, and City's response requires no act by Officer that could be construed ashis testimony. Thus, the concern in Hubbell — the testimonial effect of a defendant's own actions — is absent from Officer's case.
It is also determinative that City does not object to its own act of production as privileged. In fact, City has repeatedly stated — at oral argument and in its in camera submission — that it does not oppose Plaintiff's requests for production on Officer's Fifth Amendment grounds. As explained in Hubbell:
Because it is unnecessary to this decision, the Court expresses no opinion as to the ability of municipalities such as City to assert Fifth Amendment objections based on the act of production doctrine.
It is doubtful that implicitly admitting the existence and possession of the papers rises to the level of testimony within the protection of the Fifth Amendment. The papers belong to the accountant, were prepared by him, and are the kind usually prepared by an accountant working on the tax returns of his client. Surely the Government is in no way relying on the `truthtelling' of the taxpayer to prove the existence of or his access to the documents. . . . The existence and location of the papers are a foregone conclusion and the taxpayer adds little or nothing to the sum total of the Government's information by conceding that he in fact has the papers.Hubbell, 530 U.S. at 44 (emphasis added) (quoting Fisher v. United States, 425 U.S. 391, 394 (1976)). The items requested from City belong to City, were prepared by City, and are the kind usually prepared in an internal affairs investigation or day-to-day operations of the Terrell Police Department. Moreover, the existence and authenticity of the items requested from City may be independently confirmed by City or the Terrell Police Department. Thus, the prosecutor is not relying on Officer's "truthtelling" to prove the existence of or Officer's access to these items. Consequently, City's production does not implicate Officer's Fifth Amendment privilege.
2. Production by Officer
Officer produced documents and items labeled Exhibits A, B1-12, and C. At this time, production of these documents will not be ordered because the documents either (1) contain compelled statements or statements which implicate or may implicate Officer's Fifth Amendment privilege; or (2) consist of identical copies of documents already ordered to be produced by City.
III. CONCLUSION
For the foregoing reasons, it is herebyORDERED that further discovery from Officer shall be stayed until Officer is convicted and sentenced, acquitted, or the charges are dropped in the state criminal proceeding. If he is sentenced, the stay terminates upon sentencing. If he is acquitted, the stay terminates upon the return of a not guilty verdict. If the charges are dropped, the stay terminates upon dismissal of the charges. This stay may be appropriately modified for good cause. It is further hereby
ORDERED that the Plaintiff and Officer (with the cooperation of City) shall file additional briefing within ten calendar days of the date of this Order regarding whether Officer's statements are available to the prosecution and the impact of Garrity on statements made to internal affairs investigators that are later disclosed in a civil action.
ORDERED that City shall produce to Plaintiff within ten calendar days of the date of this Order all documents which it submitted for in camera review, with the exception of the following items: 5th paragraph beginning "On 7/9/01 . . ." of COT0223; COT0226; COT0229-0230; COT0257-0263;COT0267-0268; COT0277-0278; COT0283; and COT0285-0286.