Opinion
Case No. 2:05-cv-0673.
November 13, 2006
ORDER
Earlier in this litigation, the Ohio Inspector General filed a motion to quash a subpoena duces tecum which was served on March 15, 2006. In an order filed on July 6, 2006, the Court denied the motion without prejudice, noting that Inspector General's assertion of privilege was not accompanied by appropriate declarations or affidavits which are required under these circumstances in order to establish a claim of privilege. That order denied the motion to quash without prejudice, gave the Inspector General the opportunity to support properly any claim of privilege, and established a procedure through which the parties were to confer in order to determine whether the issues raised by the motion could be resolved and, if not, for the filing of an additional motion to quash.
The parties have apparently followed the procedure outlined in the Court's order without success. Consequently, on August 25, 2006, the Inspector General filed a renewed motion to quash. Responsive and reply memoranda have been filed and the matter is now ripe for decision. For the following reasons, the motion to quash will be granted.
I.
The initial discussion of the motion, contained in the Court's July 6, 2006 order, is incorporated herein. Briefly stated, because this case arises under state law, any issue of privilege will be decided with reference to state law. See Fed.R.Evid. 501. Other issues related to discovery, such as whether or not compliance with the subpoena would represent an undue burden on the inspector general, will be decided pursuant to the Federal Rules of Civil Procedure and federal case law interpreting those rules.II.
The motion to quash raises three issues with respect to the subpoenaed documents, all of which appear to be documents either obtained by the Inspector General from third parties or generated as a result of the Inspector General's investigation of alleged malfeasance within the Ohio Bureau of Workers' compensation. The Inspector General asserts, first, that many documents obtained pursuant to a grand jury subpoena are not to be disclosed because of the secrecy which surrounds grand jury proceedings; second, that any documents generated independently by the Inspector General's office are privileged because there is an ongoing confidential law enforcement investigation taking place; and third, that with respect to both types of documents, it would be unduly burdensome to require the Inspector General to review these documents for the purpose of asserting specific privileges, especially in light of the fact that the documents could be obtained directly from the third parties to whom the Inspector General had issued subpoenas. The Court will discuss each of these arguments in turn.
A.
The Inspector General asserts that a number of the documents covered by the subpoena were obtained either pursuant to subpoenas issued by state prosecutors in Lucas County, Ohio, or from federal prosecutors. Citing Fed.R. Crim P. 6(e)(2), the Inspector General asserts that these records must be kept under seal in order to prevent the unauthorized disclosure of proceedings before the grand jury. The Inspector General notes that, although grand jury secrecy is not absolute, there must be a showing made of compelling necessity. Further, the Inspector General asserts that any request for relief from the secrecy otherwise surrounding grand jury proceedings must be made to the court where the grand jury was convened, which is not this Court. For all of these reasons, the Inspector General contends that any documents obtained by it from state or federal prosecutors which were, in turn, obtained by grand jury subpoena cannot be lawfully produced.
In response, the defendants assert that the Inspector General has not asserted that all of the documents obtained by grand jury subpoena were actually presented to the grand jury. However, in arguing this point, the defendants cite only cases dealing with documents which, although related in some way to a grand jury investigation, were not actually subpoenaed by the grand jury. For example, defendants argue that if an agency is conducting an investigation which parallels a grand jury investigation but obtains materials other than through the grand jury, those materials are not covered by principles of grand jury secrecy. The same is true, assert the defendants, for information obtained for the grand jury but through traditional law enforcement means such as the execution of search warrants rather than through the issuance of grand jury subpoenas. Thus, the defendants appear to concede that any documents actually subpoenaed for the grand jury need not be produced; stating that "materials not obtained by grand jury subpoenas or not presented to the grand jury are not subject to the prohibitions on disclosure for grand jury materials." MDL Defendants' Memorandum in Opposition to Inspector General's renewed Motion to Quash, at 5. Rather, the defendants simply invite the Court not to permit the Inspector General to withhold relevant documents "by improperly stretching federal grand jury secrecy to cover state or agency investigations." Id. at 6.
The Court does not read the Inspector General's objection to the production of grand jury materials to cover anything other than documents obtained by state or federal prosecutors in connection with grand jury proceedings. The Inspector General readily concedes that he is in possession of other documents which were not obtained directly by or for the use of a grand jury, and the grand jury privilege is not being used to shield those documents from production. Because it appears undisputed, however, the Inspector General has obtained some grand jury documents, and that the assertion of the grand jury secrecy privilege relates only to documents so obtained, the Court concludes that any documents within the possession of the Inspector General which were initially obtained by either a federal or state grand jury through the grand jury's subpoena power may not be produced in response to the defendants' subpoena, and the motion to quash will be granted with respect to any such documents.
B.
The next category of documents which the Inspector General seeks to protect are documents obtained by the Inspector General through its own investigatory or subpoena powers in connection with its investigation of the operation of the Bureau of Workers' Compensation. The Inspector General notes that, under O.R.C. § 121.42(A), he has been authorized to conduct such an investigation in order to determine whether wrongful acts or omissions were committed in the operation of a state agency by state officers or state employees. That same statute, in later subsections, requires the Inspector General to report such wrong-doing to state or federal prosecuting authorities or other entities having jurisdiction if evidence of criminal wrongdoing is uncovered. O.R.C. § 121.43 grants the Inspector General the authority to issue subpoenas for both testimony and documents. The Inspector General acknowledges that a number of documents have been acquired by subpoena in connection with its investigation but asserts that these documents are covered by the law enforcement investigative privilege, which allows investigative agencies to withhold documents from public disclosure while an investigation is ongoing in order to protect the integrity of that investigation.
The defendants, citing to O.R.C. § 121.44(A), note that the only documents specifically exempted from disclosure under that statute are documents which constitute reports of an investigation, not documents compiled in the investigatory process, and that the Inspector General is authorized only to designate the portions of reports confidential if the disclosure of the report would endanger a witness or disclose investigative techniques in a way that would enable wrongdoers to avoid detection. The defendants then cite to the Ohio Public Records Act, O.R.C. § 149.43, noting that the exemption provided in that statute for law enforcement records pertains only to documents creating a high probability of disclosing the identity of uncharged suspects, the identity of confidential sources, confidential investigatory techniques or procedures, work product, or information that would endanger law enforcement personnel, victims, witnesses, or confidential information. The defendants assert that the Inspector General has not made the appropriate showing that this exemption is applicable here. Contrary to the defendants' arguments, the confidential law enforcement privilege relied upon by the Inspector General is not a privilege created by Ohio statute but a common law privilege which has been recognized in both state and federal courts. See Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1341 (D.C. Cir. 1984) ("[t]here is surely such a thing as a qualified common law privilege . . . for law enforcement investigatory files"). As noted in Black v. Sheraton Corp. of America, 564 F.2d 531, 542 (D.C. Cir. 1977), "law enforcement operations cannot be effective if conducted in full public view. . . ." That decision characterized the confidential law enforcement privilege as one of several executive privileges arising under the common law, all of which "share with each other . . . the common matrix of pragmatic adjustment to the needs of sound government." Id. As that court noted, and as this Court pointed out in its prior decision, there are certain procedural requirements for the assertion of such a privilege having to do with the actual assertion of the privilege by the party claiming the privilege (here, the Inspector General), and a substantive component which evaluates the tendency of the documents to reveal law enforcement techniques or sources. The privilege is not absolute but conditional. However, one of the factors which the Court must take into account in determining whether this conditional privilege has been overcome is "[w]hether the materials are available from other sources. . . ." Friedman, 738 F.2d at 1341. If so, the Court may take into account "the degree of the litigant's need to obtain [those materials] from the governmental entity or office claiming the privilege." Id;see also In re Sealed Case, 856 F.2d 268 (D.C. Cir. 1988). Further, contrary to defendant's assertion, documents covered by this privilege may include those which are subpoenaed from third parties. See, e.g., In re Polypropylene Carpet Antitrust Litigation, 181 F.R.D. 680 (N.D. Ga. 1998). Thus, even though many of the documents compiled by the Inspector General in the course of the ongoing investigation may have been subpoenaed by either the Inspector General or other agencies from third parties, there is no reason that this privilege would not apply to those documents to the extent that their premature disclosure would jeopardize the Inspector General's ability to conduct a proper investigation.
According to the Inspector General's affidavit, the investigation of the Bureau of Workers' Compensation and its investment practices has been ongoing since April, 2005. The Inspector General has sworn that these documents would disclose investigative techniques involved with the ongoing investigation and would also likely disclose confidential information. If these assertions are taken at face value, the Court would likely recognize the confidential law enforcement privilege and would conclude that the appropriate showing to overcome a privilege had not been made because there is absolutely no showing that the defendants need to obtain these documents from the Inspector General as opposed to the parties to whom the Inspector General obtained the documents directly. Thus, because the materials appear to be available from other sources, the defendants simply do not have a need to obtain it from the Inspector General's office.
The only reservation the Court has in accepting the Inspector General's argument is the somewhat general nature of the Inspector General's assertion that the revelation of all of these documents, or any of them, would "likely" disclose confidential information or investigative techniques. Some courts have required a stronger showing, requiring the party asserting the privilege to submit documents for the Court's in camera review and to detail with specificity why a disclosure of each document or category of documents would likely involve the types of disclosures which the confidential law enforcement investigatory privilege is designed to protect. For the reasons stated below, the Court concludes that such a procedure is unnecessary.
C.
Even if this Court were to conclude that more proceedings ought to be conducted with respect to the assertion of the confidential law enforcement privilege, the Court concludes on this record that the Inspector General has satisfied his obligation of showing that production of these documents would be unduly burdensome. Although the defendants assert that the Federal Rules of Civil Procedure generally favor broad discovery, those rules — and especially the non-party subpoena rule set forth in Fed.R.Civ.P. 45 — are also designed to protect the interests of non-parties to litigation having undue burdens imposed upon them when they have no stake in the outcome of the case. See Fed.R.Civ.P. 45(c) ("A party . . . responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena"). Here, the Inspector General has asserted that in order to review the approximately one million pages of documents which are responsive to the subpoena issued, the Inspector General, who has a small staff, would be required to suspend this and every other investigation and devote weeks of manpower to the task of reviewing each document in order to determine whether it contains confidential or privileged information apart from the confidential law enforcement investigatory privilege which is being asserted. That review could not be done by the defendants, so that there would be no way to minimize the burden on the Inspector General if an order either for production or for further proceedings were entered. By contrast, there is no reason to subject the Inspector General to such wasteful procedures because, again, there has been no showing that the exact documents cannot be obtained (or have not already been obtained) from the parties who produced them to the Inspector General. The MDL defendants assert only generally that there might be additional documents in the possession of the Inspector General which they have been unable to obtain from other parties, but they have not requested the Court to enforce any subpoenas to other parties, nor have they identified with any specificity what those documents might be. Under these circumstances, the simple fact that it would be more convenient for the defendants to piggyback on the work of the Inspector General and obtain all of these documents from a central source does not justify imposing the type of significant burden on the Inspector General's office that an order for production of these documents would entail. For this reason, the Court concludes that the Inspector General's motion to quash is well-taken and that the Inspector General need not go through the burdensome task of reviewing all of these documents either to assert the claim of law enforcement investigative privilege with more specificity or to determine whether other privileges would prevent the production of the documents.
III.
Here, the subpoena issued by the MDL defendants can be described as, at best, an effort to obtain, from a single source, documents which might otherwise have to be acquired from different sources. In order to accomplish that goal, however, the MDL defendants have sent the subpoena to a state law enforcement investigatory agency in the middle of an ongoing investigation and have downplayed the real risk that disclosure of the documents would either jeopardize that investigation or subject the Inspector General, who is not a party to this litigation, to an undue burden in production. The only conceivable justification for this burden would be to make it more convenient for the MDL defendants to obtain documents or to assure themselves that the responses to their document requests to other non-parties have been complete. The Court does not believe that the burden is justified under these circumstances, and therefore grants the motion to quash.
Any party may, within ten (10) days after this Order is filed, file and serve on the opposing party a motion for reconsideration by a District Judge. 28 U.S.C. § 636(b)(1)(A), Rule 72(a), Fed.R.Civ.P.; Eastern Division Order No. 91-3, pt. I., F., 5. The motion must specifically designate the order or part in question and the basis for any objection. Responses to objections are due ten days after objections are filed and replies by the objecting party are due seven days thereafter. The District Judge, upon consideration of the motion, shall set aside any part of this Order found to be clearly erroneous or contrary to law.
This order is in full force and effect, notwithstanding the filing of any objections, unless stayed by the Magistrate Judge or District Judge. S.D. Ohio L.R. 72.4.