United States District Court, D. Nebraska
HANNAH SABATA; DYLAN CARDEILHAC; JAMES CURTRIGHT; JASON GALLE; RICHARD GRISWOLD; MICHAEL GUNTHER; ANGELIC NORRIS; R. P., a minor; ISAAC REEVES; ZOE RENA; and BRANDON SWEETSER; on behalf of 417CV3107 themselves and all others similarly situated; Plaintiffs,
NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES; SCOTT FRAKES, in his official capacity as Director of the Nebraska Department of Correctional Services; HARBANS DEOL, in his official capacity as Director of Health Services of the Nebraska Department of Correctional Services; NEBRASKA BOARD OF PAROLE; JULIE MICEK, in her official capacity as the Board of Parole Acting Parole Administrator; and DOES, 1 to 20 inclusive; Defendants.
Michael D. Nelson United States Magistrate Judge.
matter is before the Court on the Motion to Quash (Filing No.
108) filed by a nonparty, Marshall Lux, Public Counsel for
Nebraska (“Public Counsel”). The Public Counsel
requests that the Court quash the subpoena duces tecum served
on him by Defendant, Nebraska Department of Correctional
Services (“NDCS”), because the documents sought
by the subpoena are not relevant to this litigation and are
privileged under Nebraska law. For the following reasons, the
Court will grant the motion.
inmates within the custody and control of the NDCS, filed
this proposed class action on August 15, 2017, against
Defendants NDCS and its administrators and medical staff,
asserting violations of the plaintiffs' civil and
constitutional rights. Plaintiffs' claims arise out of
their allegations that Nebraska state prisons are
“overcrowded, under-resourced, and understaffed, and
that prisoners are “consistently deprived of adequate
health care, including medical, dental, and mental health
care, and denied accommodations for their
disabilities.” (Filing No. 1 at p. 4). Plaintiffs are
represented by a number of attorneys from various firms and
organizations, including the National Prison Project of the
American Civil Liberties Union (“ACLU”), the
National Association of the Deaf Law & Advocacy Center,
and the Nebraska Appleseed Center. The NDCS seeks documents
from the office of the Public Counsel regarding
communications with these firms and organizations. See Filing
Nebraska legislature established the office of Public Counsel
to perform certain duties, including investigating “any
administrative act of any administrative agency, ” such
as the NDCS. See Neb. Rev. Stat. §§ 81-8, 241 and
81-8, 245 (R.S.Supp. 2018). In addition, the Inspector
General of the Nebraska Correctional System (“Inspector
General”) was created within the office of the Public
Counsel to conduct “investigations, audits,
inspections, and other reviews of the Nebraska correctional
system.” Neb. Rev. Stat. § 47-904(1)(R.S.Supp.
2018); see also Neb. Rev. Stat. § 81-245(9). The
Inspector General's duties include investigating
“[a]llegations or incidents of possible misconduct,
misfeasance, malfeasance, or violations of statutes or of
rules or regulations of the department by an employee of or a
person under contract with the department . . .” and
“[d]eath or serious injury in private agencies,
department correctional facilities, and other programs and
facilities licensed by or under contract with the
department.” Neb. Rev. Stat. § 47-905(1)(a)-(b).
subpoena served by the NDCS on the Public Counsel requests
“[a]ll communications and contents of such
communications, ” including emails and messages
“sent by or from” the office of Public Counsel
(including the Inspector General) to Plaintiffs' counsel
and their respective firms and organizations. The subpoena
states the request “is limited in scope to
communications or contents of such communications sent from
January 1, 2014, to the present” regarding any of the
individually named plaintiffs. (Filing No. 108-1 at p. 3).
The Public Counsel provided the Court with a Privilege Log
(Filing No. 110-4) listing eight emails either from the
Public Counsel or the Inspector General with ACLU counsel as
either an addressee or a recipient. The Public Counsel
represents the eight emails are all the documents responsive
to the NDCS's subpoena. (Filing No. 110-1 at p. 7). The
Public Counsel has filed the instant motion to quash the
subpoena for two reasons: (1) the NDCS has not made a
threshold showing of relevance of the requested documents and
(2) the requested documents are privileged under Neb. Rev.
Stat. §§ 81-8, 253 and § 47-916.
scope of discovery under a subpoena is the same as the scope
of discovery under Rules 26(b) and 34 and is subject to the
rules that apply to other methods of discovery.”
Quiles v. Union Pac. R.R. Co., No. 8:16CV330, 2018
WL 737403, at *1 (D. Neb. Feb. 6, 2018)(quoting Desert
Orchid Partners, LLC v. Transaction System Architects,
Inc., 237 F.R.D. 215, 217 (D. Neb. 2006)).
“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[.]” Fed.R.Civ.P. 26(b)(1). “When a party
issuing a subpoena makes a threshold showing that the
discovery sought is relevant, a person or company resisting
the subpoena bears the burden of showing that its objections
are valid by providing specific explanations or factual
support as to how the requested information is
improper.” McGehee v. Nebraska Dep't of Corr.
Servs., No. 4:18CV3092, 2019 WL 266423, at *2 (D. Neb.
Jan. 17, 2019)(citing Kinzer v. Remington Arms Co.,
No. 8:11-cv-75, 2011 WL 1659883, at *3 (D. Neb. May 3,
2011)). The scope of relevant discovery is extremely broad.
“Discovery requests should be considered relevant if
there is any possibility the information sought is relevant
to any issue in the case and should ordinarily be allowed,
unless it is clear the information sought can have no
possible bearing on the subject matter of the action.”
Met-Pro Corp. v. Industrial Air Technology, Corp.,
No. 8:07CV262, 2009 WL 553017, * 3 (D. Neb. March 4, 2009).
Public Counsel asserts that the NDCS has not made a threshold
showing of relevance for the requested documents, which
narrowly request “communications between the Public
Counsel or IG and the lawyers representing the plaintiffs
regarding the plaintiffs themselves.” (Filing No. 109
at p. 14). The NDCS argues that its request for
“records relating to complaints any of the named
Plaintiffs have had regarding the [NDCS]” is facially
relevant. Considering that the scope of relevant discovery is
extremely broad, the Court finds the NDCS has made a
threshold showing that the requested documents are relevant
to this litigation. The office of Public Counsel, which
includes the Inspector General, is tasked with investigating
the NDSCS with allegations or incidents of possible
misconduct, violations of rules and regulations, and death or
serious injury at the correctional facility. See Neb. Rev.
Stat. §§ 81-8, 241, 81-8, 245, and 47-904(1).
Communications from the Public Counsel or the Inspector
General to counsel representing the individually named
plaintiffs clearly would encompass information relevant to
Plaintiffs' claims against the NDCS. See E.E.O.C. v.
Woodmen of the World Life Ins. Society, 2007 WL 1217919
at *1 (D. Neb. Mar. 15, 2007)(quoting Oppenheimer Fund,
Inc. v. Sanders, 437 U.S. 340, 351
(1978)(“Relevancy is to be broadly construed for
discovery issues” and “encompass[es] ‘any
matter that could bear on, or that reasonably could lead to
other matter that could bear on, any issue that is or may be
in the case.'”).
to Fed.R.Civ.P. 45(d)(3)(A), the court must quash or modify a
subpoena that “requires disclosure of privileged or
other protected matter, if no exception or waiver
applies[.]” Fed.R.Civ.P. 45(d)(3)(A)(iii). The Public
Counsel asserts a privilege against being compelled to
produce the documents requested by the NDCS based on his
status as Nebraska's Public Counsel. (Filing No.
108)(citing Tlamka v. Serrell et al., 4:97CV3212,
(D. Neb. Feb. 6, 2002)(Jaudzemis, M.J.)(unpublished)); Filing
No. 110-2. The Public Counsel's motion is based on Neb.
Rev. Stat. § 81-8, 253, which provides, “Neither
the Public Counsel nor any member of his staff shall be
required to testify or produce evidence in any judicial or
administrative proceeding concerning matters within his
official cognizance[.]” Neb. Rev. Stat. § 81-8,
253. Similarly, with respect to the Inspector General, the
statutes provides, “Neither the Inspector General nor
any member of his or her staff shall be required to testify
or produce evidence in any judicial or administrative
proceeding concerning matters within his or her official
cognizance[.]” Neb. Rev. Stat. § 47-916. The
Public Counsel is “an officer of the legislative branch
of state government.” State ex rel. Shepherd v.
Nebraska Equal Opportunity Comm'n, 557 N.W.2d 684,
691 (Neb. 1997).
the Public Counsel's claim of privilege arises out of
Nebraska state statutes, “[a]ll evidentiary privileges
asserted in federal court are governed, in the first
instance, by Federal Rule of Evidence 501.” United
States v. Ghane, 673 F.3d 771, 780 (8th Cir. 2012). The
fact that a state statute “creates a privilege and a
testimonial immunity does not automatically mean that this
Court can recognize them.” Shabazz v. Scurr,
662 F.Supp. 90, 91-92 (S.D. Iowa 1987). The scope of an
evidentiary privilege in federal court is governed by
“the principles of common law as they may be
interpreted by the courts of the United States in the light
of reason and experience.” Fed.R.Evid. 501.
“[E]videntiary privileges ‘are not lightly
created, '” and parties that seek to create a new
privilege “must overcome the significant burden of
establishing that ‘permitting a refusal to testify or
excluding relevant evidence has a public good transcending
the normally predominant principle of utilizing all rational
means for ascertaining truth.'” Carman v.
McDonnell Douglas Corp., 114 F.3d 790, 793 (8th Cir.
1997)(quoting United States v. Nixon, 418 U.S. 683,
710 (1974) and citing Trammel v. United States, 445
U.S. 40, 50 (1980)).
Court has previously accepted a federal evidentiary privilege
for the office of Public Counsel and quashed a subpoena to
the Public Counsel on that basis. See Tlamka v. Serrell
et al., 4:97CV3212 (D. Neb. Feb. 6, 2002)(Jaudzemis,
M.J.)(unpublished). In doing so, Magistrate Judge Jaudzemis
found persuasive guidance in Shabazz v. Scurr, 662
F.Supp. 90, 91-92 (S.D. Iowa 1987), wherein the Southern
District of Iowa found that a limited federal privilege
existed for a prison ombudsman in light of the unique
function of the office and the Iowa statutes governing the
privilege. Similar to the Office of Public Counsel, the
prison ombudsman in Shabazz was authorized to
investigate complaints against a state agency or official and
to issue recommendations to the executive or legislative
branch. The district court in Shabazz recognized
that “Courts have a special interest ...