Moore v. Garnand

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Greg Moore; et al., ) No. CV 19-0290 TUC RM (LAB) 9 ) Plaintiffs, ) ORDER 10 ) vs. ) 11 ) ) 12 Sean Garnand; et al., ) ) 13 Defendants. ) ) 14 ) 15 Pending before the court is a motion, filed by the non-party City of Tucson (City) on 16 November 20, 2019, to quash the plaintiffs’ subpoena served on Tucson Fire Department 17 Inspector Jorge Lola and the Notice of Deposition directed to Tucson Police Officer Jacob 18 Smith. (Doc. 54) Since filing its motion, the City has discovered that the plaintiffs issued a 19 subpoena to Officer Smith to testify at the deposition. (Doc. 73-1, p. 3) The court will treat 20 the motion as though it seeks to quash these two subpoenas. The plaintiffs filed a response 21 on December 4, 2019. (Doc. 65) The City filed a reply on December 11, 2019. (Doc. 73) 22 The plaintiffs in this action claim their constitutional rights were violated when the 23 defendants executed search warrants in connection with an arson investigation into the 24 destruction of the Forgeus Apartments on June 8, 2017. (Doc. 1) They bring this action 25 pursuant to 42 U.S.C. s 1983. (Doc. 1, p. 4) The defendants apparently believe that the 26 plaintiffs may be responsible for the fire that destroyed these apartments. (Doc. 1) They 27 further believe that the fire that destroyed the Forgeus Apartments displayed similarities to 28 1 the fire that destroyed an apartment on Blacklidge Drive in 2011. (Doc. 1, p. 10) The 2 investigation into the Forgeus fire is ongoing. 3 In the pending motion, the defendants move pursuant to Fed.R.Civ.P. 45(d)(3)(A)(iii) 4 and (iv) to quash the plaintiffs’ subpoena directed to Tucson Fire Department Inspector Jorge 5 Lola to testify at a deposition and produce documents related to his investigation of the 6 Forgues fire. (Doc. 54-1, p. 2) They also seek to quash the subpoena directed to Tucson 7 Police Officer Jacob Smith to testify at a deposition. (Doc. 54-1, p. 6); (Doc. 73-1, p. 3) 8 The defendants argue, among other things, that the depositions are precluded by the law 9 enforcement investigatory privilege. See Conan v. City of Fontana, 2017 WL 2874623, at 10 *4 (C.D. Cal. 2017) (“[T]he law enforcement investigatory privilege is based on the harm 11 to law enforcement efforts which might arise from public disclosure of investigatory files.”). 12 Rule 45 reads in pertinent part as follows: 13 On timely motion, the court for the district where compliance is required must quash or modify a subpoena that: 14 * * * 15 (iii) requires disclosure of privileged or other protected matter, if no exception 16 or waiver applies; or 17 (iv) subjects a person to undue burden. 18 Fed. R. Civ. P. 45(d)(3)(A). 19 When the pending motion was filed, the court had under advisement the defendants’ 20 previously filed motion to stay discovery pursuant to the law enforcement investigatory 21 privilege. (Docs. 23, 37) That motion has since been granted in part. (Doc. 74) The 22 plaintiffs appealed that order, but they were unsuccessful. (Doc. 113) 23 In its motion, the City asserts that the plaintiffs are only seeking information that falls 24 within this privilege. (Doc. 54) The court finds that this is a fair assumption in light of the 25 plaintiffs’ failure to suggest any other purpose for the depositions. (Doc. 65, pp. 6-7) The 26 motion to quash will be granted because the depositions would violate the law enforcement 27 investigatory privilege. 28 1 The plaintiffs argue to the contrary that the Federal Rules of Civil Procedure preclude 2 the City’s motion. Specifically, they argue that “any party may move the Court to modify 3 or quash a subpoena on the grounds of privilege,” but a non-party, like the City, cannot do 4 so, citing, among other things, Salem Vegas, L.P. v. Guanci, 2013 WL 5493126, at *3 (D. 5 Nev. 2013). (Doc. 65, p. 2) 6 This court, however, finds nothing in the wording of Rule 45(d)(3)(A) that precludes 7 the City from filing the pending motion. Moreover, the plaintiffs’ proposed reading of Rule 8 45 would leave the City with a right but no remedy. The proposed depositions threaten to 9 violate the City’s privilege. Accordingly, the Rules should be interpreted in a way that 10 permits it to file a motion to quash. See Fed.R.Civ.P. 1; see also R. Prasad Indus. v. Flat 11 Irons Envtl. Sols. Corp., 2014 WL 2804276, at *3 (D. Ariz. 2014) (collecting cases) 12 The plaintiffs further argue that the City might have standing to object to a subpoena 13 for documents, but it has no standing to oppose a deposition subpoena. (Doc. 65, p. 2) 14 Again, the court fails to find anything in the wording of Rule 45(d)(3)(A) that supports the 15 plaintiffs’ proposed reading. Moreover, the court fails to see why the Rules would be 16 constructed in such a way. See Fed.R.Civ.P. 1. The proposed depositions are just as likely 17 to violate the City’s privilege as would be the disclosure of documents. It would not make 18 sense if the Rules allowed the City to quash a subpoena duces tecum but not a deposition 19 subpoena. 20 The plaintiffs note that the City previously disclosed to them Loya’s fifteen-page 21 report on the Forgeus fire. (Doc. 65, p. 4) They argue that this disclosure waives the City’s 22 claim of privilege over any related matters. The court does not agree. 23 This court adopts the reasoning of the First Circuit and holds that in the context of the 24 law enforcement privilege, the “release of a document only waives the[] privilege[] for the 25 document or information specifically released, and not for related materials.” Commonwealth 26 of Puerto Rico v. United States, 490 F.3d 50, 66 (1st Cir. 2007) (quoting In re Sealed Case, 27 121 F.3d 729, 741 (D.C.Cir.1997)). “This limited approach to waiver serves important 28 interests in open government by ensuring that agencies do not forego voluntarily disclosing 1 || some privileged material out of the fear that by doing so they are exposing other, more 2 || sensitive documents.” Commonwealth of Puerto Rico, 490 F.3d at 66 (punctuation 3 | modified). Moreover, if the disclosure was inadvertent or negligent, it hardly seems 4 || equitable that the public at large, one of the beneficiaries of the privilege, should pay the 5 || price for the City’s improvidence. 7 IT IS ORDERED that the motion, filed by the non-party City of Tucson (City) on 8 || November 20, 2019, to quash the plaintiffs’ subpoenas served on Tucson Fire Department 9 || Inspector Jorge Lola and Tucson Police Officer Jacob Smith is GRANTED. (Doc. 54) 10 The plaintiffs’ motion for an award of attorney fees and costs pursuant to Fed.R.Civ.P. 11 | 26(C)(3) and 37(a)(5) incorporated into their response brief is DENIED. (Doc. 65) 12 DATED this 2" day of April, 2020. 13 14 15 ° Rebs O. Bowman 17 Leslie A. Bowman 18 United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28 -4-