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 defendants on January 28, 2020, to 16 quash the plaintiffs’ subpoena served on Robin Newgren/Internal Revenue Service or, in the 17 alternative, for a protective order. (Doc. 96) The plaintiffs filed a response on February 10, 18 2020. (Doc. 98) The defendants filed a reply on February 18, 2020. (Doc. 99) 19 The plaintiffs in this action claim their constitutional rights were violated when the 20 defendants executed search warrants in connection with an arson investigation into the 21 destruction of the Forgeus Apartments on June 8, 2017. (Doc. 1) They bring this action 22 pursuant to 42 U.S.C. s 1983. (Doc. 1, p. 4) The defendants apparently believe that the 23 plaintiffs may be responsible for the fire that destroyed these apartments. (Doc. 1) The 24 investigation into the Forgeus fire is ongoing. 25 During its investigation into the fire, the Tucson Police Department (TPD) seized the 26 plaintiffs’ personal and business financial records. (Doc. 1, pp. 11-12) The plaintiffs allege, 27 among other things, that the defendants encouraged TPD Sergeant Richard Radinsky to open 28 a financial crime investigation against the plaintiffs. (Doc. 1, pp. 4, 12) This investigation 1 was closed on April 11, 2018, but the plaintiffs allege it was resurrected at the defendants’ 2 request in retaliation for the plaintiffs’ filing of this case. (Doc. 1, p. 14) The plaintiffs 3 further allege that the defendant Sean Garnand delivered documents to IRS Agent Robin 4 Newgren in an effort to convince her to open a criminal investigation against them. (Doc. 5 1, p. 14) The plaintiffs claim that the defendants acted without reasonable suspicion and in 6 violation of their First and Fourteenth Amendment rights. (Doc. 1, p. 21) 7 In the pending motion, the defendants move pursuant to Fed.R.Civ.P. 26(b)(1), 8 26(v)(2)(C)(iii), and 45(d)(3)(A)(iii) that the court quash the plaintiffs’ subpoena directed to 9 Robin Newgren/Internal Revenue Service commanding her to testify at a deposition and 10 produce documents relating to any communications between “any IRS agent . . . and any 11 representative of the Tucson Police Department, regarding Eric Gregory Moore . . . and/or 12 Patricia Moore.” (Doc. 96, p. 1); (Doc. 96-1, p. 2) They move in the alternative for a 13 protective order forbidding discovery pursuant to Fed.R.Civ.P. 26(c)(1)(A). (Doc. 96, p. 1) 14 The defendants argue, among other things, that the subpoena seeks discovery in 15 violation of the law enforcement investigatory privilege. See Conan v. City of Fontana, 2017 16 WL 2874623, at *4 (C.D. Cal. 2017) (“[T]he law enforcement investigatory privilege is 17 based on the harm to law enforcement efforts which might arise from public disclosure of 18 investigatory files.”). The defendants’ earlier filed motion to stay discovery pursuant to the 19 law enforcement investigatory privilege was granted in part on December 13, 2019. (Docs. 20 23, 74) In its order, this court held that “Discovery of the TPD arson investigation files for 21 the Forgeus Apartments is stayed pursuant to the law enforcement investigatory privilege.” 22 (Doc. 74, p. 4) The plaintiffs appealed the order, but they were unsuccessful. (Doc. 113) 23 Rule 45 reads in pertinent part as follows: 24 On timely motion, the court for the district where compliance is required must quash or modify a subpoena that: 25 * * * 26 (iii) requires disclosure of privileged or other protected matter, if no exception 27 or waiver applies; or 28 (iv) subjects a person to undue burden. 1 Fed. R. Civ. P. 45(d)(3)(A). 2 In their motion, the defendants assert that the plaintiffs are seeking information that 3 falls within this law enforcement investigatory privilege. (Doc. 96, pp 3-4) The court 4 agrees. The plaintiffs seek documents that were gathered during TPD’s investigation of the 5 Forgues fire. Disclosure of those documents and the communications between the 6 defendants and INS Agent Newgren would compromise the effectiveness of TPD’s 7 investigative techniques. See (Doc. 23-8, p. 6, par. j) (Police Chief Chris Magnus’s 8 Declaration) (“Records disclosing information pertaining to crimes other than the Forgues 9 fire under investigation . . . would undermine the effectiveness of TPD’s investigative . . . 10 techniques.”) The plaintiffs’ subpoena will be quashed. 11 The plaintiffs argue to the contrary that the defendants do not have standing to file a 12 motion to quash a subpoena directed to a third party. (Doc. 98, p. 2) This court, however, 13 finds nothing in the wording of Rule 45(d)(3)(A) that precludes the defendants from filing 14 the pending motion. Moreover, the plaintiffs’ proposed reading of the Rule would leave the 15 defendants with a right but no remedy. The proposed discovery threatens to violate the 16 defendant’s privilege. Accordingly, the Rules should be interpreted in a way that allows 17 them to file a motion to quash. See Fed.R.Civ.P. 1; see also R. Prasad Indus. v. Flat Irons 18 Envtl. Sols. Corp., 2014 WL 2804276, at *3 (D. Ariz. 2014) (collecting cases) 19 The plaintiffs further argue that because the proposed deponent did not serve an 20 objection within 14 days of service, all objections to the discovery are waived. (Doc. 98, p. 21 2) The court does not agree. The 14-day deadline appears in Fed.R.Civ.P. 45(d)(2)(B) and 22 applies to objections filed by the “person commanded to produce documents . . . .” It does 23 not apply to a motion to quash filed pursuant to Fed.R.Civ.P. 45(d)(3)(A). Arthur J. 24 Gallagher & Co. v. O'Neill, 2017 WL 5713361, at *2 (E.D. La. 2017) (citing 9A C. Wright, 25 A. Miller, M. Kane, R. Marcus, A. Spencer, A. Steinman, Federal Practice and Procedure 26 § 2463 (3d ed. 2017)), on reconsideration, 2017 WL 6524044 (E.D. La. 2017). 27 The plaintiffs maintain that disclosure of documents to a third party waives the 28 privilege. (Doc. 98, p. 3) The plaintiffs, however, do not cite any authority for their 1 || argument. The court concludes that while this might be the general rule, disclosure of TPD 2 || documents to the IRS, another law enforcement body, does not waive the law enforcement 3 || investigatory privilege. 5 IT IS ORDERED that the motion, filed by the defendants on January 28, 2020, to 6 || quash the plaintiffs’ subpoena served on Robin Newgren/Internal Revenue Service or, in the 7 || alternative, for a protective order is GRANTED. (Doc. 96) The subpoena is quashed. 9 DATED this 3" day of April, 2020. 10 11 12 13 14 ° Reals OQ. Bowman Leslie A. Bowman 16 United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 -4-