Carlson v. Special Programing For Achievement Network of the Alabama Department of Youth Services
MEMORANDUM OPINION AND ORDER GRANTING WITHOUT PREJUDICE 109 MOTION to Quash to the right of ADHR to refile it subject to the following conditions as set out herein. Signed by Judge Virginia Emerson Hopkins on 8/6/2012. (JLC)
2012 Aug-06 PM 05:13
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JOHN A. CARLSON,
) Case No.: 1:10-CV-3-VEH
MEMORANDUM OPINION AND ORDER
Pending before the court is the Motion To Quash Or for Protective Order and
Compensation (Doc. 109) (the “Motion”) filed by dismissed defendant Alabama
Department of Human Resources (“ADHR”) on August 8, 2012. The Motion pertains
to a subpoena issued by Plaintiff on July 27, 2012, which seeks investigative files
within ADHR’s possession, custody, or control relating to “allegations and/or
complaints of improper child/student contact against Shon C. Holton . . . .” (Doc.
109-1 at 2).
The Motion maintains that the records sought by Plaintiff “are confidential
under state law, pursuant to Ala. Code §§ 26-14-8(c), 38-2-6(8), 39-7-13, and 38-9-
6(e) (1975) . . . .” (Doc. 109 ¶ 3). The Motion also contends that the subpoena is
overly broad and objects to the release of any information that would be protected by
privilege or attorney work product. (Id. ¶ 4).
The Motion seeks to quash the subpoena or alternatively asks for the court to
conduct an in camera inspection of the records and also enter a protective order
regarding them. (Doc. 109 at 4). Additionally, ADHR seeks reimbursement for the
reasonable costs associated with any production that is ordered by the court. (Id.).
Discovery Orders Generally
Regarding discovery rulings:
A district court has wide discretion in discovery matters and our review
is “accordingly deferential.” Harbert Int’l, Inc. v. James, 157 F.3d
1271, 1280 (11th Cir. 1998). A court abuses its discretion if it makes a
“clear error of judgment” or applies an incorrect legal standard.
Carpenter v. Mohawk Indus., Inc., 541 F.3d 1048, 1055 (11th Cir. 2008)
(per curiam). Moreover, a district court’s denial of additional discovery
must result in substantial harm to a party’s case in order to establish an
abuse of discretion. See Leigh v. Warner Brothers, Inc., 212 F.3d 1210,
1219 (11th Cir. 2000).
Bradley v. King, 556 F.3d 1225, 1229 (11th Cir. 2009); accord Iraola & CIA, S.A. v.
Kimberly-Clark Corp., 325 F.3d 1274, 1286 (11th Cir. 2003) (“Moreover, we will not
overturn discovery rulings ‘unless it is shown that the District Court’s ruling resulted
in substantial harm to the appellant’s case.’”) (quoting Carmical v. Bell Helicopter
Textron, Inc., 117 F.3d 490, 493 (11th Cir. 1997) (footnote omitted)).
Rule 26 Protective Orders Specifically
Federal Rule of Civil Procedure 26(c) specifically provides that
a party may file a motion for a protective order “to protect a party or
person from annoyance, embarrassment, oppression, or undue burden or
expense[.]” Fed. R. Civ. P. 26(c). The district court may issue a
protective order if “good cause” is shown, and such an order “is not
subjected to heightened scrutiny.” In re Alexander Grant & Co. Litig.,
820 F.2d 352, 355 (11th Cir. 1987); see also Fed. R. Civ. P. 26(c). The
burden is on the movant to show the necessity of the protective order,
and the movant must meet this burden with a “particular and specific
demonstration of fact as distinguished from stereotyped and conclusory
statements.” United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir.
1978). In addition to requiring good cause, the district court must
“balance the interests of those requesting the order.” McCarthy, 876
F.2d at 91.
Ekokotu v. Federal Exp. Corp., 408 Fed. App’x 331, 335-36 (11th Cir. 2001)
(emphasis added) (footnote omitted).
Plaintiff has not yet filed a response to the Motion, and there is no indication
within the Motion whether ADHR ever conferred with Plaintiff before filing it.
Additionally, while ADHR has generally claimed privilege and work product as
bases for withholding production, it has not, pursuant to Rule 45(d)(2)(A)(ii),
“describe[d] the nature of the withheld documents, communications, or tangible
things in a manner that, without revealing the information itself privileged or
protected, will enable the parties to assess the claim.” Fed. R. Civ. P. 45(d)(2)(A)(ii).
Further while ADHR does refer to some supporting state law, it nevertheless
lacks any citations to applicable federal rules or case law. Finally, ADHR has not
attached a proposed protective order or alternatively indicated whether the one that
is already in place (Doc. 40) is acceptable to it for the purposes of producing records
responsive to the subpoena.
Accordingly, the Motion is GRANTED WITHOUT PREJUDICE to right of
ADHR to refile it subject to the following conditions: (1) ADHR shall confer with
Plaintiff’s counsel about the substance of its Motion to see if an agreement can be
reached over how to handle the subpoena; (2) if the parties are unable to resolve their
dispute by stipulation, then ADHR shall state in the Motion the efforts that were
made to resolve it without court intervention and indicate what, if any, areas of partial
agreement were reached; (3) any subsequently filed motion must include applicable
citations to federal rules and law supporting the relief sought; (4) if ADHR intends
to assert any privilege or protection against production, then it must completely
comply with the requirements of Rule 45(d)(2)(A)(ii) or the court will not consider
the merits of such contentions as grounds justifying non-compliance with the
subpoena; and (5) ADHR shall attach to any subsequently filed motion, and email to
chambers in WordPerfect format, a proposed protective order for the court to consider
(in the event that ADHR takes the position that the protective order already entered
in this file is not sufficient).
DONE and ORDERED this the 6th day of August, 2012.
VIRGINIA EMERSON HOPKINS
United States District Judge
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