Dowling et al v. Arpaio et al

Filing 171

ORDER that Noyes's 128 Motion for Protective Order Regarding Deposition of Ted Noyes is GRANTED except for the limited purpose of seeking factual information of which Noyes is the only source. Signed by Judge James A Teilborg on 04/15/11.(ESL)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10
11
12
13
14
15
16
17

Sandra Dowling and Dennis Dowling,)
)
husband and wife,
)
)
Plaintiffs,
)
)
vs.
)
)
Sheriff Joseph Arpaio and Ava Arpaio,)
husband and wife; Maricopa County Board)
of Supervisors; Maricopa County, a)
Municipal entity; John Does I-X; Jane)
Does I-X; Black Corporations I-V; and)
)
White Partnerships, I-V,
)
)
Defendants.
)
)

No. CV-09-1401-PHX-JAT
ORDER

18
19

Currently before the Court is the Motion for Protective Order Regarding Deposition

20

of Ted Noyes. (Doc. 128). Noyes is not a party in the current litigation between Plaintiffs and

21

Defendants. Defendant Arpaio filed a response on March 7, 2011 (Doc. 150) and Noyes filed

22

a reply on March 16, 2011. (Doc. 154). Plaintiffs have not submitted any briefing on this

23

issue. For the reasons below, the Court grants Noyes’s Motion for Protective Order under the

24

Deliberative Process Privilege and, alternatively, under Prosecutorial Immunity. However,

25

the scope of this protective order is limited as described below.

26

I. Background

27

On January 11, 2006, the Maricopa County Sheriff’s Office (“MCSO”) began

28

investigating Sandra Dowling’s alleged financial improprieties when Dowling was the

1

Maricopa County Superintendent of Schools. Noyes worked as the prosecutor assigned to

2

the case and at the time was the Assistant Attorney General. According to Defendant, the

3

lead MCSO investigator relied heavily on Noyes’s legal expertise, especially since the

4

“investigation did not involve the traditional Title 13 criminal statutes, but instead involved

5

issues related to the statutes governing public finance and public officers.” (Doc. 150, 2:7–9).

6

The investigation culminated in a grand jury proceeding and Dowling was indicted

7

on 25 felony counts on November 16, 2006. However, in 2008, the felony charges in the

8

indictment were dropped and Dowling pled guilty to a misdemeanor that was not included

9

in the original indictment. On June 3, 2009, Dowling brought suit against Defendants Arpaio,

10

the Maricopa County Board of Supervisors, and Maricopa County, alleging claims of

11

malicious prosecution, abuse of process and negligent criminal investigation, and claims of

12

“conspiracy and unconstitutional policies, training and supervision with respect to criminal

13

investigations.” (Doc. 150, 2:19–20).

14

Defendant Arpaio seeks to depose Noyes, who is no longer with the Attorney

15

General’s office, because he “possesses relevant and material evidence that is not obtainable

16

from any other source regarding the investigation and indictment that form the basis for

17

Plaintiffs’ claims against the Arpaio Defendants.” (Doc. 150, 2:22–3:2). Specifically,

18

Defendant seeks the following information from Noyes: (i) his involvement and input in the

19

investigation; (ii) his contact with Plaintiff’s defense counsel; (iii) his prosecutorial

20

assessment of the case; (iv) the grand jury proceedings; and (v) the course of the prosecution

21

after the indictment up to the time when he was conflicted off the case. (Doc. 129, 3:5–7).

22

Noyes argues that the Court should grant a Protective Order quashing the deposition because

23

the information sought is protected for the following reasons: (1) the Hickman and the work-

24

product protection; (2) attorney-client privilege; (3) deliberative process and mental

25

impressions privilege; and (4) prosecutorial immunity.

26

II.

Arguments for Protective Order

27

A.

28

Under Rule 26(b)(3)(A), “a party may not discover documents and tangible things that

Hickman and the Work-Product Protection

-2-

1

are prepared in anticipation of litigation” by or for another party unless (1) they are otherwise

2

discoverable and (2) the party can show that is has a substantial need for the materials and

3

that substantially equivalent materials cannot be obtained without undue hardship. Fed. R.

4

Civ. P. 26(b)(3)(A).However, even when the protection is not afforded to certain materials,

5

the court must “protect against disclosure of the mental impressions, conclusions, opinions,

6

or legal theories of a party’s attorney or other representative concerning the litigation.” Id.

7

26(b)(3)(B). In Hickman v. Taylor, the Supreme Court rejected an attempt to “secure written

8

statements, private memoranda and personal recollections prepared or formed by an adverse

9

party’s counsel in the course of his legal duties.” Hickman v. Taylor, 329 U.S. 495, 510

10

(1947). The Court went on to say that were such disclosure required, “[i]nefficiency,

11

unfairness and sharp practices would inevitably develop in the giving of legal advice . . . .

12

The effect on the legal profession would be demoralizing.” Id. at 511.

13

The degree to which the courts have held Hickman to represent the same standard as

14

Fed. R. Civ. P. 26(b)(3) varies. In Crosby v. City of New York, 269 F.R.D. 267, 277

15

(S.D.N.Y. 2010), a case relied on by Noyes, the court held that “the work-product doctrine

16

articulated in Hickman and its progeny . . . is broader than the protection supplied by Rule

17

26(b)(3).” However, in State of Maine v. U.S. Dep’t of Interior, 298 F.3d 60, 66 (1st Cir.

18

2002), the court held that “the work-product privilege first established in Hickman . . . [is]

19

codified in FED.R.CIV.P. 26(b)(3).” But see United States v. Deloitte LLP, 610 F.3d 129, 136

20

(D.C. Cir. 2010) (court held that “Rule 26(b)(3) only partially codifies the work-product

21

doctrine announced in Hickman”) (emphasis added).

22

The Ninth Circuit addressed this issue in In re California Pub. Util. Com’n, 892 F.2d

23

778, 781 (9th Cir. 1989), which involved a discovery dispute between the California Public

24

Utilities Commission (CPUC) and Westinghouse Electric. CPUC was not a party to the

25

action between Westinghouse and Southern California Edison. However, CPUC had issued

26

several interim decisions, the last of which said that in order to raise its rates on its

27

customers, Edison had “to file suit against Westinghouse as soon as possible.” In re

28

California, 892 F.2d at 780. Westinghouse served a subpoena duces tecum requesting all
-3-

1

“documents, memoranda, and correspondence to the litigation between Edison and

2

Westinghouse” and CPUC moved to quash the subpoena. Id.

3

In ruling that CPUC’s materials did not qualify for the work-product protection, the

4

court explained that “[a]lthough some courts have extended the work product privilege

5

outside the literal bounds of the rule, we conclude that the rule, on its face, limits its

6

protection to one who is a party (or a party’s representative) to the litigation in which

7

discovery is sought.” Id. at 781. CPUC argued that under the policy of Rule 26(b)(3) the

8

protection should be extended to “safeguard the attorney-client relationship by enabling

9

attorneys to record their thoughts and advice candidly and completely.” Id. However, the

10

court ruled that even if that were the policy of the rule, “the language of the rule makes clear

11

that only parties and their representatives may invoke its protection. [The court was] not free

12

to suspend the requirement” and, therefore, Rule 26(b)(3) was inapplicable. Id.1 Noyes is not

13

a party to the action between Plaintiffs and Defendants. Even though Noyes was involved

14

in the criminal action that led to the current civil action before the Court, applying Rule

15

26(b)(3), as directed by the Ninth Circuit, precludes Noyes from the work-product protection.

16

Therefore, Noyes’s motion for protection order is denied under Hickman and the work-

17

product protection.

18

B. Attorney-Client Privilege

19

Noyes also claims that his deposition should be prevented because the information

20

sought by Defendant falls under the attorney-client privilege and is therefore protected.

21

However, the Court has not found any authority that states that a prosecutor has an actual

22

client with whom there can be a privilege. Instead, for example, the Seventh Circuit has held

23

that “a prosecutor’s ‘client’ is not an individual, but society as a whole.” Americanos v.

24
25
26
27
28

1

The Ninth Circuit also cited Federal Practice and Procedure, which says
“[D]ocuments prepared for one who is not a party to the present suit are wholly unprotected
even though the person may be a party to a closely related lawsuit in which he will be
disadvantaged if he must disclose in the present suit.” In re California, 892 F.2d at 781.
(citation omitted).
-4-

1

Carter, 74 F.3d 138, 143 (7th Cir. 1998). Therefore, the Court denies Noyes’s Motion for

2

Protective Order based on an attorney-client privilege.

3

C. Deliberative Process and Mental Impression Privileges

4

Noyes argues that the Court should grant a protective order regarding his deposition

5

because it falls under the protection of the deliberative process and mental impressions

6

privileges. The Court has not found a separate authority granting a privilege solely as a

7

“mental impression” privilege. Instead, the two concepts are viewed in conjunction with one

8

another—a party seeks the mental impressions of a person as contained in that person’s

9

deliberative process. The deliberative process privilege permits the government to withhold

10

documents and testimony “that reflect advisory opinions, recommendations and deliberations

11

comprising part of a process by which government decisions and policies are formulated.”

12

FTC v. Warner Commc’n Inc., 742 F.2d 1156, 1161 (9th Cir. 1984); Arizona ex rel. Goddard

13

v. Frito-Lay, Inc., 2011 WL 772859, *4 (D. Ariz. 2011). However, this privilege is a

14

qualified one. “A litigant may obtain deliberative materials if his or her need for the materials

15

and accurate fact-finding override the government’s interest in non-disclosure.” FTC, 742

16

F.2d at 1161. To determine whether the privilege has been overcome, the following factors

17

are to be considered: “1) the relevance of the evidence; 2) the availability of other evidence;

18

3) the government’s role in the litigation; and 4) the extent to which disclosure would hinder

19

frank and independent discussion regarding contemplated policies and decisions.” Id.

20

Defendant seeks the following information from Noyes: 1) his involvement and input

21

in the investigation; 2) his contact with Dowling’s defense counsel; 3) his prosecutorial

22

assessment of the case; 4) the grand jury proceedings; and 5) the course of the prosecution

23

“after the Indictment up to the time he was conflicted off the case.” (Doc. 129, 3:13–18). The

24

only category of information sought by Defendant that could not be reasonably obtained

25

through another method, or that is not already in Defendant’s possession, would be Noyes’s

26

prosecutorial assessment of the case. Defendant’s own employees worked with Noyes and

27

would be able to testify as to Noyes’s involvement and input into the investigation, since that

28

input would have to go to the agency tasked with investigating Dowling’s alleged
-5-

1

wrongdoing. As to the contact with Dowling’s defense counsel, Defendant can obtain that

2

information from defense counsel. This would allow Defendant access to information

3

without potentially breaching Noyes’s deliberative process privilege. In fact, Defendant’s

4

contact with Dowling’s defense counsel as to the contact with Noyes would not breach any

5

privilege or immunity. Defendant can likewise request information from the court as to the

6

grand jury proceedings without having to depose Noyes, and, in a similar vein, Defendant

7

can adequately identify the course of the prosecution by other means.

8

What remains before the Court is Defendant’s request to determine Noyes’s

9

prosecutorial assessment of the case. The Court understands this request to be Noyes’s

10

thoughts and assessment of the evidence that was gathered against Dowling and his own

11

deliberations regarding which charges to bring against Dowling in the indictment. This

12

information falls within the deliberative process privilege and, therefore, the issue becomes

13

whether the four factors weigh in favor of allowing the privilege to be overcome. Again, the

14

four factors are: 1) relevance of the evidence, 2) availability of other evidence, 3) the

15

government’s role in the litigation, and 4) “the extent to which disclosure would hinder frank

16

and independent discussion regarding contemplated policies and decisions.” FTC, 742 F.2d

17

at 1161.

18

There is no argument by either party regarding the relevancy of Noyes’s assessment

19

of the case and therefore this factor weighs in Defendant’s favor. The second factor,

20

availability of other evidence, also weighs in Defendant’s favor. However, this depends on

21

how “prosecutorial assessment” is defined. If it is defined as the Court has interpreted it

22

above, as evidence of his deliberative process as to how and why he decided what to include

23

in the indictment against Dowling, then there is no other way to obtain that information. But

24

if “prosecutorial assessment” is defined to mean how Noyes decided to act after examining

25

the evidence provided, then Defendant can obtain that information simply by examining the

26

indictment brought to the grand jury. That indictment contains Noyes’s assessment of the

27

case as a prosecutor—it reflects what he thought should be included based on the evidence.

28

The third element, the government’s role in the litigation, weighs in favor Noyes
-6-

1

rather than Defendant. In Frito-Lay, the plaintiff sought protection under the deliberative

2

process privilege. Frito-Lay, 2011 WL 772859, at *4. The court noted the importance of the

3

fact that the plaintiff made a reasonable cause determination, which then became admissible

4

at trial, but that it was the plaintiff who sought to have this finding protected under the

5

privilege. Id. at *6. Here, because the prosecutor’s office is not involved in the litigation,

6

there is less of a need to overcome the privilege.

7

The last element is whether overcoming the privilege would hinder frank and

8

independent discussion “regarding contemplated policies and decisions.” Prosecutors are in

9

a unique position in our legal system. They must be able to freely consider the evidence and

10

determine how best to proceed against those charged with breaking the law, without having

11

their decisions second-guessed by others. Were this Court to allow Noyes to be deposed

12

regarding his deliberative process in the case against Plaintiff, it would set an undesirable

13

precedent for the future. Defendants who are charged with a crime, but later have those

14

charges dropped or who are acquitted after a trial, would be able to question the prosecutor

15

through a deposition or in court, and hunt for any hint of wrongdoing, even where none

16

might exist. Prosecutors must be able to freely develop legal theories based on certain

17

evidence without the fear that the choice to develop theory A over B, or to give greater

18

weight to evidence C over D, would allow that prosecutor to be the subject of a rigorous

19

deposition or courtroom proceeding. Therefore, the Court grants Noyes’s Motion for

20

Protective Order because his deposition would constitute an unjustifiable invasion of Noyes’s

21

deliberative process privilege.

22

D. Prosecutorial Immunity

23

In Imbler v. Pachtman, 424 U.S. 409, 424 (1976), the Supreme Court held that

24

prosecutors enjoy absolute immunity from their actions “in initiating a prosecution and in

25

presenting the State’s case.” In Imbler, the plaintiff brought a civil rights action against the

26

state prosecuting attorney, claiming loss of liberty caused by unlawful prosecution. Id. at 409.

27

The Supreme court explained that a prosecutor is

28

duly bound to exercise his best judgment both in deciding which
-7-

suits to bring and in conducting them in court. The public trust
of the prosecutor’s office would suffer if he were constrained in
making every decision by the consequences in terms of his own
potential liability in a suit for damages. . . . Further, if the
prosecutor could be made to answer in court each time such a
person charged him with wrongdoing, his energy and attention
would be diverted from the pressing duty of enforcing the
criminal law.

1
2
3
4
5

Id. at 424–25. Noyes is not a party to the lawsuit between Plaintiff and Defendant. Imbler,
6
and most of its progeny, have only applied prosecutorial immunity to matters in which the
7
prosecutor is a named defendant. As such Noyes is not immediately entitled to protection
8
under this immunity.
9
Noyes cites to Chang v. U.S., 246 F.R.D. 372 (D. D.C. 2007), which extended
10
Imbler’s protection to include the deposition of a non-party prosecutor. The court explained
11
that to require prosecutors to defend their decisions and discretion, “regardless of whether
12
they are the named defendants, implicates the same concerns the Supreme Court articulated
13
in Imbler.” Chang, 246 F.R.D at 374. As an alternative basis for this ruling, this Court
14
embraces the reasoning put forth in Chang. To allow a party to depose a prosecutor, even
15
though the prosecutor is not a named party to the action, would implicate the same concerns
16
that have been articulated above, namely a chilling effect on a prosecutor’s decision-making
17
and thought processes. The Court will not allow Defendant, or future defendants, to create
18
an end run around the protections and prohibitions articulated in Imbler.
19
It is important to note that by granting Noyes’s Motion for Protective Order, the Court
20
is not prohibiting the convening of the deposition, to the extent that it is not outside the
21
contours of this order. Therefore, the Court will allow the deposition to take place to identify
22
those, and only those, factual matters that are not attainable from other sources. To the extent
23

that Noyes is the sole source of the factual information sought,2 his deposition may proceed.

24
25
26
27
28

2

For example (which arose during oral argument) it would be appropriate to depose
Noyes regarding the organization of the file he used during Dowling’s investigation.
However, if the deposition were to seek information regarding why something was put into
the file, then the deposition would be contrary to this order.
-8-

1

Accordingly,

2

IT IS ORDERED that Noyes’s Motion for Protective Order Regarding Deposition

3

of Ted Noyes (Doc. 128) is GRANTED except for the limited purpose of seeking factual

4

information of which Noyes is the only source.

5

DATED this 15th day of April, 2011.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-9-