Navarro v. Applebee's Services et al

Filing 40

ORDER granting 31 Motion to Compel subject to certain conditions. Ordered by Judge Hugh Lawson on 09/20/10. (mbh)

Navarro v. Applebee's Services et al

Doc. 40

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF GEORGIA V AL D O S T A DIVISION B E AT R IZ NAVARRO, surviving : s p o u s e and natural heir to : C H R IS T IA N GONZALEZ, deceased, : : P la in tiff, : : v. : : : : : : :

Civil Action No. 7:10-CV-6(HL)

AP P L E B E E 'S INTERNATIONAL, IN C . and APPLE TWO AS S O C IAT E S , INC., D e fe n d a n ts ______________________________

ORDER B e fo re the Court is Plaintiff Beatriz Navarro's ("Plaintiff") Motion to C o m p e l Subpoena Responses from Andrew Pope and Brian McDaniel (D o c . 31). Andrew Pope and Brian McDaniel are both non-parties to this a c tio n and neither of them have filed a response to Plaintiff's Motion, a lth o u g h each served an objection to the initial subpoenas. I. F AC T S AND PROCEDURAL HISTORY O n May 26, 2008, Michael Burdette ("Burdette"), an intoxicated d rive r, struck the vehicle driven by Christian Gonzalez, ultimately killing h im . (Doc. 1, Exhibit A). It is alleged that prior to the accident, Burdette vis ite d an Applebee's restaurant where the Applebee's staff served B u rd e tte a quantity of alcoholic beverages, even though Burdette was

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already noticeably intoxicated. (Doc. 1, Exhibit A). The Plaintiff named the f r a n c h is o r (Applebee's Services, Inc.) and the franchisee (Apple Two A s s o c ia te s , Inc.) of the Applebee's restaurant as Defendants. E xh ib it A).1 B u rd e tte is currently under criminal indictment in Colquitt County for ve h ic u la r homicide. (Doc. 31, Exhibit A). Burdette is being prosecuted for t h e s e charges by Assistant District Attorney Brian McDaniel, of the S o u th e rn Circuit District Attorney's Office. (Doc. 31). Andrew Pope is (Doc. 1,

s e rvin g as Burdette's criminal defense attorney. (Doc. 31). P la in tiff served subpoenas on Messrs. Pope and McDaniel (Doc 31,

re q u e s tin g documents related to the criminal investigation.

E x h ib it s B & C). They both objected to the subpoena, claiming that the d o c u m e n ts relate to an ongoing criminal investigation and are not subject t o discovery under the Georgia Open Records Act ("ORA"). (Doc. 31,

E xh ib its D & E). Messrs. Pope and McDaniel also asserted the attorneyc lie n t privilege, the work-product doctrine, and a defendant's Fifth A m e n d m e n t right against self-incrimination as objections to producing the re q u e s te d documents. (Doc. 31, Exhibits D & E). P la in tiff now seeks a Court Order compelling subpoena responses fro m Messrs. Pope and McDaniel under Federal Rule of Civil Procedure

1

Applebee's International, Inc. has subsequently been substituted for A p p le b e e 's Services, Inc. as the appropriate corporate franchisor.

45.

(Doc. 31).

Rule 45 governs the service of subpoenas upon non-

p a rtie s , and because Messrs. Pope and McDaniel are non-parties to the in s ta n t action, Rule 45 governs the Plaintiff's discovery requests. II. AN AL Y S IS In support of the Plaintiff's Motion to Compel, the Plaintiff contends th a t the ORA does not apply to discovery requests; that the common law in ve s tig a to ry privilege is either waived or outweighed by the Plaintiff's need f o r information; and that Burdette's Fifth Amendment rights will not be v i o la te d . (Doc. 31). Plaintiff further claims that she has no interest in

o b ta in in g privileged attorney-client communications or attorney workp ro d u c t from the criminal case. (Doc. 31). A. W h e th e r the Georgia Open Records Act prohibits the P la in tiff's discovery requests T h e ORA provides the right for citizens to inspect public records. See O.C.G.A. § 50-18-70(b). "The purpose of the Open Records Act is to e n c o u ra g e public access to government information and to foster c o n fid e n c e in government through openness to the public." McFrugal

R e n ta l of Riverside v. Garr, 262 Ga. 369, 370, 418 S.E.2d 60, 61 (1992). This purpose differs from the purpose of civil discovery, which is to remove s u r p r is e from trial preparation and allow the parties to acquire evidence n e c e s s a r y to evaluate and resolve their dispute. Nutt v. Black Hills Stage L in e s , LLC, 452 F.2d 480, 483 (8th Cir. 1971). Because the two schemes

serve different purposes, the ORA does not determine the scope of d is c o ve ra b ility in civil actions. See Millar v. Fayette County Sheriff's Dept., 2 4 1 Ga. App. 659, 659-660, 527 S.E.2d 270, 271 (1999) ("The rights of an in d ivid u a l under the Open Records Act and the rights of a litigant under d is c o ve ry statutes are separate and distinct, and nothing... should be read to require any conflation of the two.") Therefore, the ORA does not prohibit P la in tiff's discovery requests. B . W h e th e r the law enforcement investigatory p r o h ib its the Plaintiff's discovery requests privilege

The law enforcement investigatory privilege is a federal common law p rivile g e that may be raised to protect the disclosure of information c o n ta in e d in criminal investigations. See Swanner v. United States, 406 F .2 d 716, 719 (5th Cir. 1969). To maintain a claim of privilege, the head of th e department that has control over the requested information must fo rm a lly raise a claim of privilege. In re Sealed Case, 856 F.2d 268, 272 (D .C . Cir. 1988). This request must be accompanied by a detailed

s p e c ific a tio n of the information for which the privilege is claimed and an e xp la n a tio n why it properly falls within the scope of the privilege. Id. Even if this privilege applies to the instant action under federal common law, the S ta te of Georgia has not complied with the requirements for raising this p rivile g e . Therefore, the law enforcement investigatory privilege does not p re ve n t the Plaintiff from receiving the requested documents.

C. W h e th e r the Fifth Amendment right against self-incrimination p r o h ib its the Plaintiff's discovery requests The privilege against self-incrimination may be invoked in civil as w e ll as in criminal proceedings. See Baxter v. Palmigiano, 425 U.S. 308, 3 1 8 , 96 S.Ct. 1551, 1558 (1994). In both civil and criminal cases, the Fifth A m e n d m e n t right only applies to testimonial evidence. United States v. Evidence is

H u b b e ll, 530 U.S. 27, 34-36, 120 S.Ct 2042-43 (2000).

te s tim o n ia l when a defendant's communication itself, explicitly or implicitly, re la te s a factual assertion or discloses information. Id. at 37, 120 S.Ct at 2044. Accordingly, the act of producing documents in response to a

s u b p o e n a may have a compelled testimonial aspect because "the act of p ro d u c tio n " itself may implicitly communicate "statements of fact." Id. at 36, 1 2 0 S.Ct at 2043. However, based on the nature of documents requested a n d the absence of an assertion by Mr. Pope that producing the requested d o c u m e n ts would implicitly communicate a statement of fact, the Court d o e s not believe that producing these documents will violate Mr. Burdette's F ifth Amendment rights. It is insufficient for Mr. Pope to simply make a b la n k e t statement that Mr. Burdette's Fifth Amendment rights could be v io la te d . III. C O N C L U S IO N T he ORA, the federal investigatory privilege, and the Fifth

A m e n d m e n t do not prevent the Plaintiff from acquiring the documents she

requests.

Furthermore, while Messrs. Pope and McDaniel each make

g e n e ra l statements that the requested documents are protected by the a tto rn e y -c lie n t and work-product privileges, they have not identified any p a rtic u la r documents that they allege are protected. If there are documents t h a t Messrs. Pope and McDaniel believe should be withheld because they a re privileged, those documents should be submitted to the Court for an inc a m e ra review no later than September 27, 2010. However, Messrs. Pope a n d McDaniel may not claim work-product or attorney-client privilege on a n y documents already disclosed to the opposing party in the criminal c a s e . Any documents submitted for review will be timely reviewed by the C o u rt. All other requested documents for which the work-product doctrine a n d attorney-client privilege are not claimed must be provided to Plaintiff no la te r than September 30, 2010. SO ORDERED, this the 20th day of September, 2010.

/s / Hugh Lawson HUGH LAWSON, SENIOR JUDGE

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