Waid et al v. Snyder et al

Filing 2267

OPINION AND ORDER granting 2233 Motion to Quash. Signed by District Judge Judith E. Levy. (WBar)

Case 5:16-cv-10444-JEL-EAS ECF No. 2267, PageID.74087 Filed 11/17/22 Page 1 of 11

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

In re Flint Water Cases.
________________________________/

Judith E. Levy
United States District Judge

This Order Relates To:
ALL CASES
________________________________/
OPINION AND ORDER GRANTING NON-PARTIES GARY
MILES AND BRENDAN CLAREY’S MOTION TO QUASH
SUBPOENAS [2233]
Before the Court is non-parties’ Gary Miles and Brendan Clarey’s
motion to quash subpoenas. (ECF No. 2233.) Plaintiffs served subpoenas
for documents and depositions on Gary Miles, Editor and Publisher of
The Detroit News, and Brendan Clarey, an opinion writer and editor for
The Detroit News. (ECF No. 2233; 2240.) Miles and Clarey argue that the
subpoenas seek documents and information that go beyond the scope of
the claims and defenses in the underlying litigation. Further, they argue
that the subpoenas seek information that is more properly discoverable
from Defendants and other non-media non-parties. (ECF No. 2233,

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PageID.73813–73814.) For the reasons set forth below, Miles’ and
Clarey’s motion is granted.
I.

Background
Plaintiffs’ subpoenas to Miles and Clarey seek the same

information. (ECF No. 2233-3, PageID.73834–73838 (Miles subpoena);
ECF No. 2240, PageID.73875–73879 (Clarey subpoena).) They seek:
All documents/tangible things and communications related to
your/anyone at Detroit News’ communications related to
Tiger Joyce’s Op-ed, published on August 31, 2022, related to
the Flint Water Crisis, including but not limited to
correspondence with:
a. The American Tort Reform Association;
b. Tiger Joyce;
c. Any/all Veolia Entities;
d. Lockwood Andrew Newman [sic];
e. Leo A. Daly Company
f. Rise Public Strategies;
g. Tarrah Cooper Wright;
h. Simpli.fi;
i. Mercury Public Affairs;
j. Rasky Partners, Inc.;
k. Any/all public relation firms that had any contact
with you/Detroit News about Tiger Joyce’s Op-ed,
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published on August 31, 2022, related to the Flint water
crisis.
2. All documents/tangible things and communications related
to your/anyone at Detroit News’ communications related to
vetting Tiger Joyce’s Op-ed, specifically but not limited to the
following assertions therein:
a. “Instead, this latest civil trial has exposed the true
intentions of the plaintiffs’ attorneys involved: to get
rich by bankrupting companies with deep pockets.”
b. “So why bring additional litigation against two
engineering companies who claim they were kept out of
the loop or only entered the Flint water crisis after lead
was already detected?[”]
c. “The trial lawyers’ incendiary statements seem to
indicate that it’s because the $200 million in legal fees
they collected from the original settlement was not
enough.”
d. “These abuses can have devastating impacts on
businesses, large and small. But more importantly, it
often ends with trial lawyers taking home millions while
real victims are left with pennies. That was the case in
the original 2021 Flint water settlement where victims
took home on average only $4,500 each.”
e. Compared to the millions that trial attorneys
received, former mayor of Flint Karen Weaver
responded calling the 2021 settlement, [‘]a slap in the
face[’] and saying [‘]this was not justice for the people of
the city of Flint.[’”]
(ECF No. 2233-3, PageID.73838; ECF No. 2240, PageID.73878.)

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Miles and Clarey argue that the subpoenas are overly broad,
unduly burdensome, and do not seek information relevant to the
underlying claims and defenses in the Flint water litigation. (Id. at
PageID.73819.) As to the scope of the subpoenas, Miles and Clarey argue
that “the placement of an op-ed in 2022 is of no relevance to a dispute
regarding lead in Flint water spanning years.” (Id. at PageID.73820.)
As to the undue burden, Miles and Clarey emphasize that the
unique role of the media should be considered when the Court assesses
their burden to comply with the subpoenas. They argue that this burden
is particularly high where the information sought is available from other
non-media sources, beginning with the Defendants in this case. (Id. at
PageID.73820.) They argue that the burden of compliance could impact
the dissemination of information to the public as follows:
the burden on Mr. Miles and Mr. Clarey to attend depositions
and produce documents is great, as it potentially requires
them to produce confidential, unpublished material and
communications from Mr. Miles and Mr. Clarey related to
their editorial functions. Allowing access to these materials
and communications from a journalist will severely inhibit
the flow of accurate information to the interested public.
(Id. at PageID.73821–73822.)

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Plaintiffs’ respond that Tiger Joyce’s op-ed, which ran in Miles’ and
Clarey’s newspaper, The Detroit News, on August 31, 2022, is part of a
larger scheme orchestrated by the Veolia Defendants to “spread[]
misinformation to the Bellwether I jurors and potentially hundreds of
thousands of future jurors.” (ECF No. 2248, PageID.73909.) Plaintiffs
argue that it is “strange[]” that Mr. Joyce, who typically publishes
editorials in trade outlets, would publish his op-ed in The Detroit News,
which is the “hometown paper for the jury pool in this District.” (Id. at
PageID.73910.)
Plaintiffs also point to the timing of the Joyce op-ed as “no accident.”
(Id. at PageID.73916.) Shortly after the Joyce piece appeared, The Detroit
News published an article regarding a digital media campaign that was
allegedly being waged by the Veolia Defendants during the Bellwether I
trial jury selection. (See, generally, Case 5:17-cv-10164-JEL-KGA ECF
No. 990 (mentioning article written by Kayla Ruble, Company Sued Over
Flint’s Water Crisis Wages Digital PR War During Trial, The Detroit
News, September 8, 2022 (https://perma.cc/P8NB-NFCM)).) The Joyce
article, Plaintiffs argue, was published to “undermine the Ruble article
before it was made public.” (Id.) Plaintiffs suspect that Joyce’s article
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“could be part of Veolia’s efforts to influence jurors.” (Id. at
PageID.73912.)
Plaintiffs argue that Miles and Clarey’s roles at The Detroit News
mean they would have “signed off on Joyce’s article before it was
published,” and it is important for Plaintiffs to learn whether Veolia was
“part of the process.” (Id. at PageID.73912–73913.) Miles and Clarey’s
reply argues that the Court should quash Plaintiffs’ subpoena because
Plaintiffs’ theories of relevance are “entirely speculative” and “meritless.”
(ECF No. 2254, PageID.74022.)
II.

Legal Standard
Miles and Clarey move to quash their subpoenas, or, in the

alternative, for the Court to limit the subpoenas’ scope. (ECF No. 2233.)
Under Federal Rule of Civil Procedure 26, “[p]arties may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim
or defense and proportional to the needs of the case.” Fed. R. Civ. P.
26(b)(1).
The trial court may limit discovery and, in its discretion, may
“determine that a discovery request is too broad or oppressive.” Superior
Production P’ship v. Gordon Auto Body Parts Co., Ltd., 784 F.3d 311, 321
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(6th Cir. 2015) (citing Surles ex rel. Johnson v. Greyhound Lines, Inc.,
474 F.3d 288, 305 (6th Cir. 2007)).
Under Federal Rule of Civil Procedure 45, the Court “must quash
or modify a subpoena that:. . . subjects a person to undue burden.” Fed.
R. Civ. P. 45(b)(3)(A)(iv). The Circuit recognizes that the burden imposed
on journalists due to their status as news-gatherers should be carefully
balanced against the interests of the party seeking the discovery. See In
re DaimlerChrysler AG Sec. Litig., 216 F.R.D. 395 (E.D. Mich. 2003) (“In
re Daimler”).
III.

Discussion
Miles and Clarey’s motion to quash is granted. While there are

certainly some circumstances where it would be appropriate for a party
to take third-party discovery from a media outlet, this is not one of them.
In the case In re Daimler, the plaintiff alleged that the defendant
violated the Securities and Exchange Act through its misrepresentations
to its shareholders during a corporate merger. 216 F.R.D. at 396. The
plaintiff subpoenaed two third-party business reporters for The Detroit
News. These reporters had covered the merger events as they unfolded
and, following the merger, wrote a book about it. Id. at 396–97. The two
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reporters conducted more than two hundred interviews for their book. Id.
at 397. The plaintiffs’ subpoena sought “production of essentially all
notes, recordings, source material, secondary sources, and any other
material reviewed or utilized in any way in the preparation” of the book,
among other things. Id. The plaintiffs later narrowed the scope of their
request, but the narrowed-down scope still included information that the
two reporters obtained about 97 people acknowledged in the book. Id. The
plaintiff moved to compel compliance with the subpoenas after the thirdparty reporters objected to them. Id. at 395.
The In re Daimler court1 denied the plaintiffs’ motion to compel for
several reasons including that much (if not all) of the evidence sought
“may well be obtainable from other sources” which the plaintiffs had not
explored. Id. at 403. The reporters’ status as news-gatherers mattered in
the Court’s analysis. Id. at 403. The Court cautioned, “[g]iven the
important role that newsgathering plays in a free society, courts must be
vigilant against attempts by civil litigants to turn non-party journalists
or newspapers into their private discovery agents.” Id. at 406.
Accordingly, the Court held that after:

1

Magistrate Judge R. Steven Whalen issued the opinion of the Court.

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looking at the totality of the circumstances, including the
Respondents’ position as news-gatherers, I find, in the
exercise of my discretion, that the information sought by the
Plaintiffs is obtainable by other sources less burdensome to
Respondents; that Plaintiffs have ample opportunity to obtain
the information they seek within the scope of the discovery [.
. .]; and that the burden on these third-party Respondents of
producing the requested documents outweighs the likely
benefit to the Plaintiffs.
Id. at 406.
Similarly, here, the burden on Miles and Clarey to comply with this
subpoena in their roles at The Detroit News outweighs the benefit to
Plaintiffs. The information that Plaintiffs seek from Miles and Clarey is
available from other, non-news media sources, including Defendants or
even Mr. Joyce. Burdening the news media with a subpoena such as this
could potentially inhibit the newspaper staff’s roles as members of the
media.
Even if Miles and Clarey were non-media, however, Plaintiffs’
subpoena would be quashed because they have not demonstrated a clear
link between discovery of information regarding the Joyce op-ed from
Miles and Clarey and the allegations against the Veolia Defendants
involving geo-targeting and potentially influencing the Bellwether I jury.
For one thing, the Joyce article was published after the Bellwether I trial
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ended in a mistrial, so it could not have been an attempt to influence that
jury. Given that the Joyce op-ed was published in August 2022 and the
re-trial will not take place until late February 2023, concerns regarding
its influence on a future jury are too remote. Nor is the fact that the oped was published in The Detroit News, a local southeast Michigan
newspaper, of great concern because the trial is a newsworthy event in
this region.
Notably, Plaintiffs are correct that there are a concerning number
of factual inaccuracies in Joyce’s op-ed that range from relatively
innocuous (i.e., “The previous judge overseeing the case, Judith E. Levy.
. .” is inaccurate because the undersigned was and remains the only
district judge assigned to this case) to utterly baseless (i.e., “That was the
case in the original 2021 Flint water settlement where victims took home
on average only $4,500 each,” is inaccurate because no payments can
possibly be made to claimants while an appeal is underway in the Sixth
Circuit. Moreover, the Court knows of no basis, whatsoever that
underlies the “$4,500 each” claim, which by all accounts appears entirely
fabricated and inflammatory). There are more inaccuracies in the Joyce
op-ed regarding even elementary facts of this case and the partial
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settlement that do not warrant mention. Regardless, these inaccuracies
may be of interest to Miles, Clarey, and their readership, but they do not
make a difference in the Court’s decision to quash the subpoenas of Miles
and Clarey.
IV.

Conclusion
In conclusion, Miles and Clarey’s motion to quash is granted.
IT IS SO ORDERED.

Dated: November 17, 2022
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or first-class U.S. mail addresses
disclosed on the Notice of Electronic Filing on November 17, 2022.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager

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