Walters et al v. Flint et al
Filing
762
ORDER granting 753 Motion for Interlocutory Appeal. Signed by District Judge Judith E. Levy. (WBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Sherrod, Teed, Vanderhagen, and Case No. 5:17-cv-10164-JELWare,
KGA
Plaintiffs,
Hon. Judith E. Levy
Flint Water Cases Bellwether I
v.
VNA and LAN,
Defendants.
_________________________________ /
ORDER GRANTING GOVERNOR SNYDER’S MOTION FOR
INTERLOCUTORY APPEAL [753]
On March 21, 2022, the Court entered an order denying motions to
quash filed by Governor Snyder (ECF No. 712), Gerald Ambrose, Howard
Croft and Darnell Early (ECF No. 715), and Richard Baird (ECF No. 718).
Sherrod, Teed, Vanderhagen, and Ware v. VNA and LAN, No. 5:17-cv10164, 2022 WL 834009 (E.D. Mich., March 21, 2022) (“Motions to Quash
Order”). Now before the Court is Governor Snyder’s motion for
Certification of Interlocutory Appeal under 28 U.S.C. § 1292(b). Governor
Snyder’s motion is joined by Gerald Ambrose, Howard Croft, Darnell
Early and Richard Baird (collectively, “the movants”). (ECF No. 754, No.
755, No. 756, No. 757). Defendants continue to seek the movants’ live
testimony at trial and therefore agree that an expedited resolution of the
issue through interlocutory appeal is appropriate. (See ECF No. 758
(VNA’s response) and ECF No. 759 (LAN’s response). For the reasons set
forth below, the motion for interlocutory appeal is GRANTED.
I.
BACKGROUND
The Court has previously set forth the factual background leading
up to these motions to quash and adopts that background as if fully set
forth here. Motions to Quash Order, at *1-*3. On March 25, 2022, a
hearing was held to discuss the practical implications of the Court’s order
denying the motions to quash. (ECF No. 752). At that hearing, counsel
for each movant indicated that their clients would refuse to testify
despite the Court’s order. (ECF No. 752, PageID.46711.) Because the trial
is already underway, the Court set an expedited briefing schedule for this
motion to certify an interlocutory appeal. On March 29, 2022, Governor
Snyder filed this motion seeking leave to appeal (ECF No. 753) and the
motion has been fully briefed.
II.
LEGAL STANDARD
A district court shall permit a party to appeal a non-final order
when the court is “of the opinion that such order involves [1] a controlling
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question of law [2] as to which there is substantial ground for difference
of opinion and [3] that an immediate appeal from the order may
materially advance the ultimate termination of the litigation . . .” 28
U.S.C. § 1292(b); see also In re Trump, 874 F.3d 948, 950–51 (6th Cir.
2017). The burden is on the moving party to show that each requirement
of § 1292(b) is satisfied, see In re Miedzianowski, 735 F.3d 383, 384 (6th
Cir. 2012), and the district court must “expressly find in writing that all
three § 1292(b) requirements are met,” Couch v. Telescope Inc., 611 F.3d
629, 633 (9th Cir. 2010); § 1292(b). Interlocutory appeals are to be
permitted only in exceptional circumstances. See, e.g., In re City of
Memphis, 293 F.3d 345, 350 (6th Cir. 2002).
III.
ANALYSIS
At the center of this dispute are five witnesses who, under threat of
criminal indictment and represented by counsel, elected to testify during
the civil depositions that were held in this case, without appealing to
their Fifth Amendment right against self-incrimination. Those same
witnesses then filed motions to quash their subsequent trial subpoenas,
asserting a blanket right to refuse to appear at the ongoing civil trial.
Consistent with “[t]he longstanding rule of this circuit that a defendant
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must take the stand and answer individualized questions in order to
invoke his Fifth Amendment privilege,” United States v. Bates, 552 F.3d
472, 475-76 (6th Cir. 2009), this Court denied those motions. Motions to
Quash Order, at *3.
As part of its reasoning in that ruling, the Court held that a
deposition and a trial in the same civil case are parts of the same
“proceeding” for purposes of the Fifth Amendment right against selfincrimination. Id at *4. As set forth below, that ruling is subject to
reasonable disagreement and could materially affect the outcome of the
case. Moreover, an expedited ruling from the Sixth Circuit would
materially advance the ultimate termination of this litigation.
Accordingly, the issue is certified for interlocutory appeal.
First, the order turns on a controlling question of law. “A legal issue
is controlling if it could materially affect the outcome of the case.”
Memphis, 874 F.3d at 351 (citing In re Baker & Getty Fin. Servs., Inc. v.
Nat’l Union Fire Ins. Co., 954 F.2d 1169, 1172 n.8 (6th Cir. 1992)).
Although the resolution of movants’ motions to quash is not
determinative of any of Plaintiffs’ claims, the presence or absence of key
witnesses at trial could certainly have a material effect on the outcome
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of their case. Cf. In re Baker, 954 F.2d at 1172 n8 (issue can be controlling
even if its resolution would not terminate the case). Indeed, part of
Defendants’ strategy is to place the blame for the Flint Water Crisis
squarely on the shoulders of the very government officials who now seek
to remain silent. It is therefore likely that the nature and extent of live
testimony from those officials would affect the outcome of this case.
Accordingly, the first §1292(b) factor is met.
Second, there is substantial ground for difference of opinion on the
controlling legal issue. Substantial grounds for difference of opinion exist
“when ‘the question is difficult, novel and either a question on which
there is little precedent or one whose correct resolution is not
substantially guided by previous decisions.’” Miedzianowski, 735 F.3d at
384 (citing City of Dearborn v. Comcast of Mich. III, Inc., No. 08-10156,
2008 WL 5084203, at *7 (E.D. Mich. Nov. 24, 2008)). An issue is novel
“where reasonable jurists might disagree on [its] resolution.” Trump, 874
F.3d at 952 (quoting Reese v. BP Expl., Inc., 643 F.3d 681, 688 (6th Cir.
2011)). Here, reasonable jurists have, in fact, disagreed on the issue’s
resolution: two state supreme courts have considered the precise legal
question at issue here and reached contrary conclusions. Compare Moser
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v. Heffington, 465 Md. 381, 400-402 (2019) (“For Fifth Amendment
purposes, a deposition and the trial in the same matter are stages of the
same proceeding”) with State v. Roberts, 622 A.2d 1225, 1235 (N.H. 1993)
(“a pretrial deposition is a distinct proceeding for the purpose of
determining the effect of a waiver of the privilege”). No other court has
squarely addressed the question, and Sixth Circuit has not reached the
issue. Cf. In re Miedzianowski, 735 F.3d at 384 (difficult question whose
resolution is governed by “little precedent” meets 1292(b) standard).
Therefore, the second §1292(b) factor is also met.
Finally, this interlocutory appeal will materially advance the
termination of this litigation. To determine whether “[a]n interlocutory
appeal will materially advance the litigation,” courts consider “if it will
‘save substantial judicial resources and litigant expense.’” U.S. ex rel.
Elliott v. Brickman Grp. Ltd., LLC, 845 F. Supp. 2d 858, 871 (S.D. Ohio
2012) (quoting In re Regions Morgan Keegan ERISA Litig., 741 F.Supp.2d
844, 849 (W.D. Tenn. 2010)). Movants have indicated that if interlocutory
appeal is denied, they will violate the Court’s ruling so that they can
appeal an eventual contempt order as of right. (ECF No. 752,
PageID.46711.) There is no doubt that interjecting contempt proceedings
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into this ongoing civil trial for the sole purpose of permitting movants to
appeal the Court’s ruling would waste “judicial resources and litigant
expense.” Id. An immediate appeal would therefore materially advance
this litigation. Id. Accordingly, the third and final §1292(b) factor is also
met and Governor Snyder’s motion is granted.1
Although the Court grants this motion for interlocutory appeal, it
notes that movants fundamentally mischaracterize aspects of the Court’s
ruling. First, movants claim that the order under consideration raises the
following legal question:
may a district court preemptively hold that a party has waived the
Fifth Amendment privilege for purposes of a given topic (without
notice of the particular questions the questioning party intends to
ask), or must the district court evaluate the risk of further
incrimination on a question-by-question basis?
The Court is aware that appeals of orders denying motions to quash do not
ordinarily reach the Sixth Circuit through §1292(b) certification. In the criminal
context, it is well-established that “one to whom a subpoena is directed may not
appeal the denial of a motion to quash that subpoena but must either obey its
commands or refuse to do so and contest the validity of the subpoena if he is
subsequently cited for contempt on account of his failure to obey.” United States v.
Ryan, 402 U.S. 530, 532 (1971). Some districts have followed the rule of Ryan in the
civil context. See, e.g., Convertino v. U.S. Dept. of Justice, No. 07-CV-13842, 2009 WL
891701 at *1 (E.D. Mich., March 31, 2009) (denying motion for leave to appeal). In
this instance, however, denying interlocutory appeal and requiring the movants to be
held in contempt of court would result in substantial delays in the ongoing bellwether
trial, after which the issue would still reach the Sixth Circuit through an appeal as
of right. Such a process would unnecessarily expend the time and resources of all
involved, including the jury. Because of the lack of precedent on the legal issue
involved and the importance of an efficient resolution, the Court therefore determined
that an intermediate interlocutory appeal would be more appropriate.
1
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(ECF No. 753, PageID.46752.) As even cursory review of the Court’s order
would reveal, no such preemptive order was issued. Order on Motions to
Quash, at *6 (“This ruling does not resolve the scope of movants’ waiver.”)
Instead, the issue of scope was set for oral argument. Id. at *7. During
that argument, counsel represented that movants would refuse to comply
with the subpoena regardless of the Court’s resolution of the remaining
legal issues. (ECF No. 752, PageID.46716-46718.) For that reason, no
further decisions were made on the issues of scope or trial procedure.
Second, movants claim that the Court’s ruling is inconsistent with
longstanding precedent holding that the Fifth Amendment privilege
ought not be “narrowly or begrudgingly” construed. (ECF No. 753,
PageID.46759, citing Quinn v. United States, 349 U.S. 155, 162 (1955)).
Movants proceed to discuss the policies favoring broad construction of
their privilege. Id. But the reach of the Fifth Amendment privilege is
simply not at issue in these motions to quash. As counsel have
acknowledged, it is beyond dispute that their clients waived their Fifth
Amendment right during their depositions. (See, e.g., ECF No. 735,
PageID.46316 “we admit we waived for the purpose of the deposition,
because we didn’t assert it.”). The question is therefore not whether the
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Fifth Amendment’s scope would ordinarily include movants—it plainly
would—but whether movants’ undisputed waiver extends to this stage of
the proceeding. If it does, Supreme Court precedent dictates that
movants’ right has been waived as to the subjects of their testimony.
Mitchell v. United States, 526 U.S. 314, 321 (1999) (citing Rogers v.
United States, 340 U.S. 367, 373 (1951)) (“It is well established that a
witness, in a single proceeding, may not testify voluntarily about a
subject and then invoke the privilege against self-incrimination when
questioned about the details.”).
Movants also claim that the Court failed to appropriately consider
their changed circumstances. But changed circumstances would be
relevant only if the Court had determined that a deposition and
subsequent trial constituted two distinct proceedings. See In re
Morganroth, 718 F.2d 161, 165 (6th Cir. 1983) (on the “multiple
proceeding” view of waiver, a waiver in an earlier proceeding could
extend to a second proceeding only if this would not increase the risk of
prosecution) (citing Ellis v. United States, 416 F.2d 791 (D.C. Cir. 1969)).
Because the Court found that the deposition and trial were parts of one
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proceeding, consideration of changed circumstances would have been
inconsistent with Supreme Court precedent. Mitchell, 526 U.S. at 321.
IV.
CONCLUSION
For the reasons set forth above, Governor Snyder’s motion for
interlocutory appeal of the Court’s order denying movants’ motions to
quash is GRANTED.
Dated: April 1, 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 April 1, 2022.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager
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