Sabata et al v. Nebraska Department of Correctional Services et al

Filing 255

ORDER - IT IS ORDERED: Marshall Lux, Public Counsel's, Motion to Quash (Filing No. 108 ) is granted. Ordered by Magistrate Judge Michael D. Nelson. (TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HANNAH SABATA; DYLAN
CARDEILHAC; JAMES CURTRIGHT;
JASON GALLE; RICHARD GRISWOLD;
MICHAEL GUNTHER; ANGELIC NORRIS;
R. P., a minor; ISAAC REEVES; ZOE RENA;
and BRANDON SWEETSER; on behalf of
themselves and all others similarly situated;

4:17CV3107

Plaintiffs,
ORDER

vs.
NEBRASKA DEPARTMENT OF
CORRECTIONAL SERVICES; SCOTT
FRAKES, in his official capacity as Director of
the Nebraska Department of Correctional
Services; HARBANS DEOL, in his official
capacity as Director of Health Services of the
Nebraska Department of Correctional Services;
NEBRASKA BOARD OF PAROLE; JULIE
MICEK, in her official capacity as the Board of
Parole Acting Parole Administrator; and
DOES, 1 to 20 inclusive;
Defendants.

This matter is before the Court on the Motion to Quash (Filing No. 108) filed by a
nonparty, Marshall Lux, Public Counsel for Nebraska (“Public Counsel”). The Public Counsel
requests that the Court quash the subpoena duces tecum served on him by Defendant, Nebraska
Department of Correctional Services (“NDCS”), because the documents sought by the subpoena
are not relevant to this litigation and are privileged under Nebraska law. For the following
reasons, the Court will grant the motion.

BACKGROUND
Plaintiffs, inmates within the custody and control of the NDCS, filed this proposed class
action on August 15, 2017, against Defendants NDCS and its administrators and medical staff,
asserting violations of the plaintiffs’ civil and constitutional rights. Plaintiffs’ claims arise out of
their allegations that Nebraska state prisons are “overcrowded, under-resourced, and

understaffed, and that prisoners are “consistently deprived of adequate health care, including
medical, dental, and mental health care, and denied accommodations for their disabilities.”
(Filing No. 1 at p. 4). Plaintiffs are represented by a number of attorneys from various firms and
organizations, including the National Prison Project of the American Civil Liberties Union
(“ACLU”), the National Association of the Deaf Law & Advocacy Center, and the Nebraska
Appleseed Center. The NDCS seeks documents from the office of the Public Counsel regarding
communications with these firms and organizations. See Filing No. 108-1.
The Nebraska legislature established the office of Public Counsel to perform certain
duties, including investigating “any administrative act of any administrative agency,” such as the
NDCS. See Neb. Rev. Stat. §§ 81-8,241 and 81-8,245 (R.S.Supp. 2018). In addition, the
Inspector General of the Nebraska Correctional System (“Inspector General”) was created within
the office of the Public Counsel to conduct “investigations, audits, inspections, and other reviews
of the Nebraska correctional system.” Neb. Rev. Stat. § 47-904(1)(R.S.Supp. 2018); see also
Neb. Rev. Stat. § 81-245(9). The Inspector General’s duties include investigating “[a]llegations
or incidents of possible misconduct, misfeasance, malfeasance, or violations of statutes or of
rules or regulations of the department by an employee of or a person under contract with the
department . . .” and “[d]eath or serious injury in private agencies, department correctional
facilities, and other programs and facilities licensed by or under contract with the department.”
Neb. Rev. Stat. § 47-905(1)(a)-(b).
The subpoena served by the NDCS on the Public Counsel requests “[a]ll communications
and contents of such communications,” including emails and messages “sent by or from” the
office of Public Counsel (including the Inspector General) to Plaintiffs’ counsel and their
respective firms and organizations. The subpoena states the request “is limited in scope to
communications or contents of such communications sent from January 1, 2014, to the present”
regarding any of the individually named plaintiffs. (Filing No. 108-1 at p. 3). The Public
Counsel provided the Court with a Privilege Log (Filing No. 110-4) listing eight emails either
from the Public Counsel or the Inspector General with ACLU counsel as either an addressee or a
recipient. The Public Counsel represents the eight emails are all the documents responsive to the
NDCS’s subpoena. (Filing No. 110-1 at p. 7). The Public Counsel has filed the instant motion
to quash the subpoena for two reasons: (1) the NDCS has not made a threshold showing of

2

relevance of the requested documents and (2) the requested documents are privileged under Neb.
Rev. Stat. §§ 81-8,253 and § 47-916.
ANALYSIS
A. Relevance
“[T]he scope of discovery under a subpoena is the same as the scope of discovery under
Rules 26(b) and 34 and is subject to the rules that apply to other methods of discovery.” Quiles
v. Union Pac. R.R. Co., No. 8:16CV330, 2018 WL 737403, at *1 (D. Neb. Feb. 6, 2018)(quoting
Desert Orchid Partners, LLC v. Transaction System Architects, Inc., 237 F.R.D. 215, 217 (D.
Neb. 2006)). “Parties 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). “When a party issuing a subpoena makes a threshold showing that the discovery
sought is relevant, a person or company resisting the subpoena bears the burden of showing that
its objections are valid by providing specific explanations or factual support as to how the
requested information is improper.” McGehee v. Nebraska Dep’t of Corr. Servs., No.
4:18CV3092, 2019 WL 266423, at *2 (D. Neb. Jan. 17, 2019)(citing Kinzer v. Remington Arms
Co., No. 8:11-cv-75, 2011 WL 1659883, at *3 (D. Neb. May 3, 2011)). The scope of relevant
discovery is extremely broad. “Discovery requests should be considered relevant if there is any
possibility the information sought is relevant to any issue in the case and should ordinarily be
allowed, unless it is clear the information sought can have no possible bearing on the subject
matter of the action.” Met-Pro Corp. v. Industrial Air Technology, Corp., No. 8:07CV262, 2009
WL 553017, * 3 (D. Neb. March 4, 2009).
The Public Counsel asserts that the NDCS has not made a threshold showing of relevance
for the requested documents, which narrowly request “communications between the Public
Counsel or IG and the lawyers representing the plaintiffs regarding the plaintiffs themselves.”
(Filing No. 109 at p. 14). The NDCS argues that its request for “records relating to complaints
any of the named Plaintiffs have had regarding the [NDCS]” is facially relevant. Considering
that the scope of relevant discovery is extremely broad, the Court finds the NDCS has made a
threshold showing that the requested documents are relevant to this litigation. The office of
Public Counsel, which includes the Inspector General, is tasked with investigating the NDSCS
with allegations or incidents of possible misconduct, violations of rules and regulations, and
3

death or serious injury at the correctional facility. See Neb. Rev. Stat. §§ 81-8,241, 81-8,245,
and 47-904(1). Communications from the Public Counsel or the Inspector General to counsel
representing the individually named plaintiffs clearly would encompass information relevant to
Plaintiffs’ claims against the NDCS. See E.E.O.C. v. Woodmen of the World Life Ins. Society,
2007 WL 1217919 at *1 (D. Neb. Mar. 15, 2007)(quoting Oppenheimer Fund, Inc. v. Sanders,
437 U.S. 340, 351 (1978)(“Relevancy is to be broadly construed for discovery issues” and
“encompass[es] ‘any matter that could bear on, or that reasonably could lead to other matter that
could bear on, any issue that is or may be in the case.’”).

B. Privilege
Pursuant to Fed. R. Civ. P. 45(d)(3)(A), the court must quash or modify a subpoena that
“requires disclosure of privileged or other protected matter, if no exception or waiver applies[.]”
Fed. R. Civ. P. 45(d)(3)(A)(iii). The Public Counsel asserts a privilege against being compelled
to produce the documents requested by the NDCS based on his status as Nebraska’s Public
Counsel.

(Filing No. 108)(citing Tlamka v. Serrell et al., 4:97CV3212, (D. Neb. Feb. 6,

2002)(Jaudzemis, M.J.)(unpublished)); Filing No. 110-2. The Public Counsel’s motion is based
on Neb. Rev. Stat. § 81-8,253, which provides, “Neither the Public Counsel nor any member of
his staff shall be required to testify or produce evidence in any judicial or administrative
proceeding concerning matters within his official cognizance[.]” Neb. Rev. Stat. § 81-8,253.
Similarly, with respect to the Inspector General, the statutes provides, “Neither the Inspector
General nor any member of his or her staff shall be required to testify or produce evidence in any
judicial or administrative proceeding concerning matters within his or her official cognizance[.]”
Neb. Rev. Stat. § 47-916. The Public Counsel is “an officer of the legislative branch of state
government.” State ex rel. Shepherd v. Nebraska Equal Opportunity Comm’n, 557 N.W.2d 684,
691 (Neb. 1997).
Although the Public Counsel’s claim of privilege arises out of Nebraska state statutes,
“[a]ll evidentiary privileges asserted in federal court are governed, in the first instance, by
Federal Rule of Evidence 501.” United States v. Ghane, 673 F.3d 771, 780 (8th Cir. 2012). The
fact that a state statute “creates a privilege and a testimonial immunity does not automatically
mean that this Court can recognize them.” Shabazz v. Scurr, 662 F. Supp. 90, 91-92 (S.D. Iowa
1987). The scope of an evidentiary privilege in federal court is governed by “the principles of
4

common law as they may be interpreted by the courts of the United States in the light of reason
and experience.” Fed. R. Evid. 501. “[E]videntiary privileges ‘are not lightly created,’” and
parties that seek to create a new privilege “must overcome the significant burden of establishing
that ‘permitting a refusal to testify or excluding relevant evidence has a public good transcending
the normally predominant principle of utilizing all rational means for ascertaining truth.’”
Carman v. McDonnell Douglas Corp., 114 F.3d 790, 793 (8th Cir. 1997)(quoting United States
v. Nixon, 418 U.S. 683, 710 (1974) and citing Trammel v. United States, 445 U.S. 40, 50 (1980)).
This Court has previously accepted a federal evidentiary privilege for the office of Public
Counsel and quashed a subpoena to the Public Counsel on that basis. See Tlamka v. Serrell et
al., 4:97CV3212 (D. Neb. Feb. 6, 2002)(Jaudzemis, M.J.)(unpublished). In doing so, Magistrate
Judge Jaudzemis found persuasive guidance in Shabazz v. Scurr, 662 F. Supp. 90, 91-92 (S.D.
Iowa 1987), wherein the Southern District of Iowa found that a limited federal privilege existed
for a prison ombudsman in light of the unique function of the office and the Iowa statutes
governing the privilege. Similar to the Office of Public Counsel, the prison ombudsman in
Shabazz was authorized to investigate complaints against a state agency or official and to issue
recommendations to the executive or legislative branch. The district court in Shabazz recognized
that “Courts have a special interest in protecting the [prison ombudsman] office’s problemsolving function” and that public policy favored respecting the confidentiality of
communications to facilitate the office’s problem-solving purpose. See id. at 92.
As stated above, the Nebraska legislature established the office of Public Counsel to
investigate “any administrative act of any administrative agency,” such as the NDCS. “The
statutes governing Public Counsel require a significant degree of cooperation in any such
investigation.” Tlamka v. Serrell et al., 4:97CV3212; Filing No. 110-2 at p. 1. To that end, it is
a Class II misdemeanor for a person to “willfully obstruct[] or hinder[] the proper exercise of the
Public Counsel's functions,” or to “willfully mislead[] or attempt[] to mislead the Public Counsel
in his inquiries[.]” Neb. Rev. Stat. § 81-8,254. The legislature also clearly stated its intent to
prohibit the Public Counsel and the Inspector General from being “required to testify or produce
evidence in any judicial or administrative proceeding concerning matters within his official
cognizance[.]” See Neb. Rev. Stat. §§ 81-8,253 & 47-916. According to the Public Counsel,
since the inception of the Office of Public Counsel thirty-seven years ago, the Nebraska Attorney
General has routinely recognized this statutory evidentiary privilege and opposed every
5

subpoena served on the Public Counsel. (Filing No. 109 at pp. 4-5). The Public Counsel also
asserts that confidentiality is necessary and important to carry out his investigatory duties. The
Public Counsel believes that, if his office is unable “to assure complainants that communications
related to their complaints and the work of my office are confidential,” the office would receive
fewer complaints about administrative agencies because complainants would fear retaliation.
(Filing No. 110-1 at p. 4).

The Court agrees with the Public Counsel that maintaining

confidentiality of communications is important to carrying out the office’s investigatory duties
and ensuring that potential complainants come forward without fear of retaliation. See also
Shabazz, 662 F. Supp. at 92 (“[P]reserving the confidentiality of communications received
during investigations helps to ensure that those communications will take place.”).

In

consideration of the “unique function” and purpose of the office of the Public Counsel, this Court
will recognize the evidentiary privilege afforded to the office by Nebraska state statute.
The NDCS does not argue against this Court recognizing the evidentiary privileges set
forth in Neb. Rev. Stat. §§ 81-8,253 & 47-916; instead, the NDCS argues that the requested
documents are not privileged under those statutes because they do not concern “matters within
[the] official cognizance” of the Public Counsel or the Inspector General. The NDCS maintains
that “outbound transmission of records from the Nebraska Ombudsman . . . to private lawyers
preparing for litigation against the State” are not matters within the office of Public Counsel’s
“official cognizance.” (Filing No. 130 at pp. 9-10). The Court does not construe the statute so
narrowly.
The Public Counsel has a list of enumerated powers, including the power to “Prescribe
the methods by which complaints are to be made, received, and acted upon; determine the scope
and manner of investigations to be made; and, . . .

determine the form, frequency, and

distribution of his or her conclusions, recommendations, and proposals;” inspect the premises of
administrative agencies; request and inspect documents from administrative agencies; issue
subpoenas; undertake or participate in studies or inquiries to “enhance knowledge about or lead
to improvements in the functioning of administrative agencies;” and to carry out his duties under
the Office of Inspector General. See Neb. Rev. Stat. § 81-8,245. The Inspector General is
tasked with investigation of “violations of statutes or of rules or regulations of the department by
an employee of or a person under contract with the department or a private agency; and “Death
or serious injury in . . . department correctional facilities[.]” Neb. Rev. Stat. § 47-905(1). The
6

evidentiary privilege afford to the Public Counsel and Inspector General extends to evidence and
testimony “concerning matters within his official cognizance[.]” As the Public Counsel points
out, “The privilege statutes make no distinction between evidence of ‘inbound’ and ‘outbound’
communications. Rather, the scope of the privileges is defined by the nature of the ‘matter’ the
Public Counsel and [Inspector General] deal with,” which in general, would relate to the
enumerated powers and duties above. (Filing No. 133 at p. 4).
The privilege log (Filing No. 110-4) submitted by the Public Counsel indicates that the
documents responsive to the subpoena concern “matters within his official cognizance.” The
eight items in the privilege log are emails either from the Public Counsel or the Inspector
General with ACLU counsel as either an addressee or a recipient. The email replies concern
ACLU counsel’s request for documents that an individually named incarcerated Plaintiff had
previously submitted to the Public Counsel; three replies concern ACLU counsel’s inquiry about
records that another Plaintiff had previously provided to the Public Counsel; one reply is in
response to ACLU counsel’s concerns related to a Plaintiff’s segregation/solitary confinement;
two replies relate to a referral ACLU counsel made on behalf of one of the Plaintiffs about
solitary confinement; and one reply instructs the Public Counsel’s staff to open an investigation
file for one of the Plaintiffs showing ACLU counsel as referring party. (Filing No. 110-4).
These replies concerning individuals incarcerated at the NDCS and potential complaints and
investigations related to those individuals are matters that clearly fall within the “official
cognizance” of the Public Counsel and Inspector General. See Neb. Rev. Stat. § 81-8,245.
Accordingly, neither the Public Counsel and Inspector General shall be required to produce
documents in response to the NDCS’ subpoena. See Neb. Rev. Stat. §§ 81-8,253 & 47-916.
Upon consideration,

IT IS ORDERED:

Marshall Lux, Public Counsel’s, Motion to Quash (Filing No. 108)

is granted.
Dated this 22nd day of February, 2019.
BY THE COURT:
s/ Michael D. Nelson
United States Magistrate Judge
7