Mason v. Wal-Mart Corporation et al

Filing 56

OPINION AND ORDER - 47 Motion for Order to Show Cause is denied and the supoena directed to Jefferson County Prosecuting Attorney Jane Hanlin, dated August 15, 2014, is quashed. Signed by Magistrate Judge Terence P Kemp on 1/29/2015. (agm1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Guy Mason,

:

Plaintiff,

:

v.

:

Wal-Mart Corporation, et al., :
Defendants.

Case No.

2:14-cv-446

JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

:
OPINION AND ORDER

Plaintiff Guy Mason filed this civil rights action after he
was stopped and arrested after leaving a Wal-Mart located in
Steubenville, Ohio.

According to the complaint, Mr. Mason was

taken back to the store, accused of theft, had his property taken
from his vehicle, and was then transported to the Steubenville
Police Department where he was formally charged with petty theft.
The charge was later amended to receiving stolen property and Mr.
Mason was held in the Jefferson County Jail for eleven days
before obtaining his release on bond.

Ultimately, the Jefferson

County grand jury refused to indict him.

By then, much, if not

all, of the seized property had been disposed of.
On or around August 15, 2014, Mr. Mason’s attorney signed
and served a subpoena duces tecum on Jane M. Hanlin, the
Prosecuting Attorney of Jefferson County, Ohio.

The subpoena

(attached as Exhibit A to Doc. 47) commanded the production of
“all documents relevant to the presentation of case of State v.
Mason, 13CR000097 to the Jefferson County grand jury, including,
but not limited to, the transcript of the grand jury
proceedings.”

When Ms. Hanlin did not produce those documents,

Mr. Mason filed a motion for an order requiring her to show cause
why she should not be held in contempt.
responded.

Doc. 50.

Doc. 47.

Ms. Hanlin

Mr. Mason did not file a reply memorandum,

and the issue raised in the motion is now ready for decision.
For the following reasons, the motion will be denied.
I.

Discussion

Mr. Mason has attached a letter written by Ms. Hanlin in
response to the subpoena as an exhibit to his motion.
addresses the arguments she raised in her letter.

His motion

He claims that

(1) the documents are clearly relevant to his claims, especially
given the fact that much of his property was given away the day
he was arraigned on the felony charge, and (2) Ms. Hanlin did not
properly support her claim of privilege by preparing a privilege
log, as required by Fed.R.Civ.P. 45(d)(2)(a).

He also argues

that federal law governs the question of whether the documents
are, in fact, privileged, and that any rules of Ohio procedure
which purport to protect the documents from disclosure are
superseded by federal law.
In her response, Prosecutor Hanlin mentions, on the first
page, that she cannot respond to the subpoena because she has no
responsive documents.

That potentially dispositive claim is not,

however, supported by an affidavit or declaration, and she does
not disclaim the ability to obtain them in her capacity as
Prosecuting Attorney.

Consequently, the Court will assume that

she would be able to respond to the subpoena by producing grand
jury documents - an assumption which Ms. Hanlin seems to share,
given that the balance of her twelve-page memorandum in
opposition never again mentions her alleged inability to comply.
The Court also assumes that the resolution of Mr. Mason’s claims
against the City of Steubenville defendants does not moot this
issue, since he has named other defendants in his malicious
prosecution count.

The Court will therefore examine the merits

of Ms. Hanlin’s arguments concerning whether the subpoena should
be enforced by the Court.
After discussing at some length cases dealing with subpoenas
-2-

for federal grand jury transcripts, Ms. Hanlin asserts that the
same standards have been applied to state grand jury materials as
a measure of comity toward the state criminal justice system.
She cites first to a decision from the Seventh Circuit Court of
Appeals, Socialist Workers Party v. Grubisic, 619 F.2d 641 (7th
Cir. 1980), for this proposition.

That decision is worth

examining in some detail.
In Grubisic, the police and private party misconduct about
which the plaintiffs sued had been investigated by the Cook
County Grand Jury.

It had issued a report which was very

critical of the Chicago Police Department.

During the course of

the litigation, the plaintiffs issued a subpoena to the State’s
Attorney for Cook County directing him to release grand jury
materials and transcripts.

The District Court enforced the

subpoena, leading to the appeal addressed in the cited Seventh
Circuit opinion.
The court began its analysis by acknowledging, as Mr. Mason
argues here, that state law does not control the question of
whether the documents can be obtained through discovery issued in
the context of a federal court case where a federal question has
been raised in the complaint.

However, the court found that

federal common law also protects state grand jury materials to
some extent, stating that “the federal common law, as interpreted
in light of reason and experience, accords at least a qualified
privilege to the records of state grand jury proceedings ....”
Id. at 643.

The court further equated the State’s interests in

preserving the secrecy of these materials to the federal
interest, expressed in Fed.R.Crim.P. 6(e), in protecting federal
grand jury materials, and concluded that the same test ought to
apply whether the grand jury materials had been compiled in the
course of federal or state criminal proceedings.
In order to obtain federal grand jury materials in the
-3-

context of privately-initiated civil litigation, a party must
show

“that they are needed to avoid a possible injustice in

another judicial proceeding, that the need for disclosure is
greater than the need for continued secrecy, and that the request
is structured to cover only the material needed.”

Id. at 644.

That determination, according to Grubisic, should be made in the
first instance by the state court having supervisory authority
over the grand jury in question; the court held that
when state grand jury proceedings are subject to
disclosure, comity dictates that the federal courts
defer action on any disclosure requests until the party
seeking disclosure shows that the state supervisory
court has considered his request and has ruled on the
continuing need for secrecy. Otherwise the potential
threat of disclosure orders in subsequent federal civil
litigation would seriously weaken the state court's
control over the secrecy of this essential component of
its criminal justice system.
Id.

The case was therefore remanded to allow the plaintiffs to

conduct the “preliminary stage” of the process by “seek[ing]
disclosure through the avenues available to them in the state
court,” to be followed, if necessary, by additional proceedings
in the federal court should that avenue of relief prove
unsuccessful.

Id.

This approach has been adopted by other Courts of Appeals.
See, e.g., Camiolo v. State Farm Fire and Cas. Co., 334 F.3d 345,
357 (3d Cir. 2003)(concluding that a District Judge “should not
have” ruled on a motion asking for disclosure of state grand jury
materials absent presentation of the question to the appropriate
state judicial officer).

Further, it has been followed by

another Judge of this Court.

See Brunson v. City of Dayton,

163 F.Supp.2d 919 (S.D. Ohio 2001).

The Court finds these cases

persuasive.
The cases are not uniform on how to implement this concept,
-4-

however.

Some courts have quashed the subpoena, while others

have suggested abstaining from the question pending efforts to
obtain the materials from the state court.

The former is a

cleaner approach, especially given the assertion that Ms. Hanlin
may not be the proper target of the subpoena.

The motion for an

order to show cause will therefore be denied and the subpoena
will be quashed, without prejudice to the proper service of a
subpoena on the correct individual or entity should the state
court refuse to release the materials to Mr. Mason.
II.

Order

For these reasons, the motion for an order to show cause
(Doc. 47) is denied and the subpoena directed to Jefferson County
Prosecuting Attorney Jane Hanlin, dated August 15, 2014, is
quashed.

Ms. Hanlin’s request for attorneys’ fees in connection

with the motion is denied.
III.

Procedure on Motion for Reconsideration

Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,
pt. IV(C)(3)(a).

The motion must specifically designate the

order or part in question and the basis for any objection.
Responses to objections are due fourteen days after objections
are filed and replies by the objecting party are due seven days
thereafter.

The District Judge, upon consideration of the

motion, shall set aside any part of this Order found to be
clearly erroneous or contrary to law.
This order is in full force and effect even if a motion for
reconsideration has been filed unless it is stayed by either the
Magistrate Judge or District Judge.

S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp
United States Magistrate Judge
-5-