Shelter Mutual Insurance Company v. Swigart et al

Filing 50

ORDER granting in part denying in part 47 Plaintiff's Motion for Court Order to Obtain Records. Signed by Honorable Robin J. Cauthron on 9/18/14. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

SHELTER MUTUAL INSURANCE
COMPANY,
Plaintiff,
vs.
JAMES SWIGART, et. al.,
Defendants.

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Case No. CIV-13-1019-C

MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff’s opposed Motion for Court Order to Obtain Records
(Dkt. No. 47). Defendants Steve Meiwes, individually, Amber Meiwes, individually, M.M.,
a minor daughter of Steve and Amber Meiwes, and B.M., a minor daughter of Steve and
Amber Meiwes (collectively, “Defendants”), filed a response objecting to the motion.
Discovery in this action entails records about minors. The state agencies holding
these records are bound by state law. 10A Okla. Stat. § 1-6-102(A) mandates that juvenile
court records, agency records, district attorney records, law enforcement records, and social
records of children are confidential. Release of these records for discovery requires a court
order. 10A Okla. Stat. § 1-6-102(C). Pursuant to 10A Okla. Stat. § 1-6-102, Plaintiff filed
the present motion.
Although the relevance of the requested records is not in dispute, Defendants object
to Plaintiff’s motion for several reasons: (1) Defendants argue that some of the records
sought are not governed by 10A Okla. Stat. § 1-6-102 and thus should be obtained pursuant

to subpoena rather than a court order; (2) Defendants argue that several of the records are
privileged; and (3) Defendants argue that 10A Okla. Stat. § 1-6-102 invokes substantive law,
and thus the Court must follow the procedures of that state statute, not the Federal Rules of
Civil Procedure.
Defendants argue that because items 7-10 pertain to adult Defendant Mia Swigart’s
operation of an unlicensed daycare facility, the records do not involve juveniles or juvenile
proceedings and a court order is not the appropriate means of discovery. However, Plaintiff
asserts that investigation of the minor Swigart sons and Mia Swigart are interrelated.
Plaintiff’s counsel states in a sworn affidavit that the Canadian County Sheriff’s Office
advised that documents pertaining to conduct of the Swigart sons were obtained during the
investigation of Mia Swigart and “would not be produced absent a court order.” (Pl.’s Reply,
Dkt. No. 49, Ex. 2.) Plaintiff states that it has obtained all records available to the public.
Therefore, a court order is appropriate to facilitate production of any relevant confidential
documents.
Defendants argue that several of the requests seek records that are privileged as
“work-product” pursuant to the Oklahoma Criminal Discovery Code, 22 Okla. Stat.
§ 2002(E)(3). State privilege laws do govern in federal civil cases based on state law claims.
Fed. R. Evid. 501. However, the Defendants’ argument is without merit. The requests seek
records from district attorneys and investigators representing the State of Oklahoma. Even
if the Court were to apply a criminal procedure statute to a civil case, it is the district
attorneys and investigators who have standing to assert the privilege, not the Defendants.
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Defendants also argue that some material sought is privileged pursuant to 43A Okla. Stat.
§ 1-109, which holds that all mental health information and all communications between a
licensed mental health professional and a consumer are privileged. Defendants state that
M.M. and B.M. underwent counseling that was organized by DHS or the State. Defendants
do have standing to assert the privilege. Therefore, any records sought pertaining to M.M.’s
and B.M.’s counseling are privileged and are not subject to disclosure.
Defendants’ final argument is that the State interest in protecting the confidentiality
of children’s records requires the Court to follow the procedure outlined in 10A Okla. Stat.
§ 1-6-102. However, “federal courts are to apply state substantive law and federal procedural
law.” Hanna v. Plumer, 380 U.S. 460, 465 (1965). 10A Okla. Stat. § 1-6-102(E) does not
invoke substantive rights; it outlines the procedure for discovery of confidential documents.
“Discovery in the federal courts is governed by federal law as set forth in the Federal Rules
of Civil Procedure, whether federal jurisdiction is based on the existence of a federal
question or on diversity of citizenship.” Everitt v. Brezzel, 750 F.Supp. 1063, 1065 (D. Colo.
1990) (citing Sibbach v. Wilson & Co., 312 U.S. 1 (1941)). Fed. R. Evid. 501 is not
applicable because 10A Okla. Stat. § 1-6-102 “does not give the documents at issue any
privileged status and [thus] Fed. R. Civ. Proc. 26 governs their discoverability.” Evans v.
City of Tulsa, No. 08-CV-547-JHP-TLW, 2009 WL 3254907, at *2 (N.D. Okla. Oct. 7,
2009). While the court recognizes the important privacy interests involved, “[t]he Federal
Rules of Civil Procedure provide ample means to protect the confidentiality of the

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documents.” Id. Furthermore, all records produced are subject to the Agreed Protective
Order (Dkt. No. 38) previously entered by the Court.
Accordingly, and for compelling reasons shown, Plaintiff’s Motion for Court Order
to Obtain Records (Dkt. No. 47) is GRANTED IN PART and DENIED IN PART. A
separate Order will be entered.
IT IS SO ORDERED this 18th day of September, 2014.

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