Grey v. Cissna

Filing 100

ORDER denying 98 Motion to Quash. Signed by Honorable David C Norton on May 31, 2022. (acho, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
FABIAN GREY,

)
)
Plaintiff,
)
)
vs.
)
)
1
UR JADDOU, Director of United States
)
Citizenship and Immigration Services, and
)
UNITED STATES CITIZEN AND
)
IMMIGRATION SERVICES,
)
)
Defendants.
)
_______________________________________)

No. 2:18-cv-01764-DCN
ORDER

The following matter is before the court on third parties John Adams (“Adams”)
and Ryan Chin’s (“Chin”) motion to quash, ECF No. 98. For the reasons set forth below,
the court denies Adams and Chin’s motion.
I. BACKGROUND
This matter arises out of plaintiff Fabian Grey’s (“Grey”) application for
naturalization. Grey is a Jamaican citizen who first entered the United States on a work
visa on November 30, 2005. On February 2, 2006, Grey married a United States citizen,
Trinia Smalls (“Smalls”), and Smalls petitioned for a marriage-based green card for Grey.
Based on this petition, Grey became a conditional lawful permanent resident in January
2007. About two years later, Grey and Smalls petitioned to have the condition on Grey’s
residency removed, which defendant United States Citizenship and Immigration Services
(“USCIS”) granted, making Grey a lawful permanent resident. On February 17, 2016,

1

Ur Jaddou is now the Director of United States Citizenship and Immigration
Services. Pursuant to Federal Rule of Civil Procedure 25(d), Jaddou is automatically
substituted for former Acting Director Tracy Renaud as the defendant in this lawsuit.
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Grey filed an application for naturalization, also called a “Form N-400.” On his Form N400, Grey disclosed one prior criminal conviction from 2009 for simple assault and
battery. ECF No. 70-1 at 15.
On September 7, 2017, USCIS conducted Grey’s naturalization interview, led by
an immigration service officer (“ISO”). At his interview, Grey disclosed a second arrest,
which related to an incident that took place in February 2016, just after Grey filed his
application. Id. According to the ISO’s notes, Grey stated at his naturalization interview
that he was arrested for filing a false police report after he called 9-1-1 “to report a fight.”
Id. at 16. The next day, USCIS ran a “Law Enforcement Report” on Grey, which
revealed his February 2016 arrest for “misprision of a felony,” a state charge that was
later reduced to “filing a false police report.” ECF No. 95-2 at 1; ECF No. 70-6, Grey
Dep. 57:13–60:13. However, USCIS failed to pursue Grey’s February 2016 arrest as a
ground for denying his application for almost three years, until defendants deposed Grey
in August 2020.
After a substantial delay in a decision on his application, Grey filed this suit on
June 27, 2018, asking the court to declare him eligible for naturalization and order USCIS
to naturalize him pursuant to 8 U.S.C. § 1447(b).2 On August 3, 2018, USCIS issued a
Notice of Intent to Deny to Grey, indicating that it intended to deny Grey’s naturalization
application based on marriage fraud and providing Grey with thirty days to respond with
evidence that his application should not be denied. USCIS then filed a motion to remand

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Grey subsequently amended his complaint to add USCIS as a defendant and a
cause of action seeking an order compelling USCIS to respond to his pending Freedom of
Information Act (“FOIA”) request pursuant to 5 U.S.C. § 552(a)(4)(B). The court has
since resolved Grey’s FOIA claim. ECF No. 94.
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Grey’s application for naturalization to USCIS for adjudication, which the court denied.
ECF No. 26.
On August 28, 2020, defendants took Grey’s deposition, during which Grey gave
a more detailed recounting of his February 2016 arrest. According to defendants, Grey’s
“characterization of his misprision of a felony charge at his August 28, 2020 deposition
lacked credibility and led USCIS to seek further information about the charge.” ECF No.
93 at 3. In their subsequent search, defendants obtained a police report detailing the
circumstances of Grey’s February 2016 arrest from the Beaufort County Solicitor’s
Office on September 17, 2020 (the “2016 Police Report”). ECF No. 70-4. On October
28, 2020, defendants obtained further evidence concerning Grey’s February 2016 arrest
from the Beaufort County Solicitor’s Office in the form of audio and video recordings of
police interviews with Grey conducted shortly after his arrest (the “2016 Audio/Video
Recordings”). ECF Nos. 87-1, 87-2, 87-3. Defendants’ subsequent motion for summary
judgment and supplement thereto relied on the 2016 Police Report and the 2016
Audio/Video Recordings, suggesting that USCIS would deny Grey’s application based
on the February 2016 arrest.
On April 8, 2021, the court entered an order dismissing the parties’ respective
motions for summary judgment until Grey received an opportunity to conduct his own
discovery in connection with the newly-obtained 2016 Police Report and the 2016
Audio/Video Recordings. ECF No. 94. As part of those discovery efforts, Grey noticed

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the deposition and subpoenaed3 the records of two officers—Adams and Chin—who
interviewed Grey after his 2016 arrest.
On April 20, 2022, Adams and Chin filed their motion to quash the subpoena.
ECF No. 98. On May 3, 2022, defendants4 responded in opposition. ECF No. 99.
Adams and Chin did not file a reply, and the time to do so has now expired. As such, the
motion has been fully briefed and is now ripe for review.
II. STANDARD
Under Federal Rule of Civil Procedure 45, a party may compel a nonparty’s
attendance to a deposition. Rule 45 also permits the subpoenaed nonparty to quash or
modify a subpoena where it, inter alia, “requires disclosure of privileged or other
protected matter” or “subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A).
The scope of discovery under a subpoena is the same as the scope of discovery under
Federal Rule of Civil Procedure 26(b). Cook v. Howard, 484 F. App’x 805, 812 (4th Cir.
2012). When discovery is sought from nonparties, however, its scope must be limited
even further. Va. Dep’t of Corr. v. Jordan, 921 F.3d 180, 189 (4th Cir. 2019). As the
Fourth Circuit explained in Jordan,
Nonparties are “strangers” to the litigation, and since they have “no dog in
[the] fight,” they have “a different set of expectations” from the parties
themselves. Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st Cir.
1998). Bystanders should not be drawn into the parties’ dispute without
some good reason, even if they have information that falls within the scope
of party discovery. For example, a party’s email provider might well
According to defendants, the subpoena also requested “[a]ll records related to
the investigation of Fabian Grey not already produced.” ECF No. 99 at 4 n.4. Neither
side to the motion attached the subpoena, but in the absence of any objection, the court
presumes that this is the relevant portion of the subpoena duces tecum.
4
Although the subpoena was apparently issued by Grey, defendants are the ones
who oppose Adams and Chin’s motion to quash, presumably because they desire the
opportunity to subpoena Adams and Chin as well.
3

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possess emails that would be discoverable from the party herself. But
unless the email provider can offer important information that cannot be
obtained from the party directly, there would be no cause for a subpoena
against the provider.
A more demanding variant of the proportionality analysis therefore applies
when determining whether, under Rule 45, a subpoena issued against
a nonparty “subjects a person to undue burden” and must be quashed or
modified. Fed. R. Civ. P. 45(d)(3)(A)(iv). As under Rule 26, the ultimate
question is whether the benefits of discovery to the requesting party
outweigh the burdens on the recipient. In re Modern Plastics Corp., 890
F.3d 244, 251 (6th Cir. 2018); Citizens Union of N.Y.C. v. Att’y Gen. of
N.Y., 269 F. Supp. 3d 124, 138 (S.D.N.Y. 2017). But courts must give the
recipient’s nonparty status “special weight,” leading to an even more
“demanding and sensitive” inquiry than the one governing discovery
generally. In re Public Offering PLE Antitrust Litig., 427 F.3d 49, 53 (1st
Cir. 2005).
Id.
Likewise, Federal Rule of Civil Procedure 26(c) authorizes the court to “issue an
order to protect a party or person from annoyance, embarrassment, oppression, or undue
burden and expense” by forbidding or limiting the scope of discovery. “The standard for
issuance of a protective order is high,” Wellin v. Wellin, 211 F. Supp. 3d 793, 800
(D.S.C. 2016), order clarified, 2017 WL 3620061 (D.S.C. Aug. 23, 2017), and the
movant “bears the burden of establishing good cause,” Slager v. S. States Police
Benevolent Ass’n, Inc., 2016 WL 4123700, at *2 (D.S.C. Aug. 3, 2016). A motion for a
protective order requires the court to “weigh the need for the information versus the harm
in producing it.” Wellin, 211 F. Supp. at 800 (quoting A Helping Hand, LLC v. Balt.
Cnty., 295 F. Supp. 2d 585, 592 (D. Md. 2003)). In determining whether to quash a
subpoena or issue a protective order, as with most matters of discovery, the court wields
broad discretion. Cook, 484 F. App’x at 812 (motions to quash); Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 36 (1984) (protective orders).

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III. DISCUSSION
Adams and Chin move the court to quash the subpoena for their deposition
pursuant to Federal Rule of Civil Procedure 26 or, in the alternative, to enter an order
protecting them from compliance with the same. In support of their motion, Adams and
Chin argue that the subpoena seeks the disclosure of privileged or other protected
information. Specifically, they aver that the information sought by the parties “has been
expunged by Order of the Court of General Sessions for the State of South Carolina dated
March [9], 2017.”5 ECF No. 98-1 at 2. Accordingly, Adams and Chin argue that
disclosing the requested records or testifying at a deposition would cause them to violate
the expungement order and could subject them to contempt of court for violating the
order.
Although Adams and Chin do not specify, the expungement order was issued
pursuant to South Carolina’s expungement statute, S.C. Code Ann. § 17-1-40. See ECF
No. 98-2 at 1 (ordering that all records relating to the arrest and discharge be expunged
with the conditions set forth under § 17-1-40). That statute provides, in relevant part:
(A) For purposes of this section, "under seal" means not subject to
disclosure other than to a law enforcement or prosecution agency, and
attorneys representing a law enforcement or prosecution agency, unless
disclosure is allowed by court order.
(B)(1) If a person’s record is expunged pursuant to Article 9, Title 17,
Chapter 22 . . . and the charge was discharged, proceedings against the
person were dismissed, or the person was found not guilty of the charge,
then the arrest and booking record, associated bench warrants, mug shots,
and fingerprints of the person must be destroyed and no evidence of the
record pertaining to the charge or associated bench warrants may be retained
by any municipal, county, or state agency . . . .
5

Adams and Chin wrote in their motion that the expungement order was dated
March 6, 2017, but it appears to the court that the order was signed on March 9, 2017.
ECF No. 98-2 at 2.
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(C)(1) If a person’s record is expunged pursuant to Article 9, Title 17,
Chapter 22 . . . and the charge was discharged, proceedings against the
person were dismissed, or the person was found not guilty of the charge,
then law enforcement and prosecution agencies shall retain the evidence
gathered, unredacted incident and supplemental reports, and investigative
files under seal for three years and one hundred twenty days . . . . The
information must remain under seal. The information is not a public
document, is exempt from disclosure, except by court order, and is not
subject to an order for destruction of arrest records.
S.C. Code § 17-1-40(A)–(C)(1) (emphases added). Further, as contemplated under
subsections (B)(1) and (C)(1), the charge against Grey was “nol prossed” based on § 1722-150(a); thus, § 17-1-40 applies. ECF No. 98-2 at 1.
In response to the motion to quash, defendants argue that § 17-1-40 “does not
require the destruction of investigative reports” or other similar evidence. ECF No. 99 at
5. Further, defendants state that they do not object to a protective order providing for
disclosure, which is contemplated by § 17-1-40’s exclusion for documents disclosed
pursuant to court order. Id. at 7. The court agrees on both fronts. Section 17-1-40(B)(1)
provides for the destruction of “bench warrants, mug shots, and fingerprints.” S.C. Code
§ 17-1-40(B)(1). The requests for records and information from Adams and Chin do not
appear to contemplate disclosure of bench warrants, mug shots, or fingerprints.
Subsection (C)(1) further provides that incident and supplemental reports and
investigative files shall be retained for three years and one hundred twenty days. S.C.
Code § 17-1-40(C)(1). Certainly, more than five years have elapsed since the South
Carolina Court of General Sessions entered Grey’s expungement order on March 9, 2017.
However, nothing in the subsection states that law enforcement must destroy the
documents after that period has elapsed; subsection (B)(1) provides that the only
documents that must be destroyed are bench warrants, mug shots, or fingerprints. Since
the statute does not require the destruction of investigative files, those documents, at least
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in theory, may still exist and be in the officers’ possession.6 The court therefore agrees
with defendants that the investigative files should not automatically be deemed destroyed,
and the parties may request such documents, where relevant. If the police department
destroyed such documents, then they may respond to the subpoena stating the same.
Furthermore, the court agrees that the expungement statute does not preclude the
officers from complying with the subpoena in this case. Importantly, the section provides
that documents under seal may not be disclosed “unless disclosure is allowed by court
order.” S.C. Code § 17-1-40(A)(1) (emphasis added); see also Baney v. Town of Chapin,
2021 WL 1313410, at *1 (D.S.C. Apr. 7, 2021) (“Under South Carolina law, expunged
records may be disclosed when ‘allowed by court order.’”). Even subsection (C)(1),
which governs incident and supplemental reports and investigative files, provides that
records under seal may be disclosed when allowed “by court order.” S.C. Code § 17-140(C)(1). Therefore, compliance with the subpoena would be entirely proper should this
court order the officers to do so. In Baney, the magistrate judge allowed discovery of
expunged records because the records were relevant to the lawsuit and the production of
the records would be limited to discovery in that civil suit. Id. The court similarly finds
that production of the expunged records is relevant to Grey’s lawsuit, as both parties are
seeking to determine whether defendants may appropriately deny Grey’s application for
filing a false report. Because Adams and Chin may properly disclose the requested
information under § 17-1-40 pursuant to a court order, the court will order compliance

Indeed, as defendants point out, guidance from the state attorney general’s office
indicates that “incident reports and other investigative records or evidence are generally
not subject to expungement.” Loftis Letter, 2014 WL 1511517 (S.C. Att’y Gen. Apr. 10,
2014).
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with the subpoena since it does not require Adams and Chin to violate the South Carolina
expungement statute.
Finally, even if the court disregarded the expungement statute’s explicit exception
that permits disclosure of expunged records pursuant to court order, the court finds that
the officers can comply with the subpoena, at least in part, without disclosing protected
information. As the Supreme Court of South Carolina has explained, the expungement
statute “does not apply to any recordation of historical events beyond the charge itself.”
Compton v. S.C. Dep’t of Corrs., 709 S.E.2d 639, 643 (S.C. 2011). In other words, “the
facts precipitating the charge are not covered by this statute because they are mere events
that exist irrespective of any criminal proceedings.” Id. Based on the South Carolina
Supreme Court’s holding, defendants argue that there is a difference between disclosing
documents concerning Grey’s arrest for failure to report a crime and facts about Grey’s
alleged provision of a false report to the police during a shooting investigation. This
appears to be a somewhat loose distinction, but the court agrees that it a distinction that
other courts have indeed recognized. See id. (determining that § 17-1-40 draws a
distinction between records related to the plaintiff’s “fugitive from justice” charges and
information about whether he was away without leave from prison); Vaughn v. State,
2013 WL 442297, at *3 (D.S.C. Feb. 5, 2013) (permitting use of “evidence of the events
underlying” the plaintiff’s prior arrest as the basis for an indictment on a different
charge); Ferrara v. Hunt, 2013 WL 8482336, at *3 (S.C. Ct. C.P. (Aiken) Apr. 3, 2013)
(ruling that the facts precipitating the criminal charges for soliciting sex were not covered
by the expungement statute). The subpoena requests “[a]ll records related to the
investigation of Fabian Grey not already produced.” ECF No. 99 at 4 n.4. Based on prior

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caselaw analyzing the expungement statute, the court finds that responsive documents
that do not directly reflect Grey’s charge for misprision of a felony are discoverable.
Adams and Chin will not violate the statute by complying with the subpoena to this
extent.
In sum, South Carolina’s expungement statute does not bar Adams and Chin from
disclosing the information Grey provided them during their investigation, and the officers
provide no other argument in support of their request for a protective order or to quash
the subpoena. As such, Adams and Chin have not met their burden for relief from
compliance with the subpoena. Accordingly, the court orders7 Adams and Chin to
comply with the third-party subpoena and will allow Grey and defendants to depose
Adams and Chin. However, for the reasons discussed above, the subpoena for documents
should not be construed as one that requests any bench warrants, mug shots, fingerprints,
or information directly reflecting Grey’s charge for misprision of a felony. Furthermore,
any subpoenaed documents should be provided under seal.
III. CONCLUSION
For the reasons set forth above, the court DENIES Adams and Chin’s motion to
quash.

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Adams and Chin may consider this an order that allows their compliance to be
deemed a “disclosure . . . allowed by court order” under S.C. Code § 17-1-40(A).
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AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
May 31, 2022
Charleston, South Carolina

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