Stephenson v. Carpenter (DPLC)

Filing 122

MEMORANDUM AND ORDER: it is ORDERED that the Board's objection to the subpoena [Doc. 83 ] is OVERRULED and Petitioners motion to compel compliance [Doc. 84 ] is GRANTED, subject to Petitioner's re-issuance of the subpoe na to reflect the narrower scope of the Court's discovery order [Doc. 68 ], and subject to a protective order to address confidentiality concerns. The parties shall submit to the Court a proposed protective order for its consideration and signature. Signed by District Judge Pamela L Reeves on 9/28/18. (JBR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
JONATHAN STEPHENSON,

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Petitioner,
v.
TONY MAYS, Warden,
Respondent.

No.:

3:14-cv-414
REEVES/GUYTON

MEMORANDUM & ORDER
This is a capital habeas corpus case brought pursuant to 28 U.S.C. § 2254 by Jonathan
Stephenson (“Petitioner”), a Tennessee death row inmate. Petitioner was convicted of first degree
murder and conspiracy to commit first degree murder by a Cocke County jury in 1989 and was
sentenced to death on the murder charge.
Presently before the Court is an objection to a subpoena [Doc. 83] filed by the Board of
Professional Responsibility of the Supreme Court of Tennessee (“the Board”) as an interested
party. Petitioner filed a response to the Board’s objection and a motion to compel compliance with
the subpoena [Doc. 84]. The Board filed a response to the motion to compel [Doc. 86] and
Petitioner filed a reply [Doc. 87]. For the following reasons, the Board’s objection to the subpoena
[Doc. 84] will be OVERRULED and Petitioner’s motion to compel compliance [Doc. 86] will be
GRANTED, subject to Petitioner’s re-issuance of the subpoena to reflect the narrower scope of
the Court’s discovery order [Doc. 68], and subject to a protective order to address confidentiality
concerns.

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I.

BACKGROUND
By order dated November 21, 2016, the Court granted in part Petitioner’s motion for

discovery to the extent he sought disclosure of “the complete Tennessee state bar files reflecting
disciplinary measures instituted against Attorneys Carl Ogle and John Herbison” [Doc. 68 p. 4].
The Court found that “[t]here may be facts nestled within the contents of those bar files involving
discipline imposed in connection with the state criminal or postconviction cases of other petitioners
who were represented by these attorneys which would supply the required proof of inadequate
performance in Petitioner’s state criminal case. If so, the disclosure of the bar files of these
attorneys could yield proof which would allow Petitioner to prevail on the performance prong of
the ineffective assistance claims asserted in Claim IV in his petition” [Id.].
Petitioner subsequently served a subpoena duces tecum for the production of “the complete
Board of Professional Responsibility files” on Herbison and Ogle [Doc. 83 p. 1]. Pursuant to
Federal Rule of Civil Procedure 45(d)(2)(B), the Board objected to producing the records on the
basis of Tennessee Supreme Court Rule 9, § 32.1, which provides that “all matters, investigations
or proceedings involving allegations of misconduct by or the disability of an attorney . . . shall be
confidential and privileged” subject to certain exceptions set forth in §§ 32.2, 32.3 and 32.9 of
Rule 9 [Doc. 83 pp. 1–2]. The Board contends that the scope of the subpoena far exceeds what
documents might be public under Rule 9, § 32, and includes documents which are confidential
under Rule 9, § 32.1 [Id. p. 2].
Petitioner responded with a motion to compel under Federal Rule of Civil Procedure
45(d)(2)(B)(i) [Doc. 84]. Petitioner asserts that the Board failed to offer any description of the
withheld documents as required under Rule 45(e)(2)(A)(ii) other than generally asserting that they
are confidential [Id. p. 2]. Further, he notes that he is seeking the files strictly for the purpose of

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ongoing federal litigation and that “state privileges must yield to the federal interest” of seeking
the full disclosure of all facts bearing upon the alleged denial of Petitioner’s right to effective
assistance of counsel [Id. pp. 3–5].
The Board opposes Petitioner’s motion to compel [Doc. 86]. Initially, the Board notes that
the subpoena is overly broad, as it requests the complete Tennessee state bar files on Herbison and
Ogle rather than limiting the request to the files “reflecting disciplinary measures instituted against
[Ogle and Herbison]” [Id. p. 1]. The Board reiterates its stance that any non-public records it
maintains regarding the attorneys are confidential under Tennessee Supreme Court Rule 9, § 32.1,
and continues to object to their production [Id. pp. 2–3]. The Board urges the Court to give
deference to the Tennessee Supreme Court’s interests in maintaining a confidential and effective
process for investigating complaints against attorneys” [Id. p. 5].
In reply, Petitioner concedes that the wording of the subpoena was broader than the Court’s
order and indicates his willingness to re-issue the subpoena with the narrower language of that
order [Doc. 87 p. 1]. He also restates his position that a protective order would be an adequate
safeguard to address the Board’s confidentiality concerns [Id. p. 2].
II.

ANALYSIS
The Board’s primary objection to the subpoena in this case is that the requested documents

are privileged under the Tennessee Supreme Court rules. The extent to which a state law privilege
applies in federal court was addressed in Farley v. Farley, 952 F. Supp. 1232, 1235 (M.D. Tenn.
1997). Applying Rule 501 of the Federal Rules of Evidence, the Farley court found that there is
no constitutional inhibition to the abrogation of privileges arising under state law when a matter is
heard in a federal court, and that this is particularly true when the civil action arises under federal
law rather than under state law. Farley, 952 F. Supp. at 1235–36. Most courts that have considered

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the issue of state privileges have concluded that the state law must yield to the federal interest in
full disclosure of all facts bearing upon the denial of federally-guaranteed rights, Farley, 952 F.
Supp. at 1236, and only particularly strong state policies justify the withholding of evidence in
federal civil rights actions. See Grummons v. Williamson County Board of Education, No. 3:131076, 2014 WL 1491092 at * 3 (M.D. Tenn. April 15, 2014).
Here, the Court already has determined that there is a significant federal interest in
disclosure of the requested records as those records may yield proof which would allow Petitioner
to prevail on his ineffective assistance claim [Doc. 68]. While not minimizing the Board’s
concerns regarding confidentiality, the Court finds that the state’s interests in confidentiality must
yield to the federal interests in securing potential evidence in a capital habeas corpus proceeding.
See Quintero v. Carpenter, No. 3:09-cv-0016 [Doc. 84-2]. Moreover, as Petitioner indicates, the
Board’s confidentiality concerns can be addressed by the filing of a protective order. Accordingly,
the Board’s objection to production of the requested documents on the ground of privilege will be
overruled.
Finally, the Court does agree with the Board that the subpoena as written is overbroad in
that it seeks the complete Tennessee state bar files on Herbison and Ogle rather than limiting the
request to the files “reflecting disciplinary measures instituted against [Ogle and Herbison].”
Petitioner concedes this and has indicated he will re-issue the subpoena to comply with the Court’s
discovery order and he will be directed to do so.

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III.

CONCLUSION
Accordingly, for the reasons set forth herein, it is ORDERED that the Board’s objection

to the subpoena [Doc. 83] is OVERRULED and Petitioner’s motion to compel compliance [Doc.
84] is GRANTED, subject to Petitioner’s re-issuance of the subpoena to reflect the narrower scope
of the Court’s discovery order [Doc. 68], and subject to a protective order to address confidentiality
concerns. The parties shall submit to the Court a proposed protective order for its consideration
and signature.
IT IS SO ORDERED.

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UNITED STATES DISTRICT JUDGE
UNITED STATES DISTRICT
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