Mills v. Barnard et al

Filing 55

MEMORANDUM AND ORDER: The Plaintiff's motion to compel (Doc. 34 ) is GRANTED in part and DENIED in part, and Commissioner Hommrich's motion to quash (Doc. 42 ) is DENIED as premature and without prejudice. Subject to the limitations pr ovided herein, the Defendants shall respond to the Plaintiff's request for production within fourteen (14) days from entry of this order. Signed by Magistrate Judge John S. Bryant on 8/24/2016. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
COLUMBIA DIVISION
RANDALL MILLS,
Plaintiff,
v.
WEAKLEY E. BARNARD, et al.,
Defendants.

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No. 1:14-cv-150
Senior Judge Haynes
Magistrate Judge Bryant
Jury Demand

MEMORANDUM AND ORDER
Presently pending are two related discovery motions: the Plaintiff’s motion to compel
(Doc. 34) and Interested Party Bonnie Hommrich’s motion to quash (Doc. 42). For the reasons
that follow, the motion to compel (Doc. 34) is GRANTED in part and DENIED in part, and the
motion to quash (Doc. 42) is DENIED as premature and without prejudice.
I.

STATEMENT OF THE CASE

In 1999, Plaintiff Randall Mills was indicted for sexually contacting, raping, and
providing drugs to a minor 1 in 1999. (Doc. 1, pp. 6, 8 ¶¶ 26-27, 38). He was convicted in 2000.
(Doc. 1, pp. 1, 10-11 ¶¶ 1, 54). After a lengthy appeals process, the Plaintiff’s convictions were
invalidated, and the Plaintiff was removed from the sex offender registry. (Doc. 1, pp. 2, 15 ¶¶ 1,
81). He now brings suit against the Defendants for wrongfully concealing exculpatory evidence
and conspiring to falsely maintain the Plaintiff’s guilt. (Doc. 1, p. 2 ¶ 1). The named defendants
include Assistant District Attorney Weakley E. Barnard, Tennessee Bureau of Investigation
(“TBI”) agent Sharon Jenkins, TBI Director Mark Gwyn, Lewisburg Police Department
investigator Beth Rhoton, Marshall County, and the City of Lewisburg (“Lewisburg”). (Doc. 1,
pp. 2-3 ¶¶ 3-8). He brings claims under 42 U.S.C. §§ 1981, 1983, 1985 for violations of the First,
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The minor, CM, has since reached the age of majority. (Doc. 38, p. 1 n.1).

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Fourth, Thirteenth, and Fourteenth Amendments to the United States Constitution, and a state
law claim of false imprisonment. (Doc. 1, pp. 17-21 ¶¶ 90-105). The Defendants’ motions to
dismiss are currently pending before the District Judge. (Docs. 6, 13, 16, 18).
In February 2016, the Plaintiff moved to compel Defendants Rhoton, Barnard, and
Lewisburg to produce certain investigatory records. (Doc. 34). The Defendants opposed this
motion, explaining that the materials requested are protected by confidentiality laws. (Docs. 36,
37, 38). The Plaintiff replied on March 9, 2016. (Doc. 41). Attached to the Plaintiff’s reply was a
draft subpoena addressed to Interested Party Bonnie Hommrich, Commissioner of the Tennessee
Department of Children’s Services (“DCS”). (Doc. 41-1). Commissioner Hommrich moved to
quash the subpoena. (Doc. 42). The Plaintiff responded to the motion to quash and filed a
redacted records release which is presumably signed by CM. (Docs. 44, 44-1). Defendant
Lewisburg replied to the Plaintiff’s response to the motion to quash. (Doc. 50). These discovery
motions are ripe for resolution.
II.

MOTION TO COMPEL

The Plaintiff seeks the following records from Defendants Rhoton, Barnard, and
Lewisburg: (1) records regarding the investigation of CM’s criminal allegations; (2) all records
of communications that reference Randy Mills or CM, or any internal case label used to denote
CM’s case, sent to or from Defendant Barnard, Defendant Barnard’s agents, or Lewisburg Police
staff since 1999; (3) records related to prior investigations of sexual abuse alleged by CM; (4)
records of communications between Lewisburg Police staff, Defendant Barnard or any agent of
his office, Defendant Jenkins or any agent of the TBI, or Jack Dearing who served as the
Plaintiff’s public defender; and (5) Defendant Barnard’s full, unaltered case file. (Doc. 34). The
Plaintiff believes these files will reveal that the Defendants possessed exculpatory evidence and

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should have doubted CM’s claims and continued to investigate the charges against the Plaintiff.
(Doc. 35, p. 2). As the Plaintiff is seeking to determine the scope of the information possessed by
the Defendants, the Plaintiff requested the information from these particular parties instead of the
original document holders. (Doc. 41, pp. 3, 4 n.2).
The Defendants object to the production of these records, stating that the documents
requested contain confidential medical, mental health, and DCS records and that disclosure of
these documents without a court order could subject the Defendants to criminal penalties. (Doc.
35, pp. 4-5, 8) (Doc. 37) (Doc. 38, p. 2). 2 Initially, Defendant Lewisburg agreed to produce the
requested information once the Court entered a protective order and CM executed a waiver.
(Doc. 35, pp. 4-5). At present, the Defendants take the position that CM cannot waive
confidentiality of the DCS records and that disclosure of these records requires a court order, not
a discovery request. (Doc. 38, pp. 3-4). As to the second request listed above, Defendant
Lewisburg objected that the request was overly broad and unduly burdensome and may include
communications protected by the attorney-client privilege. (Doc. 35, p. 4). Additionally,
Defendant Lewisburg objected that the fourth request was overly broad and unduly burdensome
as no identifying time frame or incident was specified. (Doc. 35, p. 5). These objections are
addressed in turn.
A. LEGAL STANDARD
Parties enjoy a broad scope of discovery in civil actions brought in federal court. As
amended, Rule 26(b)(1) of the Federal Rules of Civil Procedure permits discovery of
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Defendant Barnard initially agreed to permit the Plaintiff to inspect and copy Defendant Barnard’s file. (Doc. 35,
pp. 7-8). Upon receiving Defendant Lewisburg’s confidentiality objections, counsel for Defendant Barnard sought to
redact Defendant Barnard’s file prior to inspection. (Doc. 35, p. 8). The parties mutually agreed to stay review of
Defendant Barnard’s file while the Court rules on the instant motion to compel. (Doc. 35, p. 8). Additionally,
Defendant Barnard takes the position that disclosure of his file is unnecessary based on his prosecutorial immunity.
(Doc. 37, p. 2). Defendant Barnard’s motion to dismiss is, in part, based on this prosecutorial immunity argument.
(Doc. 13). That issue is currently pending before the District Judge.

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nonprivileged matters that are relevant to a party’s claims or defenses and are proportional to the
needs of the particular case. However, the court must limit the frequency or extent of discovery
sought if the court determines that the information requested is outside the scope of discovery set
forth in Rule 26(b)(1). Fed. R. Civ. P. 26(b)(2)(C)(iii). Should a party fail to produce documents
or permit inspection of documents as required by Rule 34 of the Federal Rules of Civil
Procedure, the requesting party may seek a court order compelling production or inspection. Fed.
R. Civ. P. 37(a)(3)(B)(iv); Local Rule 37.01(b).
B. ANALYSIS
1. PRODUCTION OF CM’S MEDICAL RECORDS
Defendants Rhoton and Lewisburg objected to the production of CM’s medical and
mental health records and thoroughly briefed the various statutes protecting this information
from public disclosure. (Doc. 38, pp. 5-8, 11-12). At the time the Defendants submitted these
objections, CM had not executed a waiver authorizing the disclosure of her medical records.
(Doc. 38, p. 5). CM subsequently executed a waiver in which she “authorize[d] the release of any
and all records related to [her] criminal allegations against Randall Mills to be disclosed to the
parties and attorneys in” this lawsuit. (Doc. 44-1, p. 1 ¶ 2). CM declared that she intended to
“waive any rights created by Tennessee, federal, or local laws that limit the disclosure of
particular records, such as medical records and [DCS] records” subject to a protective order.
(Doc. 44-1, pp. 1-2 ¶¶ 3-4). An agreed protective order was entered on April 5, 2016. (Doc. 48).
Following receipt of CM’s waiver, Defendant Lewisburg agreed to produce the medical records
in its possession. (Doc. 50, p. 4). Production of these medical records must be completed no later
than fourteen (14) days from entry of this order.

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2. PRODUCTION OF DCS RECORDS
The Defendants state that the documents requested contain confidential DCS records.
Tennessee law strictly regulates access to and disclosure of reports of child abuse and
information related to such reports. See Tenn. Code Ann. §§ 37-1-409; 37-1-612; 37-5-107.
Though state law permits disclosure of these records in limited instances, “production to
individuals accused of child sexual abuse is not among the exceptions.” State v. Biggs, 218
S.W.3d 643, 662 (Tenn. Crim. App. 2006) (citing Tenn. Code Ann. § 37-1-612(b)(1)-(7); State v.
Gibson, 973 S.W.2d 231, 244 (Tenn. Crim. App. 1997); State v. Clabo, 905 S.W.2d 197, 201
(Tenn. Crim. App. 1995)); see also Farley v. Farley, 952 F. Supp. 1232, 1242 (M.D. Tenn.
1997) (“This Court has no authority under state law to order production of DCS records and their
dissemination in the discovery and trial phases of federal civil rights litigation.”) (emphasis
added).
The inquiry does not end there, however. As this Court has previously recognized, “in an
action alleging violation of constitutional rights by an employee or agent of a governmental
agency, the state interests in confidentiality of child abuse or neglect investigations must yield to
the federal interests in securing evidence in federal civil rights litigation.” Grummons v.
Williamson Cty. Bd. of Educ., No. 3:13-1076, 2014 WL 1491092, at *3 (M.D. Tenn. Apr. 15,
2014). This analysis begins with a discussion of Farley v. Farley, 952 F. Supp. 1232 (M.D.
Tenn. 1997), in which the Court thoroughly analyzed the application of this state law privilege to
federal civil rights lawsuits. The Court first noted that “[t]here is no constitutional inhibition to
the abrogation of privileges arising under state law when a matter is heard by a federal tribunal.”
Farley, 952 F. Supp. at 1235 (citation omitted). Rather, claims of privilege in suits arising under
federal law, such as this suit, are generally governed by federal common law and may be

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supplemented by state law privilege where appropriate. See id. at 1235-36 (quoting Fed. R. Evid.
501).
The Court noted that “[i]n federal civil rights actions, most courts that have taken up the
issue of state privileges have concluded that state law must yield to the federal interest in full
disclosure of all facts bearing upon the denial of federally-guaranteed rights.” Id. at 1236
(citations omitted). Finding that the state of Tennessee has a particularly strong public policy
interest which justifies withholding child abuse reports and related information—protecting the
privacy of families afflicted by child abuse and protecting the identities of individual who report
child abuse—the Court found that disclosure of this confidential material “must strike a balance
between Plaintiff’s ability to prosecute her civil rights claim and the state’s interest in ensuring
that child abuse is reported, investigated, and resolved without undue fear of retribution or
recrimination.” Id. (citations omitted). Analyzing somewhat similar cases, the Court observed
that the cases generally recommended considering the following factors:
(1) the likelihood that disclosure of confidential information will discourage
citizens from giving the government information;
(2) the extent to which disclosure will thwart or undercut significant regulatory
processes;
(3) the extent to which state authorities have already waived the privilege that
they assert;
(4) the federal policies prioritizing and facilitating full development of the facts in
federal litigation; and
(5) the plaintiff’s need for disclosure.
Id. at 1237-38 (citations omitted).
Turning to the first factor, the Magistrate Judge finds that any risk of a chilling effect
from the disclosure of CM’s DCS records will be minimized by redacting the identifying
information of the reporter or reporters and by disclosing these records subject to the parties’
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protective order. See id. at 1240. As is provided in the protective order, a knowing violation of
the order may subject the violator to punishment for contempt. (Doc. 48, p. 4 ¶ 8).
Next, it has not been shown that disclosure of CM’s DCS records involving the Plaintiff
will interfere with any ongoing agency investigations, especially as the conduct at issue occurred
in 1999 and CM is no longer a minor.
As to the third factor, the Plaintiff has not identified any state waiver of privilege, and the
Magistrate Judge finds none. This factor weighs against disclosure.
The fourth and fifth factors provide persuasive grounds for disclosure. As was explained
in Farley, “the scheme of rules mandating wide-ranging discovery [a]nd admission of evidence
serves a fundamental public interest,” and “[i]t is therefore of paramount importance that
litigants be accorded the authority to seek out relevant evidence that they have been granted by
the federal rules . . . particularly . . . in federal civil rights actions where the vindication of
constitutional rights is often at stake.” Id. at 1239.
The Plaintiff’s complaint alleges serious breaches of his federal civil rights by state actors
leading to his wrongful incarceration for eleven years and registration as a sex offender for
several years. Through discovery, the Plaintiff seeks to establish that the information possessed
by the Defendants at the time the Plaintiff was charged contained exculpatory evidence, cast
doubt on CM’s allegations, and required further investigation before charging the Plaintiff. The
DCS records in the Defendants’ possession involving the Plaintiff and CM are highly relevant to
these claims. The same cannot be comfortably said for the Plaintiff’s general request for records
related to any prior investigations of sexual abuse alleged by CM. (Doc. 35, pp. 4, 8). This
request raises the possibility of disclosing DCS records involving unrelated incidents, if any,

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which are much less relevant to the Plaintiff’s claims than the DCS records involving the
Plaintiff and CM.
As this Court has found, “[t]he confidentiality granted child abuse records under
Tennessee law may not be invoked as a shield with which to block scrutiny of governmental
practices.” Id. at 1240; see also Grummons, No. 3:13-1076, 2014 WL 1491092, at *3; John B. v.
Goetz, 879 F. Supp. 2d 787, 903 (M.D. Tenn. 2010). Notably, the Plaintiff is seeking scrutiny of
the actions taken by a prosecutor and various state and municipal investigators, not the DCS.
Regardless, the rationale given in Farley applies with equal force as “governmental compliance
with federally-guaranteed civil rights” is being scrutinized. Grummons, No. 3:13-1076, 2014 WL
1491092, at *3 (quoting Farley, 952 F. Supp. at 1240). 3
Applying these factors to the case at hand, the Magistrate Judge concludes that the
balance weighs in favor of disclosing CM’s DCS records involving the Plaintiff subject to the
following restrictions. The identifying information of the reporter or reporters shall be redacted,
and the records shall be disclosed pursuant to the parties’ protective order (Doc. 48).
Recognizing that this Court must diligently strive to maintain a balance between the state’s
interest in the safety of children and a party’s ability to prosecute his or her civil rights claims,
the Magistrate Judge finds that any DCS records of child abuse alleged by CM against
individuals other than the Plaintiff are too remote to justify disclosure at this junction. Subject to
these conditions, the Defendants are ORDERED to produce the requested DCS records by no
later than fourteen (14) days after entry of this order.

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This is not to say that the Defendants here are attempting to hide behind a shield of confidentiality. As the medical,
mental health, and DCS records sought are protected by a variety of confidentiality laws, the Defendants were
correct to object to their production absent a court order, or a confidentiality waiver in the case of CM’s medical and
mental health records.

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3. OBJECTIONS NOT ADDRESSED IN THE BRIEFS
Defendants Rhoton and Lewisburg objected that the second listed request for production
which sought “all records of communications that reference Randy Mills or [CM], or any
internal case label used to denote [CM]’s case, sent to or from Lewisburg Police staff since
1999” was overly broad and unduly burdensome and potentially sought materials protected by
the attorney-client privilege. (Doc. 35, p. 4). Absent development of this objection, the
Magistrate Judge fails to see how this request for production is overly broad and unduly
burdensome, and this objection is overruled. As for the suggestion that the materials requested
may be covered by the attorney-client privilege, counsel are directed to follow the procedures set
forth in Rule 26(b)(5) of the Federal Rules of Civil Procedure.
Additionally, Defendants Rhoton and Lewisburg objected that the fourth listed request
for production which sought “any records of communications between Lewisburg Police staff
and Weakley E. Barnard or any agent of his office, Sharon Jenkins or any agent of the [TBI], or
Jack Dearing” was overly broad and unduly burdensome because it did not identify a particular
time frame or incident. (Doc. 35, p. 5). This objection has merit. As it is currently worded, the
request for production is far too broad. Insofar as the Plaintiff seeks to compel a response to this
overly broad request, the motion is DENIED, and the request is narrowed. Defendants Rhoton
and Lewisburg need only respond to this request as it pertains to the relevant time frame and
incident at issue in this case.
III.

MOTION TO QUASH

Commissioner Hommrich moved to quash a proposed subpoena attached as an exhibit to
one of the Plaintiff’s filings. (Doc. 42). The Plaintiff states that the proposed subpoena has not

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been served. (Doc. 44, p. 1). Seeing as there is no subpoena to quash at this time, the motion to
quash is DENIED as premature and without prejudice.
IV.

CONCLUSION

For the foregoing reasons, the Plaintiff’s motion to compel (Doc. 34) is GRANTED in
part and DENIED in part, and Commissioner Hommrich’s motion to quash (Doc. 42) is
DENIED as premature and without prejudice. Subject to the limitations provided herein, the
Defendants shall respond to the Plaintiff’s request for production within fourteen (14) days from
entry of this order.
It is so ORDERED.
/s/ John S. Bryant
JOHN S. BRYANT
United States Magistrate Judge

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