Sinclair v. Lauderdale County, Tennessee

Filing 21

ORDER denying 15 Motion to Quash Subpoena. Signed by Magistrate Judge Charmiane G. Claxton on 03/24/2015. (Claxton, Charmiane)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

CHERYL D. SINCLAIR,
Plaintiff,
v.

Case 2:14-cv-02908-SHM-cgc

LAUDERDALE COUNTY, TN,
Defendant.

ORDER DENYING MOTION TO QUASH SUBPOENA

Before the Court is Non-Party Assistant District Attorney Julie Pillow’s Motion to Quash
Subpoena. (Docket Entry “D.E.” #15). The instant motion was referred to the United States
Magistrate Judge for determination. (D.E. #16). For the reasons set forth herein, the instant Motion
to Quash Subpoena is DENIED.
I. Introduction
On November 21, 2014, Plaintiff Cheryl Sinclair filed a Complaint against Lauderdale
County, Tennessee pursuant to 42 U.S.C. § 1983 (“Section 1983”). The claims asserted therein arise
from Plaintiff’s August 12, 2014 arrest for Accessory After the Fact to Escape1 for allegedly
assisting her son, Stephen Sinclair, in escaping from a court-ordered “bible-based” drug treatment
program administered by the Rose of Sharon Rehabilitation Program in Burlison, Tipton County,

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Under Tennessee law, the offense of Escape is codified at Tennessee Code Annotated §
39-16-605 and the offense of Accessory After the Fact is codified at Tennessee Code Annotated
§ 39-11-411.
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Tennessee. (Id. at 1-2 & ¶¶ 9-10, 27-28).2 Mr. Sinclair elected to serve his suspended sentence at
this facility in lieu of serving it in the Lauderdale County Jail. (Id. ¶ 9). Plaintiff alleges that Mr.
Sinclair entered the Rose of Sharon Recovery Center on June 27, 2014 and “walked out of the
program on or about June 28, 2014.” (Id. ¶ 11).
With respect to the August 12, 2014 charges against Plaintiff, Pillow prepared the Affidavit
of Complaint, which was signed by Investigator Clay Newman of the Lauderdale County Sheriff’s
Office. (Id. ¶¶ 14-15). Plaintiff alleges that Newman only signed the Affidavit of Complaint after
Pillow unsuccessfully attempted to persuade Lauderdale Correctional County Officer Christina
Turner to do so, after Pillow and Lieutenant Elizabeth Kiestler presented the Affidavit to Lauderdale
County Sheriff Steve Sanders, and after Sheriff Sanders instructed Newman to do so. (Id. ¶¶ 14-15).
Plaintiff alleges that she was arrested on August 12, 2014 and was informed by a jailer on
August 14, 2014 “that her bond had been set at $250,000 and her first court appearance would be
September 18, 2014.” (Id. ¶ 29). Plaintiff alleges that she was not brought promptly before a
magistrate as required by law, was not informed of the charges against her, and was not informed
of her general right to counsel or her right to have counsel provided to her due to her indigency. (Id.
¶ 30). Plaintiff also alleges that she was not provided a preliminary hearing within ten days of her
arrest pursuant to Rule 5(d)(3) of the Tennessee Rules of Criminal Procedure.
In addition, Plaintiff alleges that the charges were improper under Tennessee law for several

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As to Mr. Sinclair’s underlying offenses, Plaintiff’s Complaint alleges that he pled
guilty in the Circuit Court of Lauderdale County, Tennessee on June 23, 2014 to the offenses of
Aggravated Assault (Class C Felony), Domestic Assault (Class A Misdemeanor), and simple
Possession of a “Schedule VI” Controlled Substance (Class A Misdemeanor). (Compl. ¶ 9).
While the specific offenses committed by Mr. Sinclair are not at issue in the instant motion, the
Court notes that 21 U.S.C. § 812 does not establish a “Schedule VI” controlled substance.
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reasons: (1) the Rose of Sharon Recovery Center is not a “penal institution” from which a person
can commit the offense of Escape; (2) pursuant to Tennessee Code Annotated § 39-16-601(3), a
violation of conditions of probation or parole does not qualify as an Escape; (3) any alleged Escape
from the Rose of Sharon Recovery Center would have to be brought in Tipton County rather than
Lauderdale County; (4) the offense of Accessory After the Fact “presupposes the underlying offense
has been committed as one of its elements,” which Plaintiff asserts it could not have been; and, (5)
there was no probable cause to believe Plaintiff committed the offense of Accessory After the Fact.
(Id. ¶¶ 19-24, 26).
At Plaintiff’s first court appearance on September 18, 2014, Pillow announced that the
charges against her would be dismissed, and Plaintiff was released from custody at approximately
9:30 a.m. on that date. Ultimately, Plaintiff was incarcerated in the Lauderdale County Jail from the
date of her arrest until the charges were dropped—a period of approximately thirty-eight days.

On February 18, 2015, Pillow was served with a Subpoena to Testify at a Deposition in a
Civil Action (“Subpoena”), which also required her to produce certain documents. (Mot. to Quash
Subpoena, Exh. 1, filed at D.E. #15-1). On February 20, 2015, Pillow filed the instant Motion to
Quash Subpoena pursuant to Rule 45(d)(3)(A)(iii)-(iv) of the Federal Rules of Civil Procedure.
Pillow states in the Motion that she “will provide the documents requested, with any relevant
objections and/or privilege log” by March 4, 2015, which was the date originally set for her
deposition; however, Pillow’s Motion seeks that the Court quash the request that she be required to
testify at the deposition. (Id. at 1). Specifically, Pillow argues as follows: (1) there are other means
to obtain the information; (2) the information sought is privileged and not crucial to the preparation

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of Plaintiff’s case; and, (3) the Subpoena is an attempt to circumvent the protections afforded a party
to a lawsuit by subjecting Pillow to a deposition “without the benefit of raising immunity,
participating in the discovery conference, or attending and reviewing all depositions.”3 (Id. at 1).

On February 25, 2015, Plaintiff and Defendant filed a Joint Response asserting that Pillow’s
Motion to Quash Subpoena should be denied for the following reasons: (1) Rule 26(b) of the Federal
Rules of Civil Procedure permits broad discovery; (2) state prosecutors are not absolutely immune
from discovery; and, (3) Pillow’s argument that the Subpoena is an attempt to circumvent the
protections afforded a party to a lawsuit is specious and without merit. (Resp. to Mot. to Quash
Subpoena at 2-5). The Joint Response notes that, while the Subpoena was issued by Plaintiff,
Defendant joins in the request to depose Pillow because it also believes she is a “fact witness with
first hand knowledge of facts related to the underlying claims in this lawsuit.” (Id. at 5).
II. Analysis
A. General Discovery under Rules 26, 34, and 45 of the Federal Rules of Civil
Procedure
First, Pillow asserts that the Subpoena is not permitted under Rule 45 of the Federal Rules
of Civil Procedure. Under the Federal Rules of Civil Procedure, the general scope of discovery is
as follows:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to

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This ground to quash the deposition testimony apparently arises from Plaintiff’s
counsel’s notification to Senior Counsel Heather C. Ross of the Office of the Attorney General
for the State of Tennessee that “there is a chance he will name General Pillow [as] a Defendant
to this action” but that he currently refuses to send her copies of earlier depositions taken in the
case. (Affidavit of Heather C. Ross, Exh. 3, filed at D.E. #15-3 ¶¶ 5-8).
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any party’s claim or defense—including the existence, description, nature, custody,
condition, and location of any documents or other tangible things and the identity
and location of persons who know of any discoverable matter. For good cause, the
court may order discovery of any matter relevant to the subject matter involved in
the action. Relevant information need not be admissible at trial if the discovery
appears reasonably calculated to lead to the discovery of admissible evidence.
Fed. R. Civ. P. 26(b)(1).
Rule 45(d) governs protecting a person subject to a subpoena and provides that a court must
quash or modify a subpoena that, inter alia, “requires disclosure of privileged or other protected
matter, if no exception or waiver applies” or “subjects a person to undue burden.” Fed. R. Civ. P.
45(d)(3)(A)(iii)-(iv). Rule 34(c) provides that “a nonparty may be compelled to produce documents
and tangible things or to permit an inspection.” Fed. R. Civ. P. 34(c). “A nonparty seeking to quash
a subpoena bears the burden of demonstrative that the discovery should not be permitted.” In re
Smirman, 267 F.R.D. 221, 223 (E.D.Mich. May 12, 2010).
With respect to Rule 45(d)(3)(A)(iii), Pillow asserts that the Subpoena should be quashed
due to the applicability of the deliberative process privilege, which protects from discovery
“documents reflecting advisory opinions, recommendations and deliberations comprising part of a
process by which governmental decisions and policies are formulated.” NLRB v. Sears, Roebuck
& Co., 421 U.S. 132, 149 (1975) (emphasis added). This privilege protects internal communications
of a governmental agency when they are deliberative in nature, but not when they are purely factual.
Sears, 421 U.S. at 149. Many courts have held that the deliberative process privilege is a qualified
privilege and can be overcome by demonstrating the relevance of the evidence sought, the
availability of other evidence, the role of the government in the litigation, and the potential
consequences of disclosure of the information. Libertarian Party of Ohio v. Husted, 33 F. Supp. 3d
914, 919 (S.D. Ohio 2014).
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However, this Court has previously determined that the applicability of the deliberative
process privilege to a state prosecutor is “questionable,” as “the Sixth Circuit has not addressed
whether this privilege applies to state actors or agencies.” Dexter Wayne Dodd v. John E. Potter,
No. 1:09-cv-01148-JDB-egb, 2011 WL 1466387, at *1 n.1 (W.D.Tenn. Jan. 20, 2011). The Court
has reviewed the authority cited by Pillow and remains unconvinced that Pillow has met her burden
of establishing that the deliberative process privilege applies here. Further, with respect to a
deposition, other courts have concluded that, “[g]iven that the privilege is not absolute and that
discovery might reveal reasons why it should not be applied, it is fairly standard practice to permit
a person who may be able to claim this privilege to be deposed . . . .” Husted, 33 F. Supp.3d at 920.
Accordingly, Pillow’s request to quash the Subpoena pursuant to Rule 45(d)(3)(A)(iii) based upon
the applicability of the deliberative process privilege is denied.
With respect to Rule 45(d)(3)(A)(iv), Pillow asserts that the Subpoena should be quashed
because it subjects her to an undue burden. However, other than citing this provision of the Federal
Rules of Civil Procedure, Pillow does not articulate how the deposition constitutes an undue burden.
Even though courts “consider one’s status as a nonparty to be a significant factor in the undueburden analysis,” In re Smirman, 267 F.R.D. at 223 (citing N.C. Right to Life, Inc. v. Leake, 231
F.R.D. 49, 51 (D.D.C. 2005), the nonparty still bears the burden of demonstrating that the discovery
sought should not be permitted, In re Smirman, 267 F.R.D. at 223. Pillow has failed to do so in the
instant case, and thus her request to quash the Subpoena pursuant to Rule 45(d)(3)(A)(iv) based
upon undue burden is denied.
B. Applicability of the Shelton Test
Next, Pillow asserts that the Subpoena should be quashed under the test set forth in Shelton

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v. American Motors Corporation, 805 F.2d 1323 (8th Cir. 1986), which was adopted by the United
States Court of Appeals for the Sixth Circuit in Nationwide Mutual Insurance Company v. Home
Insurance Company, 278 F.3d 621, 628-29 (6th Cir. 2002). In Shelton, the United States Court of
Appeals for the Eighth Circuit concluded that obtaining discovery from opposing counsel should
be “limited to where the party seeking to take the deposition has shown that (1) no other means exist
to obtain the information than to depose opposing counsel; (2) the information sought is relevant and
nonprivileged; and (3) the information is crucial to the preparation of the case.” Id. In United States
v. Philip Morris, Incorporated, 209 F.R.D. 13 (D.D.C. 2002), the Eighth Circuit clarified that the
Shelton test applies to limit discovery requests from opposing counsel only in two instances: (1)
when opposing trial or litigation counsel are being deposed; and, (2) when such questioning would
expose litigation strategy in the pending case. Id. at 17; see also Ellipsis, Inc. v. The Color Works,
Inc., 227 F.R.D. 496, 497 (W.D.Tenn. May 19, 2005); Spine Solutions, Inc. v. Medtronic Sofamor
Danek, Inc., No. 07-2175-JPM-dkv, 2008 WL 199709, at *3 (W.D.Tenn. Jan. 23, 2008).
The Shelton test is not applicable in the instant case because Pillow is not acting as opposing
counsel to either Plaintiff or Defendant. Instead, Pillow served as a prosecutor on behalf of the State
of Tennessee, who is not a party to this action, in a prior completed case. This role does not invoke
the protections of Shelton. See Pamida Incorporated v. E. S. Originals, Incorporated, 281 F.3d 726
(8th Cir. 2002) (concluding that Shelton “was not intended to provide heightened protection to
attorneys who represented a client in a completed case”). When Shelton does not apply, the inquiry
reverts to simply whether the discovery is appropriate under the applicable Federal Rules of Civil
Procedure, as already discussed above. Accordingly, Pillow’s request to quash the Subpoena
pursuant to Shelton is denied.

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C. Prosecutorial Immunity
Next, Pillow asserts that the Subpoena should be quashed under the doctrine of prosecutorial
immunity, which is an absolute bar on claims against prosecutors for performing their prosecutorial
functions, Imbler v. Pachtman, 424 U.S. 409, 420 (1976), and the doctrine of qualified immunity,
which prohibits suits against certain government officials unless their conduct violates clearly
established statutory or constitutional rights, Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). While
no claim has been raised against Pillow, Pillow maintains that the doctrine of prosecutorial immunity
further “shields government officials from discovery as well.”
Upon review, the authorities cited by Pillow do not support the proposition that she asserts.
Specifically, none of the authorities hold that a nonparty prosecutor cannot be deposed because of
prosecutorial immunity or qualified immunity. Instead, the authorities Pillow cites explain that the
underlying rational for extending absolute immunity to prosecutors and qualified immunity to other
government actors is to allow these individuals “some assurance that they can perform their duties
without fear of monetary liability or the diversions inherent in litigation.” Poe v. Haydon, 853 F.2d
418, 423 (6th Cir. 1988). However, this rationale is based upon the inhibitions that may arise if
prosecutors face the persistent “fear of personal monetary liability and harassing litigation” that
would come with being routinely sued, Id. (citing Anderson v. Creighton, 483 U.S. 635, 638 (1987)),
not the concern of participating in a nonparty deposition where the prosecutor faces no claim for
liability. Accordingly, Pillow’s request to quash the Subpoena based upon the doctrines of
prosecutorial immunity or qualified immunity is denied.
D. Denial of Rights Afforded to Parties
Finally, Pillow asserts that the Subpoena to take Pillow’s deposition as a nonparty is an

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attempt to circumvent the protections afforded to a party to the litigation. Specifically, Pillow
alleges that Plaintiff wishes to take her deposition to determine if she should be named as a party
and that, given these motivations, Pillow should already be entitled to receive copies of the other
depositions taken in the case, participate in the discovery conference, assert her immunity, and raise
legal arguments. Pillow cites no authority for the proposition that these protections should be
afforded to a nonparty, and the Court is aware of none. The District Court has determined that the
appropriate deadline for joining parties and amending pleadings in this case is April 27, 2015. (D.E.
#20). Rule 34(c) of the Federal Rules of Civil Procedure explicitly permits discovery from a
nonparty, and there is no basis under Rule 45 for a Subpoena to be quashed on the grounds that the
nonparty is not receiving similar protections to a party. Accordingly, Pillow’s request to quash the
Subpoena based upon her allegation that the parties are seeking to deny her the rights that would be
afforded to her if she were a party is denied.4
III. Conclusion
For the reasons set forth herein, Pillow’s Motion to Quash Subpoena is hereby DENIED.

IT IS SO ORDERED this 24th day of March, 2015.
s/ Charmiane G. Claxton
CHARMIANE G. CLAXTON

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Pillow further requests that, if her deposition be permitted and she is later named a
party in this lawsuit, that her deposition be inadmissible at trial or for any other purpose because
it was “obtained through subterfuge” of the Federal Rules of Civil Procedure. (Mot. to Quash
Subpoena at 7). The Magistrate Judge declines to consider this issue of the admissibility of
evidence at trial as beyond the scope of the referral from the District Court of the Motion to
Quash Subpoena.
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UNITED STATES MAGISTRATE JUDGE

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