Kell v. Turley

Filing 191

MEMORANDUM DECISION and ORDER on Supplemental Briefing re 148 MOTION to Quash Subpoena to Rollin Cook and for Protective Order. Signed by Magistrate Judge Paul M. Warner on 7/18/2016. (blh)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

TROY MICHAEL KELL,

MEMORANDUM DECISION AND
ORDER

Petitioner,
v.

2:07-CV-00359-CW-PMW

SCOTT CROWTHER, WARDEN, UTAH
STATE PRISON;

District Judge Clark Waddoups
Magistrate Judge Paul M. Warner

Respondent.

District Judge Clark Waddoups referred this matter to Magistrate Judge Paul M. Warner
pursuant to 28 U.S.C. § 636(b)(1)(A).1
BACKGROUND
The Utah Department of Corrections and Rollin Cook, Executive Director, (hereinafter
collectively the “UDC”) previously sought to quash or modify Petitioner Troy Michael Kell’s
(“Petitioner”) subpoena to Mr. Cook.2 In granting in part and denying in part that motion, the
court stated:3
UDC has not made the required “substantial showing” of the harm that would
result from producing the documents on the privilege log to Mr. Kell’s counsel,
partly because such a finding would require the court to assume the worst about
the discovery process and Mr. Kell’s counsel without any basis for doing so, and
partly because UDC has not articulated why producing the documents on the
privilege log pursuant to the protective order would result in the harm that it
predicts.
1

Docket no. 78.
Docket no. 148.
3
Docket no. 168.
2

....
Without the threshold showing of privilege made by UDC, the court will not
engage in the balancing test to determine the relevance of the requested
discovery.4
The UDC filed a partial objection to the order, which was overruled.5 In overruling the
objection, Judge Waddoups granted the UDC leave to file supplemental material to attempt to
establish that the UDC had met the “substantial threshold standard” articulated in Kelly v. City of
San Jose, 114 F.R.D. 653 (N.D. Cal. 1987).6
On February 23, 2016, UDC filed supplemental briefing, including a supplemental
declaration by Jerry Pope, Director of Institutional Operations for the UDC.7 UDC also noted
that it had narrowed the scope of documents that it is attempting not to disclose and provided an
updated list of those documents.8 UDC had previously submitted two declarations in support of
its assertion of the privilege: the declaration of Director Pope9 and the declaration of James
Hudspeth.10 On March 8, 2016, Petitioner filed his opposition.11
ANALYSIS
The court reviews the supplemental materials to determine if UDC has met the
“substantial threshold standard.” To make the “substantial threshold” showing discussed in
Kelly, UDC must establish through competent declarations “what interests would be harmed,
how disclosure under a protective order would cause the harm, and how much harm there would
be” if the documents at issue are disclosed. Kelly, 114 F.R.D at 669 (emphasis omitted).
4

Docket no. 168 at 11.
Docket nos. 170 and 180.
6
Docket no. 180 at 4.
7
Docket no. 181-2.
8
Id. at 3; docket no. 181-1 at 2.
9
Docket no. 148-7.
10
Docket No. 153-1.
11
Docket no. 182.
5

Specifically, a declaration must: (1) establish that the official collected the privileged material at
issue; (2) establish that the declarant personally reviewed it; (3) identify the government interest
threatened by disclosure; (4) describe how disclosure subject to a carefully crafted protective
order would create a substantial risk of harm to significant governmental or privacy interest; and
(5) project how much harm would result if disclosure were made. See id. at 670; see also Soto v.
City of Concord, 162 F.R.D. 603, 613 (N.D. Cal. 1995); Chism v. Cnty. of San Bernardino, 159
F.R.D. 531, 533 (C.D. Cal. 1994).
Based on UDC’s submissions to the court, including the supplemental materials, the court
finds that UDC has met the substantial threshold requirement.

Director Pope identified,

collected, and personally reviewed the materials in question. Director Pope further represented
that the records at issue are classified as “protected” records under the Utah Government Records
Access and Management Act (“UGRAMA”) and declared that the records have been maintained
as confidential by UDC in accordance with UGRAMA.12
The UDC also identifies by declaration the governmental interests that would be
threatened by disclosure of the records, including the UDC’s interest in protecting the life and
safety of officers, inmates, and the public.13 In particular, Director Pope notes that during
executions, groups of people routinely congregate around the prison property. These protestors
or spectators can and do act in unpredictable, extreme, or hostile ways. Threats of violence are
made against UDC officials, prison staff, the executioners, the inmate being executed, and the
facility itself. UDC must take these threats seriously, as well as the risk that an inmate may seek
to act out or have others act out in hostile and desperate ways leading up to an execution.

12
13

See docket no. 181-2 at ¶¶ 3, 8, 11, 12, and 21.
See docket No. 181-2.

The fourth element of the threshold test requires UDC to describe how disclosure subject
to a carefully crafted protective order would create a substantial risk of harm. UDC notes that
even the most carefully crafted protective order cannot ensure that the parties will comply with
its terms. While it is unlikely that Petitioner’s counsel would knowingly violate the protective
order, the potential harm if there was a disclosure is so severe that even a minimal chance of an
unauthorized disclosure poses a great risk. The potential harm in this case is not limited to
economic or reputational damage or invasion of privacy—it is the potential for severe injury or
death to officers, inmates, and others. The risk of unauthorized disclosure is even greater here
given serious allegations regarding Petitioner’s history of influencing or manipulating officers,
attorneys, and others to circumvent UDC security and jeopardize the safety of others.
Finally, the threshold test requires UDC to project the quantum of harm that could result
from improper disclosure. Director Pope stated that unauthorized or inadvertent disclosure could
have dire consequences, including injury or death for officers, inmates, or public citizens.14
While the chance of an unauthorized disclosure appears limited, the grave harm that would result
suffices for purposes of meeting the substantial threshold showing requirement.
CONCLUSION
The court concludes that UDC has met the substantial threshold requirement, thus
permitting the court to engage in the traditional balancing test. Of particular concern to the court
in applying that test is the fact that the records sought appear to have little actual relevance to
Petitioner’s claims. As Petitioner bears the burden of establishing how the documents are
relevant, the court ORDERS as follows: Petitioner has fourteen (14) days from the date of this
order to submit additional briefing and declarations describing specifically how each of the

14

See docket no. 181-2 at ¶ 27.

requested documents are relevant to the litigation, and what interests would be harmed if the
material was not disclosed. UDC will have fourteen (14) days thereafter to file a response, if
desired. No reply brief will be permitted. The court will then balance UDC’s interest in
nondisclosure against Petitioner’s interest in obtaining these documents.
IT IS SO ORDERED.
DATED this 18th day of July, 2016.

BY THE COURT:

________________________________
PAUL M. WARNER
United States Magistrate Judge