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Farmer v. Tennessee Dep't of Safety

November 22, 2006


The opinion of the court was delivered by: C. Clifford Shirley, Jr. United States Magistrate Judge



This case is before the undersigned pursuant to 28 U.S.C. § 636(b), the Rules of this Court, and by Order [Docs. 125, 126] of the Honorable Leon Jordan, United States District Judge, for disposition of the Plaintiff's Petition for Contempt [Doc. 117] and the Motion to Quash [Doc. 123] filed by the Tennessee Bureau of Investigation. The undersigned held a hearing on these motions on November 15, 2006.

This is a civil rights action brought pursuant to 42 U.S.C. § 1983 by the plaintiff Charles Bryan Farmer, a former lieutenant with the Tennessee Highway Patrol ("THP"), against the Tennessee Department of Safety, Commissioner of Safety Fred Phillips, Deputy Governor Dave Cooley, and others, alleging that he was demoted, transferred, and ultimately terminated in violation of his due process rights, as well as his First Amendment rights of freedom of speech and association. [Doc. 76].

On September 18, 2006, the plaintiff served a subpoena on the Tennessee Bureau of Investigation ("TBI") records custodian, commanding the production of "[a]ny and all files in your possession concerning any investigation involving, concerning, or relating in any way to activities of Deputy Governor Dave Cooley and/or Lt. Ronnie Shirley of the Tennessee Highway Patrol." [Doc. 122 Ex. A]. The Tennessee Attorney General responded to the subpoena by a letter dated September 22, 2006 [Doc. 119 Ex. A], raising numerous objections to the plaintiff's subpoena, including: (1) that the subpoena is overly broad and unreasonably burdensome; (2) that the subpoena calls for the production of confidential material; (3) that the materials requested are attorney work product; and (4) that requiring the TBI records custodian to produce the documents in Knoxville would be unduly burdensome. In response to the Attorney General's letter, the plaintiff's counsel clarified his document request, limiting it to the file regarding the TBI investigation concerning a speeding ticket that Deputy Governor Cooley received and which was allegedly dismissed by Rutherford County General Sessions Court Judge David Loughry at Lt. Shirley's request. [Doc. 119 Ex. B].

In his Petition for Contempt [Doc. 117], the plaintiff moves for the entry of an Order holding the TBI in contempt for failing to comply with the subpoena or for otherwise failing to "file any response with the Court, as required by Federal Rule of Civil Procedure 45." The plaintiff contends that the Attorney General's September 22, 2006 letter outlining TBI's objections to the subpoena was not only improper but that the reasons cited therein are "'knee jerk' objections" which are "laughable and disingenuous." The plaintiff further contends that the Attorney General's letter "clearly departs from the custom and practice of the TBI in producing closed filed upon the execution of a Limited Nondisclosure Agreement or protective order." [Doc. 118].

In its response [Doc. 121], the TBI argues that the plaintiff's petition for contempt is premature and contrary to the rules of this Court. Specifically, the plaintiff contends that the petition should be dismissed because (1) the TBI properly served its objections upon the plaintiff's counsel and (2) the plaintiff has failed to follow the procedures to compel compliance with the subpoena as set forth in Rule 45 of the Federal Rules of Civil Procedure. Additionally, the TBI moves to quash the subpoena on the following grounds: (1) that the records sought are the work product of the Attorney General; (2) that the information sought is readily available from other sources; (3) that the information sought is not relevant to the plaintiff's underlying cause of action; and (4) that the investigative files of the TBI are confidential pursuant to Tenn. Code Ann. § 10-7-504(a)(2)(A). [Doc. 123].

As a preliminary matter, the Court finds that the TBI's objections were properly asserted by its letter to the plaintiff's counsel on September 22, 2006. Rule 45 of the Federal Rules of Civil Procedure provides, in pertinent part, as follows:

[A] person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials . . . . If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the material . . . except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production.

Fed. R. Civ. P. 45(c)(2)(B). In the present case, the TBI served its objections on the plaintiff by letter dated September 22, 2006, six days prior to the date specified in the subpoena for the production of the file. Once these objections were served, the TBI had satisfied its obligations pursuant to Rule 45, and the burden then shifted to the plaintiff to file a motion seeking to compel compliance with the subpoena. Rather than file a motion to compel, however, the plaintiff filed the present petition seeking to hold the TBI in contempt for failing to comply with the subpoena. Such a petition is not appropriate under Rule 45, and therefore, the Court finds that the plaintiff's petition for contempt should be denied.

Turning now to the merits of the objections asserted by the TBI with respect to this subpoena, the Court finds that the TBI's refusal to comply with this subpoena is well-founded for two reasons. First, the Court finds that the information sought by the subpoena is not relevant. Rule 26 sets forth the parameters for discoverable information in a civil action:

Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party . . . . 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 the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

Fed. R. Civ. P. 26(b)(1).

In his Amended Complaint [Doc. 76], the plaintiff alleges that following the election of Governor Phil Bredesen, certain employees of the THP and the Department of Safety, which operates the THP, began to give preferential treatment to THP employees who had supported Governor Bredesen's campaign and began to disparately treat those employees who had not supported Governor Bredesen's campaign or were otherwise affiliated with the Republican party, including the plaintiff. The plaintiff further alleges that he was harassed and punished for informing the news media that one of ...

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