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Myers v. Cunningham

United States District Court, E.D. Tennessee, Winchester

August 19, 2019

JEREMIAH MYERS, et al., Plaintiffs,
v.
A.J. CUNNINGHAM, et al., Defendants.

          MEMORANDUM AND ORDER

          SUSAN K. LEE, UNITED STATES MAGISTRATE JUDGE

         Before the Court is a Motion for Disclosure of Information from the Public Defender of the Twelfth Judicial District of Tennessee, with a supporting memorandum, filed by Defendants A.J. Cunningham and Charlie Wilder (“Defendants”) [Docs. 32 & 33].[1] The motion relates to a subpoena duces tecum Defendants served on the office of Public Defender Jeffrey Harmon (“PD Harmon”) on May 17, 2019 [Doc. 33-2]. PD Harmon filed a response[2] [Doc. 39], and Defendants filed a reply [Doc. 42-1]. The Court conducted a hearing on the motion on August 16, 2019. This matter is now ripe.

         For the reasons stated below, the Court will GRANT Defendants' motion [Doc. 32] to the extent it seeks production of the seven audio recordings PD Harmon has in his client files. PD Harmon will be ORDERED to produce the recordings after the entry of a protective order as set forth herein.

         I. BACKGROUND

         This is a malicious prosecution/municipal liability civil rights case. In their original complaint, Plaintiffs Clarissa and Jeremiah Myers (“Plaintiffs”) claimed Defendants conspired with a confidential informant named Tina Prater (“CI Prater”) to generate false evidence showing Plaintiffs were drug dealers. Specifically, Plaintiffs claim Defendants paid CI Prater to arrange for third parties to impersonate Plaintiffs in fake recorded drug buys.[3] Plaintiffs were arrested in August 2017 allegedly based on the evidence obtained by CI Prater. Clarissa was charged with eight counts of sale of a schedule II drug, and Jeremiah was charged with one count of sale and one count of delivery of a schedule II drug, all felonies. All charges against Plaintiffs were eventually dismissed. Attached to the pending motion is a handwritten note purportedly authored by CI Prater confessing to a conspiracy with Defendants [Doc. 33-1].

         As Defendants explain in the motion, Plaintiffs' arrests were part of a larger sting operation, with 19 people arrested in total. PD Harmon represented several of these individuals in state criminal court, but not Plaintiffs. An investigator working for PD Harmon, Stacey Williams, interviewed some or all of the individuals allegedly recruited by CI Prater to participate in the staged drug buys. PD Harmon indicates he has seven audio recordings of these interviews stored in his client files. According to Defendants, the charges against all but two of the 19 people arrested in connection with this sting operation were dismissed. Defendants assert, and PD Harmon does not dispute, that all charges against each of his clients were dismissed.

         On May 17, 2019, Defendants served a subpoena duces tecum on PD Harmon, seeking production of “[a]ny recorded statements, transcripts of recorded statements or summaries of recorded statements of Tina Prater or other persons who claim to have posed as persons selling drugs to Tina Prater, ” contained within Mr. Harmon's client files[4] [Doc. 33-2]. PD Harmon objected by letter dated May 31, 2019, citing Tennessee Rule of Professional Conduct 1.9(c), and the “work product privilege.” [Doc. 33-3]. Thereafter, Defendants filed the instant motion.

         II. ANALYSIS

         A. Tennessee Rules of Professional Conduct

         Tennessee Rule of Professional Conduct 1.9 provides:

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter reveal information relating to the representation or use such information to the disadvantage of the former client unless: (1) the former client gives informed consent, confirmed in writing, or (2) these Rules would permit or require the lawyer to do so with respect to a client, or (3) the information has become generally known.

Tenn. Sup. Ct. R. 8, RPC 1.9(c).

         Rule 1.6, in turn, requires lawyers to “reveal information relating to the representation of a client to the extent the lawyer reasonably believes disclosure is necessary . . . to comply with an order of a tribunal requiring disclosure, ” but first the lawyer must assert “all non-frivolous claims that the information . . . is protected against disclosure by the attorney-client privilege or other applicable law.” Id. RPC 1.6(c)(2). The Court finds that ...


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