United States District Court, E.D. Tennessee, Winchester
MEMORANDUM AND ORDER
K. LEE, UNITED STATES MAGISTRATE JUDGE
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]. 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 [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
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.
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. 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].
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.
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 [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.
Tennessee Rules of Professional Conduct
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).
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 ...