Opinion
Case No. 06-CV-570-JHP-TLW.
January 13, 2009
ORDER AND OPINION
This matter came before Magistrate Judge T. Lane Wilson for hearing on defendant Aaron Sales' ("Aaron") combined motion for protective order and motion to quash (Dkt. # 93), City of Tulsa's ("City") motion to quash subpoena duces tecum (Dkt. # 96), and Bert Hanson's ("Hanson") motion to quash (Dkt. # 99) and motion for protective order (Dkt. # 100).
BACKGROUND AND ISSUE
Plaintiffs filed this action seeking damages for wrongful termination in violation of public policy, intentional infliction of emotional distress, and tortious interference with contractual relations. (Dkt. # 2). Plaintiffs are former management level employees of Aaron, who worked under the supervision of one of Aaron's Vice Presidents, Bert Hanson. It is alleged that on January 19, 2005, plaintiff Jarrod Dozier and Hanson went to Night Trips, which is a strip bar in Tulsa. At the bar, Hanson allegedly paid for a lap dance from a female employee, Michelle Brown, who is the wife of Aaron's employee, Stacey Brown. It is alleged that Hanson, Dozier, and Mrs. Brown consumed alcohol at Night Trips, left the bar together, went to other bars in the Tulsa area and ultimately ended up in Hanson's room at the Doubletree Hotel. It is further alleged that Dozier left the hotel room to locate Mrs. Brown's purse and upon his return he found Mrs. Brown ill, on the floor of the bathroom, and in need of assistance. Dozier notified Stacey Brown, advised him of his wife's condition, and requested that he come to the hotel to get her. Plaintiffs allege that while waiting for the arrival of Mr. Brown, Dozier observed Hanson intentionally "groping, fondling and touching Michelle without her consent and against her stated protests." (Dkt. # 2, Ex. A at 5). Mr. Brown took his wife to a hospital, and the following morning Mrs. Brown contacted the Tulsa Police Department to press charges against Hanson.
The Tulsa County District Attorney's Office filed felony charges against Hanson for Sexual Battery. During the criminal investigation, Hanson, Dozier, and another witness were interviewed by Tulsa Police Detective Larry Woods. Plaintiffs allege that prior to Dozier's interview with Woods, "undue and unlawful pressure was directed toward Dozier by [Aaron] in an effort to cause Dozier to make false statements to the police investigating the crime, and to deny having witnessed any inappropriate conduct by Hanson." (Dkt. # 2, Ex. A at 5-6).
After the charges against Hanson were dismissed, Dozier's employment was terminated by Aaron "for conduct unbecoming of a Regional Manager." (Dkt. # 2, Ex. A at 8, Dkt. # 94 Ex. A). Dozier "ultimately made a full and truthful disclosure of the events he had witnessed on the night of January 19, 2005," to Detective Woods. (Dkt. # 2, Ex. A at 6). The criminal charges were re-filed against Hanson, Hanson entered a plea of nolo contendere, Hanson received a deferred sentence, and the state court later expunged Hanson's criminal case and sealed the records. Plaintiffs contend that although Aaron terminated their employment, Hanson suffered no adverse employment action and holds the position of Vice President to this day. (Dkt. # 2, Ex. A at 6).
On November 10, 2008, plaintiffs' counsel served notice of a deposition subpoena duces tecum issued out of this Court requiring Tulsa Police Department Detective Larry Woods to appear for a November 21, 2008 deposition and to produce any and all documents and records in his possession or in the custody and control of the Tulsa Police Department relating to the state criminal case of State of Oklahoma v. Bert Hanson, No. CF-2005-1002 (August 29, 2005). (Dkt. # 93, Ex. A).
On November 20, 2008, Aaron moved to quash the subpoena because: (1) Hanson's criminal case was ordered sealed and the records expunged by the District Court of Tulsa County pursuant to 22 O.S. §§ 18[ 22-18] and 19; (2) the order of expungement sealed all criminal records including the documents and investigative records of the Tulsa Police Department pursuant to §§ 18, 19(c)(A), (C) and (G); (3) the Tulsa District Court has previously denied plaintiffs' Petition to Unseal Records for use in this civil case, finding that plaintiffs failed to show a compelling reason to unseal the record; (4) the effect of an expungement order under § 19(D) is "that no such action ever occurred and that no such record exists with respect to such person;" (5) plaintiffs' actions are an inappropriate attempt to use the subpoena powers of this Court to circumvent the laws of the State of Oklahoma by allowing discovery of law enforcement files that have been expunged and specifically denied to plaintiffs for use in this case; and (6) the information sought by plaintiffs is immaterial to plaintiffs' claim for wrongful discharge. (Dkt. # 93 at 4-8).
The City objects to the subpoena issued by plaintiffs' counsel to Detective Woods because: (1) the subpoena requests documents expunged by order of the state court; (2) the police department's documents are protected by a state government privilege; and (3) the subpoena is unduly burdensome. (Dkt. # 95 at 1).
Hanson seeks to quash the subpoena of Detective Woods because: (1) plaintiffs' subpoena is not authorized by any state or federal rules or regulations; (2) it denies Hanson his statutory right to the benefit of his plea bargain and the efforts to permanently seal such records; and (3) plaintiffs' counsel failed to disclose any particularized need, change of circumstance or other justification for any witness to violate the order of expungement. (Dkt. # 99 at 2-3, and Dkt. # 100 at 2).
In their response brief, plaintiffs initially sought to depose Detective Woods regarding his investigation of Hanson's criminal case, his assessment of the veracity of the witnesses he interviewed and his conclusions regarding why plaintiff Jarrod Dozier changed his statement after his employment was terminated by Aaron. (Dkt. # 97 at 5). Based on a review of the pleadings, exhibits and arguments of counsel, the Court's findings are set forth below.
FINDINGS
Rule 26(b)(1) of the Federal Rules of Civil Procedure allows discovery into "any nonprivileged matter that is relevant to any party's claim or defense." In the pleadings, plaintiffs' counsel argues she needs Detective Woods' deposition and criminal records to establish that: (1) Detective Woods believed that Dozier initially withheld evidence, and (2) Detective Woods was later able to convince Dozier to come forward and be truthful and for this reason Hanson's criminal case was reopened. (Dkt. # 97 at 5). At the hearing, Plaintiffs' counsel initially argued that she was entitled to review all of the records of Hanson's criminal case and to depose Detective Woods regarding the full scope of his criminal investigation. (Dkt. # 97 at 5). Plaintiffs' counsel later agreed that she was only seeking the records to (1) find out whether Detective Woods memorialized, in any form, the conversations he had with Dozier, or any other witness, (2) to confirm whether anyone from Aaron, other than Hanson, spoke to Detective Woods, and (3) to obtain Detective Woods' observations regarding Dozier's mental state and Dozier's reason for changing his story.
First the Court will address the issues of whether Hanson's expunged criminal case and sealed records are subject to claims of privilege and/or right of privacy. Although Federal District Courts in New York have held that "expunged matter is privileged in a diversity action within the meaning of Fed.R.Civ.P. 26(b)(1)" (see e.g. Ann L. v. X Corporation, 1996 WL 739384, N.D.N.Y. 1990 (unpublished)), there is very little guidance from other federal courts on this issue. More importantly, the Tenth Circuit's treatment of expunged and sealed records, along with the Oklahoma statutes relied on by movants, causes the Court to find the reasoning of the New York courts unpersuasive under the facts of this case.
In Nilson v. Layton City, 45 F.3d 369 (10th Cir. 1995), the Tenth Circuit, in the context of a 42 U.S.C. § 1983 claim, has unequivocally held that there is no privacy expectation in expunged or sealed criminal records. The court reasoned:
Expectations of privacy are legitimate if the information which the state possesses is highly personal or intimate. Information readily available to the public is not protected by the constitutional right to privacy. Consequently, government disclosure of arrest records, judicial proceedings, and information contained in police reports do not implicate the right to privacy. Furthermore, a validly enacted law places citizens on notice that violations thereof do not fall within the realm of privacy. Criminal activity is thus not protected by the right of privacy.Id. at 372 (internal citations omitted). The present case does not involve a Section 1983 claim. Nonetheless, it seems unlikely the Tenth Circuit would find that the same criminal records are both not subject to the right to privacy and are subject to a privilege claim, thus making them immune from discovery.
In addition, the Oklahoma statute does not bar any agency, or officer, from discussing the expunged or sealed proceeding. Rather, such persons and agencies "may properly reply" that the proceeding never occurred. See 22 O.S. § 19[ 22-19](D) (emphasis added). The Oklahoma statute also contains a number of exceptions in that it allows the destruction of records related to the criminal proceeding only after a period of ten (10) years, it bars the destruction of certain records, and it does not prohibit the introduction of evidence regarding the criminal proceedings for certain evidentiary purposes. 22 O.S. § 19[ 22-19](E), (G) and (I). Further, the criminal records are not destroyed, but are removed from the public domain and placed in a "confidential file." The local rules for the District Court of Tulsa County provide: "The order of probation and the Expunge Order on pleas of guilty (or nolo contendere) shall be removed from the case file and retained together with a copy of the docket sheet in a separate confidential file." See Fourteenth Judicial District Court Rule CR 16. The statute expressly grants the right to introduce evidence regarding actions sealed pursuant to 22 O.S. § 19[ 22-19] "at any hearing or trial for purposes of impeaching the credibility of a witness or as evidence of character testimony." 22 O.S. § 19[ 22-19](M). The statute does not place a blanket prohibition on the use of the sealed or expunged documents.
Thus, the purpose of the Oklahoma statute appears to be consistent with the Tenth Circuit's reasoning regarding privacy expectations, in that the constitutional right to privacy applies only to "highly personal and intimate" matters but not to matters which are, or were, of public record. Nilson, 45 F.3d at 372. Under Oklahoma law, a sealed or expunged criminal proceeding is meant to give the defendant a clean criminal record, but not necessarily a guarantee that no one will refer to or discuss the proceeding or that the underlying records will never see the light of day. "The purpose of the expungement provisions is to aid those who are acquitted, exonerated, or who otherwise deserve a second chance at a clean record." Hoover v. State, 29 P.3d 591 (Ok Cr. 2001), citing 22 O.S. §§ 18[ 22-18], 19. Therefore, the Court concludes that the criminal records which are sealed or expunged pursuant to 22 O.S. § 19[ 22-19] are not privileged, as that term is used in Rule 26(b)(1), nor subject to a privacy expectation.
Movants next argue that the Court should recognize and defer to the decision of the state court which denied plaintiffs' petition to "unseal" Hanson's criminal case. The Court does not view plaintiffs' subpoena as an attempt to "unseal" Hanson's records, as that term is used in the Oklahoma statute, but rather as an effort to obtain documents for purposes of this litigation only. The confidentiality of any records or files produced can be maintained by granting the movants' motions for a protective order and by specifying that this Order does not have the effect of unsealing any of the records related to the criminal proceedings.
In finding that the records are not subject to a claim of privilege or right to privacy, the Court must consider Aaron's claim that the testimony sought from Detective Woods, his investigative files, and the criminal case record are not relevant to any claim or defense in this action. Plaintiffs argue that the criminal case records, Detective Woods' testimony and his investigative files are relevant because the events of January 19, 2005 and the subsequent proceeding are central to plaintiffs' claims for wrongful termination and intentional infliction of emotional distress. Specifically, plaintiffs argue that Mr. Dozier's mental condition (possibly relevant to his damages) caused by his termination and his prior false story (allegedly coerced by Aaron) was observed by Detective Woods, that Detective Woods can opine regarding the reasons why Dozier changed his story, and that Detective Woods may know, or may have recorded, statements by witnesses that are admissible, possibly as admissions or prior consistent statements.
In plaintiffs' wrongful termination claim, plaintiffs have the burden to prove that Aaron terminated their employment because they refused to act in violation of an established and welldefined public policy or refused to perform an act consistent with a clear and compelling public policy. See Burk v. K-Mart, 770 P.2d 22, 26 (Okla. 1989). In their claim for intentional infliction of emotional distress, plaintiffs must prove that Aaron acted intentionally or recklessly, that Aaron's conduct was extreme and outrageous, that plaintiffs actually experienced emotional distress and that the emotional distress was severe.See, e.g., Computer Publications, Inc. v. Welton, 49 P.3d 732, 735 (Okla. 2002).
The Court finds that the underlying facts that gave rise to the criminal case are not relevant to either the wrongful termination claim or the intentional infliction of emotional distress claim. Such facts relate solely to the evening of January 19, 2005, and plaintiffs are not alleging that Aaron did anything on that date which gave rise to plaintiffs' claims. Thus, the Court finds that movant's motion to quash the subpoena duces tecum as it relates to the production of records from Hanson's criminal case, should be and hereby is granted in part.
However, the Court finds that there are three areas of inquiry related to the criminal investigation which may be relevant to plaintiffs' claims for wrongful discharge and intentional infliction and/or the defenses asserted in this case: (1) plaintiffs' conduct during the criminal investigation; (2) Aaron's conduct during the criminal investigation; and (3) plaintiffs' emotional state. As to these limited areas, the testimony and investigative files of Detective Woods, may provide or lead to relevant evidence in the form of statements made by plaintiffs, third parties, or by Aaron, that relate to the credibility of certain witnesses, impeachment, or character evaluation. Accordingly, the Court finds that for this limited purpose, plaintiffs may depose Detective Woods and have access to any notes or investigative records made by Detective Woods of conversations he had with witnesses or potential witnesses during the course of his investigation, which occurred prior to the time that Hanson's criminal case was ordered to be expunged and the records sealed. In addition, although it seems a stretch to find that Mr. Dozier's mental state, as seen through Detective Woods' eyes, is relevant, much less admissible, it is conceivable that Detective Woods' actual observations of Mr. Dozier are relevant and could lead to the discovery of admissible evidence. Thus, the Court finds that plaintiffs may also inquire of Detective Woods regarding his perceptions of Mr. Dozier's mental state. The Court believes it is even more of a stretch to find that Detective Woods' belief or conclusions as to why Mr. Dozier changed his story are relevant, much less admissible. However, in the interest of judicial economy and because it is not the Magistrate Judge's role to determine the admissibility of evidence at trial, plaintiffs may inquire of Detective Woods' observations of Mr. Dozier's mental or physical condition or Detective Woods' belief regarding the reason why Mr. Dozier changed his mind. Any investigative records or other documents maintained by Detective Woods, and which are required to be produced as a result of this Order, shall be produced without redaction, except for those items, if any, that are subject to the attorney client privilege.
During the hearing, counsel for the City of Tulsa agreed that the criminal records could be produced expeditiously and that absent an order from this Court limiting or quashing plaintiffs' subpoena, the City of Tulsa and/or the Tulsa Police Department did not have a basis on which to refuse to produce the records at issue or Detective Woods for a deposition. All parties agreed that if the Court issued this Order by January 13, 2009, they could work together to conduct Detective Woods' deposition and review any produced documents quickly and that no change to the current schedule, including the trial date, would be necessary.
ACCORDINGLY, IT IS THE ORDER OF THE COURT that:
1. Movants' motion to quash plaintiffs' subpoena duces tecum as it relates to the production of Hanson's entire criminal case record and files is hereby granted, except as set forth below.
2. Movants' motion to quash plaintiffs' subpoena duces tecum as it relates to the deposition of Detective Woods and the production of Detective Woods' investigative notes and/or investigative records related to conversations he had with witnesses or potential witnesses during the course of his investigation is hereby denied.
3. Movants' motion for protective order is granted in part and denied in part. Detective Woods' investigative files are to be produced to plaintiff in accordance with this Order. All produced records, documents, or files that were subject to the sealing and expunging order shall be marked "sealed" and/or "confidential" and shall not be provided to anyone other than the attorneys who have entered an appearance in this case, their paralegals, the attorney's direct staff, the parties to this action, and those necessary to procure the production of the documents within the City of Tulsa and/or the Tulsa Police Department. The production of any records or files from the criminal proceeding shall not have the effect of unsealing those files or reversing the expungement of those files under the applicable Oklahoma statute.
4. The verbal request of the City of Tulsa that the subpoena duces tecum be reissued in its name and not in the name of Detective Larry Woods is granted, as to the production of documents. The subpoena for the attendance of Detective Woods shall be re-issued with a corrected date for his appearance.
5. The parties and the City of Tulsa shall work cooperatively in order to comply with the terms of this Order and Opinion, including conducting Detective Woods deposition, within ten (10) days of its issuance.
IT IS THEREFORE THE ORDER OF THE COURT, that the motions to quash and motions for protective order filed respectively by defendant Aaron (Dkt. # 93), City of Tulsa (Dkt. # 96) and Bert Hanson (Dkts. ## 99 and 100) are hereby granted in part and denied in part, in accordance with the provisions of this Order and Opinion.
IT IS SO ORDERED.