Opinion
No. CV 06-1464-PHX-MHM.
May 3, 2007
ORDER
Currently before the Court is the discovery dispute between Plaintiff Regina Pangerl ("Plaintiff") and Defendants Susan Ehrlich, Sheldon Weisberg, the State of Arizona ("Defendants") and non-party Arizona Commission on Judicial Conduct (the "Commission" or "CJC"). The Court heard oral argument regarding this dispute on April 4, 2007.
I. Background
II. Application of the Court's Confidentiality Order to Plaintiff's Diary
26 See Foltz v. State Farm Auto Ins. Co.331 F.3d 12221135th 26
Plaintiff's counsel informed the Court that Plaintiff has no objection to redacting from Plaintiff's diary the names of cases discussed and considered by the Arizona Court of Appeals.
Plaintiff's counsel also informed the Court that Plaintiff would not object to the CJC documents, if produced, falling within the scope of the Court's confidentiality order.
Plaintiff's counsel and Defendants' counsel are to meet and confer before the diary is made available as public record to ensure that there is no dispute as to the redaction of certain information.
The CJC is a non-party to this litigation; however, the CJC is represented by the same office as the named Defendants and Defendants' counsel has briefed and argued the position of the CJC to this Court.
The Commission relies on Rule 9 of the Rules of the Arizona Commission on Judicial Conduct. Specifically, Rule 9 provides in pertinent part:
(b) Confidential matters. All commission correspondence, draft documents, computer records, investigative reports, attorney work product, commission deliberations, and records of informal proceedings are confidential.
Moreover, the Commission notes while Rule 9(c) may provide for limited discretionary disclosure in certain instances, the Commission has properly exercised that discretion by denying Plaintiff's request to release any of the investigative documents. Rule 9(c) provides in pertinent part:
The commission may disclose a complaint to a judge and a judge's response to a complainant at any time. It may also disclose confidential information to confirm a pending investigation or clarify proceedings in a case in which an investigation has become public; to explain the final disposition of a complaint; to protect individuals, the public, or the administration of justice; and to comply with official requests from agencies and other organizations involved in criminal prosecutions, bar discipline investigations, or judicial nomination, selection and retention proceedings.
Plaintiff relies on the most recent version of Rule 9(c) which contains the following additional information in comparison to Rule 9(c) in effect at the time of Plaintiff's CJC complaint in 2005:
Unless otherwise ordered by the commission complainants, respondent judges and witnesses are not prohibited from disclosing the existence of proceedings or from disclosing any documents or correspondence served on or provided to those persons.
Regardless, of the fact that the 2005 version is controlling, it appears to be a distinction without difference as Plaintiff only seeks documents directly from the CJC itself.
The Commission responded via letter on February 15, 2007, to Plaintiff's subpoena duces tecum by objecting to the production of any investigative documents generated in response to Plaintiff's allegations of misconduct against Defendant Ehrlich (CJC case number 05-0117). (Defendants' Brief, Dkt. #42, Exhibit C). In addition to the confidential treatment of such documents, the Commission relies on persuasive state authority to support its position. For instance, in Garner v. Cherberg, 111 Wash.2d 811, 765 P.2d 1284 (Wash. 1988) the Rules Committee of the Washington state legislature issued a subpoena duces tecum to the state Commission on Judicial Conduct seeking investigative documents generated by the Commission regarding the conduct of a state court judge. Id. at 820. The Washington Supreme Court quashed the subpoena finding that confidentiality of the Commission "essential to the preservation of fundamental judicial independence." Id. The court noted multiple factors that support such confidentiality:
(1) encouraging participation in the disciplinary process by protecting complainants and witnesses from retribution or harassment, and reducing the possibility of subornation of perjury; (2) protecting the reputation of innocent judges wrongfully accused or misconduct; (3) maintaining confidence in the judiciary by avoiding premature disclosure of alleged misconduct; (4) encouraging retirement as an alternative to costly and lengthy formal hearings; and (5) protecting commission members from outside pressures.Id. (citing In re Deming, 108 Wash.2d 82, 736 P.2d 639 (1987)).
In addition, the Commission cites the Court's attention to the decision in Stern v. Morgenthau, 62 N.Y.2d 331, 465 N.E.2d 349, 476 N.Y.S.2d 810 (1984) where the New York Court of Appeals reversed the lower appellate court's decision denying the state Commission on Judicial Conduct's motion to quash the discovery of Commission records in response to a grand jury subpoena in furtherance of an investigation involving two judges. Id. at 333-34. The New York Court of Appeals recognized that judges are also subject to criminal prosecution, but held that the grand jury had to yield to the confidentiality of the Commission. Specifically, the court stated that "the responsibilities of the Commission . . . transcend the criminal prosecution of individuals. . . . [and that] [e]xperience teaches that the effective performance of [the Commission's investigative] function necessarily requires the free flow of information to the Commission and the confidentiality of its proceedings until wrongdoing is established." Id. at 339. Lastly, the Commission questions the true motive of the Plaintiff in seeking these documents considering the past press coverage provided to this case. As such, the Commission objects to the production of any portion of the CJC investigative file made in response to the CJC complaint filed by Plaintiff against Defendant Ehrlich.
In opposition, Plaintiff asserts that she must be given access to the CJC file as it likely possesses relevant information to her case and thus is authorized under the Federal Rules of Civil Procedure. See Rule 26(b)(1) Fed.R.Civ.P. ("relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence . . ."). Such information identified by Plaintiff consists of potential admissions by Defendant Ehrlich that may be admissible at trial as well as witness interviews that provide probative information to Plaintiff's claims. Plaintiff argues that under Rule 9(c), the CJC clearly has the discretionary authority to disclose information relating to investigations and there is no reason that the CJC's discretion should be used not to disclose the investigative file considering the importance of Plaintiff's right to obtain discovery regarding her civil rights claims. Finally, Plaintiff argues that none of the information at issue is privileged or confidential under federal law and that Plaintiff's reliance upon state authority is misplaced in the context of this federal civil rights suit. In support of this position, Plaintiff cites the Court's attention to the Ninth Circuit's decision in Agster v. Maricopa County, 422 F.3d 836 (9th Cir. 2005). In Agster, a civil rights action, the Ninth Circuit affirmed the district court's decision finding that a medical mortality peer review file regarding county medical records generated in response to an inmate death while in custody was subject to discovery under federal law in opposition to an Arizona state statute, A.R.S. § 36-445.01, which provided that such records were confidential and not subject to discovery. Id. at 838-839. As such, Plaintiff requests the Court issue an order compelling the Commission to produce the CJC investigative records.
In reviewing the arguments and authorities advanced, it is quite clear that there are strong reasons both in support of and against the discovery of the CJC file regarding Plaintiff's complaint to the CJC. For example, as stated in the Defendants' brief and the affidavits of Mr. Keith Scott and Ms. Linda Haynes witness interviews conducted in response to CJC complaints during the informal proceedings stage are confidential and witnesses are instructed as such. (Dkt. #42, Exhibits A B). Thus, to authorize discovery of such witness interviews now would be inconsistent with what the witnesses were instructed when they came forward to the CJC with relevant information. More importantly, any deviation from the confidentiality associated with such proceedings may bear on any future investigations and creates the potential for a certain chilling effect upon forthcoming witnesses. Moreover, permitting discovery of the CJC investigative file also creates the impression that any other such complaints filed against other judges could also be subject to discovery based upon the premise of a federal lawsuit against the respective judge. The Court recognizes such considerations as they support denying discovery of the CJC investigative file in this case.
Mr. Scott is the Executive Director of the CJC and Ms. Haynes is a staff attorney for the agency and was assigned to investigate Plaintiff's CJC complaint in 2005. (Dkt. #42, Exhibits A B).
However, while the Court appreciates the arguments advanced by the Commission, through Defendants' counsel, regarding the confidentiality of its informal investigations and documents, the Court finds this case provides sufficient circumstances supporting discovery of the CJC investigative file. Plaintiff's Complaint asserts federal civil rights claims based upon alleged discriminatory treatment she incurred while employed with the Arizona Court of Appeals and most significantly during her time as law clerk for Defendant Ehrlich. As with any such case alleging discrimination in the workplace, the Plaintiff is clearly entitled to discovery that may produce information relevant to her case. Moreover, this Court is not bound by the Arizona and state law authority cited by the Defendants in support of their confidentiality argument. As recognized by the Ninth Circuit's review in Agster, this Court must look to federal law to determine whether the CJC file is confidential or privileged. Id. at 839 (noting that no court in the Ninth Circuit recognized privilege cited by the defendants). Notably, the Commission cites no federal authority suggesting that the investigative information is somehow privileged or confidential under federal law. Thus, this Court's decision is based upon the balancing of Plaintiff's right to obtain such discovery and the interests associated with confidentiality of the CJC investigation. In performing this test, the Court finds the Plaintiff's right to obtain such discovery supersedes. Based upon the nature of the allegations and the lack of any federal authority supporting the non-disclosure of the CJC investigative documents, the Court finds that Plaintiff is entitled to discover the relevant portions of the file. However, while the Court will overrule the Commission's objection to production of the CJC file, the Court will first perform an in camera review of the documents to verify that the information within the file provides relevant information to Plaintiff's claims. To the extent any portion of the file is relevant, it will be turned over to Plaintiff subject to the terms of the Court's confidentiality order. In making this determination, the Court finds it important to note that the investigative documents, to the extent they are relevant and thus subject to discovery, will not become subject to public review due to the application of the Court's confidentiality order. Therefore, given the confidentiality afforded to the documents, the potential chilling effect, discussed above, may be minimized.
In addition, at oral argument, Defendants' counsel proposed that this matter be certified to the Arizona Supreme Court under A.R.S. § 12-1861. However, such action is appropriate where the federal court is applying state law and seeks clarification or direction as to the state authority. This case does not appear to deal with such a situation as the Court is applying federal law.
IV. Summary
The Court finds that the Plaintiff's diary does not fall within the scope of the Court's confidentiality order. However, the Court directs that before the diary becomes available as public record that any case names or case identifying information be redacted. In addition, the Court finds that the CJC investigative file generated in response to Plaintiff's complaint against Defendant Ehrlich is subject to discovery assuming that the information is relevant to Plaintiff's claims. The Court will first conduct an in camera review of the file to determine whether the information is relevant to this litigation and will then turn any relevant portion over to Plaintiff, subject to the terms of the Court's confidentiality order.
Accordingly,
IT IS HEREBY ORDERED overruling Defendants' objection to the disclosure of Plaintiff's diary outside the scope of the Court's confidentiality order. However, prior to any such disclosure Plaintiff is directed to redact any case names or identifying case information.
IT IS FURTHER ORDERED overruling the Commission's objection to Plaintiff's subpoena duces tecum regarding the discovery of the CJC investigative file generated in response to Plaintiff's CJC complaint against Defendant Ehrlich. The CJC is directed to submit the investigative file to the Court for an in camera review on or before May 15, 2007. To the extent the information is relevant to Plaintiff's complaint, the file will be turned over to Plaintiff. Any portion of the file turned over to Plaintiff is subject to the Court's confidentiality order. IT IS FURTHER ORDERED directing Plaintiff and Plaintiff's counsel not to release any portion of the CJC investigative file to the public or media, should the Court release any portion of the CJC file.