United States District Court, D. Utah, Central Division
VERONICA M. WOPSOCK, Plaintiff,
DEREK DALTON, in his individual and official capacity; TRAVIS MITCHELL, in his individual capacity and as the Duchesne County Sheriff, and DUCHESNE COUNTY, UTAH, Defendants. DEREK DALTON, Counterclaim and Third-Party Plaintiff,
VERONICA M. WOPSOCK, Counterclaim Defendant.
J. Shelby, District Judge.
MEMORANDUM DECISION AND ORDER DENYING IN PART AND
GRANTING IN PART MOTION TO QUASH AND/OR FOR A PROTECTIVE
ORDER (ECF NO. 130)
J. Furse, United States Magistrate Judge.
matter is before the Court on the Ute Indian Tribe (the
“Tribe”), Ron Wopsock, Stuart Pike, Irene Cuch,
and Veronica Wopsock's (herein after the “ Wopsock
parties”) Motion to Quash the deposition subpoenas
issued to the Tribe, Ms. Wopsock's uncle, Ron Wopsock,
Ms. Wopsock's aunt, Irene Cuch,  and Stuart Pike. (ECF No.
130.) Having considered the parties' written memoranda,
along with all relevant legal authorities, the Court DENIES
IN PART and GRANTS IN PART the Wopsock parties'
April 19, 2017, the Wopsock parties filed their Motion to
Quash the deposition subpoenas the Duchesne Defendants served
on the Wopsock parties. (Mot., ECF No. 130.) The subpoenas
request testimony from Ms. Wopsock's uncle Ronald
Wopsock, and Ms. Wopsock's aunt Irene Cuch, because the
Duchesne Defendants want to know if Ms. Wopsock discussed her
alleged sexual assault with either of them. (Defs.' Mem.
in Opp'n to Wopsock parties' Mot. to Quash Depo.
Notices and Subpoenas (“Opp'n”) 3- 4, ECF No.
137.) The Duchesne Defendants also served a subpoena on the
Tribe “requiring the Tribe to designate and produce
witnesses to testify on subjects related to its funding of
this . . . lawsuit.” (Id. at 4.) The Duchesne
Defendants contend they served deposition subpoenas on Mr.
Wopsock, Ms. Cuch, and Mr. Pike “in order to defend
against Ms. Wopsock's claims and to prosecute
Dalton's counterclaims.” (Id. at 3.)
Moreover, the Duchesne Defendants assert that they
“subpoenaed these witnesses for their depositions
because [Ms.] Wopsock had refused to respond to any written
discovery concerning her discussions of this alleged assault
with anyone.” (Id. at 3-4; Ex. 2, Wopsock
Disc. Responses, ECF No. 137-2.) They also point out that Ms.
Wopsock admitted during her deposition that she did not know
who was paying for her legal fees. (Opp'n 7, ECF No. 137;
Ex. 1, Wopsock Dep. at 36-39, ECF No. 137-1 at 10).
2012, Ms. Wopsock filed this lawsuit against former Duchesne
County Deputy Sheriff Derek Dalton, Duchesne County Sheriff
Travis Mitchell, and Duchesne County, Utah for Mr.
Dalton's alleged sexual assault of Ms. Wopsock during a
traffic stop on September 4, 2011. (Compl., ECF No. 2.) Mr.
Dalton counterclaimed against Ms. Wopsock “for civil
rights violations and conspiracy to violate civil rights
pursuant to 42 U.S.C. §§ 1985 and 1986, for
defamation and for intentional infliction of emotional
distress.” (Opp'n 3, ECF No. 137.) The Tribe, Mr.
Wopsock, Ms. Cuch, and Mr. Pike are not parties to the
its Motion, the Wopsock parties seek to quash the Duchesne
Defendants' deposition subpoenas by asserting the
Tribe's sovereign immunity. (Pl.'s & Subpoenaed
Deponents' Mem. in Supp. of Mot. to Quash Dep. Notices
& Subpoenas (“Pl.'s Mem. in Supp.”), 2-5,
ECF No. 136.) In the alternative, the Wopsock parties argue
that the Court should quash the subpoenas pursuant to Rule
45(c) of the Federal Rules of Civil Procedure because of (1)
improper service, (2) undue burden, and (3) privilege. (Mot.
2-3, ECF No. 130.) The Wopsock parties also argue that the
Court should quash the subpoenas because “neither the
deposition subpoenas nor the deposition notices are in proper
form.” (Id. at 3.)
Duchesne Defendants oppose any attempt to quash the
subpoenas, arguing that the Tribe's sovereign immunity
does not extend to members of the Business Committee (either
current or former) nor the Tribe because prior case law has
only addressed tribal sovereign immunity when a party issued
a subpoena duces tecum. (Opp'n 9, ECF No. 137.) The
Duchesne Defendants further argue that they properly served
the Wopsock parties with process and their deposition notices
and subpoenas complied with the Federal Rules of Civil
Procedure. (Id. at 10-11.) Lastly, the Duchesne
Defendants argue that the deponent's potential testimony
is not privileged, and the answers the Duchesne Defendants
seek are highly relevant to their claims and defenses.
(Id. at 12-14.)
Wopsock parties ask this Court to quash the deposition
subpoenas issued to the Tribe, Mr. Wopsock, Ms. Cuch, and Mr.
Pike because “the Tribe is not a party, [and] the Tribe
and its officers have sovereign immunity from a
subpoena.” (Pl.'s Mem. in Supp. 2, ECF No. 136.)
According to the Duchesne Defendants, when Ms. Wopsock filed
her lawsuit and the Duchesne Defendants served their
deposition subpoenas, Mr. Wopsock and Ms. Cuch served as
members of the Ute Tribal Business Committee. (Opp'n 3,
ECF No. 137.) Mr. Pike, however, was a former Business
Committee Member when the Duchesne Defendants served him with
a deposition subpoena. (Id.) The Duchesne Defendants
contend that the Supreme Court's decision in Ex Parte
Young, 209 U.S. 123 (1908), compels this Court to find
that tribal immunity does not shield a tribal officer from a
discovery demand if served on the appropriate official,
rather on the tribe itself. (Opp'n 8, ECF No. 137.)
Indian Tribe is a federally recognized sovereign Indian
Tribe. Under long-standing law, “Indian tribes are
‘domestic dependent nations' that exercise
‘inherent sovereign authority.'” Michigan
v. Bay Mills Indian Cmty., 572 U.S., 134 S.Ct. 2024,
2030 (2014) (quoting Okla. Tax Comm'n v. Citizen Band
Potawatomi Tribe, 498 U.S. 505, 509 (1991)). “As
dependents, the tribes are subject to plenary control by
Congress.” Michigan, 572 U.S., 134 S.Ct. at
2030. “Thus, unless and ‘until Congress acts, the
tribes retain' their historic sovereign authority.”
Id. (quoting United States v. Wheeler, 435
U.S. 313, 323 (1978)). Common-law immunity from suit is one
of the core aspects of sovereignty. Id. “That
immunity… is ‘a necessary corollary to Indian
sovereignty and self-governance.'” Id.
(quoting Three Affiliated Tribes v. World Eng'g,
P.C., 476 U.S. 877, 890 (1986)). “Because Indian
tribes are sovereign powers, they possess immunity from suit
to the extent that Congress has not abrogated that immunity
and the tribe has not clearly waived its immunity.”
Breakthrough Mgmt. Grp., Inc. v. Chukchansi Gold Casino
& Resort, 629 F.3d 1173, 1182 (10th Cir. 2010). A
suit for the purposes of tribal immunity includes third party
subpoenas served on the tribe. See Bonnet v. Harvest
(U.S.) Holdings, Inc., 741 F.3d 1155, 1159-60 (10th Cir.
2014). Therefore, unless Congress has acted or a tribe has
unequivocally waived its immunity, courts must dismiss any
suit against a tribe. See generally Kiowa Tribe v. Mfg.
Techs., Inc., 523 U.S. 751, 760 (1998). “[A]
waiver of sovereign immunity ‘cannot be implied but
must be unequivocally expressed.'” Santa Clara
Pueblo v. Martinez, 436 U.S. 49, 58 (1978) (quoting
United States v. Testan, 424 U.S. 392, 399 (1976)).
Tribal immunity also extends to tribal officers acting within
the scope of their official capacities. Lewis v.
Clarke, U.S., 137 S.Ct. 1285, 1291-92 (2017). A tribal
officer does not enjoy tribal immunity for his individual
actions, even if taken under color of law. Id. at
Wopsock parties argue that Supreme Court and Tenth Circuit
precedent recognize that the “general rules of
sovereign immunity” require this Court to quash the
subpoenas. (Pl. Mem. in Supp. 4, ECF No. 136.) The Tribe
specifically cites to Puyallup Tribe, Inc. v. Dep't
of Game., 433 U.S. 165 (1977). (Id. at 2.)
further support of its position, the Tribe cities to
Bonnet and Alltel Commc'ns, LLC v.
DeJordy, 675 F.3d 1100 (8th Cir. 2012). (See
Pl. Mem. in Supp. 2, ECF No. 136.) In Bonnet, the
Tenth Circuit held that tribal sovereign immunity barred a
subpoena duces tecum served on a non-party Indian tribe in a
private civil action. Bonnet, 741 F.3d at 1161. The
court stated in dicta, however, that it saw “no reason
why an Indian tribe should be able to ‘shut off an
appropriate judicial demand for discovery' served on a
tribal official, rather than against the Tribe itself.”
Id. a t 11 62. Alltel, an Eighth Circuit
case held that “a federal court's third-party
subpoena in private civil litigation is a ‘suit'
that is subject to Indian tribal immunity.”
Alltel, 675 F.3d at 1105. As a result, the court
reversed the lower court's denial of a motion to quash
subpoenas duces tecum served on a non-party tribe and a
non-party tribal official. Id. at 1102, 1106. In
reaching its decision, the court followed precedent from
other circuits that have construed sovereign immunity to
cover non-party subpoenas served on federal officers in their
official capacities and agencies. See id. at 1103.
The Eighth Circuit acknowledged that it might be conferring
“greater immunity than that enjoyed by federal officers
in their official capacities and agencies, or by the States,
whose sovereign immunity is protected by the Eleventh
Amendment” because tribes are not subject to the
constraints of the Administrative Procedures Act.
Id. at 1104. The Supreme Court provided further
guidance in Lewis. “The identity of the real
party in interest dictates what immunities may be
available.” Lewis, 137 S.Ct. at 1292.
question, tribal sovereign immunity bars the deposition
subpoena served on the Tribe (ECF No. 130-1), and the Court
QUASHES it. In considering the deposition subpoenas served on
Mr. Wopsock (ECF No. 130-2), Ms. Cuch,  and Mr. Pike (ECF
No. 130-3), the Court considers what the interest in the
deposition is. In subpoenaing each individual, as opposed to
subpoenaing say the Secretary of a tribe, the Duchesne
Defendants subpoena the people for testimony in their
individual capacities, not ...