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Truman v. City of Orem

United States District Court, D. Utah

February 22, 2019

CONRAD TRUMAN, Plaintiff,
v.
CITY OF OREM, et al., Defendants.

          Ted Stewart Judge.

          MEMORANDUM DECISION AND ORDER ORDER GRANTING IN PART AND DENYING IN PART THE REMAINDER OF THE MOTION TO QUASH SUBPOENA (ECF NO. 39)

          Evelyn J. Furse Magistrate Judge

         In July 2017, Mr. Truman filed this civil rights action under 28 U.S.C. § 1983 against Defendants City of Orem, Orem City Police Department, Officer Thomas Wallace, Officer William Crook, Officer Orlando Ruiz, Officer Art Lopez, and Officer Todd Ferre (collectively, “Orem City Defendants”). (Compl., ECF No. 2.) His Amended Complaint serves as the operative pleading in this case. (Am. Compl., ECF No. 38.) Mr. Truman alleges the Orem City Defendants engaged in various misconduct, including some that resulted in his initial conviction on charges of domestic violence homicide and obstruction of justice in state court. (Id.) After the conviction, Mr. Truman hired new counsel who conducted additional investigation into the case. (Id., ¶¶ 392- 95, 401-409.) Mr. Truman's new counsel filed an amended motion for a new trial detailing instances of police and prosecutorial misconduct and other alleged legal errors. (Id., ¶¶ 396-97.) The court granted Mr. Truman's amended motion for a new trial. (Id., ¶ 411.) At the second trial, the jury found Mr. Truman not guilty. (Id., ¶ 424.)

         As relevant to the Motion currently before the Court, attorney Ronald J. Yengich represented Mr. Truman up to and including that initial jury trial. (Mot. to Quash Subpoena, ECF No. 39.) Some of Mr. Truman's claims allege the Orem City Defendants withheld and or failed to disclose evidence in violation of the Due Process Clause and Brady v. Maryland, 373 U.S. 83 (1963). (Compl. ¶¶ 401-409, 516-526, ECF No. 38.)

         In defending this action, the Orem City Defendants subpoenaed documents from Mr. Yengich's file on the first criminal case. (Subpoena, ECF No. 44-1.) Third party Mr. Yengich moved to quash the subpoena based on the attorney-client privilege and work product doctrine. (Mot. to Quash Subpoena, ECF No. 39.) The Orem City Defendants opposed the Motion to Quash, arguing that in this case, Mr. Truman waived the attorney-client privilege and work product protection by asserting that the Orem City Defendants withheld evidence in violation of the Due Process Clause and Brady. (Opp'n to Mot. to Quash 1-2, ECF No. 44.)

         On May 15, 2018, the Court held a hearing on the Motion to Quash. (ECF No. 46.) The Court denied in part, granted in part, and requested further briefing on the Motion. (Order Denying in Part & Granting in Part Mot. to Quash (ECF No. 39), ECF No. 50.) The Court denied the Motion to Quash “insofar as Mr. Yengich must produce the documents within the scope of the subpoena to [Mr. Truman's] current counsel” and granted the Motion “insofar as Mr. Yengich need not provide such documents directly to [the Orem City] Defendants' counsel.” (Id., ¶ 1.) The Court further ordered Mr. Truman to provide a privilege log to the Orem City Defendants by June 22, 2018, and instructed the parties to brief the issue of the scope of the waiver of the attorney-client privilege and work product protection after production of the privilege log. (Id., ¶¶ 2-3.)

         The Orem City Defendants filed their Memorandum on the scope of the waiver, (Orem Defs.' Mem. re Scope of Waiver of Attorney-Client Privilege & Attorney Work Product Protection (“Mem.”), ECF No. 53), which Mr. Truman opposed, (Mem. in Opp'n to Orem Defs.' Mem. re Scope of Waiver of Attorney-Client Privilege & Attorney Work Product Protection (“Opp'n”), ECF No. 60). The Orem City Defendants subsequently filed a Reply, (Orem City Defs.' Reply Mem. re Scope of Waiver of Attorney-Client Privilege & Attorney Work Product Protection (“Reply”), ECF No. 61), and the Court heard further oral argument on the remaining part of the Motion, taking it under advisement, (ECF No. 64).

         After considering the briefing, arguments of counsel, and applicable law, the Court finds Mr. Truman did not waive the attorney-client privilege and work product protection with respect to materials relevant to the withholding of information from Mr. Yengich and Mr. Truman. However, the privilege log needs supplementation. Therefore, the Court GRANTS in part and DENIES in part the remainder of the Motion to Quash.

         The Orem City Defendants contend Paragraphs 401 to 409 and 516 to 526 of the Amended Complaint make the allegations of withholding that waive the privilege and protection. (Mem. 12, ECF No. 52.) As explained below, the Court finds Mr. Truman's allegations make some privileged and/or protected materials relevant by asserting Brady claims in this case. However, “by enacting 42 U.S.C. § 1983, Congress concluded that private enforcement of individual rights is in the public interest. This important public policy will not be advanced by presenting a party with the Hobson's choice of either dropping its claim or revealing all confidential communications related to a criminal defense.'' Greater Newburyport Clamshell All. v. Pub. Serv. Co., 838 F.2d 13, 22 (1st Cir. 1988). Applying the relevant tests for waiver of the attorney-client privilege and disclosure of work product, the Court declines to find waiver or require disclosure and GRANTS the Motion to Quash as to the privileged and protected materials. The Court also declines to conduct an in camera review of certain documents on the privilege log as the Orem City Defendants request because the Orem City Defendants made the request on the premise of waiver, which the Court has rejected. The Court DENIES the Motion to Quash to the extent that it ORDERS Mr. Truman to review the materials withheld for compliance with this Order, produce additional materials as appropriate, and supplement his privilege log to meet the requirements of Federal Rule of Civil Procedure 26(b)(5)(A).

         FACTUAL BACKGROUND

         In October 2012, Mr. Truman's wife, Heidy Truman, died from a gunshot wound to the head, inflicted at their Orem, Utah home. (Am. Compl., ¶¶ 23-25, ECF No. 38.) Only Mr. Truman and Mrs. Truman were home at the time. (Id., ¶ 26.) After an investigation, in July 2013, the State of Utah charged Mr. Truman with a domestic violence homicide and obstruction of justice. (Id., ¶ 374.) As relevant to the Motion currently before the Court, Mr. Truman asserts in his Amended Complaint that during their investigation, his new counsel discovered facts that the Orem City Defendants withheld from Mr. Truman and Mr. Yengich prior to the first trial including:

• Evidence regarding the measurements of the house and hallway where Mrs. Truman was found and who made them;
• A 96-slide PowerPoint given to Dr. Leis, the medical examiner;
• Evidence of and the lack of testing of gunshot residue;
• An attempt to claim or freeze insurance benefits by Janet Wagner;
• Mrs. Truman's relationship with her family and her mental state;
• A forensic consultant team's conclusion that they could not ascertain how or where Mrs. Truman was shot or Mr. Truman's location at that time;
• Evidence related to Mr. Truman's call to Mrs. Truman prior to the 911 call;
• Exculpatory statements from financial planner John Engh regarding the Trumans' financial situation, statements from first responders about the location of the black handled gun, and others Mr. Truman contends were withheld;
• Police reports noting Mr. and Mrs. Truman's lack of financial trouble.

(Id., ¶¶ 401-04, 406-07, 516, 524.) Alleging that the Orem City Defendants suppressed evidence bearing on these issues, Mr. Truman asserts a claim against the Orem City Defendants for “Withholding Exculpatory Evidence” in violation of the Due Process Clause. (Id., ¶¶ 516-17, 524, 526.)

         Specifically, Mr. Truman alleges that:

(1) His new counsel discovered that the first responders incorrectly measured the Truman house and the location of Mrs. Truman's body. The Orem City Defendants allowed the medical examiner and others to rely on the erroneous information and then withheld evidence concerning the faulty measurements and a 96-slide PowerPoint given to the medical examiner containing the faulty measurements, and attempted to cover-up the measurement errors, (Am. Compl., ¶¶ 401, 403, 524(a), (g));
(2) Mr. Truman's new counsel discovered that gunshot residue samples taken from Mr. and Mrs. Truman's hands the night of the shooting were not sent for testing before the first trial and that the Orem City Defendants failed to disclose to Mr. Yengich that they had not sent the samples for analysis and lost or destroyed other gunshot residue samples, (Am. Compl., ¶¶ 406, 524(b), (j));
(3) New counsel also discovered that the Orem City Defendants knew and failed to disclose that Mrs. Truman's mother, Janet Wagner, attempted to claim and/or freeze Mrs. Truman's life insurance, (Am. Compl., ¶¶ 326, 524(c));
(4) The Orem City Defendants “[f]ail[ed] to disclose and hid the fact that [Mrs. Truman] had a troubled relationship with [her family] and her mother, had a hard childhood, and had an adverse family upbringing which not only is a suicide risk factor, but because the family was somewhat estranged, discredited the[] [family's] knowledge of [Mrs. Truman's] personal thoughts, feelings, and potential conduct as well as their knowledge of [Mr. Truman] and his relationship with [Mrs. Truman], ” (Am. Compl., ¶ 524(d));
(5) At the second trial, the Orem City Defendants disclosed that they had hired a forensic consulting team to review the case prior to the first trial, and the team determined they could not draw any conclusions about Mr. or Mrs. Truman's locations but did find the blood spatter on Mr. Truman's shirt consistent with giving CPR, (Am. Compl., ¶¶ 329-331, 341-42, 524(e));
(6) New counsel discovered that the Orem City Defendants withheld telephone records showing Mr. Truman's call to Mrs. Truman before the gunshot was not a completed call, that the call went to voicemail, and that Mrs. Truman accessed her voicemail three minutes before Mr. Truman called 911, (Am. Compl., ¶¶ 407, 524(f));
(7) New counsel discovered that the Trumans' financial planner, John Engh, told the police that Mr. Truman did not have a financial motive to kill Mrs. Truman and that officers and first responders identified the location of the black handled gun, but the Police failed to disclose this evidence, (Am. Compl., ¶¶ 402(e), 404(d), 524(h));
(8) Mr. Truman's new counsel discovered that the Orem City Defendants deleted a statement from the police report indicating that the Trumans did not struggle financially, (Am. Compl., ¶¶ 402(c), 524(i)).

         LEGAL STANDARD

         “Federal Rule of Evidence 501 provides that privileges in federal-question cases generally are ‘governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.'” In re Qwest Commc'ns Int'l Inc., 450 F.3d 1179, 1184 (10th Cir. 2006) (quoting Fed.R.Evid. 501)). “The attorney-client privilege is ‘the oldest of the privileges for confidential communications known to the common law.' ” Qwest, 450 F.3d at 1185 (quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)). “‘Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.'” Id. (quoting Upjohn, 449 U.S. at 389). A person may expressly or impliedly waive the attorney-client privilege. See Qwest, 450 F.3d at 1185 (stating that voluntary disclosure by the client waives the attorney-client privilege); Frontier Ref., Inc. v. Gorman-Rupp Co., 136 F.3d 695, 699 (10th Cir. 1998) (identifying different approaches to determine when implied waiver arises while sitting in diversity and applying Wyoming law). The party “assert[ing] the attorney-client privilege or the work product doctrine as a bar to discovery has the burden of establishing that either or both is applicable.” Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 542 (10th Cir. 1984).

         “‘At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case.'” Qwest, 450 F.3d at 1186 (quoting United States v. Nobles, 422 U.S. 225, 238 (1975)). Work product includes opinion work product and fact work product. Id. An opposing party may discover fact work product, otherwise discoverable, upon a showing of substantial need and the difficulty of obtaining substantially similar evidence elsewhere. Fed.R.Civ.P. 26(b)(3)(A).

         DISCUSSION

         The parties do not dispute that Mr. Truman-in alleging that the Orem City Defendants suppressed evidence-asserts a Brady v. Maryland, 373 U.S. 83 (1963) claim against the Orem City Defendants in this case. (Mem. 1, ECF No. 53; Opp'n 2, ECF No. 60.) Mr. Truman also asserts the Orem City Defendants fabricated evidence. (Am. Compl. ¶ 514, ECF No. 38.) In response to the Motion to Quash, the Orem City Defendants indicated they sought only information regarding allegedly suppressed evidence. (Opp'n to Mot. to Quash 1-2, ECF No. 44.) In their further briefing on waiver, both parties have treated the allegations of suppressed evidence and fabricated evidence as interchangeable. (E.g. Mem. 1, ECF No. 53; Opp'n 2, ECF No. 60.)

         I. Scope of the Motion

         For clarity's sake, a Brady violation occurs when police officers fail to turn over exculpatory evidence to opposing counsel in a criminal case. United States v. Bagley, 473 U.S. 667, 676 (1985). A Giglio violation occurs when police officers fail to turn over impeachment evidence to opposing counsel in a criminal case. Id. Mr. Truman asserts the Orem City Defendants withheld both exculpatory evidence, (Am. Compl. ¶ 524(b), (d), (e), (f), (g), (h), (i), ECF No. 38), and impeachment evidence, (id., ¶ 524(a), (c), (d), (g)). Attorneys frequently refer to claims about these two types of suppression as Brady claims. Fabrication of evidence constitutes a separate constitutional violation subject to a different test than either a Brady or a Giglio violation. Pierce v. Gilchrist, 359 F.3d 1279, 1299 (10th Cir. 2004); Pyle v. Kansas, 317 U.S. 213, 216 (1942).

         The case law the Orem City Defendants rely upon to show a need to know what Mr. Yengich knew relates to Brady violations-“‘[A] defendant's independent awareness of the exculpatory evidence is critical in determining whether a Brady violation has occurred. If a [criminal] defendant already has a piece of evidence, the prosecution's disclosure of that evidence is considered cumulative, rendering the suppressed evidence immaterial.'” (Mem. 5, ECF No. 53 (quoting United States v. Quintanilla, 193 F.3d 1139, 1149 (10th Cir. 1999))). The Orem City Defendants do not cite any similar Tenth Circuit case law applicable to fabricated evidence.

         Assertions of fabrication do not give rise to waiver of the attorney-client privilege or work-product protection because the attorney's knowledge of the fabrication does not eliminate the harm of the fabrication in the way prior knowledge of information not disclosed does. To prove a fabrication claim, the plaintiff must show 1) the officers fabricated the evidence, 2) the evidence was used against the plaintiff in a criminal proceeding, and 3) the fabricated evidence deprived the plaintiff of fair trial or otherwise harmed him. See Warnick v. Cooley, 895 F.3d 746, 753 (10th Cir. 2018) (setting forth pleading requirements for a fabrication claim).

         Take for example a fabricated crime lab report purporting to document the presence of a plaintiff at the scene of a crime. That the plaintiff knows she was not at the scene of the crime does not prevent the introduction of the evidence. Even if the plaintiff forgoes her Fifth Amendment right not to testify and testifies that she was not at the scene, her testimony does not neutralize the fabricated crime lab report.

         The one case the Orem City Defendants cite for this proposition, Tennison v. City & Cty. of San Francisco, 226 F.R.D. 615, 622 (N.D. Cal. 2005), involved a § 1983 claim for suppression of exculpatory evidence and reliance on perjured testimony. The California district court stated, “[t]o succeed, [the plaintiff] must prove not only these facts, but the lack of knowledge of such evidence on the part of his attorney and himself.” Id. In support of this statement, the court cites only to cases involving suppression of evidence and not to any cases involving fabrication of evidence. See Id. (citing California v. Trombetta, 467 U.S. 479, 488-89, (1984) (addressing destroyed evidence); United States v. Dupuy, 760 F.2d 1492, 1502, n. 5 (9th Cir.1985) (involving nondisclosure of witnesses statements from known witnesses); United States v. Grossman, 843 F.2d 78, 85 (2d Cir.1988) (concerning failure to disclose potentially exculpatory evidence); United States v. Gaggi, 811 F.2d 47, 59 (2d Cir.1987) (regarding failure to disclose exculpatory evidence.”)). This Court does not find persuasive an out- of-circuit, district court case, lacking case law on the point of whether the plaintiff's and attorney's knowledge about fabricated evidence acts as a defense.

         For all of these reasons, the Court only addresses waiver regarding withheld information, that is Brady violations.

         II. ...


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