Sabata v. Nebraska Department of Correctional Services
4:17-cv-03107
| D. Neb. | Feb 22, 2019Background
- Plaintiffs are Nebraska inmates who sued NDCS and officials alleging systemic deficiencies in medical, dental, and mental-health care and disability accommodations in state prisons.
- Plaintiffs are represented by multiple organizations, including ACLU National Prison Project and Nebraska Appleseed; NDCS served a subpoena duces tecum on Nebraska Public Counsel (including the Inspector General) seeking communications between Public Counsel and Plaintiffs’ counsel about named plaintiffs (from Jan 1, 2014 to present).
- Public Counsel produced a privilege log listing eight responsive emails between the Public Counsel/Inspector General and ACLU counsel and moved to quash the subpoena on grounds that (1) NDCS failed to show relevance and (2) the communications are privileged under Neb. Rev. Stat. §§ 81-8,253 and 47-916.
- The Public Counsel’s statutory duties include investigating administrative acts of agencies (including NDCS) and the Inspector General’s duties include investigating misconduct and deaths or serious injuries in correctional facilities.
- The Court found NDCS made the threshold relevance showing because communications from Public Counsel/IG to plaintiffs’ counsel about incarcerated individuals plausibly relate to plaintiffs’ claims.
- The Court recognized a federal evidentiary privilege for the Nebraska Public Counsel/Inspector General under Rule 501, concluding the statutory confidentiality (matters within official cognizance) applies to the responsive outbound emails and therefore quashed the subpoena.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Relevance of subpoenaed communications | Public Counsel: NDCS failed to show threshold relevance because requests target communications narrowly between Public Counsel/IG and plaintiffs’ counsel about plaintiffs | NDCS: communications about complaints by named plaintiffs are facially relevant to claims against NDCS | Court: NDCS met threshold; communications plausibly relate to plaintiffs’ claims and are discoverable in principle |
| Privilege: Whether statutory confidentiality protects the communications | Public Counsel: Neb. statutes bar requiring Public Counsel/IG to testify or produce evidence concerning matters within official cognizance; privilege necessary to preserve investigatory function and confidentiality | NDCS: outbound communications to private counsel preparing litigation are not matters within official cognizance and thus not privileged | Court: Recognized a federal privilege for the Office consistent with statutes; emails concerned matters within official cognizance and are privileged, so subpoena quashed |
Key Cases Cited
- Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (broad construction of relevancy for discovery)
- United States v. Nixon, 418 U.S. 683 (high burden to create new evidentiary privileges; privileges sparingly recognized)
- Trammel v. United States, 445 U.S. 40 (principles on testimonial privileges)
- Carman v. McDonnell Douglas Corp., 114 F.3d 790 (8th Cir. 1997) (standard for recognizing new privileges and public-good requirement)
- United States v. Ghane, 673 F.3d 771 (8th Cir. 2012) (Rule 501 governs evidentiary privileges in federal court)
- Shabazz v. Scurr, 662 F. Supp. 90 (S.D. Iowa 1987) (recognized limited federal privilege for prison ombudsman to protect investigatory confidentiality)