Thao v. Donovan
1:11-cv-00799
E.D. Cal.Jul 25, 2014Background
- Plaintiff Toulu Tao, a HUD employee, sued HUD officials alleging wrongful investigation/indictment and malicious prosecution after criminal charges alleging false statements about HUD funds to Hmong American Community (HAC).
- Plaintiff contends investigators presented false evidence to the grand jury and failed to correct it; a key issue is whether HAC actually received HUD funds or whether funds went to a different entity with the same initials.
- Plaintiff moved to unseal the grand jury transcript of Teresa Carson (formerly Teresa Hills), who was the sole witness before the grand jury and testified on or about February 9, 2006.
- At Carson’s deposition she frequently claimed no present recollection and indicated she could not answer without referring to her grand jury testimony, prompting Plaintiff’s request for the transcript to test what she actually said to the grand jury.
- Defendants opposed disclosure arguing (1) the request was for wholesale disclosure and insufficiently specific and (2) Carson has absolute immunity for grand jury testimony under Bivins/Rehberg, which they contend forecloses the relief.
- The court framed the disclosure inquiry under the Douglas Oil/District of Columbia Rule 6(e) standard and concluded Plaintiff’s request (limited to Carson’s testimony on the specified date) was sufficiently specific and warranted disclosure; it ordered the parties to appear to resolve in camera review and distribution arrangements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the request is sufficiently specific under Rule 6(e) / Douglas Oil | Seeks only Carson’s grand jury testimony on or about Feb 9, 2006; that specific transcript is needed because Carson cannot recollect without it | Argues request amounts to wholesale disclosure of all transcripts and lacks specificity | Court reads motion as limited to Carson’s testimony on the date specified and finds specificity adequate |
| Whether Douglas Oil’s three-part test for unsealing is met (need to avoid injustice; need outweighs secrecy; narrowly tailored) | Transcript is needed to show what Carson told prosecutor and grand jury, and is essential to prove Plaintiff’s alternative exculpatory theory | General protection of grand jury secrecy and ongoing public interest in secrecy | Court finds Plaintiff made an adequate showing to justify unsealing Carson’s transcript under its discretion |
| Whether Carson’s asserted testimonial immunity (Bivins/Rehberg) bars disclosure | Immunity to suit does not negate the need for transcript or justify withholding it; immunity can be assessed later | Claims Carson is absolutely immune for grand jury testimony, implying records should remain sealed | Court rejects immunity as a basis to deny disclosure at this stage — immunity does not foreclose transcript review |
| Logistics of release (in camera review and distribution) | Requests access for witnesses and counsel; asks court to permit use at trial/litigation | Raises concerns about distribution and scope | Court orders a hearing for parties to resolve in camera review, distribution, and any remaining production issues; parties may stipulate a proposed order beforehand |
Key Cases Cited
- Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211 (establishes three-part test for disclosing grand jury materials)
- In re Petition of Craig, 131 F.3d 99 (2d Cir.) (discusses historical exceptions to grand jury secrecy)
- United States v. Plummer, 941 F.2d 799 (9th Cir.) (grand jury secrecy interest continues after proceedings; disclosure is discretionary)
- Bivens v. Six Unknown Named Agents of Fed. Narcotics Bureau, 403 U.S. 388 (recognizes damages remedy for constitutional violations by federal agents)
- Rehberg v. Paulk, 132 S. Ct. 1497 (addresses immunity for grand jury witnesses and scope of testimonial immunity)