233 F.R.D. 169 | E.D. Pa. | 2005
MEMORANDUM OPINION AND ORDER
This is a section 1983 action in which Plaintiff Stacey Robinson (“Robinson”) alleges that her former employer, Defendant City of Philadelphia (the “City”), took certain illegal actions against her in retaliation for her cooperation with a federal criminal investigation of corruption within City government. Pending before the Court are the City’s Motions to Place this Case in Civil Suspense Until Such Time as the Investigation of the Grand Jury is Concluded or, Alternatively, to Compel Depositions and Requests for Production of Documents. For the reasons stated below, the Motions are denied, with prejudice as to some parts and without prejudice as to other parts.
I. PROCEDURAL HISTORY & FACTUAL BACKGROUND
A. Introduction
Robinson worked full-time at the Philadelphia International Airport (the “Airport”), which is owned by the City. In February 2003, she was temporarily appointed Acting Airport Properties Manager. As part of her new position, Robinson was responsible for ensuring that concession stands within the Airport complied with various regulations. In spring of 2003, Robinson raised concerns about the security roll-down grille at one of the Airport’s restaurants. She denied the restaurant owner’s request “to leave the improper roll-down gate in place and insisted that the grille be changed to meet the design criteria for the new terminal.”
On January 28, 2004, two Federal Bureau of Investigation (“FBI”) agents visited Robinson at her home and sought her assistance with an ongoing investigation of corruption in various City agencies, including the Airport. They also informed Robinson that FBI wiretaps had recorded Airport personnel discussing her as someone to “get out of the way.” Robinson subsequently entered into an agreement with the investigating agents, including Officer Stephen Synder (“Officer Synder”),
Robinson alleges that, after notifying her supervisors of the FBI visit and as a result of her cooperation with the FBI, the City retaliated against her by excluding her from consideration for a permanent appointment to the position of Airport Properties Manager, excluding her from meetings, and not assigning her work.
On August 18, 2004, Robinson filed suit in this Court, alleging claims under section 1983, wrongful discharge in violation of Pennsylvania public policy, and violation of the Pennsylvania whistleblower law.
B. The Discovery Dispute
Robinson’s case is now in discovery. In an effort to learn more about Robinson’s conversations with the FBI, the City noticed the depositions of Officer Synder and AUSA Markman (collectively, the “federal officials”). The deposition notices were accompanied by subpoenas requesting that the federal officials produce certain documents relating to their investigation.
Upon learning of the scheduled depositions, the United States Attorney’s Office for the Eastern District of Pennsylvania contact
On July 19, 2005, the City deposed Robinson. When asked about her conversations with the FBI, Robinson was directed by her counsel not to answer in light of the U.S. Attorney’s letter. Her counsel specifically stated: “My concern is, though, that my client would potentially violate some privilege of the government or of the investigation or law, the federal law with respect to her participation and cooperation with the investigation.”
The City has filed the instant Motions, seeking to compel further discovery from Robinson and the federal officials, or, alternatively, to place this case in suspense pending the outcome of the FBI’s investigation.
II. DISCUSSION
A. Whether Robinson Should be Compelled to Provide Discovery
The City seeks, quite reasonably, to depose Robinson about her conversations with the FBI. Robinson does not oppose the City’s request, so long as the government does not object to her testifying on these matters. She states, “After the government confirms that [she] is in fact permitted to testify to such matters as stated herein, [she] shall testify fully and completely to all matters relating to the FBI investigation, without waiving the usual privileges and objections raised during a deposition.”
The City correctly points out that the parties’ current arguments leave the Court in no better position than before to decide this issue. Since the scope of permissible deposition testimony turns on what, if any, objections the government may raise and the government is not a party to this action, the Court cannot rule on what Robinson should be compelled to answer without possibly jeopardizing an ongoing criminal investigation. Although Robinson suggests that the government will permit her to testify,
Each of the three deponents [Robinson, Officer Synder, and AUSA Markman] also object to the release of any information protected by one or more of the following privileges: the state secrets privilege, deliberative process privilege, attorney-client privilege, law enforcement privilege, confidential informant privilege, among others, as well as the attorney work product doctrine.8
Without more, this Court must decline to compel further discovery in a matter where any of these privileges are raised.
The second issue raised is whether federal agencies and employees must comply with a subpoena pursuant to Rule 45 of the Federal Rules of Civil Procedure where they are not a party to the action. Rule 45 provides, in pertinent part, that “every subpoena shall ... command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying [of documents].”
The Supreme Court has followed a “longstanding interpretative presumption that ‘person’ does not include the sovereign.”
In a series of recent decisions, the District of Columbia Circuit and its lower courts have applied this presumption to the issue at bar. In Al Fayed v. CIA, that Circuit held that the word “person” in 28 U.S.C. § 1782, a statute similar to Rule 45, does not include the federal government.
This Court agrees with the holdings in the D.C. Circuit eases. Absent some evidence rebutting the presumption that the word “person” in Rule 45 does not include the federal government, which the City has failed to provide here, Rule 45 does not apply to the federal officials. Therefore, this Court is without authority to compel the federal officials to comply with a subpoena issued pursuant to Rule 45.
C. Whether to Place this Matter in Suspense
In the event the Court d'eclines to compel discovery of Robinson and the federal officials, the City seeks to place this case in suspense pending the outcome of the FBI’s grand jury investigation. The City argues that it cannot effectively defend itself in this action until it obtains full discovery from Robinson and the FBI officials.
The Court declines to place the case in suspense at this moment, as any decision to suspend the ease would be premature. If the government does not continue to object to Robinson’s testimony, the City’s opportunity to question her would sufficiently enable the City to defend itself. Therefore, the Court denies without prejudice the City’s request to place this case in suspense.
III. CONCLUSION
For the forgoing reasons, the City’s Motions are denied. An appropriate Order follows.
ORDER
AND NOW, this 10th day of November, 2005, upon consideration of Defendant’s Motions to Place this Case in Civil Suspense Until Such Time as the Investigation of the Grand Jury is Concluded, or, Alternatively, to Compel Depositions and Requests for Production of Documents [Docs. # 12 and # 14], Plaintiffs Responses thereto [Docs. # 17 and # 18], and Defendant’s Reply [Doc. # 19], and consistent with the attached Memorandum Opinion, it is hereby ORDERED that the Motions are DENIED. It is further ORDERED as follows:
1. Defendant’s request to compel Plaintiff Stacey L. Robinson to fully and completely answer any questions regarding her conversations with the FBI is DENIED WITHOUT PREJUDICE;
2. Defendant’s request to compel Joan L. Markman and Stephen Synder to comply with Defendant’s discovery requests is DENIED;
3. Defendant’s request to place this case in suspense is DENIED WITHOUT PREJUDICE.
It is further ORDERED that the parties’ Joint Motion for Extension of Time to Conduct Discovery and to Amend Pretrial Order [Doc. # 13] is GRANTED. The parties shall have sixty (60) days from the date of this Order to complete discovery.
It is so ORDERED.
. The Court jointly addresses the City’s Motions in this single memorandum opinion because each Motion raises similar arguments and claims for discovery-related relief. Also addressed herein is the parties' Joint Motion for an Extension of Time to Complete Discovery.
. PL’s Compl. 120.
. Officer Synder is a police officer with the Philadelphia Police Department who was a deputized Federal Officer with the FBI at the time of the events giving rise to this suit.
. Def.’s Mots. to Compel Ex. B at 3.
. Pl.’s Dep. at 117.
. Pl.’s Resp. to Def.’s Mot. at 8.
. In her Response to the Motion, Robinson states: "Upon information and belief, it appears as if the government is maintaining the position that [Robinson] is permitted to testify to any and all matters relating to her conversations with the FBI." Pl.'s Resp. to Def.’s Mot. at 8.
. Def.’s Mots, to Compel Ex. B at 3.
. Fed.R.Civ.P. 45(a)(1)(C).
. Vt. Agency of Nat’l Res. v. United States ex rel. Stevens, 529 U.S. 765, 780, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (holding that a state or agency is not a "person" subject to qui tam liability under the False Claims Act); see Int'l Primate Prot. League v. Adm'rs of Tulane Educ. Fund, 500 U.S. 72, 82-83, 111 S.Ct. 1700, 114 L.Ed.2d 134 (1991) (explaining that the word "person” in statutes is usually interpreted to exclude the sovereign).
. Vt. Agency, 529 U.S. at 781, 120 S.Ct. 1858.
. See United States v. United Mine Workers, 330 U.S. 258, 275, 67 S.Ct. 677, 91 L.Ed. 884 (1947) ("In common usage that term [‘person’] does not include the sovereign, and statutes employing it will ordinarily not be construed to do so.”)
. 229 F.3d 272, 276-77 (D.C.Cir.2000). Section 1782 provides that the "district court of the district in which a person resides or is found may order him to give his testimony.”
. 251 F.3d 178, 180-81 (D.C.Cir.2001).
. See Yousuf v. Samantar, No. MISC. 05-110 (RBW), 2005 WL 1523385 (D.D.C. May 3, 2005); United States ex rel. Taylor v. Gabelli, No. MISC. 04-534 (RJL), 2005 WL 2375173 (D.D.C. May 3, 2005); Lerner v. District of Columbia, 362 F.Supp.2d 149 (D.D.C.2005).
. See, e.g., Gabelli, 2005 WL 2375173, at *2.
. At least one case has squarely held that the word "person" in Rule 45 does include the federal government. See Connaught Labs., Inc. v. Smithkline Beecham P.L.C., 7 F.Supp.2d 477, 480 (D.Del.1998) (holding that the court had authority under Rule 45 to modify and enforce subpoenas against non-party federal agencies). The Connaught Labs court based its holding on a prior Ninth Circuit case, Exxon Shipping v. United States Dep't of Interior, 34 F.3d 774, 780 (9th Cir.1994) (concluding that "district courts should apply the federal rules of discovery when deciding on discovery requests made against government agencies, whether or not the United States is a party to the underlying action”). However, neither Connaught Labs or Exxon Shipping persuades this Court. First, those cases fail to address the Supreme Court’s long
. See In re Grand Jury Matter, 682 F.2d 61, 63-65 (3d Cir.1982).