Davidson v. Bredesen

KARL S. DAVIDSON v. GOVERNOR PHILLIP BREDESEN, IN HIS INDIVIDUAL CAPACITYAND DAVID COOLEY, DEPUTY TO THE GOVERNOR, IN HIS INDIVIDUAL CAPACITY

No. M2012-02374-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT NASHVILLE

September 11, 2013 Session

Filed October 29, 2013

Appeal from the Chancery Court for Davidson County

No. 072339III

Ellen H. Lyle, Chancellor

Participant in protest action which took place at the Tennessee State Capitol brought an action alleging that former Governor and Deputy Governor retaliated against him for the exercise of his First Amendment rights during the protest. Participant appeals the grant of summary judgment against him and the trial court's ruling that certain documents created by the Governor's legal counsel were protected from discovery by the attorney-client and deliberative process privileges. Finding no error, we affirm the judgment of the trial court in all respects.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

RICHARD H. DINKINS, J., delivered the opinion of the court, in which PATRICIA J. COTTRELL P. J., M. S., and FRANK G. CLEMENT, JR., J., joined.

John Edward Herbison, Clarksville, Tennessee, and Joseph H. Johnston, Nashville, Tennessee, for the appellant, Karl S. Davidson.

Harold Richard Donnelly and Hal Hardin, Nashville, Tennessee, for the appellees, Governor Phillip Bredesen and David Cooley, Deputy to the Governor.

OPINION

I. FACTS AND PROCEDURAL HISTORY

This case is before us for the second time. Karl Davidson, who participated in a sit-in demonstration at the Tennessee State Capitol in 2005 protesting proposed cuts to theTennCare program, brought suit against various state officials,¹ asserting several claims arising out of the treatment of the protesters, including a claim under 42 U.S.C. § 1983 for violation of his First Amendment rights. The trial court dismissed Mr. Davidson's complaint for failure to state a claim; in the first appeal we affirmed the trial court's dismissal of all the claims except his First Amendment retaliation claim and remanded the case for further proceedings. Davidson v. Bredesen, 330 S.W.3d 876 (Tenn. Ct. App. 2009).

On September 10, 2010, Mr. Davidson amended his complaint to name former Governor Bredesen and former Deputy Governor Cooley as the only defendants ("Defendants" herein); he summarized his claims against them thusly:

During the course of this sit-in demonstration, Plaintiff and other enrollees were willfully and maliciously harassed and intimidated by various state officials and certain State Highway Patrol officers. They were denied food and water on several occasions, which placed Plaintiff's health in jeopardy because of his diabetes and other medical conditions. Food items and clothing were also seized from Plaintiff on at least six (6) different occasions during this seventy-seven (77)-day period. Plaintiff avers on information and belief that these acts were either done at the express direction of Defendant Gov. Bredesen and/or Defendant Dep. Gov. Cooley, or done with their knowledge, approval, and acquiescence.

. . . The actions of Defendant Gov. Bredesen, by and through his agents, including but not limited to, Defendant Dep. Gov. Cooley, were carried out in retaliation for Plaintiff's protected conduct and therefore amount to a deprivation of Plaintiff's civil rights under color of law and entitle him to damages pursuant to 42 U.S.C. § 1983.

Defendants answered the amended complaint on January 5, 2011, generally denying all allegations.

Defendants filed a motion for summary judgment on December 7, 2011 along with a memorandum in support of the motion and a statement of undisputed material facts. Themotion was to be heard on January 13, 2012, but was rescheduled to March 23 at the request of Mr. Davidson's counsel. On March 19 Mr. Davidson filed a motion to continue the March 23 hearing, partly on the grounds that he needed "further discovery and time to prepare responsive pleadings and affidavits." Although no order appears in the record, the motion was apparently granted and the hearing reset for April 13. On April 9 Mr. Davidson filed a response to the motion for summary judgment, accompanied by his amended and supplemental answers to Defendants' interrogatories and request for production and his "Sworn Response in Opposition to Defendants' Statement of Material Undisputed Facts." On April 12 the court entered an order continuing the motion for summary judgment and set a deadline for Mr. Davidson to file a motion to compel production of the documents and have it heard.²

Mr. Davidson filed a motion to compel on April 19 requesting production of "certain documents provided to [Defendants'] attorneys by Deputy Attorney General Steve Hart, which documents he produced in response to Plaintiff's Subpoena Duces Tecum, but because General Hart thought they were subject to the attorney-client privilege, he did not provide copies to Plaintiff's Counsel."³ Defendants filed a response to the motion on May 21 asserting that the documents requested "were not produced by the Office of the Attorney General on the basis of one or more of the following legal theories: 1) that the documents are work product of the attorney(s) involved; 2) that the documents contain privileged attorney-client communications; and 3) that the documents are protected by the deliberative process." Mr. Davidson filed a reply to Defendants' response on July 16 asserting that documents did not fall within either of the three privileges asserted by Defendants.

A hearing on the motion to compel was held on July 20, during which the documents in question were filed with the court under seal for an in camera inspection. On July 26 the court issued its order that Defendants produce two of the letters and that the remainder were privileged under either the attorney client privilege, the deliberative process privilege, orboth. On July 27 Defendants filed a motion for a stay of the court's July 26 order, to alter or amend the order, or in the alternative for permission to appeal; the court granted the motion, ruling that two documents which the court had ordered produced were also privileged from disclosure.

Mr. Davidson filed a supplemental memorandum in opposition to the motion for summary judgment on September 19. The summary judgment hearing was held on September 21 and the court granted the motion on October 3. Mr. Davidson filed a notice of appeal on October 19.

On appeal Mr. Davidson contends that the trial court erred in holding that the documents which he sought to discover were privileged and, therefore, not subject to production and in granting summary judgment on his claim of retaliation for the exercise of his First Amendment rights. Mr. Davidson also raises the issue of whether the deliberative process privilege is recognized under Tennessee law.

II. DISCUSSION

A. PRIVILEGES

The documents for which production was sought in the motion to compel were:

1. Notes of Deputy Legal Counsel Steve Elkins re: meeting with Legal Counsel Robert Cooper on 7/13/05;

2. Notes of Deputy Legal Counsel Steve Elkins re: meeting and telephone calls on 6/29/05- including contacts and consultations with the Tennessee Attorney General's Office;

3. Notes of Deputy Legal Counsel Steve Elkins re: meeting on 7/14/05, including Steve Elkins and members of the Tennessee Attorney General's Office;

4. Notes of Deputy Legal Counsel Steve Elkins of telephone call with Thad Watkins, General Counsel for Department of General Services (on 7/14/05);

5. Notes and edits of Legal Counsel Robert Cooper and Deputy Legal Counsel Steve Elkins re: Implementation of Procedures for the Use of Public Areas of the Tennessee State Capitol;6. (7/14/2005) Implementation of Procedures for the Use of Public Areas of the Tennessee State Capitol; and

7. Notes of Deputy Legal Counsel Steve Elkins re: meeting on 7/25/05, "Independent policy analysis".

In the July 26, 2012 Memorandum and Order, the court discussed the various privileges asserted and ordered Defendants to produce documents 1 and 4; it held that items 2, 3, 5, 6, and 7 were protected by the deliberative process privilege and that documents 2 and 3 were also protected by the attorney-client privilege. On July 27, pursuant to Defendants' motion, the court amended the July 26 order and held that documents 1 and 4 were also protected by the attorney-client and deliberative process privileges.⁴ Mr. Davidson complains that the court's rulings in this regard "inappropriately prevented [him] from obtaining relevant documents from non-party recipients of Tenn. R. Civ. P. 45.02 subpoenas."⁵

Decisions regarding pretrial discovery are inherently discretionary; accordingly, we review such decisions under the abuse of discretion standard. Culbertson v. Culbertson, 393 S.W.3d 678 (Tenn. Ct. App. 2012). In so doing, we review the underlying factual findings using the preponderance of the evidence standard and review the lower court's legaldeterminations de novo with no presumption of correctness. Id.; see also Tenn. R. App. P. Rule 13(d). Further, as noted by the Culbertson court:

When a discovery dispute involves the application of a privilege, the court's judgment should be guided by the following three principles. First, Tennessee's discovery rules favor discovery of all relevant, non-privileged information. Second, even though privileges do not facilitate the fact-finding process, they are designed to protect interests and relationships that are regarded as sufficiently important to justify limitations on discovery. Third, while statutory privileges should be fairly construed according to their plain meaning, they need not be broadly construed.

Culbertson, 393 S.W.3d at 683 (quoting Powell v. Cmty. Health Sys., Inc., 312 S.W.3d 496, 504 (Tenn. 2010)).

1. DELIBERATIVE PROCESS PRIVILEGE

The deliberative process privilege protects "the confidentiality of conversations and deliberations among high government officials" and "ensures frank and open...