United States v. Dominick

UNITED STATES OF AMERICA v. ANDRE DOMINICK, ET AL.

CRIMINAL ACTION NO. 15-289 SECTION "N" (3)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

April 11, 2016

ORDER

On January 13 and 27, 2016, Becnel's Ex Parte Motion for Issuance of Subpoena Duces Tecum and Incorporated Memorandum in Support [Doc. #45], the Government's Motion for a Protective Order [Doc. #51], and the Government's Motion to Quash Subpoena Duces Tecum Issued to the St. Bernard Parish Sheriff's Office and for Disclosure of Subpoena Duces Tecum [Doc. #61] came on for oral hearing before the undersigned. Present were Chandra Menon on behalf of the government and Alan Tusa, Christen Chapman, Guy Wall, Michael Ginart, Claude Kelly, and Mary Gaber on behalf of various defendants. After the oral hearing, the Court took the motions under advisement. Having reviewed the motions, the oppositions, and the case law, the Court rules as follows.

I. Background

The indictment alleges as follows. Defendants Andre Dominick, Timothy Williams, Debra Becnel, and Lisa Vaccarella were employed as correctional officers at the St. Bernard Parish Prison ("SBPP"). Nimali Henry was a pre-trial detainee in the custody of SBPP from March 21, 2014 through April 1, 2014. Henry suffered from serious medical conditions for which she was under a physician's care. While incarcerated, Henry did not receive the medication required for her medical conditions, no doctor evaluated her, and she was not taken to a hospital for treatment. On April 1, 2014, SBPP officers noticed Henry unresponsive and face down in her cell. They called for emergency services, but Henry died in the isolated cell that same date.

The government then charged all four defendants with deprivation of rights under color of state law in violation of 18 U.S.C. § 242 for deliberate indifference to Henry's medical needs. The government also charged defendants under 18 U.S.C. § 1001(a)(2) for making false statements to a federal agency in that they told the FBI agents that Henry had never told them that she had serious medical needs and no inmate in Dorm D1 ever told them that Henry had serious medical needs, all of which is alleged to be untrue.

II. Becnel's Ex Parte Motion for Issuance of Subpoena Duces Tecum and Incorporated Memorandum in Support

Becnel seeks the issuance of subpoenas duces tecum to River Oaks Hospital, Ochsner Baptist Medical Center, Dr. Craig Lotterman, and Walgreen Louisiana Co., Inc. The subpoenas seek the medical records of Henry. Becnel argues that Henry's medical conditions and history are material to the case. Becnel is indigent and has court-appointed counsel and seeks leave of court under Federal Rule of Criminal Procedure 17(b) to have the fees paid without cost.

Becnel seeks production of the documents in advance of trial under Rule 17(c)(1). She maintains that she satisfies all four requirements of United States v. Nixon, 418 U.S. 683, 699 (1974): Henry's medical and prescription records are relevant evidence of her medical conditions and medical history; Becnel has no way to obtain medical records from these third parties exceptthrough subpoenas; the requested records are necessary to properly prepare for trial; failure to obtain pre-trial inspection would delay trial because the documents are likely to be complicated and voluminous and may require review by an expert; and this good faith request for medical and prescription records is not intended as a "general fishing expedition," as the subpoenas are directed to parties which Henry identified as having been involved in her medical care in documents already produced by the government.

The government contends that Becnel's motion will be rendered moot in the near future through the discovery process. It maintains that "it appears" that the documents will be produced through the discovery process well in advance of trial.

The government notes that it has produced well over 1,400 documents and video footage to Becnel. The government believes that it has the documents that Becnel seeks in its possession. It discussed a limited protective order with defendants, and only one - now two - objected. The discussions are on-going. It plans to file a motion for a limited protective order in the near future, and, after the Court's ruling, it will produce the documents.

The government thus maintains that Becnel's motion is premature. Citing case law, it contends that Becnel can not show that the materials are not otherwise procurable because it has them and will produce them after the entry of a protective order.

In her reply, Becnel argues that she should not have to rely on the government's reassurances. She maintains that if the subpoenas do not issue, she will not know whether the government produced to her all of Henry's medial records, as opposed to what the government simply wants to produce. She notes that the government has not unequivocally stated that it will provide to her all of the documents that she seeks through the subpoenas.

Federal Rule of Criminal Procedure 17(c) governs motions for subpoenas duces tecum and provides simply that:

A subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them.

Fed. R. Crim. P. 17(c).

The party seeking a Rule 17(c) subpoena must show that the materials sought are relevant, that they are admissible, and that they are requested with adequate specificity. United States v. Arditti, 955 F.2d 331, 345 (5th Cir. 1992) (citing United States v. Nixon, 418 U.S. 683, 697-702 (1974)). A Rule 17(c) subpoena is not a discovery device nor does it provide a means of discovery beyond the discovery provided for in Rule 16. Nixon, 418 U.S. at 700; Arditti, 955 F.2d at 345 (citing Bowman Dairy Co. v. United States, 341 U.S. 214, 220 (1951)). "The specificity and relevance elements require more than the title of a document and conjecture as to its contents." Arditti, 955 F.2d at 345. If the moving party can not reasonably specify the information contained or believed to be contained in the documents sought, but merely hopes that something useful will turn up, this is a sure sign that the subpoena is being misused. United States v. Noriega, 764 F. Supp. 1480, 1493 (S.D. Fla. 1991). The subpoena must be sought in good faith and not as a "fishing expedition." Arditti, 955 F.2d at 347. Requesting entire files instead of specific documents is indicative of a fishing expedition. United States v. Reed, 726 F.2d 570, 577 (9th Cir. 1984).

The Court finds that Becnel has satisfied the requirements of Nixon. This Court can not fathom documents more relevant to the preparation of her defense than Henry's medical records. It is the whole underlying factual basis for the charges in the indictment. Moreover, the records aremost likely admissible, and Becnel has requested them with specificity. This is no fishing expedition. When a party contends that a defendant has been deliberately indifferent to its or another's medical care, the underlying medical records are ultimately necessary to prove - ot to negate - the medical care that was allegedly necessary for the alleged underlying medical condition. Unless the government can produce to the Court a verified affidavit that it is producing all of Henry's medical documents from these four sources, this Court grants the motion. However, and as outlined below, this production is subject to this Court's ruling on the government's motion for a protective order.

III. Government's Motion for a Protective Order

Only Dominick and now Becnel oppose this motion; the other two defendants do not. The government intends to provide discovery to defendants that contain medical and personal identifying information. The reasons are in an ex parte letter to the Court under Rule 16(d)(1). The government maintains that the limits in the proposed protective order are narrow and should not be burdensome on defendants. The government then lists the five paragraphs that comprise the proposed protective order, none of which is unusual.

Becnel opposes the motion for any ground outlined in the government's Rule 16(d)(1) letter as ex parte proceedings are disfavored under the law, and she has no way of knowing what reasons the government gave the Court.¹ She notes that the protective order only prohibits defendants from disseminating the information, not the government.

She also notes that medical information related to Henry has already been given to the public. And she notes that a civil suit filed in this Court outline Henry's health problems. Becnelhas no objection to a protective order to cover the medical records of living persons, but Henry is deceased.

Becnel contends that the government has not shown good cause for a protective order as it has articulated no specific injury that may occur should it produce the documents to defendants without a protective order. And she notes that the protective order appears to limit defense counsel's ability to discuss Henry's medical records with witnesses other than experts. This, she maintains, would severely limit her ability to prepare a defense.

Becnel contends that the public has a right to access these records as Henry's medical condition forms the basis of the lawsuit. She argues that the government has shown no compelling countervailing interest that would overcome the presumption of access by the public. Citing a plethora of case law, she notes that courts weigh the right of access by the public more heavily when the person is deceased.

Lastly, she contends that a protective order is not necessary to ensure that the parties comply with Rule 49.1(a), which already requires that certain personal identifying information be redacted.

The Court denies the...