United States District Court, E.D. Michigan, Southern Division
In re Flint Water Cases. This Order Relates To: ALL CASES
ORDER AND OPINION ON JOINT MOTION FOR PROTECTIVE
E. LEVY, UNITED STATES DISTRICT JUDGE
City of Flint Defendants, Gerald Ambrose, Darnell Earley, and
Howard Croft, (referred to in their motion as Individual City
Defendants, “ICDs”) sought a protective order on
September 27, 2019. (ECF No. 957.) ICDs ask this Court to
enter a protective order that will “temporarily shield
them from depositions and future written discovery in this
matter until May 1, 2020” while they are under threat
of criminal charges related to the facts alleged in these
cases. (Id. at PageID.24523.) LAN and VNA Defendants
both filed responses on October 11, 2019. LAN Defendants
argue that the best approach is to require discovery to go
forward but to seal the transcripts until May 2020. (ECF No.
963.) VNA Defendants disagree that sealing discovery is a
workable solution; they argue that discovery should not be
postponed, and that ICDs can invoke their Fifth Amendment
rights as needed during discovery. (ECF No. 964.)
November 6, 2019, a hearing was held and oral argument heard.
For the reasons set forth below, as well as those set forth
on the record, ICDs' motion for a protective order is
granted in part and denied in part. Their motion to postpone
discovery until May 2020 is denied. But because the ICDs have
an interest in protecting their Fifth Amendment rights, the
Court will grant ICDs' request to temporarily seal their
written discovery and depositions. ICDs' request to limit
attendance at depositions to party attorneys is also granted,
but their request to forbid questions related to issues of
potential criminal liability is denied.
Earley and Ambrose were both state appointed Emergency
Managers-Earley from October 2013 to January 2015, and
Ambrose from January 2015 to April 2015. Defendant Croft was
Flint's former Director of Public Works. On or about
December 19, 2016, the Michigan Attorney General
(“AG”) charged all three ICDs with (1) false
pretenses and (2) conspiracy to commit false pretenses.
Defendants Earley and Ambrose were also charged with (3)
misconduct in office and (4) willful neglect of duty.
the false pretenses charges, these related to allegations
that ICDs acted or conspired to obtain an Administrative
Consent Order from the Michigan Department of Environmental
Quality that would allow Flint to obtain bonds to finance its
portion of the Karegnondi Water Authority in excess of the
debt limits imposed by state law, MCL § 117.4a. (ECF No.
957, PageID.24535.) As for the misconduct in office and
willful neglect of duty charges, these related to Earley and
Ambrose's actions taken as state appointed Emergency
Managers for the City of Flint that allegedly resulted in
prolonged exposure to lead and Legionella. (Id.)
note that in June of 2017, the Michigan AG published a
“Notice” stating that it would seek additional
charges of Involuntary Manslaughter against Earley and Croft.
(Id. at PageID.24536.) ICDs assert that Special
Assistant Todd Flood also “threated counsel for Mr.
Ambrose” with Involuntary Manslaughter charges
“in an attempt to force and/or entice Mr. Ambrose into
a plea agreement.” (Id.) None of these charges
were ever filed. In June of 2019, the AG's office
dismissed all criminal charges against ICDs without
prejudice. (ECF No. 957-5, PageID.24591-24593.)
Continued Threat of Criminal Charges
argue that criminal charges are likely-they point to public
and private statements made by the AG's office along with
the fact that all charges were dismissed without prejudice.
(ECF No. 957, PageID.24537.) For example, on June 13, 2019,
the AG's office released a statement emphasizing that by
dismissing the charges, it was not “precluded from
refiling charges against the defendants listed below, ”
which included the three ICDs along with six other government
officials. (ECF No. 957-6, PageID.24595.) ICDs also point to
a statement Michigan Solicitor General Fadwa Hammoud made on
June 3, 2019 to The Flint Journal alluding to
“substantial potential evidence that was not provided
to the original prosecution team” and stating that
their team was going through new evidence. (ECF No. 957,
contend that the allegations in Plaintiffs' complaints
mirror the allegations in the former criminal complaint. ICDs
explain that the statute of limitations on the prior criminal
charges has at longest six years. This means that the AG must
recharge them, if at all, by April 2020 for liability for
events that happened as late as April 2014. ICDs therefore
ask the Court to postpone discovery to May 1, 2020.
argue that discovery ought to be postponed until May 1, 2020
when the statute of limitations runs on potential criminal
charges against them. Alternately, ICDs ask this Court to
seal or otherwise further protect discovery.