In re Flint Water Cases

          ORDER AND OPINION ON JOINT MOTION FOR PROTECTIVE ORDER [957]

          JUDITH E. LEVY, UNITED STATES DISTRICT JUDGE

         Three 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.)

         On 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.

         I. Background

         a. Criminal Charges

         Defendants 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.

         As for 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.)

         ICDs 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.)

         b. Continued Threat of Criminal Charges

         ICDs 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, PageID.24538.)

         ICDs 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.

         II. Analysis

         ICDs 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.

         a. ...