PETITIONS FOR WRIT OF MANDAMUS Baldwin Circuit Court,
CV-17-901319
MITCHELL, JUSTICE.
These
consolidated petitions for the writ of mandamus require us to
consider the objections of four nonparty witnesses to
subpoenas issued by the Utilities Board of the City of Daphne
("Daphne Utilities"). In case no. 1171028, two of
the witnesses ask us to vacate an order entered by the trial
court requiring them to produce certain electronic
information. In case no. 1180360, three of the witnesses ask
us to vacate an order entered by the trial court allowing
subpoenas for their past employment records to be issued to
their current employers. For reasons explained in this
opinion, we deny the petition in case no. 1171028 and grant
the petition and issue a writ of mandamus in case no.
1180360.
Facts
and Procedural History
On
November 16, 2017, the State of Alabama and the Alabama
Department of Environmental Management ("ADEM")
(hereinafter referred to collectively as "the
State") sued Daphne Utilities alleging that Daphne
Utilities, as operator of the Daphne Water Reclamation
Facility, exceeded permitted discharge allowances on various
occasions between November 2012 and October 2017 and, in some
of those instances, did not comply with ADEM's reporting
requirements. The State requested, among other things, that
the trial court "[o]rder [Daphne Utilities] to take
action to ensure that similar violations of the ADEM
[Administrative] Code, [Daphne Utilities'] [p]ermit, and
the [Alabama Water Pollution Control Act] will not [occur] in
the future."
Petitioners
Michael Wade Hogeland, Avan Baggett, Robert Miller, and Vanna
Trott are nonparty whistleblowers who were employees of
Daphne Utilities at all times relevant to the complaint. All
of those individuals reported to citizens' group Mobile
Baykeeper, Inc., a plaintiff-intervenor in the underlying
case, what they characterize as "data evidencing a
pattern of under reporting of sewage spills by Daphne
Utilities and its managers." Hogeland, Miller, and Trott
("the whistleblowers") claim that Daphne Utilities
constructively terminated their employment in March 2018, and
they have filed complaints with the United States Department
of Labor related to Daphne Utilities' alleged
discrimination and retaliatory discharge.
A.
Subpoenas to Baggett and Hogeland
On
April 5, 2018, Daphne Utilities issued separate nonparty
subpoenas to Baggett and Hogeland, under Rule 45, Ala. R.
Civ. P., ordering Baggett and Hogeland to appear for
depositions and to produce certain documents and items.
Baggett and Hogeland moved on April 25, 2018, for a
protective order relating to the requests for certain
electronic information, asserting that such information was
private, personal, and irrelevant to the underlying action
and that the requests were issued as retaliation for
Baggett's and Hogeland's whistleblower activities. On
May 14, 2018, the trial court entered a protective order that
set out ground rules for the production of the requested
items but ultimately required Baggett and Hogeland to produce
the electronic information. Neither Baggett nor Hogeland
sought interlocutory review of that protective order.
On June
22, 2018, Daphne Utilities issued new subpoenas to Baggett
and Hogeland seeking production of the same items requested
by the April 5, 2018, subpoenas, including the electronic
information that the trial court had already ordered Baggett
and Hogeland to produce. Baggett and Hogeland renewed their
April 25, 2018, motion for a protective order. The trial
court denied that motion on July 20, 2018. In case no.
1171028, Baggett and Hogeland ask us to issue a writ
directing that the July 20, 2018, order be
vacated.[1]
B.
Subpoenas to Employers of Hogeland, Trott, and
Miller
On
January 23, 2019, Daphne Utilities issued notices of intent
to serve subpoenas on Hogeland's and Trott's current
employer, The Water Works & Sewer Board of the City of
Prichard, and on Miller's current employer, Saraland
Water and Sewer Services. The subpoenas that were attached to
each notice directed each employer to produce, with regard to
each whistleblower:
"Any and all documents which in any way relate to the
employment of [the respective whistleblower] ... including
but not limited to, applications, offers, rejections,
employment contracts, payroll records, job assignments,
personnel file, disciplinary actions, reprimands,
advancements, terminations, reasons for termination, or any
other written material whatsoever, made at any time."
(These
documents are hereinafter referred to as "the employment
records.")
On
January 24, 2019, the whistleblowers filed a motion for a
protective order or, in the alternative, a motion to quash
the subpoenas ("motion to quash"). On February 4,
2019, the trial court granted the whistleblowers' motion
to quash in part and denied it in part.[2] Specifically, the
trial court denied the request to quash the subpoenas but
ordered that the parties take steps to protect certain
personal information contained in the ...