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Ex parte Baggett

Supreme Court of Alabama

December 20, 2019

Ex parte Avan Baggett and Michael Wade Hogeland
v.
Utilities Board of the City of Daphne Ex parte Michael Wade Hogeland, Robert Miller, and VannaTrott In re: State of Alabama ex rel. Steve Marshall, Attorney General, Alabama Department of Environmental Management, and Mobile Baykeeper, Inc.

          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 ...


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