Thomas D. Horne
Thomas Plofchan, Jr., Esq.
46308 Cranston Street, Suite 225
Sterling, Virginia 20165 Martin L. Kent, Esq.
Assistant Attorney General
Office of the Attorney General
900 East Main Street
Richmond, Virginia 23219 John R. Roberts, Esq.
County Attorney, County of Loudoun
One Harrison Street, S.E.
Leesburg, Virginia 20177 Gentlemen:
Plaintiff seeks to depose the Commonwealth Attorney of Loudoun County, several of his assistants, and his Victim Witness Coordinator. Additionally, he has caused the issuance of a subpoena for the video deposition of Special Agent Edward Haith, Jr. of the Virginia State Police. The subpoenas seek discovery in connection with the events outlined in plaintiffs' action for slander against Theresa and Kenneth Ceglowski.
Thomas K. Plofchan, Jr. is a practicing attorney. He practices law with the firm of Plofchan & Associates located in Sterling, Loudoun County, Virginia. He alleges that the defendants made defamatory comments concerning his having attempted to threaten and bribe them in connection with his defense of a criminal case. A criminal investigation ensued in which the named deponents participated. It is the contention of the plaintiffs that the defamatory statements were made to those conducting the investigation.
Movants seek to quash the subpoenas. They assert that their testimony is privileged and exempt from discovery. Furthermore, they contend that, if subject to discovery, such testimony need only be forthcoming should the plaintiff show a compelling necessity for such information. It is their assertion that Mr. Plofchan and his law firm have failed to make such a showing of compelling necessity.
Plaintiff is entitled to discover, ". . . any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . ." Rule 4:1(b), Rules of the Supreme Court of Virginia. The request clearly meets the relevancy test of the rule. Thus, the issue of privilege alone demands furthers inquiry by the Court.
If this were a criminal prosecution, no such discovery as that sought by the plaintiffs would be available to them. Rule 3A:11(b)(2), Rules of the Supreme Court of Virginia. Were this a request made under the Virginia Freedom of Information Act, plaintiffs would be foreclosed from the discovery of such investigative material. Va. Code Ann. § 2.1-342.2(F)(1) (Michie Cumulative Supp. 2000). However, this is neither a criminal prosecution nor a FOIA request. It would exceed the limits of these judicial and legislative mandates to use them as a bright line test for civil cases. Public policy considerations that would protect the rights of the individual, interests of society, and integrity of the investigative process have been driving forces behind the rule and statute. To use them as a dead end street for civil plaintiffs would undermine those worthy goals.
The Court has previously determined that a balancing test is appropriate in evaluating competing claims such as that raised by these motions to quash. Thus, it was directed that the deponents might supplement their responses to properly determine the issue. They have filed additional material for in camera review by the Court.
The Court finds that it is the deponents who bear the burden of justifying the application of a privilege such as would preclude those seeking to quash the subpoenas from submitting to the requested discovery depositions. Governmental privilege is recognized and, if shown, would preclude discovery of the moving parties in this case. See Castle v. Jallah, 142 F.R.D. 618 (E.D. Va. 1992).
In the balancing test between competing interests, the Court is guided by a number of factors. These include the following:
(1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information;
(2) the impact upon persons who have given information of having their identities disclosed;
(3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure;
(4) whether the information sought is factual data or evaluative summary;
(5) whether the party seeking the discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question;
(6) whether the police investigation has been completed;
(7) whether any intradepartmental disciplinary proceedings have arisen or may arise from the investigation;
(8) whether the plaintiff's suit is non-frivolous and brought in good faith;
(9) whether the information sought is available through other discovery or from other sources; and
(10) the importance of the information sought to plaintiff's case.
Id. at 621 (citing
Frankenhauser v. Rizzo,
59 F.R.D. 339, 344 (E.D. Pa. 1973)). From a review of the submission by counsel for the moving parties, it would appear that although the police investigation has been completed, they believe that to submit to the depositions would jeopardize criminal processes unnecessarily. They suggest that the information is available from another source. More particularly, discovery of the defendants may readily yield the factual information germane to the defamation claim without interfering with the integrity of the investigative process.
This Court is persuaded that at the present time, absent an exhaustion of other discovery directed to the defendants that the information sought may be garnered from other sources. To permit the depositions to go forward at this time is premature. Accordingly, the Court will grant the motion to quash with leave for the plaintiffs to address the matter after they have completed other discovery in the case.
Mr. Kent may draw an Order consistent with this opinion to which counsel may note their exception.
Very truly yours,
Thomas D. Horne