Mandamus - Discovery - Employment Records of Non-party Witnesses


Ex parte Baggett and Hogeland; Ex parte Hogeland, Miller, and Trott, [Ms. 1171028, 1180360, Dec. 20, 2019] __ So. 3d __ (Ala. 2019). In Case Number 1171028, the Court (Mitchell, J.; Parker, C.J., and Bolin, Shaw, Wise, Bryan, Sellers, Mendheim, and Stewart, JJ., concur) unanimously denies a petition for writ of mandamus filed by Baggett and Hogeland, non-party witnesses, seeking to vacate a circuit court’s order compelling them to provide ESI in response to a non-party subpoena. In declining to issue the writ, the Court noted that the July 20, 2018, order challenged by Baggett and Hogeland was not the first order compelling them to produce the ESI. An earlier order entered on May 14, 2018 had required Baggett and Hogeland to produce the same information. The Court explained “vacating the July 20, 2018, order would have no effect on Baggett’s or Hogeland’s obligations. We decline to issue a writ of mandamus under such circumstances.” Ms. *7.

In Case No. 1180360, a plurality of the Court (Mitchell, J.; Shaw, Wise, and Stewart, JJ., concur; Parker, C.J., and Bolin, Bryan, Sellers, and Mendheim, JJ., concur in the result) granted the witnesses’ mandamus petition vacating the circuit court’s order allowing Daphne Utilities Board to issue subpoenas to their employers. The plurality opinion concludes

The subpoenas at issue here are neither proportional to the needs of this case nor reasonably calculated to lead to the discovery of admissible evidence. Daphne Utilities states its interest in the employment records as follows: “[The employment records] will aid in evidencing whether [the witnesses], all intimately involved in the violations alleged against Daphne Utilities, were working for Daphne Utilities, which is not only relevant to ADEM’s claims against Daphne Utilities, but [the witnesses’] biases against Daphne Utilities.” Although Daphne Utilities has provided the Court with a reasonably detailed list of what it anticipates the employment records will reveal, that list does not explain how any portion of the employment records may reveal the whistleblowers’ bias.

Ms. *13-14.

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