Appeals panel: Snyder, Dillon must give depositions in some Flint civil cases

The Sixth Circuit U.S. Court of Appeals ruled Tuesday that former Michigan Gov. Rick Snyder and former state Treasurer Andy Dillon cannot be shielded from certain depositions in civil litigation related to the Flint water crisis. 

A three-judge panel denied Snyder and Dillon's request that they be shielded from depositions in which they would be used as "non-party fact witnesses" in civil litigation connected to the water crisis, which resulted in lead-contaminated drinking water as well as two Legionnaires' disease outbreaks that experts pinned on the city's water source change.  

The panel included circuit judges Gilbert Merritt, an appointee of former President Jimmy Carter; Karen Moore, an appointee of former President Bill Clinton; and Eric Murphy, an appointee of President Donald Trump. Moore wrote in the opinion.

The ruling comes six years after the city of Flint switched its water source from a Detroit-managed pipeline carrying Lake Huron water to the Flint River. After the source change, city officials didn't add the proper corrosion controls based on the advice of state environmental officials, which resulted in lead leaching from lead service lines and into the tap water of Flint homes.

Former special prosecutor Todd Flood and his team — appointed by former Michigan Attorney General Bill Schuette — had charged 15 state and local officials with crimes and reached plea deals with some when Attorney General Dana Nessel took office in 2019.

Nessel appointed Solicitor General Fadwa Hammoud to oversee the cases so the attorney general could focus on the civil side of Flint litigation. Hammoud last year ordered a new review of the Flint investigation and dismissed all criminal charges in the investigation into the lead-tainted water, citing new evidence, drawn-out preliminary examinations, and the political timing of charges. Flood had defended his team's handling of the investigation before they resigned or were fired.

Both Snyder and Dillon have argued they should be spared from being deposed in Flint-related civil lawsuits against private engineering firms until the companies have exhausted their opportunities to argue on appeal that they are exempt through qualified immunity afforded to government officials.

The U.S. District Court ruled in April 2019 that governmental immunity was enough to exempt Snyder and Dillon from all but one civil claim against them — that their actions in Flint violated the bodily integrity of city residents.

While Snyder and Dillon appealed the decision, the district court ruled that they could be deposed as fact witnesses on any other topic except the surviving claim against them to move the cases against other parties along. 

Plaintiffs in the case are seeking to depose Snyder on June 25 and one of the engineering firms is seeking to depose Dillon on July 7 to support its defense. The pending depositions prompted Snyder and Dillon to appeal to the Sixth Circuit in April. 

The Sixth Circuit appellate panel ruled Tuesday that Snyder and Dillon's appeals on immunity shielded them only from depositions in cases against them specifically. They don't shield Snyder and Dillon from other parties seeking their input as "fact witnesses on wholly separate claims," Moore wrote.

"If these non-party depositions turn out to be a ruse — as Snyder and Dillon assert that they are — Snyder and Dillon are free to object and move for a protective order at the district court level as issues arise," Moore wrote. "It is inappropriate for us, however, to issue a prophylactic order to stop these depositions from going forward based on hypothetical horrors before a single problematic question has been asked."

Snyder and Dillon's testimony as fact witnesses, she wrote, is necessary "for discovery to proceed for other parties in the sprawling litigation."

Theodore Leopold, co-lead counsel in the Flint civil cases, said the team was pleased with the denial of "former Gov. Snyder’s last attempt to avoid being questioned under oath about his role in the Flint disaster." 

"We will now look forward to questioning Gov. Snyder at the end of this month," Leopold said. 

State seeks bar on depositions

The decision comes as the state’s criminal prosecution team in the Flint water crisis seeks to bar civil teams from access to witness interviews it conducted in criminal investigations under Flood and Hammoud.

Because the criminal investigation is not concluded, confidential material should not be provided to “civil defendants — some of whose attorneys represent them in criminal matters,” Hammoud wrote in a May 22 motion.

The solicitor general has asked the court to allow the state to appeal the issue to the Sixth Circuit Court of Appeals if U.S. District Judge Judith Levy sides with civil lawyers.

“The people are aware of no case resembling this one, in which the district court was poised to remove large swaths of work product from the protections of privilege based on a claim that the civil plaintiffs would benefit,” Hammoud wrote in the motion.

Levy denied the request to appeal to the Sixth Circuit May 26 until she had made a final order on the case.

Hammoud’s attempt May 22 to stop the release of criminal depositions stems from a subpoena issued in July 2019 by civil lawyers suing state actors for damages to residents in the Flint crisis.  The civil lawyers asked Levy to compel the state’s production of those documents in a May 5 motion.

The civil lawyers argued that some of the material sought already has been “trickled” to former state environmental officials who were criminally charged in relation to the water crisis but weren't available to civil lawyers. The discrepancy put the parties on uneven footing in access to discovery, lawyer Corey Stern argued in the May 5 motion.

Stern argued that many witnesses interviewed in the criminal case “can no longer remember crucial facts” for depositions related to the civil cases.

“To the extent that these witnesses were deposed by criminal investigative attorneys in earlier years, access to that testimony provides far more reliable testimony than what can be obtained now,” Stern wrote.

The testimony obtained in the criminal investigation, Stern said, would show “that the government defendants were deliberately indifferent of plaintiff’s clearly established constitutional right to bodily integrity.”

With no new criminal charges and the passage of the sixth anniversary of the switch from the Detroit water system to the Flint River past, those materials should be made available, Stern said.

“…the state can have little interest in maintaining the secrecy of materials obtaining during past criminal investigations,” Stern wrote. “The criminal cases have been closed, and the state has not brought any new criminal charges.”

The attorney general’s office has said in the past that the six-year anniversary of the city’s water source switch would mark the date after which the statute of limitations would prevent criminal charges in the case, Stern said. IBut in April, Hammoud said the department believed there were still specific charges not barred by the deadline.

eleblanc@detroitnews.com