*1 Before the court are Plaintiff Paul G. Amann's Motion to Quash Subpoena Duces Tecum (“Mot. to Quash,” Doc. No. 104) and Short Form Motion for Protective Order (“Mot. for Protective Order,” Doc. No. 107). The court held a hearing on the motions on April 2, 2021. (Doc. No. 113.) For the reasons stated at the hearing and set forth below, the court DENIES both motions.

Motion to Quash Subpoena Duces Tecum (Doc. No. 104)

Mr. Amann seeks to quash a subpoena for documents issued by Defendant Office of the Utah Attorney General (“AGO”) to nonparty Robert Jason Hanks. Mr. Amann and Mr. Hanks are both former AGO employees. In this case, Mr. Amann alleges he was wrongfully terminated by the AGO in retaliation for whistleblowing activities, including his support of Mr. Hanks’ sexual harassment claim against the AGO. (Second Am. Compl. ¶¶ 56, 74, 134–36, Doc. No. 89.) The AGO asserts Mr. Amann was terminated for nonretaliatory reasons, including his alleged harassment of another employee, Cynthia Poulson, in which Mr. Hanks participated. (See Opp'n. to Mot. to Quash 2, Doc. No. 105.)

Request No. 1 of the proposed subpoena to Mr. Hanks requests correspondence and documents exchanged between Mr. Amann and Mr. Hanks concerning the following topics:

(Ex. 1 to Mot. to Quash, Notice of Intent to Issue Subpoena Duces Tecum, Doc. No. 104-1 at 7.) Mr. Amann argues this request seeks irrelevant information and is intended to harass and embarrass him.[1] (Mot. to Quash 3–4, Doc. No. 104.) He asserts he has standing to challenge the subpoena because he has a personal right and interest in his private emails and communications. (Id. at 2.) In response, the AGO argues (1) Mr. Amann lacks standing to challenge the subpoena on relevancy grounds; (2) the requested documents are relevant; (3) Mr. Amann does not explain why the requests subject him to annoyance or embarrassment; and (4) Mr. Amann failed to adequately meet and confer. (Opp'n to Mot. to Quash, Doc. No. 105.)

As an initial matter, the parties dispute the scope of Request No. 1. Mr. Amann asserted at the hearing that because he and Mr. Hanks are former employees of the AGO, subsection (a) of Request No. 1 encompasses all communications between them—not just communications regarding the listed topics. However, the AGO clarified at the hearing that subsection (a) is meant to request only communications regarding the AGO and other former or current employees besides Mr. Amann and Mr. Hanks. The AGO agreed to modify the language of the subpoena to reflect this clarification.

It is unnecessary to address the issue of whether Mr. Amann has standing to challenge the subpoena, because it is apparent the requested documents are relevant to this case and the subpoena is not intended to harass. The subpoena seeks communications regarding topics which are directly relevant to both Mr. Amann's claim that he was retaliated against for supporting Mr. Hanks’ sexual harassment claim, and the AGO's defense regarding a nonretaliatory reason for termination. Given the relevance of the requested documents to the central issues in this case, the court finds the subpoena is not intended to harass or embarrass Mr. Amann. To the extent the subpoena may have that effect, Mr. Amann himself has placed these topics at issue in this case, and therefore the AGO is entitled to discovery on these topics. For these reasons, the court DENIES Mr. Amann's motion to quash the subpoena.

*2 The court also finds Mr. Amann failed to adequately meet and confer before filing this motion. The court expects Mr. Amann to comply with the conferral requirements of DUCivR 37-1 in the future.

The court DENIES the AGO's request for attorney fees. Although the motion was unsuccessful, Mr. Amann made substantive arguments based on concerns regarding disclosure of his personal communications, and the court finds the motion was substantially justified.

Short Form Motion for Protective Order (Doc. No. 107)

Mr. Amann's motion for a protective order concerns information he claims the AGO obtained from a confidential proceeding before the Utah Judicial Conduct Commission (“JCC”). In early 2013, a confidential complaint was filed with the JCC concerning a prior relationship between Mr. Amann and a Utah juvenile court judge. (See Mot. for Protective Order 2, Doc. No. 107.) Mr. Amann asserts the JCC's executive director shared evidence from the JCC proceeding with the AGO in violation of JCC rules and the Utah statute governing confidentiality of those proceedings, Utah Code Annotated Section 78A-11-112. (Id. at 2–3.) As a result, Mr. Amann seeks a protective order “prohibiting Defendants from using information obtained through a breach of the law mandating confidentiality of records from proceedings before the Utah Judicial Conduct Commission (JCC), and sealing and/or redacting all such information.” (Id. at 1.)

The AGO opposes the motion, asserting the Utah statute cited by Mr. Amann only prohibits the use of documents and testimony from JCC proceedings in a civil case, but does not preclude discovery regarding the underlying facts and events. (Opp'n to Mot. for Protective Order 2, Doc. No. 110.) The AGO argues the relationship which was the subject of the JCC complaint is relevant to this case because Mr. Amann alleges the AGO transferred him out of the Internet Crimes Against Children (“ICAC”) task force in retaliation for whistleblowing activities, while the AGO asserts Mr. Amann's conduct surrounding his relationship with the judge—and concerns about a resulting conflict of interest—constituted a legitimate nonretaliatory reason for the transfer. (Id.; see also Second Am. Compl. ¶¶ 19–22, 142, Doc. No. 89.) The AGO also asks the court to order Mr. Amann to appear for a ninety-minute deposition to answer questions related to this topic. (Opp'n to Mot. for Protective Order 3, Doc. No. 110.)

Section 78A-11-112(1) states that “any complaints, papers, or testimony in the course of proceedings before the commission ... may not be introduced in any civil action.” Utah Code Ann. § 78A-11-112(1). By its plain language, this provision applies only to documents and testimony from the JCC proceedings. It does not, on its face, prohibit inquiry into the underlying facts and information which are the subject of the proceedings, and Mr. Amann not cited any authority supporting such an interpretation.[2] Here, the AGO does not seek to introduce documents or testimony from JCC proceedings in this case. Rather, the AGO seeks discovery regarding the underlying facts of the relationship and Mr. Amann's related conduct. Neither Section 78A-11-112 nor the JCC rules cited by Mr. Amann prohibit such discovery.

*3 Discovery on this topic is relevant to Mr. Amann's claim of retaliation related to his transfer out of ICAC and to the AGO's defense to that claim. At the hearing, Mr. Amann argued the relationship is not relevant because it ended in 2010, and he is claiming retaliation beginning in 2013. However, the AGO asserts it first learned of the relationship and Mr. Amann's related conduct in 2013 and transferred him out of ICAC as a result. Accordingly, the relationship is relevant to the AGO's defense to Mr. Amann's claim. Mr. Amann himself has placed this topic at issue in this case, and he has not cited any applicable case authority, statute, rule, or privilege which would entitle him to a protective order prohibiting Defendants from asking deposition questions or seeking other discovery related this topic. For these reasons, Mr. Amann's motion for a protective order is DENIED.

Mr. Amann argued at the hearing that documents filed with the court which refer to this topic should be sealed. However, Mr. Amann did not adequately raise this issue in his briefing or present argument under the applicable standards governing sealing of court documents. If Mr. Amann seeks to seal specific documents or portions of documents, he may file a motion to seal that addresses the standards set forth in DUCivR 5-3.

The AGO's request for an order compelling Mr. Amann to attend a deposition on this topic is not properly before the court because it was made in an opposition brief rather than a separate motion. See DUCivR 7-1(b)(1)(A) (“No motion ... may be included in a response or reply memorandum. Such motions must be made in a separate document.”). The parties should meet and confer on this issue in light of this order, and if the dispute cannot be resolved, a motion addressing this issue may be filed.

Conclusion

Mr. Amann's motion to quash the subpoena (Doc. No. 104) and motion for protective order (Doc. No. 107) are DENIED.

DATED this 6th day of April, 2021.