ORDERS:
ORDER ON MOTION TO QUASH SUBPOENA
STATEMENT
OF THE CASE
The
above-captioned matter is before the South Carolina Administrative Law Court
(“ALC” or “Court”) pursuant to S.C. Code Ann. §§ 1-23-320(d) and 1-23-600(F)
(as amended 2008 Act No. 334). On January 14, 2009, South Carolina Department
of Corrections (“Department”) filed a motion to quash a subpoena which was
issued during the course of proceedings before the South Carolina State
Employee Grievance Committee (“Committee”) concerning David Martin (“Mr.
Martin”). Based upon
the parties’ documents, teleconferences between the parties to discuss their
various positions with the Court, and applicable law, I find that the
Department’s motion must be denied in part and granted in part.
PROCEDURAL
HISTORY
On
August 6, 2008, Mr. Martin was terminated from his employment with the
Department. Consequently, Mr. Martin initiated review of his termination by
the Department through the internal grievance process, and this process is
currently ongoing within the Committee. During the course
of the proceedings before the Committee and pursuant to S.C. Code Ann. §
8-17-340 (Supp. 2006), the Committee Chairperson issued a subpoena to the
Department. The subpoena required the Department to produce specific documents
to Mr. Martin at least five (5) business days before the date of the Grievance
Hearing scheduled for January 20, 2009. The Department, through counsel, filed
a Motion to Quash Subpoena on January 14, 2009 with the ALC. Mr. Martin did
not file a written response to the Department’s motion. On January 16, 2009,
the parties participated in a teleconference with the undersigned. During the
teleconference, the Court requested Mr. Martin to provide a written statement
regarding the need for these specific documents. Mr. Martin filed a response
on January 17, 2009. The Court also requested the Department to submit the
documents to the Court for review prior to issuing a decision in this matter.
The Department provided this information to the Court on January 16, 2009. On
January 23, 2009, the parties again participated in a teleconference with the
undersigned Judge.
DISCUSSION
The
subpoena issued by the Committee Chairperson was directed to the Department and
required it to provide to Mr. Martin, not later than five days prior to the
hearing date of January 20, 2009, the following:
(1) Key Control
Policy;
(2) Incident
Report/MIN Policy; and
(3) Policy on
Offices and Staff Searches (most current policy in effect for July of 2008).
The
Department opposes providing the policies sought by arguing that they are restricted
policies and/or are not relevant to the issues to be addressed in the
proceeding before the Committee. In response, Mr. Martin argued during the
teleconference and in his written response that he intends to use the requested
documents to impeach the testimony of Department witnesses during the grievance
proceedings.
Key Control
Policy
In
reviewing the Department’s Key Control Policy, it appears that portions of this
policy may be useful to Mr. Martin in his cross-examination of Department
witnesses during the grievance proceedings. However, two sections of this
policy, specifically §§ 16 and 17, entitled Key Replacement For High Security
Keys and Security Procedures For Inmates And Inmate Room Keys, respectively,
are not applicable to the issues before the Committee. This is a restricted policy,
and portions of this policy, specifically §§ 16 and 17, may contain information
which, if disseminated to the public could cause unnecessary harm to the Department.
Therefore, the Department is required to produce the Key Control Policy, with
the exception of § 16 and 17, to Mr. Martin to be used solely for the
proceedings before the Committee regarding his termination grievance. This
document and/or verified copies must be maintained by Mr. Martin in a
confidential manner, and no copies will be made except to provide such to the
Committee, if necessary. No information derived therefrom shall be shared or
disseminated to any third person except for use in these proceedings or other
proceedings arising therefrom. Furthermore, at the conclusion of such
proceedings, Mr. Martin must destroy any copies not of record.
Accordingly,
the Department’s motion is denied in part, and the Department must furnish to Mr.
Martin within five (5) days from the date of this Order the Key Control Policy,
with the exception of §§ 16 and 17, as requested in the subpoena.
Incident
Report/MIN Policy
Mr.
Martin requests this policy to prove that the Department violated its own
policy by permitting an unsigned incident report to be used against him
regarding the termination matter. In response, the Department contends that
this policy is restricted and is not relevant to the issue before the
Committee. In reviewing the policy, I find that this policy is irrelevant to
the issues before the Committee. This report concerns the reporting methods
to be used by Department staff when reporting incidents and accidents at
Department facilities. There is nothing within this policy concerning the
requirements, process, or use of incident reports regarding Department
employees. In fact, subsequent to the January 23, 2006 teleconference, counsel
for the Department informed the Court that the Department does not have any
policy relating to the requirements of completing an incident report regarding
Department employees. Therefore, the
subpoena requiring the Department to produce the Incident Report/MIN Policy to Mr.
Martin prior to the grievance hearing is quashed.
Policy on
Offices and Staff searches (most current policy in effect for July 2008)
Mr.
Martin requests this policy to prove that the Department violated its own
policy by permitting his supervisor to conduct a search of his office. In
response, the Department contends that this policy is not relevant to the issue
before the Committee. In reviewing the policy, I find that this policy is
irrelevant to the issues before the Committee. This report concerns the physical search of employees, volunteers, visitors, and vendors. There is nothing within
this policy concerning the Department’s policy regarding the search of
Department employees’ offices. Furthermore, subsequent to the January 23, 2006
teleconference, counsel for the Department informed the Court that the
Department does not have any policy relating to the search of Department
employees’ offices. Therefore,
the subpoena requiring the Department to produce the Policy on Offices and
Staff Searches to Mr. Martin prior to the grievance hearing is quashed.
ORDER
For the reasons
set forth above, it is hereby
ORDERED that the Motion to Quash Subpoena regarding the subpoena issued to the
Department which required it to produce the Key Control Policy is denied in
part, and granted in part. The Department must furnish to Mr. Martin
within five (5) days of the date of this Order the Key Control Policy, with the
exception of §§ 16 and 17; it is further
ORDERED that the Motion to Quash Subpoena regarding the subpoena issued requiring
the Department to produce the Incident Report/MIN Policy is granted; it
is further
ORDERED that the Motion to Quash Subpoena regarding the subpoena issued requiring the
Department to produce the Policy on Offices and Staff Searches (most current
policy in effect for July 2008) is granted.
AND
IT IS SO ORDERED.
_____________________________________
Marvin
F. Kittrell Chief
Judge
January 23, 2009
Columbia, South Carolina
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