In re Flint Water Cases. This Order Relates To: CASE NO. 16-CV-10444 United States District Court, E.D. Michigan, Southern Division Filed February 26, 2018 Levy, Judith E., United States District Judge ORDER REQURING ADAM ROSENTHAL, BRADLEY WURFEL, AND DANIEL WYANT TO COMPLY WITH PLAINTIFF'S FIRST REQUEST FOR PRODUCTION AND DENYING THE INDIVIDUAL MDEQ DEFENDANTS' MOTION TO QUASH THE DISCOVERY REQUESTS [202] *1 On August 29, 2017, class plaintiffs issued requests for production (“RFPs”) to all defendants. These RFPs asked defendants to produce all documents and other materials “that relate to the Flint Water matter, including but not limited to any documents or responsive materials requested by” six government agencies, including the “Michigan Attorney General, his office or any of his agents” and the “United States Department of Justice.” (Dkt. 202-1 at 11.) The RFPs also asked for documents produced voluntarily to the same agencies. (Id.) The individual MDEQ defendants have not responded to the RFPs because they claim that either there are no responsive documents, as all of the documents relevant to them were produced by the MDEQ, or if there were, compliance would implicate their rights under the Fifth Amendment of the Constitution. (Dkt. 289 at 5.) On September 28, 2017, they moved to quash the discovery requests. (Dkt. 202.) The Court requested certifications from each individual MDEQ defendant regarding whether any of them individually produced responsive documents independently from the MDEQ. Pursuant to those certifications, Adam Rosenthal, Bradley Wurfel, and Daniel Wyant possess documents responsive to plaintiffs’ RFPs that were produced independently from the MDEQ.[1] The Court, finding that these defendants’ Fifth Amendment rights are not implicated by producing the responsive documents, now orders them to produce those documents by March 6, 2018. In general, the Fifth Amendment prevents an individual from being compelled to serve as a witness against himself in criminal proceedings. U.S. Const. amend. V. Some document productions cause the producing party to serve as a witness against himself because they are “tantamount to answering a series of interrogatories asking a witness to disclose the existence and location of particular documents fitting certain broad descriptions.” United States v. Hubbell, 530 U.S. 27, 42 (2000); see also Butcher v. Bailey, 753 F.2d 465, 469 (6th Cir. 1985) (forced document production violates the Fifth Amendment when the production requires the producing party to “acknowledg[e] that the documents exist; [ ]acknowledg[e] that they are in the control of the person producing them; or [ ]acknowledg[e] that the person producing them believes they are the documents requested and thereby authenticat[es] them”). In contrast, where the various prosecuting authorities are already aware of the responsive documents, such that their existence, control, and authenticity are a “foregone conclusion,” the Fifth Amendment provides no protection to the producing party. Fisher v. United States, 425 U.S. 391, 410-11 (1976). If the act of production “adds little or nothing to the sum total” of the prosecuting authority's knowledge, then the Fifth Amendment is not implicated by the production. Id. *2 Here, complying with the RFPs does not implicate these defendants’ Fifth Amendment rights because the “existence and location of the [responsive documents] are a foregone conclusion and ... [the production] adds little or nothing to the sum total” of the information possessed by the special prosecutor or the United States Department of Justice. See Fisher, 425 U.S. at 410. The RFPs at issue were propounded by a civil plaintiff, not a prosecuting authority, and they ask for documents already produced to prosecuting authorities. The act of production that implicated these defendants’ Fifth Amendment rights—the one that could have added to the “sum total” of the prosecutor's knowledge—has already occurred: Rosenthal, Wurfel, and Wyant produced documents to the “Michigan Attorney General, his office or any of his agents” and “the United States Department of Justice.” Since they have already produced the requested documents to a prosecuting authority, producing the same documents to plaintiffs “adds ... nothing to the sum total” of the prosecuting authorities’ information about defendants’ allegedly criminal conduct. See Fisher, 425 U.S. at 410. Accordingly, compliance with plaintiffs’ RFP cannot incriminate Rosenthal, Wurfel, or Wyant, and does not implicate their rights under the Fifth Amendment. For these reasons, Adam Rosenthal, Bradley Wurfel, and Daniel Wyant are hereby ORDERED to produce all documents that comply with plaintiff's RFPs. The individual MDEQ defendants’ motion to quash the discovery requests (Dkt. 202) is DENIED with respect to Rosenthal, Wurfel, and Wyant, and DENIED AS MOOT with regard to all other individual MDEQ defendants. IT IS SO ORDERED. Footnotes [1] Wurfel and Wyant made this certification on the record (Dkt. 350), while Rosenthal made this certification via email to the Court. All defendants have now been ordered to enter their certifications on the record. (Dkt. 384 at 4-5.)