In re Matter under Investigation

Decision Date01 July 2009
Docket NumberNo. 2007-KK-1853.,No. 2008-CC-1066.,No. 2007-KK-1870,2007-KK-1853.,2007-KK-1870,2008-CC-1066.
PartiesIn re A MATTER UNDER INVESTIGATION. In re A Matter Under Investigation. Jane and John Does v. Charles C. Foti, Attorney General for the State of Louisiana, Eddie Jordan, District Attorney for the Parish of Orleans, Frank Minyard, Coroner for the Parish of Orleans, Rose Agnes Savoie, Cable News Network, Inc., The Times Picayune, LLC, et al.
CourtLouisiana Supreme Court

KIMBALL, Chief Justice.*

The matters of 2007-KK-1853 and 2007-KK-1870 involve the issue of whether the Orleans Parish Criminal District Court properly ordered the return of documents and copies thereof that were produced pursuant to a subpoena duces tecum pursuant to La. R.S. 15:41. For the reasons that follow, we find that because documents and copies of documents produced pursuant to a subpoena duces tecum are not "property seized" within the meaning of La. R.S. 15:41, the district court was without authority to order their return under the provisions of that statute.

The matter of 2008-CC-1066 involves the issue of whether the Attorney General's investigative file into the circumstances surrounding several deaths at Tenet Health System Memorial Health Center following Hurricane Katrina is required to be disclosed at this time under the Public Records Act. We find that La. R.S. 44:3(A)(1) exempts from the required disclosure under the Public Records Act records held by the offices of the Attorney General and the District Attorney that pertain to any criminal litigation which can be reasonably anticipated until such litigation has been finally adjudicated or otherwise settled. After discussing the relevant inquiry to determine whether criminal litigation can be reasonably anticipated, we find the record in this case is insufficient to allow us to determine whether criminal litigation can be reasonably anticipated as provided in La. R.S. 44:3(A)(1). Accordingly, we remand this case to the trial court for it to conduct a contradictory hearing and determine whether criminal litigation can be reasonably anticipated in this case.

Facts and Procedural History

Beginning in September 2005, after Hurricane Katrina struck the Louisiana coast, then-Louisiana Attorney General ("AG") Charles Foti initiated several investigations into the conditions surrounding several deaths that occurred at hurricane-impacted healthcare facilities. During this period and pursuant to the requirements of law, Life Care Hospitals of New Orleans, LLC ("LifeCare") self-reported the deaths of thirty-four men and women who died at Tenet Health System Memorial Medical Center, Inc. ("Tenet-Memorial") in the immediate aftermath of Hurricane Katrina.1 AG Foti thereafter began an investigation into the Tenet-Memorial deaths.

During the course of his investigation, AG Foti served La.C.Cr.P. art. 66 subpoenas and subpoenas duces tecum on numerous witnesses who were working at Memorial in the days following Hurricane Katrina, their corporate employers and various others. The AG also seized other documents and evidence through search warrants, and some documents were provided voluntarily by LifeCare and Tenet-Memorial. In sum, the AG's investigative file ultimately contained several thousand pages of documents, including transcripts of witness interviews, documents obtained from Tenet-Memorial and LifeCare, other evidentiary records, information produced during the investigation, summary reports prepared by the AG, correspondence among the investigatory personnel, subpoenas and search warrants, expert reports toxicology reports, police logs, photographs, and copies of press coverage. The AG's investigation continued into 2006, and ultimately culminated in the arrest of three medical professionals on July 17, 2006.

Following the arrests, AG Foti gave a complete copy of his investigative file to the Orleans Parish District Attorney's Office ("DA"). The DA subsequently impaneled a special grand jury to consider the matter.2 Two of the arrested healthcare professionals were then granted immunity in exchange for their testimony. On July 24, 2007, the special grand jury returned a "no true bill," thereby refusing to indict the remaining healthcare professional. The DA then returned the copy of the AG's investigative file to the AG.

Following the occurrences outlined above, two proceedings concerning the AG's investigative file were initiated.

The Orleans Parish Criminal District Court Action3

On August 6, 2007, Tenet-Memorial filed a motion in Orleans Parish Criminal District Court for return of seized property pursuant to La. R.S. 15:41. In its motion, Tenet-Memorial sought to purge its documents from the AG's investigative file by seeking the return of all property, including documents and any copies thereof, produced to the AG pursuant to subpoenas duces tecum and seized by the AG pursuant to a search warrant. The Cable News Network ("CNN") attempted to intervene, arguing that the return of copies would violate the Public Records Act, La. R.S. 44:1, et seq. The Orleans Parish Criminal District Court trial judge held a hearing on Tenet-Memorial's motion on August 16, 2007, and thereafter entered the following order:

IT IS ORDERED that Hon. Charles C. Foti, Attorney General of the State of Louisiana and Hon. Eddie Jordan, District Attorney for the Parish of Orleans return the originals and all copies of materials produced as a result of a subpoena signed by this court, to the entities or organizations that produced material to the Attorney General's office or the District Attorney's office in this matter.

IT IS FURTHER ORDERED that the Attorney General and the District Attorney shall have 30 days to take writs on this order. That period ends on September 15, 2007. Unless a stay of this order is granted by an Appellate Court, the Attorney General and the District Attorney shall return the property to any entity or organization on or before September 16, 2007. In the interim, the Attorney General, District Attorney and any other governmental entity of the State of Louisiana in possession of such material shall not release any original documents, records, other property, or copies thereof that were produced as a result of a subpoena signed by this court in this matter.

CNN sought supervisory writs and a stay from the court of appeal on September 7, 2007. That...

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