Walters v. Snyder (In re Flint Water Cases)

• Decision Date: 08 November 2022
• Docket Number: s. 22-1353/1355/1357/1358/1360
• Citation: 53 F.4th 176
• Parties: IN RE: FLINT WATER CASES. Lee-Anne Walters, et al., Plaintiffs, E.S.; A.T.; R.V.; D.W., Plaintiffs-Appellees, v. Richard Dale Snyder (22-1353); Darnell Earley (22-1355); Richard Baird (22-1357); Howard D. Croft (22-1358); Gerald Ambrose (22-1360), Defendants-Appellants, Veolia North America, LLC; Veolia North America, Inc.; Veolia Water North America Operating Services, LLC ; Lockwood, Andrews & Newman, P.C.; Lockwood, Andrews & Newman, Inc. ; Leo A. Daly Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

53 F.4th 176

IN RE: FLINT WATERCASES.

Lee-Anne Walters, et al., Plaintiffs,

E.S.; A.T.; R.V.; D.W., Plaintiffs-Appellees,

v.Richard Dale Snyder (22-1353); Darnell Earley (22-1355); Richard Baird (22-1357); Howard D. Croft (22-1358); Gerald Ambrose (22-1360), Defendants-Appellants,Veolia North America, LLC; Veolia North America, Inc.; Veolia Water North America Operating Services, LLC ; Lockwood, Andrews & Newman, P.C.; Lockwood, Andrews & Newman, Inc. ; Leo A. Daly Company, Defendants-Appellees.

Nos. 22-1353/1355/1357/1358/1360

United States Court of Appeals, Sixth Circuit.

Argued: July 28, 2022

Decided and Filed: November 8, 2022

ARGUED: Charles R. Quigg, WARNER NORCROSS + JUDD, LLP, Grand Rapids, Michigan, for AppellantRichard Snyder.Juan A. Mateo, Detroit, Michigan, for AppellantDarnell Earley.Sarissa K. Montague, LEVINE & LEVINE, Kalamazoo, Michigan, for AppellantRichard Baird.Alexander S. Rusek, RUSEK LAW PLLC, Lansing, Michigan, for AppellantHoward D. Croft.William W. Swor, WILLIAM W. SWOR, Detroit, Michigan, for AppellantGerald Ambrose.Minh Nguyen-Dang, MAYER BROWN LLP, Washington, D.C., for Veolia Appellees.S. Vance Wittie, FAEGRE DRINKER BIDDLE & REATH, LLP, Dallas, Texas, for AppelleesLockwood, Andrews and Newman, Inc. and Leo A. Daly Company.ON BRIEF: Charles R. Quigg, Brian P. Lennon, Gaëtan E. Gerville-Réache, WARNER NORCROSS + JUDD, LLP, Grand Rapids, Michigan, for AppellantRichard Snyder.Juan A. Mateo, Gerald K. Evelyn, T. Santino Mateo, Detroit, Michigan, for AppellantDarnell Earley.Sarissa K. Montague, Anastase Markou, LEVINE & LEVINE, Kalamazoo, Michigan, for AppellantRichard Baird.Alexander S. Rusek, RUSEK LAW PLLC, Lansing, Michigan, for AppellantHoward D. Croft.William W. Swor, Michael A. Rataj, WILLIAM W. SWOR, Detroit, Michigan, for AppellantGerald Ambrose.Minh Nguyen-Dang, Michael E. Lackey, Jr., MAYER BROWN LLP, Washington, D.C., Timothy S. Bishop, MAYER BROWN LLP, Chicago, Illinois, for Veolia Appellees.S. Vance Wittie, FAEGRE DRINKER BIDDLE & REATH, LLP, Dallas, Texas, Philip A. Erickson, PLUNKETT COONEY, Lansing, Michigan, for AppelleesLockwood, Andrews and Newman, Inc. and Leo A. Daly Company.Corey Stern, LEVY KONIGSBERG LLP, New York, New York, for PlaintiffAppellees.Stephanie Franxman Kessler, PINALES, STACHLER, YOUNG & BURRELL, CO., L.P.A., Cincinnati, Ohio, William J. Murphy, ZUCKERMAN SPAEDER LLP, Baltimore, Maryland, Bryan M. Reines, ZUCKERMAN SPAEDER LLP, Washington, D.C., for Amicus Curiae.

Before: MOORE, GRIFFIN, and THAPAR, Circuit Judges.

GRIFFIN, J., announced the judgment of the court and delivered the opinion of the court with respect to the Introduction and Parts II, III.G., and IV, and delivered an opinion with respect to Parts I, III, III.A, B, C, D, E, and F. THAPAR, J. (pp. 211–21), delivered a separate opinion concurring in part and in the judgment.MOORE, J.(pp. 221–35), delivered a separate opinion concurring in part and dissenting in part.

GRIFFIN, Circuit Judge.

One of the fundamental liberties enshrined in the Fifth Amendment to our Constitution is the right not to be compelled to bear witness against oneself.The inquisitorial abuses of the Star Chambers eventually led to the inclusion of this right in our Bill of Rights.¹This bedrock privilege originates from the maxim "nemo tenetur seipsum accusare ," that "no man is bound to accuse himself."²In the present case, the district court ordered the appellant state officials to testify at trial—to be witnesses against themselves—despite their invocation of their right against self-incrimination.According to the district court, appellants"waived"³ their right not to be witnesses against themselves at trial by voluntarily submitting to a discovery deposition.

We disagree.We conclude that the district court erroneously held that testifying at a pretrial deposition waives invocation of the privilege at a later trial in the same civil case.In doing so, we hold that a Fifth Amendment waiver does not extend to trial under these circumstances.Thus, we vacate and remand.

I.

The present case is another dispute stemming from the infamous Flint Water Crisis, the events of which are well known and have been well documented.See, e.g. , In re Flint Water Cases , 960 F.3d 303, 311–21(6th Cir.2020), andMason v. Lockwood, Andrews & Newnam, P.C. , 842 F.3d 383, 387(6th Cir.2016).In short, as a cost-saving measure, public officials switched Flint's municipal water supply from the Detroit Water and Sewage Department to the Flint River, reviving the previously dormant Flint Water Treatment Plant.Flint residents began receiving water from the Flint River on April 25, 2014, and residents began complaining of water that looked, tasted, and smelled foul within weeks.Other severe problems emerged, including evidence of E. coli contamination in the water, a localized outbreak of Legionnaires’ disease, and a dangerously high lead poisoning rate in children.Without proper corrosion-control treatment, lead leached from the aging pipes in Flint's water system into the water.With a public-health disaster mounting, Flint reconnected to its original water sources in October 2015.As we have described elsewhere, the crisis was both predictable and preventable.SeeGuertin v. State , 912 F.3d 907, 915(6th Cir.2019).

Both criminal and civil proceedings began shortly thereafter.On the civil side, a host of litigants filed suit, alleging injury from Flint's contaminated drinking water.This includes plaintiffs here—four minor children who lived in Flint and suffered lead poisoning, brain damage, and other injuries after being exposed to lead-contaminated water.The plaintiffs sued two groups of defendants: "governmental defendants," i.e., public officials and entities who they alleged were responsible for the decisions that created the crisis, and "engineering defendants," i.e., those firms who were allegedly responsible for administering the Flint Water Plant, using the river as a source for drinking water, and evaluating the system for public safety.Among those named as governmental defendants were former Michigan Governor Richard Snyder, former City of Flint Emergency ManagersGerald Ambrose and Darnell Earley, and former Flint Director of Public Works Howard Croft("appellants" collectively⁴ ), and named as engineering defendants were Veolia North America("Veolia"⁵ ) and Lockwood, Andrews, and Newman, P.C. ("Lockwood"; "appellees" collectively).

The pending cases were largely consolidated in the Eastern District of Michigan.The district court created a bellwether trial process to manage the litigation—the first was to begin in June 2021(though it did not actually begin until February 2022), with additional trials following in October 2023 and January 2024.It also established a coordinated discovery process, the purpose of which was to "limit duplication in the discovery processes."As it pertained to the coordinated depositions, the district court allowed the plaintiffs to depose witnesses (including the governmental defendants) only once in anticipation of the pending trials.

The criminal process was also underway during this period.In 2016, Michigan's then-Attorney General, Bill Schuette, appointed a Special Prosecutor for criminal investigations related to the Flint Water Crisis.SeeSherrod, Teed, Vanderhagen and Ware v. VNA , No. 5:17-cv-10164-JEL-KGA, 2022 WL 834009, at *1(E.D. Mich, March 21, 2022).Ambrose, Earley, and Croft, but not Snyder or Baird, were later indicted on several charges connected to the crisis.But things changed after the 2018 election.Michigan's new Attorney General, Dana Nessel, appointed a new Solicitor General and assigned lead of the criminal investigations to her.Shortly thereafter, all pending criminal charges, including those against Ambrose, Earley, and Croft, were dismissed without prejudice.The Solicitor General had "immediate and grave concerns about the investigative approach" taken by the Special Prosecutor and his office, citing alleged links between the investigators and the private law firms representing government agencies and individuals, including Snyder.She announced that her team would identify and pursue "additional individuals of interest" related to the crisis.

In September 2019, Earley, Ambrose, and Croft moved for a protective order in the civil litigation after their initial criminal charges were dismissed but prior to sitting for any depositions.They contended that the district court should delay any depositions or written discovery orders pertaining to them until the applicable criminal statute of limitations expired in May 2020 or, alternatively, seal the deposition transcripts and other written discovery.The district court denied the motion, noting that the three were not currently under indictment and that the plaintiffs, district court, and public at large had an interest in proceeding expeditiously.SeeIn re Flint Water Cases,No. 5:16-cv-10444, 2019 WL 5802706, at *2–3(E.D. Mich.Nov. 7, 2019).

Thereafter, each of the appellants voluntarily sat for a deposition between May and September of 2020.Each appellant was represented by counsel at his deposition, but none invoked the Fifth Amendment privilege against self-incrimination.Sherrod, Teed, Vanderhagen & Ware , 2022 WL 834009, at *2.Instead, each was examined at great length about his knowledge of and role in the Flint Water Crisis, and each answered the questions posed to him.Ambrose, Earley, and Croft later acknowledged that, at the time of those depositions, they believed that they were likely to face criminal charges again in the future.Snyder and Baird, though, asserted that they had "no reason to think" that they would face criminal charges, having not previously been indicted.

However, criminal investigations into their conduct were progressing.In December 2019, the Michigan Attorney General requested the appointment of a one-man grand jury as allowed under...