June 02, 2020

The Sixth Circuit on Tuesday denied former Michigan Gov. Rick Snyder's bid to halt a deposition in proposed class actions over the Flint lead water crisis, saying his push for immunity doesn't have to be fully resolved before it can take place.

A three-judge panel agreed with a lower court's decision to open Snyder and former state Treasurer Andy Dillon up to a limited set of depositions, even though they continue to assert they have official immunity from charges against them. The panel said the pair wouldn't be able to completely avoid depositions even if they were dismissed from the case and given immunity, rejecting their bid for a stay.

The panel majority said in May that Snyder and other public officials could not claim qualified immunity from allegations that they violated Flint residents' bodily integrity, a protected constitutional right, and did so with "deliberate indifference." The panel also asked a lower court to decide whether Dillon should be dismissed from the case.

The officials are just some of several defendants facing allegations by individuals and businesses over their roles in "creating, sustaining and covering up" the Flint public health crisis in 2014 and 2015 that exposed residents to lead-tainted water.

The state officials wanted a stay of discovery so they could continue to make their argument it shouldn't happen. The lower court recognized the principle that until a qualified immunity assertion is finally resolved, discovery must be stayed for "claims for which they continue to litigate their immunity." Therefore, the officials won't face discovery for the bodily integrity claim, but they could face "discovery requests as non-party fact witnesses regarding wholly separate claims against other defendants," like engineering firms.

Since the state officials would still have to deal with these kinds of discovery requests even if they were let out of the case, the lower court held that they were "inevitable" and let them occur. The Sixth Circuit agreed with the lower court's reasoning.

"The district court carefully sculpted a discovery plan that afforded the state defendants their full entitlement to immunity, while permitting other parties to seek discovery from them as fact witnesses on wholly separate claims," U.S. Circuit Judge Karen Nelson Moore wrote for the panel, adding that the exception to the stay was "necessary for discovery to proceed for other parties in the sprawling litigation."

. . .

When the state officials received deposition requests, they asked for a protective order from the lower court, which was denied. The appeals court said it didn't have jurisdiction to hear an appeal of that denial.

Emmy L. Levens, an attorney with Cohen Milstein Sellers & Toll PLLC representing the residents, said she was happy the officials will be required to testify under oath.

"Not only will it help reveal the truth of what happened, but it is also important for us to move forward against the two professional engineering defendants," Levens said.

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