UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

Comes now the Defendants State of Alabama, et. al; Circuit Judge Richard Dorrough, Rich Hobson, and Bob Maddox, by and through the Office of the Attorney General, and pursuant to the Court s Order dated April 12, 2002, submit the following:

1. On March 20, 2000, the Defendants filed a Motion to Stay Discovery Pending a Ruling on Absolute and Qualified Immunity. The Court granted said Motion on March 31, 2000 (Doc. #53).

2. As stated in its argument at the hearing held on April 19, 2002, the Defendants maintain that the Court has not yet ruled on its immunity defenses. In addition to prior arguments made on this issue, the Defendants assert that they are not in contempt of any of the Court s scheduling orders. After the Court s first scheduling order was issued on March 6, 2000. The Defendants filed a timely Motion to Stay Discovery on March 20, 2000. The Court s grant of this motion on March 31, 2000, effectively suspended the deadlines imposed under the scheduling order until the resolution of the Defendants affirmative immunity defenses.

3. On March 9, 2001, the Court held a scheduling conference in this case. During that proceeding, undersigned counsel notified the Court that the Defendants were still awaiting a final ruling on its immunity defenses and that a stay of discovery was in effect. Both parties understood the Court to state at this proceeding that a ruling on the Defendants immunity defenses would likely occur before the scheduling order took effect. (See #5, pg. 1 of Plaintiffs Motion for Initial Disclosures and Sanctions, Doc #105)

4. On March 12, 2001, the Court issued its second scheduling order. The prior stay of discovery had not expired or was dissolved by the Court. Thus, the Defendants were not in contempt for failing to engage in discovery as they awaited a final ruling on the immunity issue.

5. Moreover, on June 19, 2001, the Court denied the Plaintiffs Motion to Compel Discovery against the Defendants and stated in its order (Doc# 106), The court notes with appreciation for the plaintiffs position, that the argument that the passage of time could prejudice the plaintiffs if the existing scheduling order continues to bind the parties. The court recognizes, however, that because of its rulings, the parties have not engaged in discovery, and the substantial pending matters before this court has prevented any further substantive rulings. Accordingly, to the extent that the court s issuance of a ruling on the applicability of the defense of qualified immunity delays the parties discovery, the court will consider the parties motions to amend the scheduling order. The parties should delay any effort to modify the scheduling order, however, until such time as a final ruling on the issue of qualified immunity is entered.

6. On August 14, 2001 and August 16, 2001, the Plaintiffs served discovery on Bob Bradford, Director of Finance for the Administrative Office of Courts and Lois Brasfield, an attorney for the Department of Human Resources, respectively. During this time, both of these individuals were state employees. Although the Plaintiffs did not individually name Mr. Bradford and Ms. Brasfield in case, the Defendants maintain that as state employees, these persons were included when the Plaintiffs named the State of Alabama as a party.

7. Despite the Plaintiffs representations that they personally served Mr. Bradford and Ms. Brasfield with their discovery requests, Mr. Bradford testified that he was not personally served with the subpoena at the hearing held on April 19, 2002. Further, Ms. Brasfield was unable to determine if she had personal service of the Plaintiff s subpoena because her signature was not listed on the subpoena s return of service and she did not have any independent recollection of the matter.

8. Ms. Brasfield and a representative on Mr. Bradford s behalf contacted undersigned counsel about the Plaintiff s discovery requests. Undersigned counsel notified them that she had filed a Motion to Stay Discovery, which the Court had granted in the case. Further, the Court had not dissolved or vacated the order for the discovery stay. Therefore, undersigned counsel told the state officials that they should be covered under the stay because the Plaintiffs had sued the State of Alabama as one of the Defendants in this case.

9. As an sovereignty, the State of Alabama encompasses its state agencies, departments and officials. Because the Plaintiffs had sued the State of Alabama, as state officials, Mr. Bradford and Ms. Brasfield were covered by the Defendants assertion of sovereign immunity in this case. Alabama v. Pugh, 438 U.S. 781, 782 (1978). The Defendants were awaiting the Court s ruling on its assertion of sovereign and qualified immunity to the Plaintiffs claims.

10. After a review of the Plaintiffs discovery requests received by Mr. Bradford and Ms. Brasfield, it was apparent to undersigned counsel that the Plaintiffs were attempting to circumvent the stay of discovery that had been granted in the case, in order to obtain information related to the instant action from Mr. Bradford and Ms. Brasfield.

11. Undersigned counsel informed Mr. Bradford and Ms. Brasfield that she would file a Motion for Clarification to address the matter. On September 14, 2001, undersigned counsel filed the Motion for Clarification (Doc. #112), which referenced Mr. Bradford s and Ms. Brasfield s receipt of the Plaintiffs discovery and the Defendants objections to it. In said Motion, the Defendants requested that the Court order the Plaintiffs to end all discovery efforts until the Court has ruled on the Defendants pending immunity issues. On March 13, 2002, the Court granted the Defendants Motion for Clarification (Doc# 120).

12. It is well settled that a court should resolve immunity issues prior to discovery in order to protect government officials from the unnecessary burden of discovery and expense of litigation. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1991); Caraballo-Sandoval, 35 F.3d 521 (11th Cir. 1994). See also, Siegert v. Gilley, 500 U.S. 226, 232 (1991) ( One of the purposes of immunity, absolute or qualified, is to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit. ); Id. at 1795 (Kennedy, J., concurring) ( [A]voidance of disruptive discovery is one of the very purposes for the official immunity doctrine. . . ); Lassiter v. Alabama A&M Univ., 28 F.3d 1146, 1149 (1101 Cir. 1994) (en banc) ( Qualified immunity protects government officials performing discretionary functions from civil trials (and the other burdens of litigation, including discovery). . . ); Hill v. DeKalb Reg l Youth Detention Center, 40 F.3d 1176, 1183(1 1~ Cir. 1994) ( Since qualified immunity protects government officials performing discretionary functions from

NOTE: Defendant inadvertently ended the text here.

13. On March 13, 2002, the Court issued its third Scheduling order in this case. On March 27, 2002, the Defendants filed timely objections to the scheduling order on the grounds that the Court had not rendered a final ruling on the pending immunity defenses. Based on their timely objections, the Defendants assert that they are not in contempt of this scheduling order because it hasbeen suspended until a determination is made on the matters raised in the objections.

WHEREFORE, ALL PREMISES CONSIDERED, Defendants State of Alabama, Dorrough, Hobson, and Maddox declare that they are not in contempt of the Court s three scheduling orders or the Plaintiffs subpoenas directed to Mr. Bradford and Ms. Brasfield because there has not yet been a ruling on the Defendants immunity defenses raised in their initial Motion to Dismiss. Therefore, the Plaintiffs Renewed Contempt Motion is due to be denied.

Respectfully submitted,

Alabama Attorney General

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