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IN THE CIRCUIT COURT OF LEE COUNTY, ALABAMA
STATE OF ALABAMA, )
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)
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v. ) CASE NO. CC-2014-000565
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)
)
MICHAEL GREGORY HUBBARD, )
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Defendant. )
STATE’S MOTION TO QUASH SUBPOENAS AND
FURTHER OBJECTION TO HUBBARD’S REQUESTS FOR
EVIDENTIARY HEARING
The State of Alabama hereby submits its Motion to Quash Subpoenas issued
by defendant Michael Gregory Hubbard (“Hubbard”) and its Further Objection to
Hubbard’s Requests for an Evidentiary Hearing. The subpoenas are another
attempt to deflect attention from the merits of this important public corruption case
and to deprive this Court of the opportunity to rule on the issue of whether
Hubbard is entitled to an evidentiary hearing in the first place. For the reasons
stated below, all of Hubbard’s subpoenas are due to be quashed and Hubbard’s
unilateral attempt to convert the April 15, 2015 oral argument on all pending
motions (which include his requests for an evidentiary hearing) into an evidentiary
hearing should be soundly rejected.
ELECTRONICALLY FILED3/23/2015 1:22 PM
43-CC-2014-000565.00CIRCUIT COURT OF
LEE COUNTY, ALABAMAMARY B. ROBERSON, CLERK
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INTRODUCTION
On or about March 1, 2015, Hubbard had the Clerk issue subpoenas for the
following information:
(1) Records and testimony from the Custodian of Records, Attorney
General’s Office;
(2) Records and testimony from the Custodian of Records, Alabama
Ethics Commission;
(3) Records and testimony from Testimony from Luther Strange,
Attorney General;1
(4) Testimony from Kevin Turner, Chief Deputy Attorney General;
(5) Testimony from Tim Fuhrman, Chief, Investigations Division;
(6) Testimony from Jesse Seroyer, Deputy Chief, Investigations Division;
(7) Testimony from Charla Doucet, Chief, Administrative Services
Division;
(8) Records and testimony from Bill Lisenby, Jr., Assistant Attorney
General;
(9) Records and testimony from Henry T. “Sonny” Reagan, former
Deputy Attorney General;
(10) Testimony from Howard “Gene” Sisson, Special Agent,
Investigations Division;
(11) Testimony from Claire Haynes, Legislative Affairs Director
(12) Testimony from Lori Arnold, Paralegal, Criminal Trials Division
(13) Testimony from Amber Lunsford, former Legal Assistant, Criminal
Trials Division;
(14) Testimony from Representative Mike Ball;
(15) Testimony from Dale Jackson, a radio talk show host;
(16) Testimony from Leland Whaley, a radio talk show host;
1 Hubbard had the Clerk issues two subpoenas to General Strange. The first was only for
testimony. The second subpoena was for records and was issued on March 19, 2015. To the
extent Hubbard has issued other subpoenas of which the State is not aware, the State moves to
quash those subpoenas as well. The State notes that Hubbard did not send courtesy copies of his
subpoenas to the State and that copies of the subpoenas are not available on AlaCourt.
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(17) Testimony from William J. Long, III, Hubbard’s outside technical
consultant.
(See Subpoenas, attached hereto as Exhibit A.)
None of the above subpoenas has anything to do with the merits of the
twenty-three felony ethics crimes with which Hubbard has been charged. Instead, it
appears the subpoenas were issued for at least four reasons. First, to deflect
attention from the merits of the charges against him. Second, to improperly obtain
additional discovery from the State through Rule 17, Ala. R. Crim. P. subpoenas.
Third, to conduct a fishing expedition in search of support for his argument that he
should avoid trial due to supposed prosecutorial misconduct. Fourth, to unilaterally
convert the scheduled April 15, 2015 oral argument on all pending motions into an
evidentiary hearing. As discussed below, this Court should quash all of the
subpoenas and deny Hubbard’s request for an evidentiary hearing for failure to
meet the very strict legal standard for prosecutorial misconduct discovery.
This is not the first time Hubbard has issued subpoenas to witnesses while
the issue of whether he is entitled to an evidentiary hearing in the first place is
pending before the Court. On November 18, 2014, Hubbard filed an Amended
Motion for Production seeking all communications between prosecutors and
members of the media. On December 2, 2014, the State filed its Response to the
Amended Motion, explaining that Rule 16.1 does not authorize such a request. On
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December 16, 2014 (before filing a Reply on December 23, 2014), Hubbard
requested that the Clerk issue subpoenas to three radio talk show hosts,
commanding them to appear at the scheduling conference initially set for January
7, 2015.
Recognizing that Hubbard appeared poised to obtain through subpoenas
discovery he was obviously not entitled to, and to do so by unilaterally turning the
conference into an evidentiary hearing even though the Court had not yet ruled on
whether he had met the very strict legal standard for such a hearing in the first
place, the State objected. (See State’s Request to Hear Certain Motion, filed Jan.
14, 2015, ¶ 5 (“As the State explained both in its Response and its Surreply to the
Amended Motion, as a threshold matter Hubbard has failed to meet the very high
legal standard for discovery on a claim of prosecutorial misconduct, and the
Amended Motion is therefore due to be denied without a hearing.”); Surreply to
Amended Motion for Production, filed Jan. 5, 2015, 13-21 (reiterating from
Response that Rule 16.1 does not authorize such discovery, explaining that
Hubbard failed to meet the very high standard for discovery regarding alleged
prosecutorial misconduct, and noting that any remedy on such claims would not
include dismissal).)
In response to the State’s objection, Hubbard clarified that, as it turned out,
he did not want his Amended Motion heard at the January conference.
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(Defendant’s Response to Request to Hear Certain Motion, filed Jan. 16, 2015, 2-
3.) On that basis, Hubbard denied that he was attempting to turn the January
conference into an evidentiary hearing (but he did not explain why he had
requested subpoenas commanding witnesses to appear at that conference). (Id.)
Now, in the run-up to the April 15, 2015 hearing on pending motions,
Hubbard has once again had subpoenas issued to putative witnesses, commanding
them to appear on that date. Why would he do that when he knows that the issue of
whether he is entitled to an evidentiary hearing in the first place is set to be argued
at that very hearing? If he is doing it in order to unilaterally turn the oral argument
setting into an evidentiary hearing—and thus deprive this Court of the opportunity
to rule on the issue of whether an evidentiary hearing is warranted in the first
place—that is something this Court should not tolerate.2
REQUEST FOR RELIEF
This Court should quash Hubbard’s subpoenas and reject his attempt to
deprive the Court of the opportunity to rule on whether he has met the strict legal
2 The evidentiary hearing issue is squarely before the Court and set to be heard on April
15, not only as a result of the briefing on the Amended Motion for Production but also as a result
of Hubbard’s three Motions to Dismiss, filed on December 19, 2014, which contained requests
that an evidentiary hearing be granted. (See Motions to Dismiss re Impanelment, 14, Jurisdiction,
9, and Secrecy, 55-56.) The State opposed each request. (See State’s Responses). Hubbard’s
subpoenas appear connected to his Second Amended Motion for Production as well, which
sought communications between prosecutors and state officials. (See State’s Response to Second
Amended Motion, filed Feb. 4, 2015 (explaining that the Second Amended Motion fails for the
same reasons as the Amended Motion).)
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standards for the discovery requested in pending motions. Hubbard’s attempt to
use subpoenas to compel testimony and the production of records from the
Attorney General’s Office, including current or former members of the Attorney
General’s staff, and from the other subpoena recipients is contrary to established
law. Accordingly, the State respectfully requests the following relief:
(1) An Order immediately quashing the subpoenas for records and
testimony from the Attorney General’s Office, including its past or present
employees, as well as the subpoenas directed to the other recipients;
(2) As an alternative to (1) above, an Order either (a) staying the
subpoenas until this Court has ruled on the State’s Motion to Quash; or (b) setting
a hearing on the State’s Motion to Quash prior to any evidentiary hearing held in
this matter; and
(3) An Order clarifying that the hearing set for April 15, 2015 is for oral
argument on pending motions only, including Hubbard’s requests for an
evidentiary hearing, and may not be usurped by the defense for an evidentiary
hearing the Court has not yet ordered.
ARGUMENT
As discussed above, the State’s extensive briefing demonstrates that Rule 16
does not authorize Hubbard’s request for prosecutorial misconduct discovery. By
the same token, Hubbard may not use Rule 17 as a device to obtain through
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subpoena discovery he is clearly not entitled to under Rule 16. In addition, as the
Court is well aware, and as demonstrated in the State’s briefs, Hubbard has
presented absolutely no evidence of prosecutorial misconduct in this case. Under
the law, that means his attempt to use the power of this Court to engage in a
“fishing expedition” in search of support for a claim that any such misconduct
exists is entirely abusive and inappropriate.3
I. All of the subpoenas should be quashed because they are being used as
an improper discovery device.
Hubbard’s sole procedural tool to obtain discovery from the State is Rule
16.1. The State has already responded to Hubbard’s Rule 16.1 discovery request
and produced all of the materials that it is required to produce under that Rule. If
Hubbard wishes to challenge the State’s production, then he may do so by filing a
motion to compel under Rule 16.5.
While Hubbard may seek further discovery from the State by filing a motion
to compel, Alabama law clearly holds that he cannot use Rule 17 subpoenas as a
discovery tool. “This rule is not intended to be a discovery device because Rule 16
provides for discovery. This rule is to be used to inspect evidence held by
3 As noted above, the State articulated the relevant standards in its Response (filed
December 2, 2014) and Surreply (filed January 5, 2014) to the Amended Motion for Production.
In order to engage in prosecutorial misconduct discovery, Hubbard must first come forward with
evidence of misconduct, and of prejudice. See Surreply, 18-20 (citing United States v.
Armstrong, 517 U.S. 456, 468 (1996); United States v. Winters, No. 12–60378, 2013 WL
3089514, at *5 (5th Cir. June 20, 2013)). He has done neither. Moreover, voir dire or venue
change, not dismissal, would be the remedy even if he had met the standard. Surreply, 20-21.
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witnesses and to require its production at trial or prior to trial.” Rule 17.3, Ala. R.
Crim. P., Committee Comments; see also State v. Lewis, 36 So.3d 72 (Ala. Crim.
App. 2008) (affirming trial court’s quashing of defendant’s subpoena duces tecum
to Mobile County District Attorney’s Office); Sale v. State, 570 So.2d 862, 863
(Ala. Crim. App. 1990) (holding that trial court’s refusal to enforce subpoena
duces tecum to a police department and Sherriff’s Office did not violate
defendant’s right to compulsory process because, among other things, “the
defendant was seeking to use the subpoenas duces tecum as a method of
discovery”).
The Alabama Court of Criminal Appeals has further explained the difference
between obtaining discovery from the State and compelling the production of
evidence by third parties:
A fundamental distinction exists between a defendant's right to
discovery … and a defendant’s right to compel the production of
evidence by subpoena .... The right to discovery is the right to receive
information and documents from the prosecution and its agents
concerning the case. A defendant's right to discovery is governed
and limited by statute [in Alabama, by rule]…. The right to
compulsory process, on the other hand, is the right to compel
witnesses to come into court pursuant to subpoena and give testimony
or produce documentary or other physical evidence.
Ex parte Summit Med. Ctr. of Montgomery, Inc., 854 So.2d 614, 618-19 (Ala.
Crim. App. 2002) (internal citations and quotations omitted) (emphasis added).
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A subpoena may not be used as a discovery device as to third parties either.
Even when a subpoena is properly directed to a third party, it “may not be used in
the hope of finding something helpful to the defense.” That is, “a subpoena duces
tecum may not be used as a fishing expedition for the purpose of discovery or
to ascertain the existence of evidence.” State v. Reynolds, 819 So.2d 72, 79 (Ala.
Crim. App. 1999) (internal citations, quotations and alterations omitted) (emphasis
added).
Hubbard’s subpoenas are improper because they constitute an attempt to
circumvent the Rules of Criminal Procedure governing discovery. Illustrating the
impropriety of the current subpoenas, this Court quashed a subpoena to the
Attorney General’s Office for records in State v. Felix Barry Moore, CC-2014-226.
(See June 13, 2014 Order, at p. 1) (“Accordingly, the Court finds that the subpoena
duces tecum address to the Custodian of Records, Office of the Attorney General is
due to be quashed.”). Alabama law is clear on this issue: if Hubbard wants
information from the Attorney General’s Office in this case, then he is required to
make his request under Rule 16.1, Ala. R. Crim. P, as he has done in his Amended
and Second Amended Motions for Production discussed above.
Notwithstanding the clarity of Alabama law on the issue, and his pending
motions requesting communications from the State with members of the media or
state government, and the State’s briefs in opposition, Hubbard had subpoenas
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issued commanding records and/or testimony from the Attorney General and ten
members of his current or former staff, another government agency, a sitting
legislator, and two radio show hosts. These subpoenas are clearly improper. See
Rule 16.1(c), Ala. R. Crim. P. (prohibiting discovery of State and law enforcement
information and other work product); State’s Responses to Amended and Second
Amended Motions for Production; State’s Surreply to Amended Motion for
Production;4 Rule 17.3, Ala. R. Crim. P., Committee Comments (prohibiting use of
subpoenas as discovery device); Rule 17.3(c) (subpoena duces tecum may be
quashed “if compliance therewith would be unreasonable, oppressive, or
unlawful.”).
Therefore, all of Hubbard subpoenas seeking documents and testimony are
due to be immediately quashed.
II. All of the subpoenas should be quashed because they improperly invade
the Lee County Grand Jury’s ongoing investigation.
It is a matter of public record that former Deputy Attorney General Sonny
Reagan was subpoenaed to appear before the grand jury and that the Attorney
General made the decision to terminate Reagan because of his activities related to
4 The State’s briefs note that since the voluminous filings Hubbard has made show no
evidence of prosecutorial misconduct, then discovery on that issue is not warranted under the
law. Since the court has seen the Dale Jackson and Leland Whaley transcripts, the appearance of
those individuals is obviously unnecessary. The appearance of Rep. Ball or the Ethics
Commission is likewise unwarranted, because Hubbard’s submission of misconduct – the
Jackson and Whaley transcripts – demonstrates there was none and therefore provides the Court
no basis, under the law, to order Rep. Ball or the Ethics Commission to appear.
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the grand jury. The taking of witness testimony or the production of records would
improperly invade the province of the grand jury’s investigation into these matters.
See Rule 12.3, Ala. R. Crim. P., Committee Comments (“Once the grand jury is
empaneled and sworn as provided by statute, ‘it becomes the supreme inquisitorial
body of the county, and no preliminary act of any court or judge can limit its
powers.’”) (quoting State v. Knighton, 21 Ala.App. 330, 331, 108 So. 85 (1926)).
As such, since the subpoenas seek information and testimony that relate to matters
before the grand jury, the subpoenas are due to be quashed.
III. The subpoenas to the Attorney General’s Office and its current and
former employees should be quashed because they seek privileged
material.
The subpoenas to the Attorney General’s Office and its current and former
employees are due to be quashed for the additional reason that they request
information that is protected by the law enforcement privilege, the executive
privilege, the deliberative process privilege, the attorney-client privilege, and the
attorney work product doctrine. See § 12-21-3.1, Ala. Code (1975); Assured
Investors Life Ins. Co. v. Nat'l Union Associates, Inc., 362 So.2d 228, 233 (Ala.
1978) overruled on other grounds, Ex parte Norfolk S. Ry. Co., 897 So.2d 290
(Ala. 2004) (recognizing the “executive privilege applicable to information held by
the government during an ongoing criminal proceeding”); Sierra Club v. Alabama
Environmental Management Com’n, 627 So.2d 923, 926 (Ala. Civ. App. 1992),
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rev’d on other grounds, Ex parte Ala. Dept. of Environmental Management, 627
So. 2d 927 (Ala. 1993) (“The deliberative process privilege is a sub-category of the
executive privilege.”); In re United States, 985 F.2d 510, 512 (11th Cir. 1993)
(quoting Simplex Time Recorder Co. v. Secretary of Labor, 766 F.2d 575, 586
(D.C.Cir.1985) (“Top executive department officials should not, absent
extraordinary circumstances, be called to testify regarding their reasons for taking
official actions.”). United States v. Jicarilla Apache Nation, 131 S. Ct. 2313, 2320-
21 (U.S. 2011) (“The objectives of the attorney-client privilege apply to
governmental clients. The privilege aids government entities and employees in
obtaining legal advice founded on a complete and accurate factual picture.”); see
also Ala. R. Prof. Conduct 1.6, Committee Comments (“The duty of
confidentiality continues after the client-lawyer relationship has terminated.”); See
Rule 16.1(c), Ala. R. Crim. P. (prohibiting discovery of work product).
(1) The Law Enforcement Investigation Privilege
Any information about law enforcement operations or investigations is
protected from disclosure by the law enforcement investigation privilege. See
Section 12-21-3.1 (b), Code of Alabama (1975) (“Law enforcement investigative
reports and related investigative material are not public records. Law enforcement
investigative reports, records, field notes, witness statements, and other
investigative writings or recordings are privileged communications protected
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from disclosure.”) (emphasis added.); Rule 508, Ala. R. Evid.; see also United
States v. Winner, 641 F. 2d 825, 831 (10th Cir. 1981) (“The law enforcement
investigative privilege is based primarily on the harm to law enforcement efforts
which might arise from public disclosure of [investigations].”).
This privilege still applies here even though portions of the investigation into
Hubbard are no longer ongoing.5 See In re The City of New York, 607 F. 3d 923,
944 (2d Cir. 2010) (“An investigation, however, need not be ongoing for the law
enforcement privilege to apply as the ability of a law enforcement agency to
conduct future investigations may be seriously impaired if certain information is
revealed to the public.”) (internal quotation marks omitted). The law enforcement
privilege further protects the disclosure of “law enforcement techniques and
procedures,” information that would undermine “the confidentiality of sources,”
information that would endanger “witness and law enforcement personnel [or] the
privacy of individuals involved in an investigation,” and information that would
“otherwise . . . interfere[ ] with an investigation.” Id. Accordingly, the law
enforcement privilege prevents the Attorney General and members of his staff
(past or present) from being compelled to testify about the actions, techniques and
procedures that were used in this case.
5 The State notes that it is a matter of public record that the Lee County Special Grand
Jury is still empanelled.
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(2) Executive Privilege
Executive privilege similarly bars the testimony sought by Hubbard from the
Attorney General and his staff. It is black-letter law in Alabama that testimony
about the performance of a state officer’s official duties is protected from
disclosure by executive privilege. Assured Investors Life Ins. Co. v. National
Union Associates, Inc., 362 So. 2d 228, 233 (Ala. 1978), overruled on other
grounds, Ex parte Norfolk Southern Ry. Co., 897 So. 2d 290 (Ala. 2004) (“[T]here
is the undeniable interest of the executive branch of government in maintaining
confidentiality over certain types of information necessary for the performance of
its constitutional duties.”); cf. United States v. Nixon, 418 U.S. 683, 708-713
(1974) (apart from policy considerations, “history and legal precedent teach that
documents from a former or an incumbent President are presumptively
privileged.”). Therefore, any information provided to the Attorney General or his
staff concerning this case would be shielded by the executive privilege.
(3) Deliberative Process Privilege
The deliberative process privilege, which is a recognized “sub-category of
the executive privilege,” also protects the disclosure of testimony about the
executive decision-making process. See Sierra Club v. Alabama Environmental
Management Com’n, 627 So.2d 923, 926 (Ala. Civ. App. 1992), rev’d on other
grounds, Ex parte Ala. Dept. of Environmental Management, 627 So. 2d 927 (Ala.
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1993); see also Nadler v. United States Dept. of Justice, 955 F.2d 1479 (11th
Cir.1992) abrogated on unrelated grounds, U.S. Dep't of Justice v. Landano, 508
U.S. 165, 170 (1993) (“The deliberative process privilege protects the internal
decision making processes of the executive branch in order to safeguard the quality
of agency decisions.”); Dep't of Interior v. Klamath Water Users Protective Ass'n,
532 U.S. 1, 8-9 (2001) (“The deliberative process privilege rests on the obvious
realization that officials will not communicate candidly among themselves if each
remark is a potential item of discovery and front page news, and its object is to
enhance the quality of agency decisions ... by protecting open and frank discussion
among those who make them within the Government....”) (internal quotes
omitted).
A state constitutional executive official and top state law enforcement
official (and members of his staff) cannot be called to testify about pre-decisional
considerations that were “a direct part of [his] deliberative process” on this case or
other legal or policy matters, including the facts that he relied on in making his
decisions. Nadler, 955 F.2d at 1490-91 (11th Cir. 1992); see also Alabama v.
Abbott Laboratories, Inc., 2009 WL 692189, *2 (M.D. Ala. 2009) (discussing
deliberative process privilege).
The Attorney General and his staff should be able to faithfully execute the
law without the risk of later being called as a witness by defense attorneys seeking
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to second-guess each and every decision made during an investigation by his
Office. Permitting the defense to do so here would set a bad precedent and chill
the actions of future executive officials. Accordingly, the subpoena should be
quashed because any information regarding the Attorney General’s deliberative
process in this criminal prosecution is protected from disclosure.6
(4) Attorney-Client Privilege and Work Product Doctrine Protection
Similarly, the attorney-client privilege and the work-product doctrine also
bar Hubbard from obtaining records or testimony from the Attorney General and
his staff. Any communications between or among the Attorney General and his
staff are obviously privileged. Likewise, the records sought by Hubbard’s
subpoena would also be protected by the work-product doctrine. See Ex parte
Great Am. Surplus Lines Ins. Co., 540 So. 2d 1357, 1360 (Ala. 1989) (“The work-
product doctrine is distinguished from the attorney-client privilege in that the latter
applies only to communications between client and counsel. The work-product
doctrine is broader in that it affords protection to all documents and tangible items
prepared by or for the attorney of the party from whom discovery is sought ‘as
long as they were prepared in anticipation of litigation or preparation for trial.’”).
6 The fact that the Attorney General has recused makes no difference. The privilege
covers the Attorney General and all persons acting under his supervision or at his request (or
who used to do so).
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As such, the subpoenas to the Attorney General’s Office for records and testimony
are due to be quashed.
IV. The subpoenas to the Attorney General’s Office should be quashed for
the additional reason that they would set a very bad precedent that
would severely undermine law enforcement.
As referenced above, permitting a defendant to subpoena records and
testimony from the office that is prosecuting him would be contrary to Alabama
law and would set a very bad precedent that would seriously undermine and
threaten law enforcement in this State. Every day, law enforcement officials
investigate and prosecute criminal defendants – all under the protections of
Alabama law that prevent defendants from doing exactly what Hubbard is
attempting to do here. That is, if every indicted defendant were able to subpoena
the office of the prosecutors in a case, then law enforcement would be irreparably
damaged, unable to carry out their duties. This is precisely why the law
enforcement investigation and related privileges and the discovery provisions of
the Rules of Criminal Procedure exist. The subpoenas should be quashed.
V. The subpoena for records and testimony from the Ethics Commission
should be quashed on additional, similar grounds as those subpoenas
directed to the Attorney General’s Office.
The subpoena to the Ethics Commission is improperly being used as a
discovery device because the Ethics Commission is a state law enforcement agency
that routinely refers cases for investigation or prosecution by the Attorney
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General’s Office. The Ethics Commission is also a member of the Attorney
General’s Special Prosecution Alliance, which is a group of state law enforcement
agencies that have partnered together to more efficiently and effectively investigate
and prosecute public corruption and white collar crimes. As such, communications
between the Attorney General’s Office and the Ethics Commission would not only
be protected by the law enforcement investigative privilege, but also immune from
discovery under Rule 16.1 and Rule 17 for the same reasons as information from
the Attorney General’s Office.
VI. The subpoena to Hubbard’s eDiscovery consultant should be quashed
as unnecessary.
Finally, Hubbard’s subpoena to his retained eDiscovery consultant, William
J. Long, is due to be quashed as unnecessary. Hubbard has already submitted an
affidavit from Long as an exhibit to his Motion to Compel Brady Production.
Presumably, Hubbard seeks to call Long as a witness to repeat the statements made
in the Long affidavit. The subpoena therefore seeks redundant and unnecessary
testimony.
Further, while the State will address the Motion to Compel in a separate
filing, the State submits that the Motion to Compel presents the purely legal issue
of whether Hubbard is entitled to any relief under Brady and its progeny. Hubbard
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has presented no arguments to this Court which would require factual testimony on
this purely legal issue.7 As such, Hubbard’s subpoena to Long should be quashed.
CONCLUSION
The legal issue of whether Hubbard is entitled to an evidentiary hearing in
the first place is squarely before the Court in Hubbard’s Amended and Second
Amended Motions for Production, his Motions to Dismiss, and the State’s
Responses and Surreply to the same. As such, the issue is fully briefed. Hubbard’s
unilateral attempt to moot that briefing, and strip this Court of jurisdiction to hear
and decide the issue at oral argument on April 15 should be soundly rejected. This
Court should not countenance allowing meritless collateral attacks to divert
attention from the merits of this serious public corruption case. The State’s briefing
demonstrates that Hubbard’s failure to include in his voluminous filings actual
evidence of misconduct means that he may not turn the April 15 oral argument
hearing into a spectacle and circus sideshow touting his baseless conspiracy
theories and unfounded allegations. Since Hubbard has produced no evidence to
support his claims, he has failed to show that he is entitled to an evidentiary
hearing.
7 To the extent that the Motion to Compel alleges technical issues in the State’s
production, the State took the initiative to open a dialogue with the defense with the intention of
resolving any technical issues without court intervention.
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Therefore, in accordance with the foregoing, the State respectfully requests
that this Court:
(1) Enter an Order immediately quashing the subpoenas for records and
testimony from the Attorney General’s Office, including its past or present
employees, as well as the subpoenas directed to the other recipients;
(2) As an alternative to (1) above, enter an Order either (a) staying the
subpoenas until this Court has ruled on the State’s Motion to Quash; or (b) setting
a hearing on the State’s Motion to Quash prior to any evidentiary hearing held in
this matter; and
(3) Enter an Order clarifying that the hearing set for April 15, 2015 is for
oral argument on pending motions only, including Hubbard’s requests for an
evidentiary hearing, and may not be usurped by the defense for an evidentiary
hearing the Court has not yet ordered.
Respectfully submitted this 23rd day of March 2015.
W. VAN DAVIS
ACTING ATTORNEY GENERAL
/s/ Miles M. Hart
Miles M. Hart
Deputy Attorney General
Chief, Special Prosecutions Division
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OF COUNSEL:
W. Van Davis
Supernumerary District Attorney,
Acting Attorney General
423 23rd
St. North
Pell City, AL 35125-1740
Michael B. Duffy
Deputy Attorney General
OFFICE OF THE ATTORNEY GENERAL
STATE OF ALABAMA
501 Washington Avenue
P.O. Box 300152
Montgomery, AL 36130-0152
(334) 242-7300
(334) 242-4890 – FAX
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CERTIFICATE OF SERVICE
I hereby certify that I have, this the 23rd day of March 2015, electronically
filed the foregoing using the AlaFile system which will send notification of such
filing to the following registered persons, and that those persons not registered with
the AlaFile system were served a copy of the foregoing by U. S. mail:
J. Mark White, Esq.
Augusta Dowd, Esq.
William Bowen, Esq.
William Chambers Waller, Esq.
White Arnold & Dowd P.C.
2025 Third Avenue North, Suite 500
Birmingham, AL 35203
Phone: (205) 323-1888
FAX: (205) 323-8907
R. Lance Bell
Trussell Funderburg Rea & Bell, PC
1905 1st Ave South
Pell City, AL 35125-1611
Phillip E. Adams, Jr.
Adams White Oliver Short & Forbus LLP
205 S 9th Street
Opelika, Alabama 36801
Phone: (334) 745-6466
Fax: (334) 749-2800
/s/ Miles M. Hart
Deputy Attorney General
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State of AhbamrUnilied Judicial System ORDER TO APPEAR
(suBPoENA)
(Circuil Addd, or Municipal)State of Alabama
(Name of CounUor Municipality)
rI Luther StrangeAttorney General for the State of Alabama501 Washington AvenueMontgomery, AL 36104
A1.
2.3.
B.
1.
2.
3.4.
'at depositionTestifu at 4-15-15 Hearins
J. Mark White, White Amold & Dowd P.C., 205-323-1888
yOU ARE ORDERED TO APPEAR to give testimony before the court or by deposition; and/or produce and permit inspection
and copying of books, documents, or langible thingi; and /or permit inspection of premises as stated below until othenryise
excused. Flilure to obey this subpoena may be deemed a contempt of court from which the subpoena was issued,
Aoril 15.2015 ADDITIONAL INSTRUCTIONS
Any inspection or production of documents orrecords must be completed within 15 days.
See Attachment "A" to subpoena for a list of documents
to produce.
Judee Jacob Walker III's Courtroom
231 I Gatewav Drive
TO ANY SHERIFF OF THE STATE OF ALABAMAOR ANY AUTHORIZED PERSON:
You are ordered to serve this Order on the above-namedperson and make return to this court.
:;x'I lll'::::?! ltt[?tbi"t q' tu ",
eon fyl*pol 2 ot ?ol{
(For Criminal cases only)
flServed by mailDate malled
Process ServerWhite Arnold & Dowd p.C
ATTORNEYSAILAW
Suite 500Errmingham, AL35203
205.323. I 888
DOCUMENT 119
NOTICE
Wth respect to a subpoena which seeks only a produciion of documents or tangible things or an inspection of premises. as provided in Ala.R.Civ.P45(a) (3) (C). the production of documents or tangible lhings or lhe inspeciion of premises pursuant to this subpoena shall take place where the documentsor tangible things are regulady kept or al some other reasonable place des'gnated by the recipient of this subpoena. As recipient of this subPoena, you have
the option to deliver or mail legible copies of the documents or things to the party causing issuance of this subpoena, and the preparation of copies may be
conditioned on the payment in advance of lhe r€asonable cost of making such copies. Other parlies involved ln lhis lawsuit have the right to be presenl at
the time of the procluition or inspeciion. The recipient of this subpoena has ths right to object to the produc{ion or inspeclion at any time ptior to the date
of produc{ion or inspeclion set forlh in this subpoena. See Ala. R.Civ.P. 45(c) (2) (B), which is set oul belovt.
Rule 45, Ala.R.Civ.P., subdivisions (c) & (d)
(c) Proteclion of person subject to subpoenas.
0) A party or an attomey responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or.expense
iri a ders6n suUlect to thit subpoena. Tha court from which the subpoena was issued shall enforce this duty and impose upon the party or attomey ln breach
of thii duty an appropriate sanction, whictr may include, but is not limited to. lost eamings and a reasonable attomey foe.
(2XA) A pecon commanded to produce and permit inspedion and copying of designated books, papers, documents or tangible things, or inspection of
iremises-neeO not appear in person at the place of produc{ion or inspection unless @mmanded to appear for deposilion, hearing or trial.
(B) Subjeci to paragraph (d)(2) of this rule, a person commanded to produce and pemit insp€ction and copying at any time before the time specmed for
comiti"ncl may'senE,ipon Gj party or aitomey designed in the subpoena writien objection to inspection or copying of any or all of the d*ignatedmitiriats or of dre premisis. 'Seme' js used herein means mailing to thi party or attomey. lf objec'tion is made, the party serving the subpoeng ilEI.no!-beinntea to inspeci ind copy the materials or lnsp€ci the pror{ses;xcept fursirant to an 6rder oi lhe court by wtrich the subpoena was issued. lf objedion
has been ma'de, the pariiserving the subpoeria may, upon notlca to'thb person @mmand€d to produce, move at any-timo for an order to comp€l the
production. Such an ilrder to coni'pel prooriaton shali protea any person who ls not a party or an ofiicer of a party from signilicanl expenses resulting from
the inspeclion and copying commanded.
(3XA) On timely motion, ihe court by which a subpoena was bsued shall quash or modiff the subpoena ,f it
(i) fails to allow reasonable time for compliance;
(ii) requires a resident of this state who is not a party or an officer of a party lo lravel to place more than one hundred (100) miles ftom lhe plac€ where
itt'.t pircon r€sides, is employed or regularly traniaai business in person, oi requires a nonresident of this state who is not a party or an ofricer of a Party
io t irtf to a place 'within
ihij state mrire thin one hundred (100) ririles trom the place of seNlce or, where separate ftom the place or seflica, mgle thalone hundred itOO) *ites from the placa where that person ij employed or regularly transacis business in person, except that subject to lhe prwisions. of
clause (cX3XBXiili of this rule, sucir a penron may in order io attindtrial be commlnded to travel from arry such place within the state in which the trial is
held, or
(iii) requires disclosure of privil€ged or other protecied matter and no exc€ption or waiver applies, or
(iv) subjects a person to undue burden.
(B) lfa subpoena
(i) requhes disclosure of a trade secret or other confidential research, development, or commercial information, or
tii) reiluires oisctosure of an unretained expert's opinion or information not discribing specilic €vents or occunenc€s in dispute and resulting from the expert's
study made not at lhe request of any party, or(iii) requires a peBon wtrb is not a irarty l'r an officer of a party to incur substan0al expenses to travel more lhan 100 miles to attend trial, ihe court may' to
ir6teci a pers6n sugect to or affa&ed'by the subpoena, quaitr or rnodiry the subpoena or, if he party in whose behalf the subpoena is issued shols asubstantial need for the testimony or maierial that cannoi # othemise mlt withoui undue hardship and assur€s that the Person to whom the subpo€na is
addressed will be reasonably compensated, th€ court may order appearance or production only upon specified conditions.
(d) Duties in responding to subpoena.
(1) A person responding to a subpoena lo produce documents shall produco lhem as they are kept in the usual couBe of business or shall organize and
label them to conespond with the categories in the demand.(2) When informatioir subject to a subi'oena is withheld on a claim that it is privileged or sublect to proteclion astrial preparation malerials, the clalm shall be
miae expressty and shali be rrpportio by a description of the nature of thi documents, cohmunlcations, or things not produc€d that is sufticient to enable
the demanding party to contest the daim.
DOCUMENT 119
SUBPOENA TO LUTHER STRANGERE: 4-15-15 HEARING
EXHIBIT "A:"
You are to produce the following documents in accordance with thedirections of this Subpoena & be prepared to testify regarding same at
the 4-15-15 Hearing:
DEFINITIONS
l. The terms "document" and "documents" shall mean all originals and
drafts, in any and all languages, of any nature whatsoever, and all copies thereof in your
possession, custody or control, regardless of where located, and include, but are not
limited to, any medium upon which intelligence or information can be recorded or
retrieved and includes, without limitation, the original and each copy of any document,
writing, correspondence, communication, book, pamphlet, periodical, letter,
memorandum (including any memorandum or report of a meeting or conversation),
invoice, bill, order form, receipt, financial statement, ledger, statement, report, checks
(front and back), accounting entry, diary, calendar, telex, telegram, cable, report, record,
contract, agreement, deed, mortgage, lease, sfudy, handwritten note, draft, Plan,
specification, working paper, chart, paper, print, laboratory record, drawing, sketch,
graph, index, list, brochure, notice, summaries, tape, tape recordings, tape transcripts,
photograph, microfilm, data sheet or date processing card, e-mail, computer information,
or any other written, recorded, transcribed, punched, taped, filmed, computerized or
graphic matter, however produced or reproduced, which is in your possession, custody or
control or which was, but is no longer, in your possession, custody or control. These
DOCUMENT 119
terms also mean any marginal comments appearing on or affixed to any document and
other writings.
2. The term "communication" or "ggmmunlcallqns" shall mean any transfer
of information whether verbal or non-verbal, written in hardcopy form, recorded or
written in electronic form.
3. The term 6'relates" means regarding, concerning, involving, in connection
with, reflecting, referring to, mentioning, evidencing, constituting, describing, discussing,
and/or appertaining to.
4. The terms "a[" and "each" shall be construed as all and each. The
connectives "q4g!" and "o,!" shall be construed either conjunctively or disjunctively as
necessary to bring within the scope of the request all responses that might otherwise be
construed to be outside of its scope. The use of the singular form of any word shall be
taken to mean the plural as well as the singular, and the use of the plural form of any
word shall be taken to mean the singular as well as the plural. The use a verb in any
tense, mood or voice shall be construed as the use of the verb in all tenses, moods or
voices as necessary to bring within the scope of the request all responses that might
otherwise be construed to be outside the scope.
5. The terms "g" and "g" shall mean Luther Strange in an individual
capacity, and Luther Shange on behalf of the Office of the Attorney General for the State
of Alabama.
DOCUMENT 119
REOUESTED DOCUMENTS AND TESTIMONY
Any and all communications, whether verbal, written, or in any other form, from
any Attorney General, Acting Attomey General, Assistant or Deputy Attorney General,
or any employee(s) or former employee(s) of the Office of the Attomey General, which
communication was directed to any or all of the following individual or entity concerning
their appearance and/or the production of information or documents relative to the April
15, 2015 Hearing in the case of^Slate of AL v. Michael Gregory Hubbard:
l. Lori Arnold;
2. Custodian of Records for the Alabama Ethics Commission, and/orany employee(s) of the Alabama Ethics Commission;
3. Custodian of Records for the Attorney General's Office, and/orany employee(s) of the Attomey General's Office;
4. Mike Ball;
5. Charla Doucet;
6. Tim Fuhrman;
7. Claire Haynes;
8. Dale Jackson;
9. Bill Lisenby, Jr.;
10. William J. Long III;
I l. Henry T. Reagan;
12. Jesse Seroyer;
13. Howard E. Sisson;
14. Kevin Turner
15. Amber Lunceford Turnow
16. Leland Whaley
17. Vann Davis
18. Governor Robert Bentley
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