Petition to Enforce U.S. Department of Justice Subpoena — United States v. Timothy Ward (N.D. Ga., Dkt. 1)
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A Petition to Enforce U.S. Department of Justice Subpoena, filed 03/28/22 as Document 1 in Case 1:22-mi-00027-SCJ in the U.S. District Court for the Northern District of Georgia, Atlanta Division. The United States of America, as petitioner, asks the Court to enforce an administrative subpoena issued December 14, 2021 under the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. §§ 1997 et seq., from Timothy Ward, as Commissioner of the Georgia Department of Corrections (GDC). The petition states that the Department is investigating whether the State of Georgia and GDC have violated the Eighth Amendment by failing to protect prisoners from substantial risk of harm. It alleges that GDC has produced only an incomplete set of policies.
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“Petition to Enforce U.S. Department of Justice Subpoena — United States v. Timothy Ward (N.D. Ga., Dkt. 1).”
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Case 1:22-mi-00027-SCJ Document 1 Filed 03/28/22 Page 1 of 25
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
United States of America, )
)
Petitioner, ) Misc. No.
v. )
)
Timothy Ward, in his official capacity as )
Commissioner of the Georgia Department )
of Corrections, )
)
Respondent. )
___________________________________ )
PETITION TO ENFORCE U.S. DEPARTMENT OF JUSTICE SUBPOENA
The United States of America petitions this Court for an order enforcing the
U.S. Department of Justice’s (Department) administrative subpoena under the Civil
Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. §§ 1997 et seq., which
the Department issued on December 14, 2021. See Dec. 14, 2021 CRIPA
Subpoena No. 2021-01, Ex. 1.
The subpoena seeks access to documents relating to an ongoing
investigation under CRIPA. Specifically, the United States is investigating whether
the State of Georgia and the Georgia Department of Corrections (GDC) have
violated the Eighth Amendment to the Constitution by failing to protect prisoners
from substantial risk of harm. The Department issued the subpoena on December
Case 1:22-mi-00027-SCJ Document 1 Filed 03/28/22 Page 2 of 25
14, 2021 and requested that GDC provide access to responsive documents by
January 14, 2022 at 9:00 a.m. EDT. As discussed below, because the subpoena was
properly issued and served, it seeks access to documents reasonably relevant to a
pending CRIPA investigation, and GDC has not raised any cognizable defense to
its enforcement, the subpoena should be enforced.
In support of this Petition, the United States alleges as follows:
I. JURISDICTION AND VENUE
1. This is a proceeding brought pursuant to Section 3A(b)(2) of CRIPA,
42 U.S.C. § 1997a-1, to enforce a CRIPA subpoena.
2. The Court has jurisdiction over this matter pursuant to 28 U.S.C.
§§ 1331, 1343, 1345, and 42 U.S.C. § 1997a-1(b)(2).
3. Venue is proper because GDC’s headquarters is located in Atlanta,
Georgia, and multiple facilities within the scope of this investigation are located
within this District. 42 U.S.C. § 1997a-l(b)(2).
II. STATUTORY BACKGROUND
4. A prison’s failure to take reasonable measures to protect prisoners
from substantial risk of serious harm may violate the Eighth Amendment of the
United States Constitution. See Farmer v. Brennan, 511 U.S. 825, 832 (1994);
Helling v. McKinney, 509 U.S. 25, 31–35 (1993).
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5. CRIPA authorizes the Attorney General to investigate conditions of
confinement in correctional facilities and initiate civil actions in the name of the
United States against state or local officials where that investigation gives the
Attorney General
reasonable cause to believe that any State or political
subdivision of a State, official, employee, or agent thereof, or
other person acting on behalf of a State or political subdivision
of a State is subjecting persons residing in or confined to an
institution . . . to egregious or flagrant conditions of which
deprive such persons of any rights, privileges, or immunities
secured or protected by the Constitution or laws of the United
States . . . pursuant to a pattern or practice of resistance to the
full enjoyment of such rights, privileges, or immunities.
42 U.S.C. § 1997a(a).
6. To enable the Department to carry out its law-enforcement
responsibilities, CRIPA authorizes the Department to “require by subpoena” that
investigated entities turn over documents and other materials and provide access to
facilities that are the subject of investigation, in order to determine whether prison
conditions deprive prisoners of their rights. 42 U.S.C. § 1997a-1(a).
7. The subject of a CRIPA investigation is required to “yield to federal
law” and provide the Department access to facilities and documents needed to
conduct its investigation. See United States v. Hale, 261 F. Supp. 3d 1169, 1172–
73 (N.D. Ala. 2017) (ordering county sheriff to allow Department to interview
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juvenile inmates and provide medical records in CRIPA investigation, and finding
that CRIPA provided adequate protections for sensitive information contained in
prisoner records).
III. THE DEPARTMENT’S INVESTIGATIVE SUBPOENA
8. The Department issued and served the subpoena that is the subject of
this petition on December 14, 2021. Declaration of Matthew Nickell (“Decl.”)
¶¶52–53, 56–57; Ex. 1. The subpoena seeks access to documents including
policies, training materials, documents related to staffing and personnel discipline,
documents related to certain prisoners, incident reports and internal investigation
materials, and internal audit materials. Appendix A to Dec. 14, 2021 CRIPA
Subpoena No. 2021-01, Ex. 1-A, at 3–11.
A. Investigation History
9. On September 14, 2021, the Department notified the State that it was
expanding a CRIPA investigation it initiated in February 2016. See Decl. ¶¶2–3;
Department Sep. 14, 2021 Notice of Investigation, Ex. 3. The investigation initially
focused on whether the State was protecting lesbian, gay, bisexual, transgender,
and intersex (LGBTI) prisoners from sexual harassment, sexual abuse, and sexual
assault by GDC staff and other prisoners. See Decl. ¶2; Department Feb. 5, 2016
Notice of Investigation, Ex. 2 at 1. The expanded investigation also examines
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whether the State fails to protect prisoners housed at close- and medium-security
levels from harm due to prisoner-on-prisoner violence. See Decl. ¶3; Ex. 3 at 1.
10. On September 24, 2021, the Department sent a request for documents
to the State seeking documents related to prisoner-on-prisoner violence, as well as
updated documents regarding the treatment of and potential harm to LGBTI
prisoners, with a requested response date of October 25, 2021. See Decl. ¶6;
Department Sep. 24, 2021 Request for Documents, Ex. 4.
a. The Department sought documents of various types, including
policies, handbooks, and training materials; documents related to staffing; the
identities of specific staff who had been terminated or placed on leave, including
because of sexual abuse investigations, as well as staff responsible for ensuring
prisoner safety; GDC budget documentation from 2016 to the present; the
identities of prisoners who identify as LGBTI so that the Department may know
whose records to asses for possible sexual abuse; documentation about gang and
security threat group membership; the identities of prisoners in protective custody,
at risk of suicide, or at risk of sexual victimization; incident reports related to acts
of violence and sexual abuse, including homicides; and internal audits conducted
by GDC. Ex. 4 at 3–11.
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b. To date, GDC has provided access to only an incomplete set of
policies (only a fraction of those requested have been provided), some blank form
documents, a few organizational charts, and other documentation related to GDC
facilities. Decl. ¶¶8–9. None of the produced documents included identifiable
filenames or an index as the Department had requested, and GDC’s counsel
promised to provide. Decl. ¶7.
c. GDC has provided access to no incident reports, documents or
data related to homicides or acts of violence, documents about affected prisoners or
staff, or various other categories of responsive documents. Id. ¶10.
11. The Department met with and exchanged numerous letters with
GDC’s counsel regarding the September 24, 2021 document request before issuing
the Subpoena on December 14, 2021. In those communications, the Department
repeatedly asked GDC’s counsel to provide reasons for withholding responsive
documents. Id. ¶13.
12. In those communications, GDC’s counsel refused to provide access to
the vast majority of responsive documents unless and until the Department
satisfied several conditions that GDC’s counsel had unilaterally imposed. Id.
a. Chief among these was that the Department sign a
nondisclosure agreement (NDA) very similar to one that GDC’s counsel negotiated
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on behalf of another client, the State of Alabama, in a different investigation. Id.
¶14.
b. GDC also objected to providing access to documents unless and
until the Department disclosed information about the basis of its investigation. Id.
¶40.
c. In addition, GDC indicated it had numerous other objections to
the document requests, but refused to disclose what they were despite repeated
requests from the Department. Id. ¶46.
1. The NDA
13. The Department is required to adhere to various federal laws that
ensure sensitive information is protected from disclosure. These laws include the
Freedom of Information Act and its exemptions, 5 U.S.C. § 552, Department
“Touhy” regulations, 28 C.F.R. § 16.21, and the Privacy Act, 5 U.S.C. § 552a. The
Department is required to maintain and destroy identifying health information in a
manner consistent with the policies and procedures established under 42 C.F.R. §
2.16, and comply with the limitations on disclosure and use in 42 C.F.R. § 2.53(d).
In addition, the Department is a health oversight agency under the Health
Insurance Portability and Accountability Act (HIPAA), which permits disclosure
of health records to the Department to conduct investigations like this one under 45
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C.F.R. § 164.512(d), 45 C.F.R. § 164.501, and 45 C.F.R. § 164.512(f).
14. At earlier stages of the investigation, the State never insisted that the
Department enter into an NDA before providing access to responsive documents.
Id. ¶15. Nonetheless, the State produced responsive documents of various types to
the Department, including investigation reports, prisoner institutional files,
grievances, and prisoner mental health files. Id. Many of these documents
contained personally identifiable information, protected health information, and
other types of sensitive information. Id.
15. The State has never alleged that the Department mishandled or failed
to protect the integrity of sensitive information produced in the course of this
investigation. Id. ¶16.
16. In a call on October 19, 2021, counsel for GDC stated that they
expected the Department to sign an NDA before they would provide access to most
of the documents the Department requested in its September 24, 2021 document
request, notwithstanding that the State had previously produced sensitive
information to the Department without an NDA in place. Id. ¶17.
17. The Department repeatedly attempted to resolve GDC’s concerns
about sensitive information, including by sending a letter setting forth the
Department’s obligations to safeguard confidential information and providing
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proposed revisions to GDC’s proposed NDA. GDC took two months to respond to
a markup the Department sent to GDC on December 9, 2021. Id. ¶¶19–28.
18. The United States provided its most recent NDA revision to GDC on
March 1, 2022, and GDC provided its most recent revision on March 14, 2022.
The parties met most recently to discuss on March 17, 2022. Although the parties
narrowed the outstanding areas of disagreement, several remain. For example,
GDC has maintained that one portion of the NDA is non-negotiable: a fee-shifting
term requiring DOJ’s consultants to be liable for attorney’s fees for breaching the
NDA. To date, GDC has declined requests to reconsider this position, even though
GDC acknowledged it knows of no legal support for this fee-shifting requirement.
GDC also has insisted that all documents previously produced in the investigation
without an NDA be treated as if they contained confidential information and thus
become subject to the NDA’s limitations on use and disclosure, or else that GDC
be permitted to engage in a time-consuming process to review all previously
produced documents to determine whether they should be deemed confidential.
This retroactive application of the NDA is incredibly overbroad and could cause
further substantial delays to the investigation. Furthermore, GDC has insisted on a
provision requiring the Department to “protect[ ] the integrity of the Confidential
Information, including but not limited to non-public sensitive security information
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(e.g., non-public information contained in internal and non-public policies and
operations procedures, facility security plans, and confidential documents included
in investigation files),” along with various other examples. Id. ¶¶29–35; GDC Mar.
14, 2022 Revised NDA, Ex. 16. This vague and overbroad language introduces
uncertainty and could interfere with the Department’s obligation to disclose
statutorily mandated information about the results of its investigation. See 42
U.S.C. § 1997b(a), (b).
19. In addition, in meetings on March 7 and March 17, 2022, GDC
suggested it would not agree to grant the United States access to its prison facilities
for site visits in May and June 2022—including to view secure areas and conduct
staff and even prisoner interviews—if the Department did not first execute an
NDA and fulfill other as-yet unenumerated tour parameters. On March 18, 2022,
the Department sent GDC a letter stating that it planned to conduct site visits of
two GDC facilities, one in May and the other in June 2022. To date, GDC has not
responded to the Department’s letter regarding the planned site visits. Decl. ¶¶36–
37.
20. The Department repeatedly pointed out to GDC—including in calls on
October 19, 2021 and November 9, 2021—that numerous documents it requested
could not feasibly contain confidential information, and thus there was no good
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faith basis to withhold them based on the lack of an NDA. Id. ¶38. For example,
GDC has provided the Department access to no documents regarding homicides in
any of its facilities. Id. ¶39.1
2. Demand for Information About the “Basis” of the Department’s
Investigation
21. In several communications, GDC objected to the Department’s
document requests for purportedly failing to “disclose . . . information about the
basis of the Investigation.” GDC Nov. 17, 2021 Letter, Ex. 8, at 4; see also Decl.
¶40.
1
Press outlets that have compiled counts of the number of homicides in GDC
prisons report having done so based on State records. For example, the Atlanta
Journal-Constitution reported that 53 homicides occurred in GDC facilities
between January 2020 and November 2021 based on information from “the state’s
death certificate database,” and based on how GDC and the Georgia Bureau of
Investigation classified the deaths. See Danny Robbins, Records Reveal 53
Georgia Prison Inmates Slain, The Atlanta Journal-Constitution, Nov. 18, 2021,
https://www.ajc.com/news/crime/records-reveal-53-georgia-prison-inmates-
slain/KZ3JV4MT3FH4HLBLZQIA7AFYGA/. In addition, GDC used to issue
press releases for every homicide or suspected homicide in the prisons, but then
abruptly ceased doing so. See, e.g., Press Release, Georgia Dep’t of Corr., Inmate
Death Under Investigation (Dec. 22, 2020),
http://www.dcor.state.ga.us/NewsRoom/ PressReleases/inmate-death-under-
investigation-40 (the last such press release, reporting death of Demetrius Stubbins
at Georgia State Prison “as a result of injuries sustained during an altercation
involving another inmate”); see generally
http://www.dcor.state.ga.us/NewsRoom/PressReleases/PressReleases (listing no
press releases regarding prisoner deaths in 2021 or 2022).
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22. CRIPA imposes no requirement on the Department to disclose the
basis for opening an investigation. Instead, it requires the Department to disclose
its conclusions at the end of an investigation if it identifies a pattern or practice of
constitutional violations. See 42 U.S.C. § 1997b(a)(1) (requiring the Department to
notify subject of investigation of alleged unlawful conditions, supporting facts, and
minimum remedial measures at least 49 days before commencing a civil action for
equitable relief under § 1997a(a)).
23. The Department informed GDC in a call on October 19, 2021 that it
could not disclose the basis of its investigation because this constituted privileged
information related to the Department’s decision-making process. Decl. ¶41.
24. Nonetheless, in the spirit of cooperation, the Department informed
GDC during the same October 19, 2021 call that its investigation is based in part
on publicly available information to which GDC has equal access. Id. ¶42.
25. Additionally, Assistant Attorney General Kristen Clarke delivered
public remarks regarding the expansion of the investigation on September 14,
2021. In those remarks, Ms. Clarke stated that the investigation was based on
publicly available information and information from stakeholders, and provided
examples of some information that informed the decision to expand the
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investigation, including the reported number of homicides in the Georgia prisons
since 2020. Id. ¶45; AAG Clarke’s Prepared Remarks, Ex. 17.
26. Since the October 19, 2021 call, GDC has demanded that the
Department specify what information it relied on in deciding to open the
investigation. Id. ¶43. But this too calls for privileged information that cannot be
disclosed.
27. In further attempts to address GDC’s concerns, the Department asked
GDC to indicate specifically what information it needed to cooperate with the
investigation. See Id. ¶44; Department Nov. 10, 2021 Letter, Ex. 7, at 2. The
Department also offered to provide GDC additional information about the
investigative process under CRIPA. Id. GDC never responded to either offer. Decl.
¶44.
3. GDC’s Other Objections
28. In communications about the document requests prior to the issuance
of the subpoena, GDC’s counsel told the Department that it had various other
grounds for withholding responsive documents, but refused to disclose what they
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were unless and until the Department signed an NDA that was very similar to the
Alabama version. Id. ¶46.2
29. Although it did not indicate whether it was withholding documents on
this basis, id. ¶47, GDC’s counsel asserted in a call on November 9, 2021 that the
Department’s document requests were burdensome, id. ¶48. The Department asked
counsel for GDC to explain which document requests were burdensome and why.
Id.; Ex. 7 at 2; Department Nov. 18, 2021 Letter, Ex. 9, at 1. But GDC provided no
response. Decl. ¶48.
30. In addition, on numerous occasions—including during calls on
November 9, 2021 and November 19, 2021, as well as in the Department’s
November 10, 2021 Letter, see Ex. 7 at 2—the Department offered to help
minimize potential burdens in providing access to documents by arranging a
meeting between technical staff for the Department and GDC. Decl. ¶49. GDC
rejected all such offers. Id. The Department also asked GDC to bring technical
personnel to a meeting on October 28, 2021 to discuss logistics and specifications
2
GDC did not provide specific objections to any requests until its January 14, 2022
Subpoena Response, i.e., nearly four months after the Department sent its
document requests on September 24, 2021. Decl. ¶61.
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for providing access to documents. Id. ¶50. The Department’s litigation support
staff joined the October 28, 2021 meeting, but GDC’s technical staff did not. Id.
31. The Department has also informed the State’s attorneys that, if the
State had concerns with using its own staff to copy paper records, the Department
could send a vendor to make copies. Id. ¶51. The Department continues to extend
this option to GDC to assist with providing access to documents.
B. Issuance of the Subpoena
32. Because GDC provided access to only a tiny fraction of the
responsive documents requested, and because GDC unequivocally refused to
provide access to more documents until the Department satisfied the unilateral
conditions described in Section III.A.1 supra, the Department issued and served a
subpoena on GDC Commissioner Timothy Ward on December 14, 2021 pursuant
to 42 U.S.C. § 1997a-l(a). See Decl. ¶¶52–53, 56–57; Ex. 1; Ex. 1-A.
33. The Attorney General has delegated authority to issue, serve, and seek
enforcement of CRIPA subpoenas to the Assistant Attorney General for the Civil
Rights Division and any Deputy Assistant Attorney General for the Civil Rights
Division. See Decl. ¶54; Mar. 17, 2016 Att’y General’s Order No. 3648-2016, Ex.
18.
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34. The Subpoena was signed by Robert J. Moossy Jr., Deputy Assistant
Attorney General for the Civil Rights Division. Decl. ¶55; Ex. 1 at 2.
35. The Department served the Subpoena by electronic mail on counsel
for GDC per an agreement of the parties to accept service by electronic mail or
electronic transmission. See Decl. ¶¶56–57; Department Dec. 14, 2021 Email
Serving Subpoena, Ex. 19; GDC Dec. 9, 2021 Email, Ex. 20 (stating that counsel
had authority to accept service via email of a subpoena addressed to Commissioner
Ward).
36. The Subpoena gave GDC until January 14, 2022 to provide a
response. See Ex. 1 at 1.
C. GDC’s Response to the Subpoena
37. On January 14, 2022, GDC sent a response that included no additional
responsive documents. See Decl. ¶59; GDC Jan. 14, 2022 Email with Subpoena
Response, Ex. 21.
38. GDC’s response consisted of a six-page letter setting forth several
purported bases for refusing to comply with the Subpoena, as well as a 34-page
attachment with additional objections to the Subpoena and the individual document
requests. See Decl. ¶60; GDC Jan. 14, 2022 Subpoena Response, Ex. 22, and
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Attachment to the Subpoena Response, Ex. 22-A. This was the first time that GDC
provided specific objections to the Department’s document requests. Decl. ¶61.
IV. ANALYSIS
A. The Subpoena Is in Support of an Investigation Conducted for a
Legitimate Purpose.
The Department is investigating under CRIPA whether GDC’s correctional
facilities have a pattern or practice of depriving prisoners of their rights, privileges,
or immunities secured or protected by the Constitution. See 42 U.S.C. § 1997a(a).
Specifically, it is investigating whether the State has (1) failed to protect LGBTI
prisoners from sexual harassment, sexual abuse, and sexual assault by GDC staff
and other prisoners, and (2) failed to protect prisoners housed at the close and
medium security levels from harm due to prisoner-on-prisoner violence. See Decl.
¶¶2–3; Ex. 2; Ex. 3.
A failure to prevent prisoners from harm due to sexual harassment, sexual
abuse, and sexual assault, or due to prisoner-on-prisoner violence, implicates rights
protected by the Constitution. See Farmer v. Brennan, 511 U.S. 825, 833 (1994)
(“prison officials have a duty . . . to protect prisoners from violence at the hands of
other prisoners”) (internal quotation marks and citations omitted); Averhart v.
Warden, 590 F. App’x 873, 875 (11th Cir. 2014) (“[a] prison official’s failure to
prevent inmate-on-inmate violence may constitute deliberate indifference” in
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violation of the Eighth Amendment); Sconiers v. Lockhart, 946 F.3d 1256, 1267
(11th Cir. 2020) (explaining that “severe sexual abuse of a prisoner” violates the
Eighth Amendment). Therefore, the Department’s Subpoena seeks access to
documents in furtherance of an investigation conducted for a legitimate purpose
under CRIPA. See 42 U.S.C. § 1997a(a).
B. The Department Has Complied with All Applicable Administrative
Steps for Issuing the Subpoena.
Section 3A of CRIPA authorizes the Attorney General or, at the direction of
the Attorney General, any officer or employee of the Department of Justice, to
issue a subpoena for documents to determine whether institutional conditions have
deprived prisoners of their rights under the Constitution or federal law. 42 U.S.C. §
1997a-l(a). Section 3A requires that a subpoena issued under the statute bear the
signature of the Attorney General or any officer or employee of the Department
that the Attorney General has designated. 42 U.S.C. § 1997a-l(b)(1)(A). In
addition, the subpoena must be served by an individual or class of individuals the
Attorney General or a designated officer or employee designates for that purpose.
42 U.S.C. § 1997a-l(b)(1)(B).
Robert J. Moossy, Jr., Deputy Assistant Attorney General for the Civil
Rights Division, electronically signed the Subpoena. See Exs. 1 at 2. This was
within the authority granted him by the Attorney General. See Ex. 18 (delegating
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authority to issue, serve, and seek enforcement of subpoenas pursuant to CRIPA to
any Deputy Assistant Attorney General for the Civil Rights Division). On
December 14, 2021, Department employees served the signed Subpoena by
electronic mail on counsel for GDC per agreement of the parties. See Decl. ¶¶56–
57; Ex. 19; Ex. 20. Accordingly, the Department complied with the required
administrative steps for issuing the Subpoena. See 42 U.S.C. § 1997a-l(b)(1)(A)
and (B).
C. The Subpoena Is Within the Department’s Authority to Issue, Is Not
Too Indefinite, and Seeks Access to Documents Reasonably Relevant to
Its Investigation and Not in Its Possession.
CRIPA Subpoena No. 2021-01 demanded that GDC provide access to
documents responsive to the document request that the Department previously sent
the State on September 24, 2021. See Ex. 1 (Subpoena); Ex. 1-A (document
request included as attachment). The documents sought by the Subpoena are not
already in the Department’s possession because GDC refused to provide access to
the vast majority of the documents requested. See Decl. ¶53; supra Sections IV.A
and IV.B.
For reasons discussed in the accompanying Memorandum of Law, the
CRIPA Subpoena’s demand for access to documents is within the Department’s
authority, the demand is not too indefinite, and the documents sought are
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reasonably relevant to the Department’s investigation. See United States v. Fla.
Azalea Specialists, 19 F.3d 620, 622–23 (11th Cir. 1994); Memorandum of Law,
Section II.A.
D. All Other Prerequisites to the Subpoena’s Enforcement Have Been Met.
It is necessary to obtain responsive documents from GDC sought by CRIPA
Subpoena No. 2021-01 in order determine whether there have been violations of
the rights of GDC prisoners under the Constitution or other federal laws. For the
reasons set forth in the accompanying Memorandum of Law, all GDC’s objections
to the Subpoena fail.
GDC cannot withhold documents based on the Department’s purported
failure to sign an NDA. And even if it could, GDC cannot unilaterally demand that
the Department sign an NDA containing unreasonable terms such as a legally
unsupported fee-shifting requirement affecting the Department’s consultants. See
Memorandum of Law, Sections II.A–B.
GDC has no grounds to withhold documents based on the assertion that the
Department has failed to disclose adequately the basis, nature, or extent of its
investigation. See id., Section II.C.
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GDC cannot use relevance objections to withhold documents that CRIPA
expressly authorizes the Department to access, and even if it could, the documents
sought are plainly relevant to this investigation. See id., Section II.D.
GDC has not adequately justified assertions that the documents sought are
overbroad or disproportionate, or that responding would be unduly burdensome,
especially where GDC has refused to work cooperatively with the Department to
identify responsive documents or determine efficient ways to provide access to
them, for example by having technical staff for GDC meet with the Department to
discuss efficient ways for providing access. See id., Section II.E.
In addition, GDC cannot rely on unsupported privilege-based objections to
withhold access to responsive documents, particularly where federal law generally
and CRIPA specifically already provide protections to safeguard sensitive
information. See id., Section II.F.
GDC’s numerous unsupported objections to the Subpoena are delaying the
Department’s investigation into potential constitutional violations in GDC’s
prisons. Decl. ¶62. The subpoena is properly enforced within the United States
District Court for the Northern District of Georgia pursuant to Section 3A(b)(2) of
CRIPA, which allows for enforcement of the subpoena in the United States District
Court for the judicial district in which the institution is located. 42 U.S.C. § 1997a-
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1(b)(2). GDC’s Department headquarters is located in Atlanta, Georgia, and
multiple facilities within the scope of this investigation are located within this
District. Decl. ¶63.
V. CONCLUSION
WHEREFORE, the Petitioner United States respectfully requests that the
Court:
1. Issue an Order to Show Cause, directing Commissioner Ward to show
why he should not comply with and obey the aforementioned CRIPA Subpoena
No. 2021-01 and provide access to the specific documents requested by the
Department. A proposed Order to Show Cause has been submitted with this
Petition;
2. Enter an Order directing Commissioner Ward to, within 30 days, obey
the aforementioned CRIPA Subpoena No. 2021-01 by providing access to the
documents requested in Exhibit 1-A, which was attached to the Subpoena; and
3. Grant any such other relief as is just and proper, including the
assignment of this matter to a Magistrate Judge to address specific issues of the
parties and to facilitate compliance with the Petition and this Court’s Order.
Respectfully submitted,
Dated: March 25, 2022
22
Case 1:22-mi-00027-SCJ Document 1 Filed 03/28/22 Page 23 of 25
KURT R. ERSKINE KRISTEN CLARKE
United States Attorney Assistant Attorney General
Northern District of Georgia Civil Rights Division
/s/ Aileen Bell Hughes STEVEN H. ROSENBAUM
AILEEN BELL HUGHES Chief, Special Litigation Section
GA Bar No. 375505 Civil Rights Division
Assistant United States Attorney
U.S. Attorney’s Office /s/ Laura L. Cowall
600 United States Courthouse LAURA L. COWALL
75 Ted Turner Drive, SW DC Bar No. 481379
Atlanta, GA 30303 Deputy Chief, Special Litigation Section
Telephone: (404) 581-6000 150 M Street NE
Fax: (404) 581-4667 Washington, D.C. 20530
Email: aileen.bell.hughes@usdoj.gov Telephone: (202) 514-1089
Email: laura.cowall@usdoj.gov
/s/ Lance Simon
LANCE SIMON /s/ Helen Vera
GA Bar No. 447643 HELEN VERA
Special Assistant United States Attorney DC Bar No. 1025735
U.S. Attorney’s Office Trial Attorney, Special Litigation Section
P.O. Box 1702 150 M Street NE
Macon, GA 31202 Washington, D.C. 20530
Telephone: (478) 621-2663 Telephone: (202) 305-0132
Email: lance.simon@usdoj.gov Email: helen.vera@usdoj.gov
/s/ Bradford C. Patrick /s/ Christopher N. Cheng
BRADFORD C. PATRICK CHRISTOPHER N. CHENG
SC Bar No. 102092 PA Bar No. 69066
Special Assistant United States Attorney Trial Attorney, Special Litigation Section
U.S. Attorney’s Office 150 M Street NE
P.O. Box 8970 Washington, D.C. 20530
Savannah, GA 31412 Telephone: (202) 514-8892
Telephone: (912) 652-4422 Email: christopher.cheng@usdoj.gov
Email: bradford.patrick@usdoj.gov
/s/ Matthew Nickell
MATTHEW NICKELL
CA Bar No. 304828
Trial Attorney, Special Litigation Section
23
Case 1:22-mi-00027-SCJ Document 1 Filed 03/28/22 Page 24 of 25
150 M Street NE
Washington, D.C. 20530
Telephone: (202) 353-5644
Email: matthew.nickell2@usdoj.gov
Attorneys for the United States of America
24
Case 1:22-mi-00027-SCJ Document 1 Filed 03/28/22 Page 25 of 25
L.R. 7.1(D) CERTIFICATION
I certify that the foregoing has been prepared with one of the font and point
options approved by the Court in Local Rule 5.1(C). Specifically, this document
has been prepared using 14-pt Times New Roman Font.
This 25th day of March, 2022
/s/ Aileen Bell Hughes
AILEEN BELL HUGHES
ASSISTANT U.S. ATTORNEY
25
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