Walters v. Snyder, No. 22-1353 (6th Cir. 2022)
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Officials switched Flint’s municipal water supply from the Detroit Water Department to the Flint River, reviving a dormant treatment plant. Flint residents immediately complained of water that looked, tasted, and smelled foul. There was 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 aging pipes into the water. The plaintiffs, children who suffered lead poisoning, brain damage, and other injuries, sued “governmental defendants” and “engineering defendants.” Criminal charges were prosecuted at the same time.
The appellants, Flint Emergency Managers, and the former Flint Director of Public Works sought a protective order in the civil litigation after their initial criminal charges were dismissed, asking the court to delay discovery pertaining to them until the criminal statute of limitations expired or to seal the discovery. The district court denied the motion. Each sat for a deposition; none invoked the Fifth Amendment. All were later indicted.
The governmental defendants settled the civil case. The remaining civil defendants served subpoenas on appellants, who moved to quash, contending that they would invoke their privilege against self-incrimination. The court denied the motions, concluding that they had waived the privilege by testifying at their depositions. At trial, after each appellant invoked the Fifth Amendment, the court played videos of the depositions. After a mistrial, the court scheduled a retrial.
The Sixth Circuit vacated. Appellants’ deposition waivers did not waive the privilege at trial because the waiver extended only through cross-examination at their depositions.
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