Louisiana State Board of Nursing VS Sheriff Sid J. Gautreaux, III In His Official Capacity as East Baton Rouge Parish Sheriff and Hillar Moore, III In His Official Capacity as District Attorney for the 19th Judicial District, Parish of East Baton Rouge
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2009 CA 1758 LOUISIANA STATE BOARD OF NURSING VERSUS SHERIFF SID J GAUTREAUX III IN HIS OFFICIAL CAPACITY AS EAST BATON ROUGE PARISH SHERIFF AND HILLAR C MOORE III IN HIS OFFICIAL CAPACITY AS DISTRICT ATTORNEY FOR THE 19TH JUDICIAL DISTRICT PARISH OF EAST BATON ROUGE Judgment Rendered June 11 2010 Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge Louisiana Trial Court Number 578 649 Honorable Kay Bates Judge Presiding E Wade Shows Jeffrey K Cody Baton Rouge LA Counsel for PlaintiffAppellant Louisiana State Board ofNursing Mary G Erlingson Counsel for Defendant Appellee Catherine S St Pierre Sheriff Sid J Gautreaux Baton Rouge LA Dale R Lee Baton Rouge LA Counsel for Defendant Appellee District Attorney Hillar C Moore III BEFORE WHIPPLE HUGHES AND WELCH JJ HUGHES J This is an appeal from the denial of injunctive and declaratory relief sought by the Louisiana Board of Nursing Nursing Board to compel the production of records by the East Baton Rouge Parish Sheriff Sheriff and the District Attorney for the Nineteenth Judicial District D A For the following reasons we affirm FACTS AND PROCEDURAL HISTORY On April 10 2009 a nurse working at a Baton Rouge area hospital allegedly sexually assaulted a patient The Sheriff and the D began an A investigation The Nursing Board suspended the nurse license on an s emergency basis and in preparation for a hearing on the matter as mandated by La Admin Code Title 46 Part XLVII H 3411 issued subpoenas to both the Sheriff and the D for the arrest report along with anyall A associated narrative reports and the like pertaining to the arrest ofthe nurse at issue Although the Sheriff initial arrest report was provided to the s Nursing Board the Sheriff and the D declined to turn over any further A records contending such records pertained to a pending criminal proceeding and were therefore not public records subject to disclosure under spublic records law LSAR 44 et seq Louisiana S1 On May 22 2009 the Nursing Board filed the instant suit against the Sheriff and the D citing its subpoena power as granted by LSAR A S 918 37 and LSAR 49 and seeking a writ of attachment or injunctive S 956 relief compelling production of the records sought as well as a declaratory judgment that LSA R 44 provides no privilege in favor of the S 3 1 Section 3411 Hprovides Emergency Action If the board finds that public health safety and welfare requires emergency action and a finding to that effect is incorporated in its order summary suspension of a license may be ordered by the executive director or designee pending proceedings for revocation or other action Such proceedings shall be promptly instituted and determined at the next regularly scheduled board meeting 2 defendants exempting the production of the records In response to the suit both the Sheriff and the D filed answers denying the Nursing Board A s entitlement to the relief sought along with motions to quash the Nursing s Board subpoenas The Sheriff further sought in the alternative a protective order precluding the production ofthe requested documents The A D also sought injunctive relief to stay the Nursing Board proceedings and further argued that its constitutionally mandated responsibility regarding criminal prosecutions in its district as provided in LSA Const Art V 26 should take precedence over the statutory subpoena power granted to the Nursing Board Following a hearing on June 3 2009 the district court ruled that while LSA R 44 does not create a privilege it does embod an important S 3 y public policy designed to preserve the integrity of an ongoing criminal investigation and to prevent the disclosure of any criminal investigative files including files sought by subpoena or through other court sanctioned process The district court ruled that such a privilege has been judicially created citing Conella v Johnson 345 So 498 La 1977 and 2d Freeman v Guaranty Broadcasting Corp 498 So 218 La App 1 Cir 2d 1986 Further the district court rejected the Nursing Board contention s that its statutory subpoena power extended to law enforcement investigatory files citing language contained in LSAR 37 922 In conjunction S 921 with its rulings the district court signed a judgment on June 22 2009 denying the Nursing Board request for injunctive and declaratory relief s granting the motions to quash the Nursing Board subpoenas issued to the s Sheriff and the D and denying the D request for a stay of the A s A Nursing Board proceedings s The Nursing Board has appealed this judgment asserting that the K district court committed legal error in 1 interpreting LSA R 44 as S 3 creating a privilege over the records of law enforcement officials that may withstand a lawful subpoena 2 misinterpreting the Nurse Practice Act LSA R 37 et seq as imposing a restriction on the Nursing Board S 911 s ability to investigate and discipline its licensees for criminal conduct and 3 ruling that the Nursing Board was not entitled to injunctive relief on the basis that no showing of irreparable harm loss or damage had been made On appeal the Sheriff and D have filed a joint motion to dismiss the A appeal on the basis of mootness asserting that the Nursing Board hearing for which the subpoenas at issue were issued has already occurred and that the allegedly abusive nurse license has been revoked In the alternative the s Sheriff and D seek to have the appellate record supplemented with the A Nursing Board decision that revoked the referenced nurse license s DISCUSSION Motion to Dismiss for Mootness It is well settled that courts will not decide abstract hypothetical or moot controversies or render advisory opinions with respect to controversies Cases submitted for adjudication must be justiciable ripe for decision and not brought prematurely A justiciable controversy is one presenting an existing actual and substantial dispute involving the legal relations of parties who have real adverse interests and upon whom the judgment of the court may effectively operate through a decree of conclusive character A justiciable controversy is thus distinguished from one that is hypothetical or abstract academic or moot City of Hammond v Parish of Tangipahoa 2007 0574 pp 6 7 La App 1 Cir 3 985 So 08 26 2d 171 178 citing St Charles Gaming Company v Riverboat Gaming Commission 942679 p 6 La 1 648 So 1310 1315 and St 95 17 2d ll Charles Parish School Board v GAF Corporation 512 So 1165 2d 117071 La 1987 on rehearing An issue is moot when a judgment or decree on that issue has been deprived of practical significance or made abstract or purely academic Thus a case is moot when a rendered judgment or decree can serve no useful purpose and give no practical relief or effect If the case is moot there is no subject matter on which the judgment of the court can operate That is jurisdiction once established may abate if the case becomes moot The controversy must normally exist at every stage of the proceeding including appellate stages City of Hammond v Parish of Tangipahoa 2007 0574 at p 7 985 So at 178 citing Cat Meow Inc v City of 2d s New Orleans Through Department of Finance 980601 pp 8 9 La 98 20 10 720 So 1186 1193 2d A case may become moot for several reasons including because the law has changed because a defendant has paid funds owed and no longer wishes to appeal notwithstanding the plaintiffs desire to obtain a higher court ruling because allegedly wrongful behavior has passed and can not reasonably be expected to recur because a party can no longer be affected by a challenged statute for example a law regulating rights of a minor who as a party and through the lapse of time is no longer within the age bracket governed by the statute or because a party has died Id Even though the requirements of justiciability are satisfied when the suit is initially filed when the fulfillment of these requirements lapses at some point during the course of litigation before the moment of final disposition mootness occurs In such a case there may no longer be an actual controversy for the court to address and any judicial pronouncement on the matter would be an impermissible advisory opinion See City of 5 Hammond v Parish of Tangipahoa 2007 0574 at pp 78 985 So at 2d 178 citing Cat Meow Inc V City of New Orleans Through s Department of Finance 980601 at p 9 720 So at 1193 94 A court 2d must refuse to entertain an action for a declaration of rights if the issue presented is academic theoretical or based on a contingency that may or may not arise American Waste Pollution Control Company v St Martin Parish Police Jury 627 So 158 162 La 1993 Nor is a court 2d required to decide moot questions or abstract propositions or to declare for the govemment of future cases principles or rules of law that cannot affect the result as to the thing in issue in the case before it Council of City of New Orleans v Sewerage and Water Board of New Orleans 20061989 p 5 La 4 953 So 798 802 quoting St Charles Parish School 07 11 2d Board v GAF Corporation 512 So at 1173 2d However exceptions to the mootness doctrine have been recognized In particular and as applicable to the instant case a court should consider whether there is any reasonable expectation that the complainedof conduct will recur See Cat Meow Inc v City of New Orleans Through s Department of Finance 980601 at pp 9 13 720 So at 1194 96 A 2d finding of mootness is precluded when 1 the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration and 2 there is a reasonable expectation that the same complaining party will be subjected to the same action again In re Grand Jury 982277 p 11 La 99 13 4 737 So 1 11 2d In the instant case the Nursing Board makes a compelling argument and we are persuaded that the facts of this case warrant an exception to the general rule of mootness Although the Nursing Board has failed to admit that it has already conducted the revocation hearing for which the documents 31 subpoenaed were sought and that the license of the nurse in question has been revoked in accordance with LSA C art 202 and as E e 1 B requested by the defendants appellees we take judicial notice of the fact that the license of the nurse at issue was permanently revoked by the Nursing Board following its September 1416 2009 board meeting Because all of the events at issue took place within a fivemonth period of time this is a matter that is capable of repetition yet evading review and for that reason can be considered by this court though technically moot See Kirk v State 526 So 223 226 n La 1988 2d 2 See also Nebraska Press Association v Stuart 427 U 539 546 96 S S Ct 2791 2797 49 L 683 1976 Therefore we deny the motion to 2d Ed dismiss this appeal We further find no merit in the defendantsappellees lawofthecase argument asserting that this court should refuse to consider this matter on appeal after having previously denied the Nursing Board relief on its application for supervisory review However upon review of the Nursing 2 Article 202 provides in pertinent part e 1 B A court shall take judicial notice of the following if a party requests it and provides the court with the information needed by it to comply with the request and may take judicial notice without request of a party of rlules and decisions of boards commissions and agencies of the United States or of any state territory or other jurisdiction of the United States which have been duly published and promulgated and which have the effect of law within their respective jurisdictions 3 The Nursing Board has duly published this fact on its Internet website wherein it is stated that following a disciplinary action from the September 14 16 2009 Board Meeting the license of Bruce Raymond Greene was permanently revoked for Sexual Misconduct Immediate Threat to Health or Safety See httpJwtvw state la usdocuments FaaminersiFrnninerF odf lsbn 009 tll 4 The date of the alleged offense was April 9 2009 and the nurse was arrested on April 10 2009 The Nursing Board sent subpoenas to the Sheriff and D on April 14 2009 May 6 2009 and A May 20 2009 By May 22 2009 both the Sheriff and the D had responded to the subpoenas A indicating that aside from the arrest report that had been provided to the board no additional information would be provided because the matter was under consideration for possible criminal prosecution On May 22 2009 the Nursing Board filed the instant suit seeking to enforce its subpoenas By June 2009 the Nursing Board had summarily suspended the nurse license as a s postsuspension hearing was originally scheduled for its June 9 2009 meeting though the matter was continued During its September 14 16 2009 meeting the Nursing Board held the hearing and permanently revoked the nurse license s 7 s Board writ application and this court decision to deny that application s we conclude that the merits were not addressed therein it appears the writ application was denied because the Nursing Board motion for appeal had s been granted and a more thorough review of the issues presented could be obtained on appeal Louisiana State Board of Nursing v Gautreaux 2009 1403 La App 1 Cir 8 While under the lawofthecase 09 31 doctrine an appellate court generally will not on a subsequent appeal reconsider its earlier ruling in the same case this discretionary doctrine only applies to parties and issues that were actually presented and decided by the appellate court East Baton Rouge Parish School Board v Wilson 2008 0536 p 9 La App 1 Cir 6 992 So 537 543 writ denied 2008 08 2d 1479 La 12 997 So 560 Since the Nursing Board earlier writ 08 2d s application was denied on a procedural basis the lawofthecase doctrine has no relevance herein Having taken judicial notice of the Nursing Board ruling revoking the nursing license at issue we find it unnecessary to grant the defendantsappellees motion to supplement the appellate record with a copy of the decision The motion to supplement the record is therefore denied Subpoena Power of the Nursing Board The Nursing Board is empowered by LSA R 37 et seq to S 921 deny revoke suspend probate limit or otherwise restrict licenses of individuals who violate the nursing laws provide procedure and conduct hearings for the discipline of individuals as needed and establish alternatives to the disciplinary process when considered appropriate by the board and cause the prosecution of all persons violating any provision of the nursing laws LSAR 378 The board may deny revoke suspend S 918 6 probate limit or restrict any license to practice as a registered nurse or impose fines and assess costs or otherwise discipline a licensee upon proof that the licensee is unfit or incompetent by reason of negligence habit or other cause or is guilty of moral turpitude7 LSA R 37 and La S 921 Admin Code Title 46 Part XLVII 3403 in pertinent part In this case the Nursing Board determined that the referenced nurse had violated one or more of the foregoing provisions and summarily suspended his license In preparation for a post suspension revocation hearing the board issued the subpoenas at issue herein The Nursing Board is granted the power to issue subpoenas by LSA S 918 R 37 which provides in pertinent part that the Nursing Board shall ave h all other powers necessary and proper to the performance of their duties including but not limited to the power to subpoena Further LSA S 956 R 49 authorizes subpoena power in favor of administrative agencies generally providing in pertinent part that a agency or its subordinate ny presiding officer shall have power to sign and issue subpoenas in the name of the agency requiring attendance and giving of testimony by witnesses and the production of books papers and other documentary evidence Generally speaking a subpoena issued by an administrative agency is valid must be obeyed and will be upheld and enforced by the courts so long as the investigation is for a lawfully authorized purpose within the power of the legislature to command the information sought is relevant and material s Negligence is defined as a breach ofduty of care owed to a party LAC 46 3405 XLVII 6 Other Causes is defined as including but is not limited to the failure to practice nursing in accordance with the legal standards of nursing practice the failure to utilize appropriate judgment the failure to act or negligently or willfully committing any act that adversely affects the physical or psychosocial welfare of the patient the violation of a rule adopted by the board an order of the board or a state or federal law relating to the practice of professional nursing or as exceeding professional boundaries including but not limited to sexual misconduct LAC XLVII 46 3405 Moral turpitude is defined as an act which is dishonest or contrary to good morals LAC XLVII 46 3405 6 to the investigation and the conditions under which production of records is ordered are not unreasonable Mary Moe L v Louisiana Board of C Ethics 2003 2220 pp 1011 La 4 875 So 22 30 Francis v 04 14 2d Accardo 602 So 1066 1068 69 La App 1 Cir 1992 See also LSA 2d P C art 1354 A During the course of this litigation the defendants appellees have argued that even though the Nursing Board is statutorily vested with the power to issue subpoenas that power is not without limit We agree While we recognize the importance of the Nursing Board statutory s duty to ensure that nurses who pose a threat to the physical and emotional wellbeing of the patients they serve are removed from the practice of nursing we must balance that interest against the constitutional duty imposed on a district attorney to have charge of every criminal proceeding in his district The Louisiana Constitution mandates that the district attorney or his designated assistant shall have charge of every criminal prosecution by the state in his district LSA Const Art V B 26 See also LSA R 16 S 1 A district attorney is vested with broad and sweeping powers as part and parcel of his role as the state prosecuting attorney and he exercises a s portion of the sovereign power of the state within the district of his office The district attorney has entire charge and control of every criminal prosecution instituted or pending in his district and determines whom when and how he shall prosecute Furthermore the jurisdiction of the district 8 Louisiana Code of Civil Procedure Article 1354 provides in pertinent part The court in A which the action is pending in its discretion may vacate or modify the subpoena if it is unreasonable or oppressive 9 Code of Criminal Procedure Article 61 provides Subject to the supervision of the attorney general as provided in Article 62 the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district and determines whom when and how he shall prosecute 10 attorney to prosecute those who violate state criminal statutes is exclusive it can only be constrained or curtailed when it operates to the prejudice of a contrary constitutional mandate and even then only with due deference to the district attorney constitutional prerogative Board of Commissioners s of Orleans Levee District v Connick 94 3161 La 3 654 So 95 9 2d 1073 1077 citing State v Perez 464 So 737 744 La 1985 Diaz v 2d Allstate Insurance Company 433 So 699 701 La 1983 City of 2d Baton Rouge v Short 345 So 37 40 La 1977 2d A crime as opposed to any manner of civil offense is a direct affront to the sovereign the sovereign qua sovereign is therefore a party to such suits in its role as prosecutor Because the sovereign has a direct interest in the initiation and resolution of a criminal proceeding the rules of procedure applicable to it differ considerably from those applicable to a civil action In addition because a criminal action offers the prospect of a citizen opposed by the vast and impersonal resources of the state constitutional protections come to the fore in the criminal context sculpting the applicable substantive and procedural mechanisms far more comprehensively than in a civil setting In short when it addresses a criminal cause the sovereign is not concerned with providing an effective arena for two relatively equal litigants to match wits rather it is concerned with providing an effective way of vindicating its interest in promoting criminal justice while respecting the fundamental fairness that due process and related constitutional guarantees ensure colors the exercise of criminal jurisdiction Board of Commissioners of Orleans Levee District v Connick 654 So at 1080 2d The balancing of a party interest in obtaining civil relief against the s district attorney right to investigate and prosecute state crimes is a s balancing that is weighted towards the district attorney because of the 11 singular interest of the sovereign in criminal matters and the way in which that interest is vindicated in the criminal justice system Id at 1081 In the instant case during the district court hearing Nursing Board Director of Investigations Joy Peterson testified that the board has only four investigators and averages about thirtyfive new complaints against nurses each month Ms Peterson testified that the board was particularly interested in making a good case against the nurse at issue because it had received several prior complaints about him involving improper contact with patients but had been unable to take action because these other patients due to their mental status would not have been able to testify against him Ms Peterson stated that in preparing disciplinary cases the board regularly directs subpoenas to law enforcement agencies to supplement its own investigation results some of these agencies comply and some do not Further Ms Peterson admitted that copies of the material it receives in response to these subpoenas must be turned over to the nurse who is the subject of the disciplinary action if that material will be used in the disciplinary hearing Ms Peterson further acknowledged that Nursing Board employees had interviewed both the victim and the accused nurse in this case By means of subpoena the Nursing Board sought any and all of the information in the possession of the Sheriff and the D concerning the A offense These requests were made less than fortyfive days after the s Sheriff arrest of the suspect nurse and before any bill of information or indictment was filed Before the suspect nurse was formally charged even he had no right to the discovery of documents or reports in the possession of 12 the D Furthermore the Nursing Board admitted that it would have A turned over to the nurse at issue any material it received from the D or the A Sheriff which it intended to use during its hearing on the nurse license s revocation Such an action would surely tip law enforcement hand in favor s of the suspect nurse jeopardizing the D case before formal prosecution s A commenced Under such a scenario the D interest in preserving the s A best possibility of success in an anticipated criminal prosecution would take precedence over that of the Nursing Board interest in bolstering the s evidence it possessed for a disciplinary proceeding In accordance with LSA C arts 521 and 729 a defendant must file his motion for P Cr discovery within fifteen days after arraignment Items a defendant in a criminal proceeding upon his motion is entitled to obtain through discovery include the following any relevant written or recorded confession or statement of any nature including recorded testimony before a grand jury a copy of any record of his criminal arrests and convictions that is in the possession ofthe district attorney or the appropriate law enforcement agency books papers documents photographs tangible objects buildings places or copies or portions thereof favorable to the defendant which are within the possession custody or control of the State and which are material and relevant to the issue of guilt or punishment or are intended for use by the State as evidence at the trial or were obtained from or belong to the defendant subject to the limitation of Article 723 any results or reports or copies thereof of a physical or mental examination and of scientific tests or experiments made in connection with or material to the particular case which are in the possession custody control or knowledge of the State and intended for use at trial exculpatory evidence shall be produced under Article 719 even though it is not intended for use at trial and any relevant written or recorded confessions or inculpatory statements made by a codefendant and intended for use at trial exculpatory evidence shall be produced under Article 722 even though it is not intended for use at trial LSAC arts 716 717 718 719 and 722 In P Cr A addition and upon the defendant smotion whenever the court orders the defendant to provide urine blood saliva or hair samples or samples of other bodily substances for deoxyribonucleic acid testing in a criminal case the defendant shall be authorized to acquire onehalf of the deoxyribonucleic acid sample to be tested separately by the defendant at his expense LSA P Cr C art 719 Further the defendant upon his motion is entitled to be informed of the B existence but not the contents of any oral confession or statement of any nature made by the defendant which the State intends to offer in evidence at the trial the State intent to offer s evidence of the commission of any other crime admissible under the authority of LSAC art E 404 provided that the State shall not be required to inform the defendant of the its intent to offer evidence of offenses that relate to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding or other crimes for which the accused was previously convicted and the State intent to use statements of coconspirators pursuant to LSA C art s E b 3 D 801 LSAC arts 716 720 and 721 Also the defendant upon his motion P Cr B must be informed of the substance of any oral statement that the State intends to offer in evidence made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be a law enforcement officer LSAC art 716 P Cr C However it should be noted that except as provided in Articles 716 718 721 and 722 the discovery provisions of the Code of Criminal Procedure do not authorize the discovery or inspection ofreports memoranda or other internal State documents made by the district attorney or by agents of the State in connection with the investigation or prosecution of the case or of statements made by witnesses or prospective witnesses other than the defendant to the district attorney or to agents of the State as provided by LSA Cart 723 P Cr The Nursing Board admitted before the district court that its burden of proof to revoke nursing license is by a preponderance of the evidence which is less than that required in criminal proceeding 13 It is apparent that the legislature recognized that the greater public interest protected by law enforcement in the investigation and prosecution of crimes should take precedence over the civil administrative interests served by the Nursing Board Louisiana Revised Statute 37 essentially 926 provides that actions under the nursing laws shall not interfere with criminal prosecutions by the attorney general or district attorney of any parish 12 See also Campbell v Eastland 307 F 478 487 5th Cir 1962 cert denied 2d 371 U 955 83 S 502 9 L 502 1963 stating that S Ct 2d Ed administrative policy gives priority to the public interest in law enforcement After a thorough review of the issues presented in this case we conclude that the Nursing Board subpoenas were both unreasonable in s seeking to obtain law enforcement records prior to the filing of criminal charges and represented interference with the prosecutorial responsibilities of the D by the Nursing Board practice of providing all documents in A s its possession that it intended to use in a disciplinary hearing to the accused 12 Louisiana Revised Statute 37 is found in Title 37 Professions and Occupations Chapter 926 11 Nurses Part 1 Registered Nurses and provides Acts constituting violations as set out in R 37 shall be subject to S 925 prosecution This prosecution shall be brought in the name of the state but nothing in this Part shall prevent or interfere with the prosecution of such proceedings by the attorney general or the district attorney of any parish when the proceedings have been initiated by him Louisiana Revised Statute 37 lists various violations and penalties and incorporates those 925 violations listed in LSAR 37 which encompasses the alleged nursing misconduct at issue S 921 herein in its prohibition that n person shall engage in any of the following activities o iolate v any provision of this Part 14 nurse thereby disclosing the essentials of the D criminal case in s A violation of LSAR 37 Therefore we conclude the district court did S 926 not err in denying injunctive and declaratory relief to the Nursing Board and in the granting the motions to quash the subpoenas Having resolved the issues on appeal on this basis we find it unnecessary to address the remaining assignments of error particularly the arguments relative to Louisiana public records law 14 s CONCLUSION For the reasons stated herein the motion to dismiss the appeal is denied the motion to supplement the appellate record is denied and the district court judgment is affirmed All costs of this appeal in the amount of are assessed to the Louisiana Board of Nursing MOTION TO DISMISS APPEAL DENIED MOTION TO SUPPLEMENT APPELLATE RECORD DENIED AFFIRMED 13 Traditionally the narrow scope of discovery in criminal litigation is justified by three considerations which are said to be peculiar to criminal law First there has been a fear that broad disclosure of the essentials of the prosecution case would result in perjury and s manufactured evidence Second it is supposed that revealing the identity of confidential government informants would create the opportunity for intimidation of prospective witnesses and would discourage the giving ofinformation to the government Finally it is argued that since the self incrimination privilege would effectively block any attempts to discover from the defendant he would retain the opportunity to surprise the prosecution whereas the state would be unable to obtain additional facts This procedural advantage over the prosecution is thought to be undesirable in light of the defendant existing advantages Campbell v Eastland 307 F at s 2d 487 n 12 14 We note the conflict in the jurisprudence as to the effect of the public records law as expressed in LSAR 44 exempting as public records the disclosure of the records of law enforcement S 3 agencies related to pending or reasonably anticipated criminal litigation some cases apply LSA S3 R 44 as creating a privilege against subpoenas issued to law enforcement agencies in civil proceedings Conella v Johnson and Freeman v Guaranty Broadcasting Corp while other cases declare that LSAR 44 does not create a privilege exempting law enforcement records S 3 from production for court purposes see State v Berry 324 So 822 La 1975 and State v 2d Babin 319 So 367 La 1975 2d 15
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