In dismissing the effort to stop investigators from accessing emails sent by Sheriff-elect Mark Garber’s estranged wife to her divorce attorney, 15th Judicial District Judge Thomas Duplantier said Monday morning that his civil courtroom is not the place to attempt to thwart a criminal investigation.
Earlier this year, Mark Garber filed a criminal complaint against his wife, who filed for divorce a week after his Nov. 30 election, alleging she stole 32 emails containing 13,000 legal documents from his law office while she was employed there. Among those files are purported to be privileged attorney-client communications, confidential medical records, attorney referrals and case files Mark contends his wife planned to turn over to her divorce attorney, Richard Mere, for use in expanding Mere's practice to include worker’s compensation law, Mark Garber’s specialization. Mark also claims that financial information retrieved from the allegedly stolen records would prove valuable to his wife in their ongoing divorce proceeding.
Mark Garber filed the criminal complaint with the Lafayette Police Department, which then subpoenaed Microsoft Corp. to conduct a search of Rachel Garber's and Richard Mere's emails as part of its investigation into whether a crime was committed. Monday's hearing was set to decide if that search should proceed.
Two attorneys who attended the Monday hearing tell The IND that Duplantier said Microsoft Corp. should not have informed its customers, Rachel Garber and attorney Mere, of the subpoena issued by the Lafayette Police Department to search the emails.
Duplantier wondered out loud why Microsoft was not in the courtroom to answer to its actions, noting he could have held the company in contempt of court.
“If everybody could stem a subpoena in midstream, we would have no criminal justice system,” Duplantier said, according to The Advocate. “It’s not my place to decide what is and is not discoverable in a criminal case.”
After Mark Garber filed the complaint against her, Rachel Garber accused the sheriff-elect of abuse of power, and in April attorney Mere was successful — much to Duplantier’s consternation — in his effort to shop for a judge willing to sign a temporary restraining order to stop the Microsoft search. The preliminary injunction and TRO was signed on April 18 by Ad Hoc/Pro Tem Judge Ronald Cox.
Mere claims the search will violate attorney-client privilege (a concern local investigators, it seems, wouldl be sensitive to). The attorney contends neither Microsoft nor the LPD would explain precisely what emails they were looking for or what those emails would contain, thereby breaching rights to privacy and attorney/client privilege protected by the U.S. Constitution. "Regardless of their claims or allegations of theft of business records, the state would not have the right to get email communications between myself and my client, short of an act of terrorism justifying the plunder of my email account,” Mere told The Independent last month.
Rachel Garber and Mere, both represented by attorney Jeff Speer, were present in court Monday. Speer told The Advocate it is likely Mere will direct him to request that the Third Circuit Court of Appeal review Duplantier's ruling.
Mark Garber, who assumes office July 1, was not in court for Monday's hearing, but his divorce attorney, Phil Kobetz, did attend.
Read The IND’s initial coverage of this matter here.