Jones v. Cannizzaro
Jones v. Cannizzaro
2019 WL 8888002 (E.D. La. 2019)
October 23, 2019

Wilkinson, Jr., Joseph C.,  United States Magistrate Judge

Criminal
30(b)(6) corporate designee
Waiver
Attorney Work-Product
Privacy
Failure to Produce
Proportionality
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Summary
The court granted the motion for production of the office personnel file of Assistant District Attorney Michael Bollman, subject to the limitations contained in the protective order already in place. The motion was denied for production of the named 56 complete case files of the Orleans Parish District Attorney's Office, as well as an order requiring production of Assistant District Attorney David Pipes's notes. The court also found that the party seeking materials protected by the work product doctrine bears the burden of demonstrating that a waiver of work product protection occurred.
ROBERT JONES
v.
LEON CANNIZZARO ET AL.
CIVIL ACTION NO. 18-503
United States District Court, E.D. Louisiana
Filed October 23, 2019

Counsel

Mark Aaron Cunningham, Jones Walker, New Orleans, LA, Alan Mark Vinegrad, Pro Hac Vice, Erin Katherine Monju, Pro Hac Vice, John Foster Nelson, Pro Hac Vice, Mary Katherine Swears, Pro Hac Vice, Covington & Burling LLP, Nina Rauh Morrison, Pro Hac Vice, Innocence Project, New York, NY, Benjamin Garrett Cain, Pro Hac Vice, Covington & Burling, LLP, Los Angeles, CA, for Robert Jones.
Thomas Jeffrey Barbera, Barbera Law Firm, Metairie, LA, Donna R. Andrieu, Robert L. Freeman, Jr., Orleans Parish District Attorney's Office, John Salm Alford, Dudley Debosier, PLC, Matthew J. Paul, Richard C. Stanley, W. Raley Alford, III, Stanley, Reuter, Ross, Thornton & Alford, LLC, New Orleans, LA, for Leon A. Cannizzaro, Jr.
Wilkinson, Jr., Joseph C., United States Magistrate Judge

ORDER AND REASONS ON MOTION

SECTION “H” (2)
*1 This is a civil rights action in which Robert Jones (“plaintiff”) alleges that the office of the Orleans Parish District Attorney (defendant Leon Cannizzaro in his official capacity) engaged in a practice of suppressing information and evidence favorable to criminal defendants in violation of Brady v. Maryland, 373 U.S. 83 (1963). Complaint, Record Doc. No. 1. Plaintiff alleges that this practice resulted in the violation of his rights during his lengthy criminal proceedings dating back to the 1990s. Id. Among other things, plaintiff alleges that the violation was the result of official policies and customs of the office evident in a number of prosecutions in addition to his own.

 

Plaintiff’s Second Motion to Compel Discovery from Defendant Leon Cannizzaro, Jr. and for Leave to Depose Kyle Daly is pending before me. Record Doc. No. 150. Specifically, the motion seeks an order requiring the following five (5) kinds of relief: (1) production of the personnel file of deceased Assistant District Attorney Michael Bollman; (2) production of complete case files concerning 56 criminal defendants prosecuted by the Orleans Parish District Attorney’s Office; (3) production of the notes of a meeting taken by Assistant District Attorney David Pipes; (4) an order requiring completion of defendant’s production of electronically stored information no later than November 1, 2019; and (5) leave to again exceed the presumptive limit on depositions by taking the deposition of current Assistant District Attorney Kyle Daly.

 

Defendant filed a timely opposition memorandum. Record Doc. No. 171. Plaintiff was permitted to file a reply memorandum, Record Doc. Nos. 175–76, 178, and defendant was permitted to file a surreply. Record Doc. Nos. 177, 179, 180. Having considered the submissions of the parties, the record as a whole and the applicable law, IT IS ORDERED that the motion is GRANTED IN PART AND DENIED IN PART as follows.

 

In deciding this motion, I apply the same Rule 26(b) relevance, proportionality and limitation standards applied in my previous discovery order. Record Doc. No. 60. While plaintiff cites, Record Doc. No. 150-1 at p. 1, the opinion of Chief Judge Brown of this court in Fairley v. Wal-Mart Stores, Inc., 2016 WL 9582711, at *4 (E.D. La. Oct. 26, 2016)(citing Herbert v. Lando, 441 U.S. 153, 177 (1979)), for the proposition that the scope of discovery should “be accorded broad and liberal treatment,” his counsel fails to mention the Chief’s clear statement in the very next sentence that discovery simultaneously “ ‘has ultimate and necessary boundaries.’ ” Fairley, 2016 WL 9582711, at *4 (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)). I find that while the requested discovery is potentially relevant, the “ultimate and necessary boundaries” contained in the proportionality and the other limitations in Fed. R. Civ. P. 26(b)(2)(C) are at issue. As to proportionality particularly, the same previous determination of the various factors applies here, except that the importance of the discovery currently at issue in resolving the issues and whether its burden and expense outweighs its likely benefit to the case must be reevaluated with focus on the particular proposed additional discovery. Overall, balancing the applicable factors militates in favor of extensive discovery, which has in fact already occurred, but not extraneous and excessive discovery, some of which plaintiff now requests.

 

*2 The motion is granted insofar as it seeks production of the office personnel file of Assistant District Attorney Michael Bollman, subject to the limitations contained herein. Bollman was the author of a memorandum that is a key piece of evidence in this matter. He is deceased and cannot be deposed. Thus, production of Bollman’s personnel file is necessary to provide plaintiff with sufficient opportunity to obtain information concerning Bollman’s job performance. Under these circumstances, any privacy interest in the personnel file is minimized and the proportionality of this discovery, particularly insofar as the file may reflect information related to the memorandum and Bollman’s involvement in Jones’s case, is maximized in terms of its importance to resolving the issues at stake and given the minimal burden of producing a single personnel file. Accordingly, defendant must produce the file to plaintiff no later than November 6, 2019, subject to the protective order already in place in this case, Record Doc. No. 63, but excluding strictly personal information, such as health, insurance, family, payroll and other such information, with all personal data identifiers of the type described in Fed. R. Civ. P. 5.2 redacted.

 

The motion is denied insofar as it seeks production of the named 56 complete case files of the Orleans Parish District Attorney’s Office. Defendant’s opposition memorandum contains the authenticity stipulation plaintiff sought as to 22 of those files. Record Doc. No. 171 at p. 1, n. 1. The court hereby finds defendant’s stipulation in this regard binding and enforceable. These 22 case files, together with the other information obtained by plaintiff from public records employing his superior pro bono litigation resources, constitute more than a sufficient basis upon which plaintiff has already obtained relevant and proportionally appropriate evidence as to the issue of alleged unconstitutional policies, pattern, practice and procedures concerning the withholding or production of Brady evidence upon which plaintiff’s claims substantially rest. As plaintiff himself points out, at least one court has found that as few as eight court-found Brady violations with one civil settlement where a Brady violation was alleged were sufficient to defeat a defendant’s summary judgment motion and create a triable issue as to pattern, practice and custom. Record Doc. No. 178 at p. 2 (citing Proventud v. City of New York, 2015 WL 1062186, at *15–17 (S.D.N.Y. Mar. 9, 2015)). Requiring production of files in addition to the 22 already obtained exceeds the proportionality limits on discovery in this case because additional files on top of those already obtained does not appear important to resolving the issues in the case and provides no likely benefit to resolving the issues that might outweigh the burden of requiring this extensive additional production. In addition, such production should be prohibited as unreasonably cumulative or duplicative and because plaintiff has already had ample opportunity to obtain the information it seeks through discovery of the case files that has already occurred. Fed. R. Civ. P. 26(b)(2)(C).

 

The motion is denied insofar as it seeks an order requiring production of Assistant District Attorney David Pipes’s notes of his November 5, 2015 meeting with Frederick Menner. Plaintiff nowhere contests that the notes are in fact attorney work product. Instead, plaintiff argues that work product protection has been waived by other disclosures concerning that meeting made by defendant during discovery in this matter.

 

Attorney work product, of course, is presumptively protected from discovery, which extends only to “nonprivileged matter.” Fed. R. Civ. P. 26(b)(1). Nevertheless, work product “materials may be discovered if: ... the party [seeking discovery] shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A). However, even “[i]f the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or representative concerning the litigation.” Fed. R. Civ. P. 26(b)(3)(B).

 

*3 The party seeking materials protected by the work product doctrine “bears the burden of demonstrating that a waiver of work product protection occurred.” Ecuadorian Plaintiffs v. Chevron Corp., 619 F.3d 373, 379 (5th Cir. 2010); see id. at n.10 (“The work product doctrine differs from the attorney-client privilege in that non-waiver need not be proven to invoke work product immunity.”) (citing Johnson v. Gmeinder, 191 F.R.D. 638, 643 (D. Kan. 2000) (“In contrast [to the attorney-client privilege], a party asserting work product immunity is not required to prove ‘non-waiver.’ ”)); accord BASF Corp. v. Man Diesel & Turbo N. Am., Inc., 2015 WL 542247, at *4 (M.D. La. Feb. 10, 2015) (citing Ecuadorian Plaintiffs, 619 F.3d at 379); Innovative Sonic Ltd. v. Research in Motion, Ltd., 2013 WL 775349, at *2 (N.D. Tex. Mar. 1, 2013) (citing Ecuadorian Plaintiffs, 619 F.3d at 379).

 

Significantly, “[t]he work product doctrine does not exist to protect a confidential relationship but to promote the adversary system by ‘safeguarding the fruits of an attorney’s trial preparations from the discovery attempts of an opponent.’ ” Blockbuster Entm’t Corp. v. McComb Video, Inc., 145 F.R.D. 402, 404 (M.D. La. 1992) (quoting Shields v. Sturm, Ruger & Co., 864 F.2d 379, 382 (5th Cir. 1989)). For this reason, “ ‘the mere voluntary disclosure to a third person is insufficient in itself to waive the work product privilege.’ ” In re Grand Jury Proceedings, 43 F.3d 966, 970 (5th Cir. 1994) (quoting Shields, 864 F.2d at 382).
Voluntary disclosure waives the attorney-client privilege because it is inconsistent with the confidential attorney-client relationship. Voluntary disclosure does not necessarily waive work-product protection, however, because it does not necessarily undercut the adversary process. Nevertheless, disclosing work product to a third party can waive protection if “such disclosure, under the circumstances, is inconsistent with the maintenance of secrecy from the disclosing party’s adversary.” Under this standard, the voluntary disclosure of attorney work product to an adversary or a conduit to an adversary waives work-product protection for that material.
United States v. Deloitte LLP, 610 F.3d 129, 139–40 (D.C. Cir. 2010) (citing United States v. Am. Tel. & Tel. Co., 642 F.2d 1285, 1299 (D.C. Cir. 1980)) (quoting Rockwell Int’l Corp. v. U.S. Dep’t of Justice, 235 F.3d 598, 605 (D.C. Cir. 2001)) (emphasis added); accord Secs. & Exch. Comm’n v. Brady, 238 F.R.D. 429, 444 (N.D. Tex. 2006); Varel v. Banc One Capital Partners, Inc., 1997 WL 86457, at *2 (N.D. Tex. Feb. 25, 1997) (citing Edwards v. Whitaker, 868 F. Supp. 226, 229–30 (M.D. Tenn. 1994); McMorgan & Co. v. First Cal. Mortg. Co., 931 F. Supp. 703, 709 (N.D. Cal. 1996); First Pac. Networks, Inc. v. Atl. Mut. Ins. Co., 163 F.R.D. 574, 582 (N.D. Cal. 1995); Hartford Fire Ins. Co. v. Pure Air on the Lake Ltd., 154 F.R.D. 202, 211 (N.D. Ind. 1993)).

 

Applying the foregoing standards, I find that no waiver of work product protection for Pipes’s notes has occurred and that plaintiff has failed to sustain his burden either to prove waiver on this record or to make the showing of substantial need and inability to obtain substantial equivalent by other means required by Rule 26(b)(3)(B). There has been no indication that the subject notes themselves have been disclosed to a third party, much less to an adversary or a conduit to an adversary. By their very nature, an attorney’s notes reflect his or her core mental processes and impressions. Plaintiff concedes that he has already obtained the memorandum of another Assistant District Attorney and the testimony of both that assistant and Pipes concerning the subject meeting. Record Doc. No. 150-1 at p. 21. In addition, plaintiff has also deposed Menner himself. Id. at p. 19. Under these circumstances, there is no basis for ordering production of these work product notes.

 

*4 The motion is granted insofar as it seeks an order setting a deadline by which defendant must complete his rolling production of electronically stored information responsive to plaintiff’s requests for production. Defendant’s opposition memorandum states that he “intends to complete” that production by November 1, 2019. Record Doc. No. 171 at p. 17. Accordingly, IT IS ORDERED that defendant must do so by that date. IT IS FURTHER ORDERED that, to ensure compliance, no later than November 1, 2019, defendant must provide plaintiff with an affidavit of an authorized agent of his office clearly stating that he has done so.

 

The motion is denied insofar as it seeks leave to exceed the ten (10) deposition limit to depose Assistant District Attorney Kyle Daly, whom plaintiff identifies as “a current assistant district attorney in [defendant’s] appeals division.” Record Doc. No. 150-1 at p. 13. Plaintiff has already taken thirteen (13) depositions in this case. Id. at pp. 16–19. His request to take the deposition of Assistant District Attorney Daly is therefore governed by Fed. R. Civ. P. 30(a)(2)(A)(i), which provides: “A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(1) and (2): if the parties have not stipulated to the deposition and: the deposition would result in more than 10 depositions being taken under this rule ... by the plaintiffs, ....” (emphasis added). Thus, Daly’s deposition must not only be relevant and proportional but also must not violate any of the restrictions on excessive discovery contained in Fed. R. Civ. P. 26(b)(2)(C).

 

Applying the foregoing standards, I find that Daly’s deposition – plaintiff’s 14th – should not be permitted. Plaintiff argues that he seeks to depose Daly generally “with respect to [defendant’s] policies, practices, and customs concerning post conviction Brady claims.” Record Doc. No. 150-1 at p. 13. This topic should already have been fully addressed. The 13 depositions taken to date by plaintiff have included the depositions of the current District Attorney, defendant himself, a previously long-standing Orleans Parish District Attorney and several high-ranking policy-making supervisors of the Orleans Parish District Attorney’s Office for the relevant time period, together with the assistants who handled the Jones case at trial and during post-conviction proceedings and the Rule 30(b)(6) deposition of the prosecuting office itself. Id. at pp. 16–19. Thus, plaintiff has already “had ample opportunity to obtain the information by discovery in the action.” Fed. R. Civ. P. 26(b)(2)(C)(ii). Exceeding the deposition limit by taking the additional deposition of a low-ranking assistant for this purpose “is unreasonably cumulative or duplicative.” Fed. R. Civ. P. 26(b)(2)(C)(i).

 

Plaintiff more specifically argues that Daly “will likely provide significant, unique testimony relating to the frequency of Brady violations” at defendant’s office because plaintiff’s counsel have “detected several cases,” including three in which Daly has acted as a prosecutor, in which defendant’s office, “under Mr. Cannizzaro offered plea agreements ... and/or requested that district court judges vacate prior convictions ... when credible Brady claims were pending,” in a “practice [that] has the effect of limiting – and is potentially intended to limit” the total number of the office’s “court-found Brady violations.” Record Doc. No. 150-1 at p. 14 (emphasis added). I reject this argument and find that the evidence cited by plaintiff allegedly supporting it amounts to nothing more than rank speculation, conjecture and – in one instance – plaintiff’s counsel’s admission that it is based on “a suspicion harbored at least by the petitioner’s attorney.” Id. (emphasis added).

 

*5 There is no indication that Daly ever worked on plaintiff’s case. There is no indication that Daly ever withheld Brady evidence in any other case. Daly is nothing more than one of dozens of current line-level assistants in the Orleans Parish District Attorney’s Office. I disagree with plaintiff’s assessment that he somehow possesses “unique” information about a pattern or practice of Brady violations in the office. The thrust of plaintiff’s argument in this regard is that Daly should be deposed as the line prosecutor on three cases in which a “practice” concocted and conduct performed by Cannizzaro himself is in question. As plaintiff portrays the situation, Cannizzaro himself and/or the office designees during the Rule 30(b)(6) are the deponents with first-hand knowledge of any such practice. They have already been deposed. Under these circumstances, permitting the extra deposition of Daly would surpass the “ultimate and necessary boundaries” of discovery embodied in the proportionality requirement and constitute unreasonably cumulative and duplicative discovery, especially when plaintiff has already had ample opportunity to explore his speculative theory in the other depositions. Fed. R. Civ. P. 26(b)(2)(C). For the foregoing reasons, and from a proportionality perspective, I conclude that Daly’s deposition is not important to resolution of the issues in this case, and the burden and expense of permitting this further expansion of the 10-deposition limit outweighs its likely benefit.

 

New Orleans, Louisiana, this 23rd day of October, 2019.