*1 Plaintiffs’ Motion to Compel as to Defendant Debra Becnel (ECF No. 77) is pending before me in this matter. Defendant Debra Becnel filed a timely Opposition Memorandum. ECF No. 93. Plaintiffs sought leave and filed a Reply Memorandum. ECF Nos. 94, 97. No party requested oral argument in accordance with Local Rule 78.1, and the Court agrees that oral argument is unnecessary.

Having considered the record, the submissions and arguments of counsel, and the applicable law, Plaintiffs’ motion to compel as to Debra Becnel is GRANTED IN PART AND DENIED IN PART for the reasons stated herein.

I. BACKGROUND

Nicholas Conners, Monique McCoy and Jeffrey McCoy, the legal and natural tutors of the minor Nilijah Conners, brought this suit on the child's behalf after the death of the child's mother, Nimali Henry, while being detained pretrial at St. Bernard Parish Prison.[1] Before her incarceration, Henry was diagnosed with life-threatening conditions for which she required prescribed medications.[2] While incarcerated, Henry did not receive her medication and was denied medical care.[3] She died while in custody as a result.[4] Her original suit named the St. Bernard Parish Sheriff James Pohlman, the St. Bernard Parish Sheriff's Office, and the unknown individuals employed as deputies, guards, medical personnel or other capacities and asserted claims under 42 U.S.C.§ 1983 and state tort law.[5] The Government had initiated its criminal investigation into the underlying allegations of this suit before its filing, and on March 26, 2015, it moved to intervene and stay this civil proceeding.[6] Judge Barbier stayed the pending civil matter until resolution of the ongoing federal criminal civil rights investigation.[7]

A. The Criminal Proceedings

On December 3, 2015, the Government indicted four St. Bernard Parish Prison employees, Captain Andre Dominick, Corporal Timothy Williams, Deputy Debra Becnel, and Deputy Lisa Vaccarella, for deprivation of rights under color of law and false statements to a federal agency, in violation of 18 U.S.C. §§ 242, 1001(a)(2), relating to Ms. Henry's death.[8] Williams pleaded guilty to deprivation of rights under color of law on September 18, 2018.[9] Dominick, Becnel, and Vaccarella proceeded to trial in November 2018, but after four days of proceedings, a mistrial was declared after Dominick apparently attempted suicide.[10] On January 7, 2020, Becnel pleaded guilty to making false statements to a federal agency.[11] On January 16, 2020, Dominik pleaded guilty to deprivation of rights under color of law and Vaccarella pleaded guilty to concealing knowledge of the commission of a felony and making false statements to the FBI.[12] On March 10, 2021, the court sentenced Becnel[13] and Vaccarella,[14] and the following day, March 11, 2021, the court sentenced Williams[15] and Dominick.[16]

*2 During the criminal proceeding, the Government sought a protective order, which the assigned magistrate judge granted in part and denied in part,[17] issuing a protective order regarding “medical information, social security numbers, birth dates, home addresses, or personal telephone numbers of living person.”[18] The Court also entered a protective order governing certain records of the Louisiana Department of Children and Family Services.[19] After sentencing and in light of discovery requests in this civil case, the Government, citing Fed. R. Crim. P. 16(d)(1), sought a protective order in the criminal case to prevent the disclosure of discovery materials provided in criminal discovery.[20] Specifically, the government sought to prelude Defendants from producing materials

Plaintiffs sought to intervene to oppose the Government's Motion for Protective Order, but Judge Lemelle denied their motion.[22] Judge Lemelle then granted the Government's motion for protective order, with a proviso.[23] Specifically, Judge Lemelle restricted the use or disclosure of “protected materials”[24] to preparation for the criminal matter, including post-conviction and appellate criminal litigation, and made clear that the Order “does not apply to publicly produced information and evidence, including but not limited to information provided or disclosed in the public record or at open court proceedings during discovery, trial and sentencings phases; and otherwise subject to later modification by court order after due proceedings.”[25]

B. Plaintiffs’ Pending Motion to Compel

Before Judge Lemelle denied their motion to intervene or ruled on the Government's motion for protective order in the criminal proceeding, Plaintiffs filed this Motion to Compel seeking a court order compelling Defendant Debra Becnel to produce all information obtained from the Government during criminal discovery.[26] Plaintiffs assert that Defendant Becnel raised only two objections to production: (1) attorney-client and/or work product privilege and (2) the Government's then-pending Motion for Protective Order in the criminal case.[27]

*3 With regard to the second basis, Plaintiffs argue that many of the documents at issue have already been made public via court filings, so those documents as well as similar documents that were not publicly disclosed should be produced in discovery.[28] Plaintiffs’ Reply acknowledges that they seek an order compelling production of the categories of Protected Materials at issue in Judge Lemelle's order even if same had not been provided or disclosed in the public record or in open court at any proceeding during discovery, trial or sentencing in the criminal case, but they argue their request is justified because Judge Lemelle denied their motion to intervene and thus they have not been heard on their discovery demand.[29] Plaintiffs argue that, because the information sought is relevant, not cost-prohibitive, and not subject to attorney-client privilege, this Court should order its production under Rule 26 despite Judge Lemelle's protective order precluding the release of information produced by the Government during criminal discovery.[30]

In Opposition, Defendant Becnel argues that Plaintiffs cannot seek an “end run” around Judge Lemelle's decision to deny intervention and issue a protective order to protect the criminal discovery process.[31] Defendant further argues that it is improper for this Court to issue an order that requires her to violate Judge Lemelle's order, arguing that courts uniformly reject such efforts.[32] Defendant repeats the arguments presented to Judge Lemelle regarding the legitimate reasons for limiting the availability of criminal discovery in civil matters and argue that plaintiffs should seek discovery from the original sources, as authorized by law.[33]

II. LAW AND ANALYSIS

Initially, Plaintiffs confuse two separate concepts: (1) restricting the use of documents obtained during discovery and (2) placing documents under seal in the court record.[34] The Government is not seeking to seal “a large swath of documents.” As Plaintiffs argue. Rather, the Government sought, and Judge Lemelle granted, a discovery protective order limiting the disclosure and use of documents produced by the Government during discovery to those necessary for resolution of the criminal case, specifically making clear that any document filed in to the public record or used during an in court hearing would no longer be subject to the protective order's restrictions.[35] Thus, Judge Lemelle did not seal the criminal discovery.

The governing standard for placing a document under seal in the court record is quite different from the standard governing whether unfiled discovery should be kept confidential.[36] As to court filings under seal, which is not at issue in this motion, the Fifth Circuit recently explained that “the working presumption is that judicial records should not be sealed” and the court “must undertake a case-by-case, document-by-document, line-by-line balancing of the public's common law right of access against the interests favoring nondisclosure” before deciding to seal filed documents.[37] However, at the discovery stage, when parties are exchanging information, a protective order may well be proper. “Party-agreed secrecy has its place—for example, honoring legitimate privacy interests and facilitating the efficient exchange of information.”[38]

A. Discovery of Information Protected by Judge Lemelle's Protective Order

No doubt, the Federal Rules of Civil Procedure broadly authorize discovery of relevant information that is proportional to the needs of the case.[39] At the discovery stage, relevance has a lower threshold and includes “[a]ny matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.”[40] But while the discovery rules are accorded broad and liberal treatment to achieve their purpose of adequately informing litigants in civil trials,[41] discovery does have “ ‘ultimate and necessary boundaries.’ ”[42] The Court may limit discovery[43] or, upon a showing of good cause, issue an order to protect a party from annoyance, embarrassment, oppression, or undue burden or expense.[44]

*4 In this case, Defendant has not argued that Plaintiffs’ discovery requests seek information that is not relevant or proportional to the needs of the case. Rather, Defendant objects to Plaintiffs’ requests seeking the materials produced by the Government in the criminal proceeding on the basis that Judge Lemelle's protective order precludes her disclosure and use of same outside of the criminal proceeding. Rule 16(d) of the Federal Rules of Criminal Procedure expressly grants the trial court to “deny, restrict, or defer discovery or inspection, or grant other appropriate relief.” That authority includes restricting use of materials produced during criminal discovery to preparation of the case for criminal trial and precluding the use of the information for related civil trials.[45] This enables the Government to ensure compliance with constitutionally mandated disclosure obligations while at the same time protecting potentially non-discoverable information from further use or disclosure beyond the ambit of the criminal proceeding at issue. Although Judge Lemelle's protective order prohibits the disclosure or use of certain categories of criminal discovery, it specifically authorizes the release of criminal discovery materials (including materials in the specified categories) if that material has been provided or disclosed in the public record, or in open court proceedings during discovery, trial and sentencing phases of the criminal case.

Plaintiffs are asking this Court to order Defendant Becnel to produce those documents that remain protected by Judge Lemelle's order (i.e., criminal discovery not filed or disclosed in the public record or in open court), which order makes clear that such documents may not be disclosed or used outside of the criminal litigation. In other words, Plaintiffs want to force the Defendant to choose—either violate the discovery order requested in this case or violate Judge Lemelle's protective order. Defendant could not possibly comply with both, as the orders would directly conflict. Courts that have been called upon to decide discovery motions that implicate another court's protective order are constrained by principles of comity, courtesy, and federalism (when there is a state court order involved) to require the parties to return to the court that issued the existing protective order for any modifications, rather than to create conflicting obligations.[46]

Plaintiffs’ collateral attack on Judge Lemelle's protective order and invitation to enter a conflicting order because Plaintiffs’ motion to intervene in the criminal proceeding was denied lacks any support. It is no solution to suggest that this Court could order production of documents protected by Judge Lemelle's protective order and simply stay this order while Defendant decide whether to appeal the discovery ruling.[47] If Plaintiffs disagree with Judge Lemelle's decision, rather than request the contrary relief from a different judge, they may seek review of his order denying intervention via appeal.[48] If Plaintiffs are successful on appeal, they may then seek the documents at issue by filing a Motion to Modify the Protective Order, and establishing good cause, before Judge Lemelle in the criminal proceeding.[49]

B. The Privilege Objections

*5 A party served with written discovery must fully answer each interrogatory or document request to the full extent that it is not objectionable and affirmatively explain what portion of an interrogatory or document request is objectionable and why, affirmatively explain what portion of the interrogatory or document request is not objectionable and the subject of the answer or response, and explain whether any responsive information or documents have been withheld.[50] Objections interposed without also clearly indicating whether any document or information is being withheld are improper.[51] All responses must clearly state whether any responsive materials are being withheld and the specific basis for objecting and not producing same.[52]

A party invoking the attorney-client privilege bears the burden of demonstrating its applicability and must show: “(1) that he made a confidential communication; (2) to a lawyer or his subordinate; (3) for the primary purpose of securing either a legal opinion or legal services, or assistance in some legal proceeding.”[53] The party claiming privilege “must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable the other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5) (emphasis added). The word “must” indicates that a privilege log, including the detail specified by Rule 26(b)(5)(A)(i) and (ii), is mandatory.[54] Defendant must supplement her discovery responses to expressly state whether she is withholding any documents based on privilege, and if so, provide a proper privilege log.

In this case, Defendant has objected “to the extent” that the request “seeks documents subject to the attorney-client privilege and/or work product doctrine,” without providing a privilege log or affirmatively indicating whether any documents are being withheld.[55] This response is patently improper as it fails to specifically invoke privilege and fails to indicate whether any document has been withheld on the basis of privilege.

III. CONCLUSION

Within 14 days of this Order, Defendant must supplement her discovery responses to make clear whether she has withheld any document based on attorney-client privilege and/or work product doctrine, and if so, deliver a proper privilege log within that same 14-day period. In addition, within 14 days, Defendant must produce all publicly-produced information and evidence obtained in the criminal proceeding (i.e., all information provided or disclosed in the public record or in open court proceedings during discovery, trial and sentencings phases). Plaintiffs may not, however, collaterally attack Judge Lemelle's protective order in the criminal proceeding by seeking an order in this case compelling Defendant to disclose any materials in the categories set forth in Judge Lemelle's protective order that were not provided or disclosed in the public record or in open court during the criminal proceedings. Those documents remain subject to Judge Lemelle's protective order and may not be disclosed by Defendant in this case without modification of that protective order by Judge Lemelle.

*6 Accordingly, for the foregoing reasons,

IT IS ORDERED that Plaintiffs’ Motion to Compel (ECF No. 77) is GRANTED IN PART AND DENIED IN PART as stated herein.

New Orleans, Louisiana, this 23rd day of June, 2021.