Marshall v. Ninth Cir. Solicitor's Office
Marshall v. Ninth Cir. Solicitor's Office
2021 WL 11448346 (D.S.C. 2021)
December 9, 2021
Baker, Mary G., United States Magistrate Judge
Summary
The Court granted in part Defendants' Motion for Protective Order and denied in part Plaintiff's Motion to Compel. The Court found that the work product doctrine bars the production of any opinion work product sought by Plaintiff and ordered the Solicitor's Office to produce the documents to the Court for in camera review. The Court also granted Plaintiff's request for an in camera review of the documents identified in the Solicitor's Office privilege log.
Additional Decisions
Bradley R. MARSHALL, Plaintiff,
v.
NINTH CIRCUIT SOLICITOR'S OFFICE; South Carolina Law Enforcement Division; Scarlett A. Wilson; Gregory Voight; Special Agency R. Kelly; and John Does 1 – 10, Defendants
v.
NINTH CIRCUIT SOLICITOR'S OFFICE; South Carolina Law Enforcement Division; Scarlett A. Wilson; Gregory Voight; Special Agency R. Kelly; and John Does 1 – 10, Defendants
Case No. 2:20-cv-2993-RMG-MGB
United States District Court, D. South Carolina, Charleston Division
Signed December 09, 2021
Counsel
Bradley R. Marshall, Mt. Pleasant, SC, Pro Se.Christopher Thomas Dorsel, Senn Legal, Charleston, SC, for Defendants Ninth Circuit Solicitor's Office, Scarlett A. Wilson, Gregory Voight.
Elloree A. Ganes, Evan Michael Sobocinski, Hood Law Firm LLC, Charleston, SC, for Defendants South Carolina Law Enforcement Division, R. Kelly, Charles Ghent.
Elloree A. Ganes, Hood Law Firm LLC, Charleston, SC, for Defendant Brian Bolchaz.
Baker, Mary G., United States Magistrate Judge
ORDER
*1 Plaintiff Bradley R. Marshall (“Plaintiff”), proceeding pro se, brought this civil action under 42 U.S.C. § 1983, alleging violations of his constitutional rights as well as a state law negligence claim. (Dkt. No. 12.) This matter is before the Court a Motion for Protective Order (Dkt. No. 45) filed by Defendants Ninth Circuit Solicitor's Office, Scarlett A. Wilson, and Gregory Voigt and Plaintiff's Motion to Compel (Dkt. No. 46). Both motions concern the application of the work product doctrine and raise the issue of relevancy based on the Court's prior findings regarding prosecutorial immunity. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate Judge for consideration. For the reasons set forth herein, the Court grants in part Defendants’ Motion for Protective Order and denies in part Plaintiff's Motion to Compel. The Court grants Plaintiff's request for in camera review and holds in abeyance its rulings as to whether the prosecutorial memos at issue should be protected from discovery.
BACKGROUND
A. Factual Background[1]
Plaintiff's Amended Complaint surrounds an underlying criminal prosecution, in which Plaintiff was charged with the unauthorized practice of law in violation of S.C. Code § 40-5-310 by Defendant Ninth Circuit Solicitor's Office (“Solicitor's Office”). (Dkt. No. 12 at 3.) The record shows that Plaintiff was disbarred as a lawyer by the Washington State Supreme Court on October 1, 2009, the Ninth Circuit Court of Appeals on May 25, 2010, and the United States Supreme Court on December 13, 2010. (Dkt. No. 45-1 at 2.) Plaintiff eventually moved to South Carolina and began representing legal clients in Longshoremen's Act claims before the Department of Labor's Office of Administrative Law Judges (“OALJ”). (Id.) On November 2, 2011, Plaintiff was disqualified from appearing before the OALJ in a case arising under the Longshoremen's Act. On December 8, 2011, Plaintiff was denied the authority to appear in a representative capacity before the OALJ. Plaintiff challenged these rulings in the United States District Court, District of South Carolina, but his claims were dismissed. The Fourth Circuit affirmed the dismissal.
In early August 2012, Defendant Greg Voigt (“Voigt”), a Ninth Circuit Assistant Solicitor, contacted the Charleston Police Department after receiving a complaint about Plaintiff practicing law as a disbarred attorney. (Dkt. No. 45-2.) The Charleston Police Department requested that the South Carolina Law Enforcement Division (“SLED”) investigate the matter. (Id.) The Amended Complaint alleges that at the direction of Defendant Scarlett Wilson (“Wilson”), Ninth Circuit Solicitor, Voigt participated in this investigation and interviewed a number of individuals “over a period of months.” (Dkt. No. 12 at 3.) The Amended Complaint further alleges that on June 28, 2013, Defendant R. Kelly (“Kelly”), a Special Agent, “was directed to investigate and serve a search warrant, to arrest, to charge and to jail [Plaintiff] for allegedly violating” S.C. Code § 40-5-310 for the unauthorized practice of law. (Id.)
*2 The Amended Complaint alleges that during the search warrant's execution, Kelly told Plaintiff “that he was under pressure from Voigt to obtain and execute a search warrant for [Plaintiff's] office.” (Dkt. No. 12 at 4.) The Amended Complaint alleges that the “evidence contained in the affidavit to establish probable cause ... was flimsy” and that because of pressure from Voigt, Kelly omitted exculpatory information in order to establish probable cause for the search warrant. (Id.) The Amended Complaint alleges that the majority of documents seized from his office “were highly personal and confidential” and did not have any bearing on his alleged unauthorized practice of law. (Id. at 4–5.)
According to the Amended Complaint, after Plaintiff's arrest, the Ninth Circuit Solicitor's Office began prosecuting the arrest charges. (Dkt. No. 12 at 3–4.) In 2014, Plaintiff filed an action in state court arguing for the dismissal of his charges because the Solicitor's Office was required to obtain a declaratory judgment from the South Carolina Supreme Court certifying that his conduct did in fact constitute the unauthorized practice of law prior to charging him under the state statute. (Id. at 5.) His state action was dismissed initially and on appeal. (Id.) On September 17, 2017, Benjamin Chad Simpson (“Simpson”), a Ninth Circuit Assistant Solicitor, “entered a nol prossed concerning the then pending charges with leave to restore.” (Id. at 6.) Thereafter, the Solicitor's Office brought an action in the South Carolina Supreme Court. (Dkt. No. 45-1.) On September 25, 2019, the South Carolina Supreme Court ruled that Plaintiff's representation of clients before the OALJ after he was prohibited from appearing before the OALJ constitutes unauthorized practice of law and enjoined Plaintiff “from any further representation of clients before the OALJ.” (Id. at 3.) The court further ruled that Plaintiff's “provision of advice to clients, negotiation of settlements, and general case management of claims under the South Carolina Workers’ Compensation Act without the supervision of a licensed attorney,” among other actions, also constitutes unauthorized practice of law and enjoined Plaintiff “from any further actions of this nature.” (Id.)
The Amended Complaint alleges that Defendants abused their investigatory and prosecutorial powers, and violated Plaintiff's constitutional rights under the First, Fourth, Sixth, and Fourteenth Amendments, as well as his rights under 42 U.S.C § 1981 and the South Carolina Tort Claims Act (“SCTCA”). More specifically, Plaintiff claims that Defendants subjected him to unlawful search and seizure, arrest, imprisonment, and malicious prosecution; withheld exculpatory evidence from the state court; and improperly delayed the judicial proceedings. (Id. at 3–8.) Moreover, Plaintiff claims that Wilson “developed and maintained policies, procedures, customs, and/or practices exhibiting deliberate indifference to the constitutional rights of citizens, which were moving forces behind and proximately caused the violations of [his] constitutional and federal rights.” (Id. at 11.) Plaintiff further alleges that the “deliberately indifferent training and supervision” provided by Defendant Wilson also contributed to his purported injuries. (Id. at 12.) As a result of Defendants’ allegedly unlawful conduct, Plaintiff claims that he “has suffered emotional injuries, and other damages and losses as described herein entitling him to compensatory and special damages....” (Id.) The Amended Complaint alleges § 1983 claims for malicious prosecution and deliberately indifferent policies, practices, customs, training, and supervision and a state law negligence claim. (Dkt. No. 12.)
B. Procedural Background
*3 Plaintiff filed this action on August 19, 2020. (Dkt. No. 1.) On June 10, 2021, Defendants Solicitor's Office, Wilson, Simpson, and Voigt filed a Motion to Dismiss, asserting that they were entitled to prosecutorial immunity. (Dkt. No. 17.) On August 24, 2021, the Court granted in part and denied in part the Motion to Dismiss. (Dkt. No. 35.) Relevant here, the Court found that
Plaintiff's claims in this action shall proceed against Defendants Wilson and Voigt only to the extent the claims arise from the alleged investigation performed by Voigt and supervised by Wilson. Plaintiff's claims against Simpson[2] are dismissed in their entirety. Additionally, Plaintiff's § 1983 claims against the Solicitor's Office are dismissed, and only those state law claims against the Solicitor's Office arising from the alleged investigation performed by Voigt and supervised by Wilson shall proceed.
(Dkt. No. 35 at 10.) The undersigned's Report and Recommendation (“R&R”), adopted by the District Judge, outlined the nature of prosecutorial immunity and expanded on the scope of the remaining claims against Wilson and Voigt:
Prosecutors “are immune from § 1983 claims where their challenged actions are intimately associated with the judicial phase of the criminal process.” See Cash v. Horn, No. 7:16-cv-3654-MGL-PJG, 2017 WL 4174775, at *2 (D.S.C. Apr. 28, 2017), adopted by, 2017 WL 4156456 (D.S.C. Sept. 19, 2017) (referencing Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). “To determine whether a particular act is ‘intimately associated with the judicial phase,’ ... we employ a functional approach.” Nero v. Mosby, 890 F.3d 106, 118 (4th Cir. 2018) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976))....
“In applying this functional approach, the Supreme Court has distinguished between advocative functions and investigative or administrative functions, holding that the former enjoy absolute immunity but the latter do not.” Id. (citing Kalina v. Fletcher, 522 U.S. 118, 125–26 (1997)).
A prosecutor acts as an advocate when she professionally evaluates evidence assembled by the police, Buckley, 509 U.S. at 273, ... decides to seek an arrest warrant, Kalina, 522 U.S. at 130, ... prepares and files charging documents, id., participates in a probable cause hearing, Burns, 500 U.S. at 492, and presents evidence at trial, Imbler, 424 U.S. at 431.... In contrast, a prosecutor does not act as an advocate, but rather in an investigative or administrative capacity, when she gives legal advice to police during an investigation, Burns, 500 U.S. at 493, ... investigates a case before a probable cause determination, Buckley, 509 U.S. at 274 ..., and personally attests to the truth of averments in a statement of probable cause, Kalina, 522 U.S. at 129.
Nero, 890 F.3d at 118.
In reviewing the Amended Complaint, the undersigned finds that, at this stage in the proceedings, Defendants Wilson and Voight have not established that Plaintiff's claims against them are entirely barred by prosecutorial immunity. Specifically, Plaintiff alleges that after a local attorney contacted several agencies in July of 2012 with complaints about Plaintiff participating in the unauthorized practice of law (“UPL”), “Wilson assigned Voigt, who was acting, under the color of state law, to investigate Marshall. Voigt's investigation involved interviews of [the local attorney] and multiple other individuals over a period of months.” (Dkt. No. 12 at 3.) This investigation allegedly occurred prior to the execution of a search warrant and Plaintiff's arrest. (Id.) Because this alleged conduct implies the performance of an investigative function by Voigt under Wilson's supervision, the undersigned recommends these Defendants are not entitled to dismissal based on prosecutorial immunity....
*4 However, the remaining allegations in the Complaint imply advocative functions by Defendants Wilson, Simpson, and Voigt. (See Dkt. No. 12 at 3–6 (alleging, inter alia, Voigt arranged for preliminary hearing; Wilson, Simpson, and Voigt “declined to schedule hearings for any of the motions” and only provided the SLED file as discovery; “Simpson entered a nol prossed concerning the then pending charges with leave to restore,” and he later filed a declaratory judgment action with the South Carolina Supreme Court).) Accordingly, the undersigned recommends that Defendant Simpson is entitled to prosecutorial immunity and should be dismissed from this action. The undersigned further recommends that Defendants Wilson and Voigt are entitled to prosecutorial immunity as to any allegations extending beyond the investigation discussed above.
(Dkt. Nos. 32 at 6–8; 35 at 6.)
On November 16, 2021, Defendants Solicitor's Office, Wilson, and Voigt filed a Motion for Protective Order, asking that the Court “prevent the disclosure of the mental impressions, strategies, opinions and other information protected by the Work Product Doctrine.” (Dkt. No. 45 at 1.) According to Defendants, “[t]his information pertains to the Solicitor Defendants’ work during the criminal prosecution of Plaintiff.” (Id.) Plaintiff filed a response in opposition on November 17, 2021 (Dkt. No. 47), to which Defendants replied on November 29, 2021 (Dkt. No. 48). On November 16, 2021, Plaintiff filed a Motion to Compel, asking the Court to compel Voigt “to answer deposition questions related to claims set forth in the amended complaint and to produce documents for an in camera review.” (Dkt. No. 46 a 1.). Defendants filed a response in opposition on November 30, 2021 (Dkt. No. 52), to which Plaintiff replied on December 3, 2021 (Dkt. No. 55). Both motions are ripe for review.
STANDARDS OF REVIEW
A. Discovery
Federal district courts are vested with broad discretion in resolving discovery disputes. Erdmann v. Preferred Research, Inc., of Ga., 852 F.2d 788, 792 (4th Cir. 1988). Rule 26 of the Federal Rules of Civil Procedure governs this discovery dispute and provides:
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). Discovery under the Federal Rules of Civil procedure “is broad in scope and freely permitted.” Carefirst of Maryland, Inc. v. Carefirst Pregnancy Centers, Inc., 334 F.3d 390, 402 (4th Cir. 2003). “The burden of proof is with the party objecting to the discovery to establish that the challenged production should not be permitted.” HDSherer LLC v. Nat. Molecular Testing Corp., 292 F.R.D. 305, 308 (D.S.C. 2013). However, a court must limit discovery if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).
*5 Fed. R. Civ. P. 26(b)(2)(C). Furthermore, “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense” by, inter alia, “forbidding the disclosure or discovery” and “forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters.” Fed. R. Civ. P. 26(c)(1).
B. Work Product Doctrine
Federal law governs the work product doctrine. The work-product doctrine protects an attorney's work done in anticipation of litigation. Solis v. Food Employers Labor Relations Ass'n, 644 F.3d 221, 231 (4th Cir. 2011). The doctrine is based on the principle that “[n]ot even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney.” Hickman v. Taylor, 329 U.S. 495, 510 (1947). Work product can be fact work product or opinion work product. In re Allen, 106 F.3d 582, 607 (4th Cir. 1997). Fact work product consists of materials prepared by an attorney that do not contain the fruit of his mental processes, while opinion work product contains an attorney's mental impressions, conclusions, opinions, or legal theories. In re Grand Jury Proceedings # 5, 401 F.3d 247, 250 (4th Cir. 2005). Fact work product is entitled to qualified immunity and “is discoverable upon a showing of both a substantial need and an inability to secure the substantial equivalent of the materials by alternate means without undue hardship.” Allen, 106 F.3d at 607 (internal quotation marks omitted). Opinion work product, however, “can be discovered only in very rare and extraordinary circumstances.” Id. “Because the work product privilege protects not just the attorney-client relationship but the interests of attorneys to their own work product, the attorney, as well as the client, hold the privilege.” In re Grand Jury Proceedings #5, 401 F.3d at 250. The party invoking the protection of the work-product doctrine bears the burden of demonstrating its applicability. Solis, 644 F.3d at 23.
The Fourth Circuit Court of Appeals has held that both fact work product materials and opinion work product materials retain their immunity from discovery after termination of the litigation for which the materials were prepared, including in subsequent and unrelated litigation. See Duplan Corp. v. Moulinage et Retorderie de Chavanoz, 509 F.2d 730, 732 (4th Cir. 1974) (“We hold that such opinion work product material, as distinguished from material not containing mental impressions, conclusions, opinions, or legal theories, is immune from discovery although the litigation in which it was developed has been terminated.”); Duplan Corporation v. Moulinage et Retorderie de Chavanoz, 487 F.2d 480, 484 (4th Cir. 1973) (finding that fact work product materials retain their qualified immunity from discovery after termination of the litigation for which the materials were prepared, and that the qualified immunity remains in subsequent and unrelated litigation).
Most relevant here, in Washington v. Follin, a court in this district found that the work product privilege applied in a civil case where the plaintiff sought to obtain production of the prosecutorial file from her terminated criminal case. No. 4:14-CV-00416-RBH-KDW, 2016 WL 1614166, at *12–*15 (D.S.C. Apr. 22, 2016). More specifically, the court found that the work product privilege barred production of opinion work product contained in the prosecutorial file from the plaintiff's terminated civil case. Id. at *15. In support of applying the work product doctrine under these circumstances, the court explained
*6 Prosecutors have a legitimate expectation that they can develop legal theories and strategies, as well as communicate with law enforcement about pending criminal investigations. Subjecting a prosecutor's work product to unbridled discovery in a civil action would inevitably curtail the prosecutor's willingness to memorialize her thoughts and opinions on paper. Such an undesirable effect is precisely the reason why the United States Supreme Court recognizes the applicability of the work-product doctrine in both the civil and criminal contexts:
“Although the work-product doctrine most frequently is asserted as a bar to discovery in civil litigation, its role in assuring the proper functioning of the criminal justice system is even more vital. The interests of society and the accused in obtaining a fair and accurate resolution of the question of guilt or innocence demand that adequate safeguards assure the thorough preparation and presentation of each side of the case.”
Id. (quoting United States v. Nobles, 422 U.S. 225, 238 (1975)).
DISCUSSION
A. Arguments
The parties’ motions concern the applicability of the work product doctrine and raise the issue of relevancy based on the Court's prior findings regarding prosecutorial immunity. In his Motion to Compel, Plaintiff asserts that defense counsel improperly objected to certain questions posed to Voigt during his November 1, 2021 deposition “regarding the claims in this case.” (Dkt. No. 46 at 1.) The transcript of Voigt's deposition indicates that when Plaintiff asked about Voigt's alleged conversation with Kelly after Plaintiff's arrest on June 28, 2013, defense counsel stated,
I'm placing an objection on the record based on relevance and work product. The court's order has said that there's absolute immunity after the issuance of the arrest warrant. Therefore, I'm instructing my client not to discuss anything on the basis of work product after the issuance of the arrest warrant, and that will remain my instruction to my client for the remainder of your questions.
(Dkt. No. 55-2 at 21.) When Plaintiff stated he believed Voigt should “answer questions that relate to his conduct in the prosecution,” defense counsel stated he “will file a protective order concerning that, but, one, I don't think there's any relevance and two, I think it's covered by work product.” (Id. at 21–22.)
In his motion, Plaintiff asks that the Court direct Voigt to answer Plaintiff's deposition questions concerning his conduct after the arrest warrant was issued and also to perform an in camera review of the documents identified in the Solicitor's Office privilege log. (Id. at 5.) The privilege log referenced by Plaintiff indicates that approximately 36 pages of documents described as legal research, prosecution memo, and second prosecution memo, are protected by the work product doctrine. (Dkt. No. 46 at 93.)
In their Motion for Protective Order, Defendants ask that the Court “prevent the disclosure of the mental impressions, strategies, opinions and other information protected by the Work Product Doctrine.” (Dkt. No. 45 at 1.) More specifically, Defendants ask for protection from disclosure in discovery the following areas: (1) deposition questions concerning actions taken, strategies, opinions, etc. by the Solicitor Defendants after Plaintiff was arrested; (2) any testimony from Simpson; (3) prosecutorial memos; (4) attorney notes and research from after the arrest; and (5) any other documents or tangible items created after the arrest of Plaintiff that contain attorney opinion work product. (Id. at 7.)
*7 In support, Defendants state that Plaintiff has “already received a very large amount of documents and files through Rule 5 discovery during his criminal prosecution” and that Plaintiff now seeks opinion work product that is immune from discovery under the work product doctrine. (Id. at 6.) Defendants further argue that because the Court has established that “the Solicitor Defendants have prosecutorial immunity for any claims regarding their involvement in the case after the arrest warrant was issued,” any materials pertaining to this time frame are not relevant to the claims in this case. (Id. at 4–7.) Defendants also note that while Plaintiff has noticed Simpson's deposition, Simpson was not employed by the Solicitor's Office when the alleged investigation occurred, and he only became involved in the criminal case when he took over the file from Voigt. According to Defendants, “[t]his means that the only testimony Mr. Simpson could provide is about how he chose to prosecute the charges and information concerning the decision to nolle pross the charges and file an action with the SC Supreme Court.” (Id. at 7.) Defendants assert that because Simpson was dismissed as a defendant from this action based on prosecutorial immunity, “information regarding what actions Mr. Simpson took would be protected by the Work Product Doctrine.” (Id.)
In opposition to Defendants’ motion, Plaintiff asserts that a protective order is not appropriate because: (1) the work product doctrine cannot be invoked to conceal wrongdoing; (2) the work product doctrine cannot be invoked when a party claims laches; (3) Defendants’ actions were in the ordinary course of business; (4) Plaintiff has shown the substantial need and undue hardship necessary to overcome the qualified privilege for fact work product; and (5) Plaintiff is entitled to show his innocence. (Dkt. No. 47.)
B. Analysis
Upon careful consideration of the parties’ briefs and relevant filings, the Court finds that the work product doctrine bars the production of any opinion work product sought by Plaintiff; specifically, any materials that contain the prosecutors’ mental impressions, conclusions, opinions, or legal theories pertaining to the underlying criminal prosecution. See Washington, 2016 WL 1614166, at *15 (affirming “Magistrate Judge's ruling denying production of the documents in SCAG's prosecutorial file that contain the mental impressions of its prosecutors”). Further, any testimony or materials pertaining to events that occurred after Plaintiff's arrest warrant was issued are not relevant to this action under Rule 26(b)(1). See also Fed. R. Evid. 401 (defining relevant evidence as having “any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action”); Watson v. Lowcountry Red Cross, 974 F.2d 482, 489 (4th Cir. 1992) (“On relevancy matters, the trial court has broad discretion.”). As explained above, based on the doctrine of prosecutorial immunity, this Court has found that the only claims remaining against Wilson and Voigt in this action concern Voigt's alleged investigation that occurred prior to the issuance of Plaintiff's arrest warrant. Thus, any events that occurred after Plaintiff's arrest warrant was issued are not relevant to Plaintiff's claims against Voigt and Wilson and are not discoverable.
Based on these findings, the Court grants in part Defendants’ Motion for Protective Order and orders that the following areas of discovery are protected from disclosure: (1) deposition questions concerning actions taken, strategies, opinions, etc. by the Solicitor Defendants after Plaintiff was arrested; (2) any testimony from Simpson; (3) attorney notes and research created after Plaintiff's arrest; and (4) any other documents or tangible items created after the arrest of Plaintiff that contain attorney opinion work product. (Id. at 7.) While Defendants also seek protection from disclosure the “prosecutorial memos,” Plaintiff has asked that the Court review these memos in camera before finding them privileged. Given the limited number of pages at issue, Plaintiff's request for in camera review is granted. The Court will review the prosecution memos and legal research identified in the Solicitor's Office's privilege log (Dkt. No. 46 at 93), and determine whether these documents constitute opinion work product and/or are irrelevant because they were created after Plaintiff's arrest warrant was issued. The Solicitor's Office is ordered to produce the documents identified in its privilege log to the Court for in camera review by December 15, 2021. Accordingly, the Court holds in abeyance its ruling as to whether the prosecutorial memos should be protected from discovery, pending in camera review.
*8 Additionally, given the above findings, the Court denies in part Plaintiff's Motion to Compel. The Court will not compel Voigt to answer deposition questions concerning events after the arrest warrant was issued. For the reasons detailed herein, defense counsel's objections during Voigt's deposition based on relevance and privilege were sound. However, the Court grants Plaintiff's request for in camera review, as discussed above, and holds in abeyance its ruling as to whether the prosecutorial memos should be produced, pending in camera review.
CONCLUSION
Based on the foregoing, the Court GRANTS IN PART Defendants’ Motion for Protective Order (Dkt. No. 45) and orders that the following areas of discovery are protected from disclosure: (1) deposition questions concerning actions taken, strategies, opinions, etc. by the Solicitor Defendants after Plaintiff was arrested; (2) any testimony from Simpson; (3) attorney notes and research created after Plaintiff's arrest; and (4) any other documents or tangible items created after the arrest of Plaintiff that contain attorney opinion work product. (Id. at 7.)
The Court DENIES IN PART Plaintiff's Motion to Compel (Dkt. No. 46). The Court will not compel Voigt to answer deposition questions concerning events after the arrest warrant was issued. However, the Court grants Plaintiff's request for in camera review. The Solicitor's Office is ordered to produce the documents identified in its privilege log (Dkt. No. 46 at 93) to the Court for in camera review by December 15, 2021. Accordingly, the Court holds in abeyance its ruling as to whether the prosecutorial memos should be protected from discovery, pending in camera review.
Footnotes
This background is taken from the allegations in Plaintiff's Amended Complaint and the filings provided in connection to the instant discovery motions.
The Amended Complaint alleged that Simpson “declined to schedule hearings for any of the motions” and only provided the SLED file as discovery; “entered a nol prossed concerning the then pending charges with leave to restore,” and he later filed a declaratory judgment action with the South Carolina Supreme Court. (Dkt. No. 12 at 3–6). The Court found Simpson was entitled to prosecutorial immunity and dismissed the claims against him on this basis. (Dkt. Nos. 32 at 8; 35.)