Summary
finding work product immunity inapplicable to district attorneys' prosecution files where plaintiff in a civil § 1983 case sought all written notes taken during the course of the criminal investigation underlying the civil lawsuit
Summary of this case from Joseph v. Las Vegas Metropolitan Police DepartmentOpinion
CIVIL ACTION NO: 00-3401, SECTION: "T" (4).
April 10, 2003
MINUTE ENTRY
On December 3, 2003, the defendants, Jefferson Parish School Board and Sharon Bankston, filed a Motion to Compel Production of Written Notes (doc. # 24) requesting that the Custodian of Records of the Office of the Jefferson Parish District Attorney be compelled to produce all written notes taken during the course of the criminal investigation that is the subject of the instant lawsuit. The Jefferson Parish District Attorney's Office opposes the motion.
I. Background
The plaintiffs filed the instant 42 U.S.C. § 1983 claim seeking to recover for injuries sustained by Brian Lagrande while a student at Greenlawn Terrace Elementary School in Jefferson Parish, Louisiana. The plaintiffs claim that on November 15, 1999, during recess, Brian was accosted by classmates Henry and Tory. Henry and Tory allegedly restrained Brian on the ground and kicked him in his testicle and groin area. The plaintiffs contend that Brian suffered bodily injuries, including, but not limited to, a hernia that requires surgery to correct.
The plaintiffs further allege that following the incident, the Jefferson Parish School Board conducted an investigation which included their questioning Brian about the incident. As part of the investigation, the defendant, Sharon Bankston, allegedly took Brian into the bathroom and asked him to remove his pants and underwear so that she could ascertain the existence of the hernia. Brian refused. Because he was threatened with suspension, Brian complied. The plaintiffs contend that when Brian removed his clothing Ms. Bankston observed and attempted to touch Brian's genital area.
The plaintiffs filed the instant suit contending that the Jefferson Parish School Board was on notice of the type of physical abuse suffered by Brian. They claim that as a result of the incident, Brian has suffered a hernia that restricts his mobility, causes him pain and suffering, and causes loss of enjoyment of life. They further allege that Brian has since suffered mental pain and anguish, behavioral problems and psychological damages. The plaintiffs further contend that the parents of Tory and Henry are liable for damages suffered by Brian.
In October 2002, the defendants served a subpoena upon the Custodian of Records of the Office of the Jefferson Parish District Attorney. The subpoena sought "[a]ll documents, photographs, file materials, reports, investigations relating to Complaint No. L-81647-NN identified as the case of Detective Brian McGregor, accused Sharon J. Bankston, Charge 14:81, victim Brian Lagrande." In response to the subpoena, a incident report and various other documents were produced. However, written notes taken during an interview with the plaintiffs were not produced.
The defendants thereafter filed the instant motion seeking to compel the production of the written notes. The defendants claim that they are entitled to these written notes because they are reasonably calculated to lead to the discovery of admissible evidence. They contend that because the instant suit depends primarily on verbal statements and accusations made by the plaintiffs, their credibility is at issue. The defendants argue that, as such, any and all statements made by the plaintiffs are essential for their case for cross-examination and/or impeachment purposes.
The Jefferson Parish District Attorney's Office ("JPDA") opposes the motion claiming that because the written notes at issue were taken by the assistant district attorney who screened the charges, the documents are privileged and not subject to discovery. JPDA argues that disclosing information obtained during an interview of a witness or victim would violate the work product privilege and the deliberative process privilege.
The defendants have replied to JPDA's opposition contending that because the JPDA decided to not proceed with criminal charges against the defendants, there is no pending litigation and thus no need to protect JPDA's trial preparation materials. They also argue that the privilege does not apply because this proceeding is separate from the previous criminal proceeding. The defendants further contend that because the instant suit is based on statements made by Brian Lagrande, the plaintiffs have put the statements at issue which makes them subject to discovery. Finally, the defendants claim that the information contained in the written notes cannot be obtained through any other means.
II. Analysis
A. Work Product Privilege
Rule 26(b)(3) of the Federal Rules of Civil Procedure governs the disclosure of documents prepared in anticipation of litigation and provides:
. . . a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
The work-product doctrine shields from discovery the materials prepared by or for an attorney in preparation of litigation. Hickman v. Taylor, 329 U.S. 495 (1947); Blockbuster Entertainment Corp. v. McComb Video, Inc., 145 F.R.D. 402, 403 (M.D.La. 1992). It protects two categories of materials: ordinary work-product and opinion work product. Snowden v. Connaught Lab. Inc., 137 F.R.D. 325, 330-32 (D.Kan. 1991); see generally Upjohn Co. v. U.S., 449 U.S. 383, 400-02 (1981).
However, the doctrine is not an umbrella that shades all materials prepared by a lawyer, or agent of the client. It focuses only on materials assembled and brought into being in anticipation of litigation. Piatkowski v. Abdon Callais Offshore, L.L.C., 2000 WL 1145825, at *2 (E.D. La. Aug. 11, 2000). Excluded from the work-product doctrine are materials assembled in the ordinary course of business. United States v. El Paso Co., 682 F.2d 530 (5th Cir. 1982), cert. denied, 466 U.S. 944 (1984). It also does not extend to the underlying facts relevant to the litigation. See generally Upjohn, 449 U.S. at 395-96.
The Court notes that Rule 26(b)(3) recognizes a distinction between "ordinary" and "opinion" work product. Conoco, Inc. v. Boh Brothers Construction Co., 191 F.R.D. 107, 118 (W.D.La. 1998). Ordinary work product will be ordered produced "only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means." Thomas v. General Motors Corp., 174 F.R.D. 386, 388 (E.D.Tex. 1997); see FED. R. CIV. P. 26(b)(3). "Opinion" work product, that which conveys the "mental impressions, conclusions, opinions, or legal theories of an attorney or other representative," has been accorded almost absolute protection from discovery by some courts. See Conoco, 191 F.R.D. at 118; Thomas, 174 F.R.D. at 388.
JPDA essentially contends that notes taken during a prior criminal proceeding should be shielded by the work product privilege in a subsequent civil proceeding. The Supreme Court, however, has recognized that the literal language of Rule 26(b)(3) "protects materials prepared for any litigation or trial as long as they were prepared by or for a party to the subsequent litigation." In re Grand Jury Proceedings, 43 F.3d 966, 970 (5th Cir. 1994) (citing FTC v. Grolier, Inc., 462 U.S. 19, 25 (1983)). Thus, Rule 26(b)(3) "limits . . . protection to one who is a party (or a party's representative) to the litigation in which discovery is sought." Hernandez v. Longini, 1997 WL 754041, at *2 (N.D. Ill. Nov. 13, 1997) (quoting In re California Public Utilities Comm'n, 892 F.2d 778, 781 (9th Cir. 1989)).
In the instant case, JPDA, the prosecutor in a prior criminal investigation against the defendant, objects to discovery of its work product by the defendants in this related civil proceeding. Although this Court is unaware of any courts within this Circuit that have addressed this issue, courts in several other jurisdictions have consistently held that the privilege is unavailable when a prosecutor in a prior criminal investigation later objects to discovery of her work product by a litigant in a related civil lawsuit. See Ostrowski v. Holem, 2002 WL 31956039, at *3 (N.D. Ill. Jan. 21, 2002) (finding that work product privilege did not apply and plaintiff could obtain production of prosecutorial files from her prior prosecution); Carter v. City of Philadelphia, 2000 WL 632988 (E.D. Pa. May 5, 2000) (finding that work product did not apply in civil case where documents of prosecutor were not produced in connection with the civil case, but rather in connection with the underlying, long terminated, criminal case); Hernandez, 1997 WL 754041, at 2 (finding that work product privilege did not apply and plaintiff in § 1983 claim could obtain production of the prosecutor's criminal files from her prior prosecution for aggravated battery of a police officer); Doubleday v. Ruh, 149 F.R.D. 601, 606 (E.D.Cal. 1993) (finding no authority for the proposition that a public prosecutor — having completed his investigation and having announced, after failing to obtain an indictment, that no further action would be taken by him — is entitled to rely upon the work product doctrine when the fruits of his investigation become relevant to civil litigation to which he is not a party).
Further, the party for whom the notes were created, the "client", was the Parish of Jefferson Louisiana. The Parish of Jefferson is not a party to the present case. Additionally, the underlying criminal case here has been closed, thus, there are no concerns with interfering with an ongoing criminal investigation. See Ostrowski, 2002 WL 31956039, at *4; Hernandez, 1997 WL 754041, at *2 (finding because the underlying criminal case has been closed there are no concerns with jeopardizing an ongoing criminal investigation); see also Carter, 2000 WL 632988, at *2. Moreover, even though it is true that the defendants may seek to establish their innocence as a defense to the present civil rights charges, it does not follow that all documents created by the JPDA in the criminal proceeding and the decision not to prosecute the defendants remain protected by the work product privilege. See id. (citing Barnes v. Borough of Pottstown, 1994 WL 114359, at *3 (E.D.Pa. 1994)).
Thus, the work product privilege is inapplicable in the instant case. This conclusion is supported by a consideration of the policies which underlie the doctrine. Though the general rule against a non-party asserting the privilege is certainly susceptible to the discomforting situation of a "less diligent attorney raiding the file of a previously diligent attorney," this danger is not present "where the prior case was criminal and the subsequent civil." Schultz v. Talley, 152 F.R.D. 181, 185 (W.D.Mo. 1993) (citing Doubleday, 149 F.R.D. at 607).
B. Deliberative Process Privilege
JPDA also claims that its notes are shielded from production by the deliberative process privilege. The deliberative process privilege applies to documents which reflect "advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." NLRB v. Sears, Roebuck Co., 421 U.S. 132, 148 (1975); Federal Savings and Loan Insurance Corp. v. Schoenberger, 1990 WL 130641, at *5 (E.D.La. 1990). The privilege calls for the disclosure of any "opinions and interpretations which embody the agency's effective law and policy," and the withholding of all papers which reflect the agency's group thinking in the process of working out its policy and determining what its law shall be. Id.
The purpose of the privilege is to protect the decision-making process from the inhibiting effect that disclosure of pre-decisional advisory opinions and recommendations might have on "the `frank discussion of legal or policy matters' in writing." Sears, 421 U.S. at 150; Skelton v. U.S. Postal Service, 678 F.2d 35 (5th Cir. 1982). Documents must satisfy two requirements in order to qualify for the deliberative process privilege. FDIC v. Schoenberger, 1990 WL 52863, at *5 (E.D.La. 1990). First, it must be predecisional, that is, generated before the adoption of an agency policy or decision and prepared in order to assist agency decision maker in arriving at his or her decision. Id. Second, the document must be deliberative in nature, containing opinions, recommendations or advice about agency policies. Id. Purely factual material that does not reflect deliberative process is not protected. Id. However, as facts can be intermixed with analysis, a careful case-by-case analysis of the material sought is necessary. Skelton, 678 F.2d at 39.
The deliberative process privilege is a qualified one. Thus, courts have found that a litigant may obtain such deliberative materials if his or her need for accurate fact finding override the government's interest in nondisclosure. Id. Courts have identified various factors which are relevant to a determination of whether or not production is proper despite the existence of the deliberative process privilege. These factors include: (1) the importance of the documents to the defense and their relevance; (2) the availability of information on the same issue from a different source; (3) the importance of the litigation and the issues involved; (4) the government's role, if any, in the litigation; and (5) the potential chilling of governmental employees' expression of candid opinion. Id. (citing F.T.C. v. Warner Communications, Inc., 742 F.2d 1156, 1161 (9th Cir. 1984) and In re Franklin National Bank Securities Litigation, 478 F. Supp. 577, 582 (E.D.N.Y. 1979)).
Here, JPDA is not a party to this litigation and lawyers from the JPDA are not involved in this litigation. Also, the information contained in the notes is not available from any other source. Moreover, the Courts in camera review of the notes at issue reveal that the notes do not include anything more than the facts and circumstances of the criminal matter as provided by several witnesses. That is, JPDA has not provided the Court with information which suggests that the notes reveal any broad pronouncements that would tend to show how that office's decisions are made or its policies are formulated. As such, producing these documents to the defendants for limited use in this litigation would not appear, in anyway, to compromise "the integrity of internal governmental deliberations."
While it is true that the witnesses could be deposed, the passage of time and the present, potential bias of the plaintiffs may color recollections such that what was said at the time cannot be accurately deciphered.
By contrast, however, keeping these documents from the defendants may impede the "need for free and open discovery." Documents that reflect JPDA's decision whether to prosecute the defendants are clearly relevant. The facts and opinions surrounding the decision are particularly important to the claims asserted against the defendants in this civil action. As such, the Court finds that the deliberative process is inapplicable here.
Accordingly,
IT IS ORDERED that the Motion to Compel Production of Written Notes (doc. # 24) is GRANTED. The Jefferson Parish District Attorney's Office shall retrieve the notes provided from in camera review from the chambers of the undersigned and provide them to the defendants within 10 days of this order.