Adams v. The City of Montgomery - Maintenance Department

Filing 111

MEMORANDUM OPINION AND ORDER directing that: (1) plf Willie Adams's 88 MOTION for Protective Order is denied because def City of Montgomery has withdrawn its privilege assertions as to the disclosed documents; (2) plf Adams's 80 MOTION for In Camera Review is granted, as further set out in order; to the extent that Adams's motion for in-camera review seeks the disclosure of these documents and recordings, the motion is denied because the documents and recordings are pr otected under the work-product doctrine; (3) plf Adams's 90 MOTION to Compel is denied because defendant City of Montgomery has now produced a privilege log; (4) plf Adams's 94 motion to compel the deposition of Walter Lilley, Jr., and C. Michael "Mickey" McInnish is granted as to Lilley and denied as to McInnish ; (5) plf Adams's 81 & 83 motions for sanctions are granted as outlined in Section II.C of the accompanying opinion and denied in all other resp ects; The parties are given until May 31, 2012, to agree upon the amount defendant City of Montgomery owes plaintiff Adams pursuant to the opinion in this case and to file that agreement with the court; if they cannot agree, plaintiff Adams is allo wed until June 4, 2012, to file a motion setting forth the appropriate costs and attorneys fees he contends defendant City of Montgomery owes him pursuant to the opinion. Signed by Honorable Judge Myron H. Thompson on 5/29/12. (Attachments: # 1 civil appeals checklist)(djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

WILLIE ADAMS,
Plaintiff,
v.
THE CITY OF MONTGOMERY,
Defendant.

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CIVIL ACTION NO.
2:10cv924-MHT
(WO)

OPINION AND ORDER
In this employment-discrimination case, an eleventhhour discovery revelation forced the continuation of the
trial and precipitated a protracted dispute between the
parties.

Three days before the scheduled trial date,

defendant City of Montgomery disclosed over 100 pages of
documents to plaintiff Willie Adams.
documents

relate

to

the

city’s

Some of these
internal-affairs

investigation into Adams’s race-discrimination claim, a
point that has been hotly contested by the parties.
Additionally, the city has asserted the attorney-client
privilege

and

work-product

doctrine

for

two

never

disclosed documents and a set of audio recordings.

Adams

has filed six motions seeking various forms of relief
including sanctions, in-camera review of the allegedly
privileged

documents

and

recordings,

and

additional

discovery.

For the reasons that follow, these motions

will be granted in part and denied in part.

I.
A.

BACKGROUND

Overview of the Litigation

To provide context to this discovery dispute, the
court will first give a truncated synopsis of the facts
and

procedural

history

of

this

litigation,

with

particular attention to Adams’s remaining claims.1
Plaintiff Adams, an African-American, first worked
for the City of Montgomery from September 2003 to August
2004.

After a stint as a long-distance truck driver, he

returned to work for the city on August 10, 2007.

Upon

his re-employment, he was assigned to the patch crew,

1. For a thorough discussion of this suit, see Adams
v. City of Montgomery, 2012 WL 1414979 (M.D. Ala. Apr.
24, 2012) (Thompson, J.).
2

which

does

repair

work

on

the

supervisor was James Ivey (white).

city’s

roads.

His

Adams has submitted

evidence indicating that Ivey has frequently used racial
slurs in the workplace.
On May 28, 2008, Adams was told that he was being
transferred to the ditch crew, which handles weed cutting
and

other

gardening

work

along

the

city’s

roads.

According to an Employee Counseling Record dated May 28,
Ivey stated that Adams was “not pulling [his] own weight”
on the patch crew.

Ivey specifically criticized Adams

for an incident on May 22, when Adams’s alleged laziness
resulted

in

other

workers

carrying

his

load

construction job taking longer than planned.

and

a

Employee

Counseling Record (Doc. No. 38-8) at 2.
Upon learning of this reassignment, Adams left work
to file an internal-affairs complaint alleging racial
discrimination.

His internal-affairs complaint states:

“[D]iscrimination put a man with Class A CDL on grass.
According to consevation [sic] a job doing I was told to

3

speed up, but wasn’t told to do so.”
(Doc.

No.

38-2)

at

2.

Thus,

his

Complaint Form
internal-affairs

complaint focuses on his reassignment to the ditch crew.
The next day, on May 29, Adams was called in to meet
with Ivey and Kim McGough, the Administrative Officer for
the Maintenance Department.

Adams was handed the May 28

counseling record that detailed the May 22 incident that
precipitated his transfer to the ditch crew.

He was also

given a letter of reprimand for taking unapproved sick
leave the day before.

According to the reprimand letter,

he did not clock out for the day and failed to produce a
doctor’s note.

Of course, Adams was not on sick leave

the prior day; he had left work to file his internalaffairs complaint.

He states that he received permission

to leave work early from his new supervisor, Sedrick
Cross, and that white employees have left work early
without disciplinary action being taken.
On August 7, 2008, Adams received a second letter of
reprimand for taking an unapproved absence on July 30

4

without a doctor’s note.
19-16) at 1.

Letter of Reprimand (Doc. No.

Adams states that he did not come to work

because a bad storm had caused trees to fall on his
property.

As a result of this letter of reprimand and

the May 28 and 29 disciplinary actions, he received a
three-day suspension without pay on September 3, 2008.
Id. at 1-4.
On

October

29,

2010,

Adams

filed

this

lawsuit

alleging race discrimination and retaliation.
On April 24, 2012, this court entered an opinion and
order granting summary judgment in part and denying it in
part.

Adams v. City of Montgomery, 2012 WL 1414979 (M.D.

Ala. Apr. 24, 2012) (Thompson, J.).
the

city’s

request

for

summary

That order denied

judgment

on

Adams’s

race-discrimination claims arising out of the September
3 three-day suspension and all prior disciplinary actions
that factored into that decision.

The order also denied

the

judgment

city’s

request

for

summary

on

Adams’s

retaliation claims arising out of his receipt of the May

5

29 and August 7 letters of reprimand and his September 3
suspension.

This court granted the city’s request for

summary judgment on all other claims–-some of which have
been

omitted

here

for

the

sake

of

brevity.

Significantly, this court granted summary judgment in
favor of the city on Adams’s retaliation claim involving
the May 28 employee counseling record because it was
dated

the

same

day

Adams

filed

his

internal-affairs

complaint.

B.

Discovery Dispute

Two

sets

of

documents

discovery dispute.2
necessary

to

are

at

the

core

of

this

An explanation of the two sets is

understand

how

the

discovery

dispute

unfolded.
The

first

set

of

documents,

the

“Alexander

documents,” Bates Stamps 388 to 417, relates to an Equal

2. Personnel records of Adams’s co-workers were also
involved in the discovery dispute, though Adams does not
dwell on these documents in his arguments for sanctions.
6

Employment Opportunity Commission (EEOC) charge filed by
Samuel Alexander.

During discovery, Adams requested

access to other discrimination charges filed against the
city’s

maintenance

department.

The

city

proffered

Alexander’s charge as the sole example in its records.
Although

at

documents

various

were

times

protected

the

city

asserted

these

by

the

attorney-client

privilege, the city has now withdrawn its objection and
concedes that these documents are discoverable.

As such,

the court will address the Alexander documents only as
they relate to the issue of sanctions.
The second set of documents, the “Lilley documents,”
Bates Stamps 418 to 503, raise more serious concerns.
These
city’s

documents

contain

investigation

complaint.

information
of

Adams’s

relating

to

the

internal-affairs

According to Adams, these documents revealed

several important facts:
!
The
identity
of
the
city’s
investigator:
Walter
Lilley,
Jr.
Previously, Adams’s attorneys believed
that city attorney C. Michael “Mickey”
7

McInnish conducted the internal-affairs
investigation.
! James Ivey, who issued the May 28
employee counseling record and attended
the May 29 disciplinary meeting, was
interviewed by Lilley about Adams’s
race-discrimination complaint sometime
on May 29. This fact was disclosed by
signed statements indicating the dates
on which Lilley interviewed witnesses.
It is unclear if Ivey was notified about
the interview (or sat for the interview)
before or after his meeting with Adams.
Although initially claiming attorneyclient privilege for the signed witness
statements, the city has since dropped
its objection as to these documents.
! Lilley tape recorded his interviews
with Ivey, Cross, and three other
supervisors.
These audio recordings
have never been turned over to Adams and
the city maintains that they are
protected by the work-product doctrine.
In addition to (1) the audio recordings, the city
claims

the

following

two

undisclosed

documents

are

privileged: (2) correspondence of May 28, 2008, from
McInnish

to

maintenance

department

supervisor

Gail

Gipson; and (3) an investigative report of June 3, 2008,
from Lilley to Gipson that was reviewed and approved by

8

McInnish.

Pursuant to an order, this court conducted an

in camera review of the two documents and the audio
recordings.

C.

Chronology of the City’s Evolving Positions

Based on the documentary evidence provided by both
parties,
chronology

the
of

court
the

has

constructed

the

discovery

dispute

instant

following
and

the

city’s shifting position on asserting the attorney-client
privilege

and

the

work-product

doctrine.

For

the

purposes of this chronology, the court will divide the
Lilley documents into two groups:
documents,

which

include

the

the undisclosed Lilley

May

28

McInnish-Gipson

correspondence, the June 3 investigative report, and the
audio recordings; and the disclosed Lilley documents,
which include all the other Lilley documents.

9

January

21,

The

2011:

city

makes

its

disclosures under Fed. R. Civ. P. 26(a)(1).

initial

Lilley is

not listed as a potential witness.
March 8: In a response to interrogatories, the city
states

that

Samuel

Alexander

has

filed

an

internal

complaint and an EEOC charge.
July 5: The city informs Adams that it objects to the
deposition of McInnish.
August 11: Adams informs the city that he still wants
to depose McInnish.

However, no formal motion to compel

is filed, and McInnish is never deposed.
August 15: Adams’s paralegal requests the Alexander
documents.
August 30: The city’s attorney contends she prepared
the Alexander documents and the non-privileged Lilley
documents

for

disclosure.

Defense

counsel

further

asserts that she prepared a privilege log identifying the
May

28

McInnish-Gipson

investigative

report,

correspondence,

and

the

10

audio

the

June

recordings.

3
Her

evidence for this belief is that the documents were Bates
Stamped and placed on a CD-ROM; it is her personal policy
to Bates Stamp documents that will be disclosed.

Defense

counsel believes that these documents were printed out on
this date but that she waited until September 8 to mail
them.

Defense counsel has submitted computer “metadata”

showing that these files were last edited on August 30.
September 8: Defense counsel believes that this is
the date the Alexander documents, the disclosed Lilley
documents,

and

the

plaintiff’s counsel.

privilege

log

were

mailed

to

The city concedes that it has been

unable to find a signed copy of these documents or a
certificate of service.

Adams’s attorneys, however,

unequivocally

they

documents.

state
They

that

also

point

never
out

received

that

the

these

unsigned

certificate of service on one of these documents says
March 2011.
May 3, 2012, at 6:57 p.m.: Adams’s attorneys email
the city about documents with Bates Stamps in the 400

11

range, contending to have received only documents up to
Bates Stamp 387.
May 3 at 7:07 p.m.: The city responds by email and
informs

Adams

that

he

will

receive

everything

the

following morning.
The city emails Adams to

May 4 at 10:34 a.m.:

confirm that it would be sending Bates Stamps 388 to 447
and that it would also be sending personnel files of Ivey
and Jeremy Jarrell (a co-worker of Adams).

12:45 p.m.:

A conference call was held between the parties’ attorneys
3:24 p.m.: The

regarding unresolved discovery issues.

city sends an email with Bates Stamps 418 to 503, thus
providing the disclosed Lilley documents but not the
Alexander documents. Defense counsel contends that these
documents

“were

depositions.”

provided

following

the

August

2011

Defense counsel, however, notes that she

“cannot locate an executed copy of our privilege log” and
“cannot

determine

privilege log.”

whether

we

actually

Doc. No. 81-1 at 2.

12

provided

the

Defense counsel’s

email

also

includes

the

three

current

assertions

privilege (which coincide with the privilege log).

of

4:00

p.m.:

The city’s paralegal sends Bates Stamps 494 to

503.

4:09 p.m.: The city’s paralegal sends documents
4:21 p.m.: Adams emails

related to Jarrell’s employment.

the city again requesting documents with Bates Stamps 388
to 417 (the Alexander documents).

4:46 p.m.: The city’s

paralegal tells Adams that defense counsel has stepped
out but that she will respond when she gets back.

5:30

p.m.: The city’s paralegal again states that defense
counsel will respond soon.

6:03 p.m.: The city’s counsel

responds to Adams’s attorneys and states:

The Alexander

documents were “bates stamped by the staff, but I pulled
them out before they were sent.

It was one of the Legal

Department’s EEOC cases which is outside the scope of
discovery.”
statement

City Email (Doc. No. 81-12) at 2.

indicates

that

defense

counsel

previously disclosed the Alexander documents.

13

had

This
never

May 5 and 6: Adams files motion for in camera review
of

Alexander

documents.

documents

and

the

undisclosed

Lilley

Adams also files motions for sanctions.

May 6: The city requests that all documents with
Bates Stamps above 387 be returned pursuant to Fed. R.
Civ. P. 26(b)(5)(B), the “Clawback” provision.
May 7: Scheduled date for trial.

The city files a

brief under the assumption that it had never previously
disclosed

the

Lilley

documents

and

stating

that

believed the privilege log had never been sent.

it

Later

that day, at an in-person conference with the court, the
city continues to assert attorney-client privilege for
all

documents

with

Bates

Stamps

387

and

higher.

Specifically, the city contends that the Lilley documents
were created “in anticipation of litigation.”

Adams

requests a trial continuance, and the city agrees that a
continuance
dispute.

is

warranted

to

sort

out

The court grants a continuance.

14

the

discovery

May 11:

The city changes its story.

Now, the city

contends that it did provide the Alexander and disclosed
Lilley

documents,

as

well

as

a

privilege

log,

on

September 8, 2011, but concedes that it has no proof of
this.

The

city

also

withdraws

its

assertions

of

attorney-client and work product privileges as to the
Alexander documents and the disclosed Lilley documents.
The city’s sole remaining privilege claims relate to the
undisclosed Lilley documents (the May 28 McInnish-Gipson
correspondence, the June 3 investigative report, and the
audio tapes).

The city files a privilege log as to these

documents (which it claims is the original privilege log
from September 8).

The city provides an affidavit from

McInnish in which he states that he considered the Adams
investigation “in anticipation of litigation” because
Adams had indicated on his internal-affairs complaint
that he was currently pursuing litigation.
May 15: Pursuant to a court order, the city submits
the undisclosed Lilley documents for in camera review.

15

May 16: The court holds an evidentiary hearing on the
pending motions.

McInnish testifies about the policies

and practices of the city’s legal department and internal
affairs division.
deeming

the

McInnish elaborates on his reasons for

Adams

anticipation

of

internal-affairs

litigation.”

investigation

Defense

counsel

“in
also

testifies concerning her failure to disclose documents.
Based

on

this

following findings.
contention

that

documents,

the

chronology,

the

court

makes

The court does not credit the city’s

it

provided

disclosed

to

Lilley

Adams

the

documents,

privilege log at any point prior to May 2012.
counsel

has

the

provided

evidence

that

she

Alexander
and

the

Defense

intended

and

planned to mail these documents to Adams’s attorneys, but
there is no certification or other proof that they were
ever sent in August or September 2011.

Moreover, Adams’s

attorneys’ position on the subject has been consistent.
The emails between the parties reveal defense counsel’s
confusion as to the status of disclosures and assertions

16

of privilege.
repeatedly

The court further notes that the city has

changed

its

position

as

to

whether

the

Alexander and Lilley documents were properly disclosed or
privileged.

II.

DISCUSSION

Two issues need to be resolved.
needs

to

determine

whether

the

assertions of privilege are valid.

First, this court
city’s

remaining

Second, the court

needs to decide what sanctions, if any, are appropriate.
The court will address whether to order the depositions
of Lilley and McInnish in its sanctions discussion.

A.

Privilege

The city asserts that the May 28 correspondence and
the June 3 report are protected by both the attorneyclient privilege and the work-product doctrine and that
the audio recordings are protected by the work-product
doctrine.

Given

that

“the

17

work-product

doctrine

is

distinct

from

and

broader

than

the

attorney-client

privilege,” United States v. Nobles, 422 U.S. 225, 238
n.11 (1975), the court first addresses the work-product
doctrine and concludes that the city’s contention is
valid.
Under Federal Rule of Civil Procedure 26(b)(3)(A), a
“party may not discover documents and tangible things
that are prepared in anticipation of litigation or for
trial by or for another party or its representative.”
The work-product doctrine, therefore, has two elements:
to be shielded from discovery the document must be (1)
produced by an attorney or her agent and (2) created in
anticipation of litigation.
notion,

as

“Discovery

Justice
was

The doctrine is based on the

Jackson

hardly

eloquently

intended

to

enable

put,
a

that,
learned

profession to perform its functions either without wits
or on wits borrowed from the adversary.”
Taylor,

329

U.S.

495,

516

concurring).

18

(1947)

Hickman v.

(Jackson,

J.,

As a preliminary matter, the fact that Lilley, a nonlawyer, conducted the interviews and drafted the report
does not vitiate the application of the doctrine.

The

work-product doctrine is “grounded in the realities of
litigation in our adversary system.”
238.

Nobles, 422 U.S. at

As such, it recognizes that “attorneys often must

rely on the assistance of investigators and other agents
in

the

trial.”

compilation

of

materials

in

preparation

for

Id.

The closer question is whether the undisclosed Lilley
documents were prepared in anticipation of litigation.
Documents that are prepared “in the ordinary course of
business or pursuant to public requirements unrelated to
litigation, or for other nonlitigation purposes” are not
protected.

Comm. Notes. Fed. R. Civ. P. 26(b).

The city points to several factors as evidence that
the

undisclosed

Lilley

documents

anticipation of litigation.

were

prepared

in

The city’s primary argument

comes from Adams’s internal-affairs complaint itself.

19

The form asks: “Have you begun any legal action against
this person or department?”
and,

when

prompted

“discrimination.”
19-29) at 1.3

To which Adams replied “yes”

for

an

explanation,

stated:

Internal-Affairs Complaint (Doc. No.

The city has also submitted an affidavit

from McInnish, in which he states that he deemed the
investigation “in anticipation of litigation” because of
Adams’s statement on the internal-affairs complaint form.
McInnish Affidavit (Doc. No. 98-10) at 1.

At the hearing

on May 16, 2012, McInnish reasserted that Adams’s listing
of initiated litigation was the reason he designated the
investigation “in anticipation of litigation.”
After

inspecting

the

documents

and

recordings

submitted for in-camera review, the court is convinced,
and

so

finds

documents

were

factually,
made

in

that

the

undisclosed

anticipation

of

Lilley

litigation.

3.
This is true to a point: at the time Adams made
his internal-affairs complaint he had filed a EEOC intake
questionnaire but had not yet submitted a formal EEOC
charge. Nonetheless, the city had a good-faith belief
that Adams had initiated litigation.
20

McInnish’s correspondence to Gipson notes the potential
for litigation, emphasizes the need for confidentiality,
and specifically references the work-product doctrine.
McInnish-Gipson Correspondence (Doc. No. 101-2) at 2.
Furthermore,

the

investigative

report

and

the

tape

recordings cover far more ground than the sole issue
raised in Adams’s internal-affairs complaint: the ditchcrew transfer.

As such, they focused on issues likely to

arise in litigation.
To be clear, the court emphasizes that its ruling is
fact-bound and narrow.
the

city’s

The court is not saying that all

internal-affairs

investigations

are

in

anticipation of litigation; nor can the city routinely
contend

such

in

good

faith.

On

this

point,

Adams

correctly emphasizes that the city conducts internalaffairs

investigations

discrimination.

into

all

complaints

of

What, if anything, then separates the

Adams investigation from the routine investigation?

21

Here, the undisclosed Lilley documents had a dual
purpose:

They were prepared pursuant to the city’s

policy of investigation, but also, specifically, with an
eye

to

this

anticipated

litigation.

In

determining

whether a dual-purpose document is protected, the former
Fifth Circuit explained in binding precedent that “as
long

as

the

primary

motivating

purpose

behind

the

creation of the document was to aid in possible future
litigation,” it receives work-product protection. United
States v. Davis, 636 F.2d 1028, 1040 (5th Cir. Feb. 12,
1981).4 Other appellate courts have adopted a potentially
broader

“because

of”

standard,

which

asks

whether

a

document was prepared or obtained because of the prospect
of litigation.

See, e.g., United States v. Roxworthy,

457 F.3d 590, 593 (6th Cir. 2006) (adopting the “because
of” test and collecting cases); Pacific Gas & Elec. Co.

4. In Bonner v. City of Prichard, 661 F.2d 1206, 1209
(11th Cir. 1981) (en banc), the Eleventh Circuit Court of
Appeals adopted as binding precedent all of the decisions
of the former Fifth Circuit handed down prior to the
close of business on September 30, 1981.
22

v.

United

States,

69

F.

Cl.

784,

790-91

(2006)

(discussing the “motivating purpose” and “because of”
standards); United States v. Adlman, 134 F.3d 1194, 11981203 (2d Cir. 1998) (collecting cases and adopting the
“because of” standard).
Whether

these

two

standards

are

consistent

or

overlapping is difficult to determine in the abstract.
Indeed, as Davis recognized, “It is admittedly difficult
to reduce to a neat general formulation the relationship
between preparation of a document and possible litigation
necessary to trigger the protection of the work product
doctrine.”

636 F.2d at 1040.

Moreover, a court must be

quite careful in crafting a legal standard, or choosing
between two arguable applicable ones, “for fea[r] that it
may contain implications not now apparent.”

Hickman v.

Taylor, 153 F.2d 212, 223 (3rd Cir. 1946).
In any event, the court need not resolve this dispute
(to the extent one exists) between whether the old Fifth
Circuit standard should still be binding in light of

23

later developments or the new standard should be adopted,
because

the

standard:

result

the

would

documents

be

are

the

same

covered

by

under

either

work-product

protection, as they were produced, and this court finds
so

factually,

with

the

“motivating

purpose”

“because of” anticipated litigation.

for

and

As stated, the

undisclosed Lilley documents cover far more ground than
the

sole

issue

complaint.
therefore

The
the

raised

in

Adams’s

undisclosed

product

of

much

Lilley
more

internal-affairs
documents
than

a

were

routine

investigation; they were, instead, the product of a much
more

expansive

investigation

in

anticipation

of

litigation.
Finally, the work-product doctrine can be overcome if
Adams can demonstrate that the sought-after documents are
otherwise nonprivileged and relevant pursuant to Fed. R.
Civ. P. 26(b)(1) and that he “has substantial need for
the materials to prepare [his] case and cannot, without
undue hardship, obtain their substantial equivalent by

24

other means.” Fed. R. Civ. P. 26(b)(3)(A).

Because it

appears, at this time, that Adams is free to ask the
other witnesses at trial about their internal-affairs
interview and depose Lilley, see infra Section II.B, he
has not, at this time, demonstrated a “substantial need”
or “undue hardship” for the undisclosed Lilley documents.
Thus, the undisclosed Lilley documents (the May 28
McInnis-Gipson correspondence, the June 3 investigative
report, and the audio recordings) are protected by the
work-product doctrine.

B.

Sanctions

Adams

believes

that

the

Alexander

and

disclosed

Lilley documents should have been produced earlier in the
litigation.
disclosed,

While numerous documents were not timely
most

of

the

prejudice

disclosed Lilley documents.

arises

from

the

Specifically, Adams asserts

he would have deposed Lilley and developed a more refined
timeline for his retaliation claim.

25

The disclosed Lilley

documents raise the possibility that Ivey’s behavior in
the May 29 disciplinary meeting and the May 28 employee
counseling record may have been affected by the internalaffairs complaint.

Adams also submits that he would have

used the signed witness statements during depositions.
Adams

emphasizes

that

the

city

failed

to

produce

a

privilege log and, therefore, improperly withheld all the
Lilley documents.
The

city

sanctions.
produce

puts

two

arguments

against

First, the city attempts to show that it did

earlier

documents

forward

and

the

the

disclosed

privilege

Lilley

log.

and

For

Alexander

the

reasons

detailed above, see supra Section I.C, the court does not
credit the city’s explanation of events.
moreover, concedes that it cannot prove it
documents

earlier,

and

Adams’s

The city,
produced the

attorneys

have

been

unyielding in their assertion that they never received
these documents before the eve of trial.

26

Alternatively, the city believes that Adams’s counsel
‘slept on their rights’ by failing to bring up these
issues in the fall of 2011.

Here, the city is seeking

protection under Fed. R. Civ. P. 37(c)(1), which provides
that

sanctions

are

inappropriate

if

the

failure

to

disclose was “substantially justified” or “harmless.”
As to the disclosed Lilley documents, the city notes
that

several

investigator.

witnesses

mentioned

an

internal-affairs

Adams’s counsel aver that they believed

this was McInnish, whom they sought to depose.

Moreover,

only one witness (Ivey) actually named Lilley during a
deposition and, even then, he did so in passing and was
unsure about the investigator’s identity.

This brief

reference hardly qualifies as reasonable notice given the
fact that the city had an obligation to inform Adams’s
attorneys of Lilley’s existence and role in the internalaffairs investigation.
While this trial would have occurred as scheduled if
Adams’s attorneys had been more attentive, discovery was

27

hindered by the city’s failure to disclose.

The signed

witness statements–-which the city has now conceded are
not protected–-would have been quite helpful to Adams’s
attorneys in conducting depositions and constructing a
timeline for the retaliation claim.

Furthermore, the

city has failed to articulate any justification-–much
less

a

substantial

negligence.

one--for

its

behavior

other

than

The city’s argument is properly construed as

a plea for reduced sanctions, not an absolution of its
discovery violations.
Federal Rule of Civil Procedure 37 gives this court
ample discretion in imposing sanctions.

Options include

granting a default judgment, prohibiting the city from
supporting or opposing designated claims or defenses,
staying further proceedings, and ordering payment of
reasonable expenses.
from

a

default

Adams requests sanctions ranging

judgment

to

an

depositions of Lilley and McInnish.

28

order

requiring

the

In determining the appropriate discovery sanction,
courts should consider: “(1) Defendant’s reasons for
failing

to

provide

the

information

sooner;

(2)

the

importance of the information; (3) Plaintiff’s need for
time and Plaintiff’s ability to respond to the proffered
evidence; and (4) the court’s ability to alleviate unfair
prejudice through alternative measures.”

Stallworth v.

E-Z Serve Convenience Stores, 199 F.R.D. 366, 369 n.3
(M.D. Ala. 2001) (DeMent, J.).

Here, the court concludes

that the city has provided no valid excuse for its
attorney’s negligent conduct throughout discovery and her
shifting privilege assertions; the information improperly
withheld–-particularly
documents--went

to

the

the
heart

disclosed
of

Adams’s

Lilley

retaliation

claim; and, yet, Adams’s attorneys should have recognized
the city’s discovery violations prior to May 2012.
In light of the above discussion and the fact the
city’s remaining assertions of privilege are valid, the
court imposes the following sanctions:

29

! Adams’s attorneys will be permitted
to depose city investigator Lilley.
Because
Adams’s
attorneys
had
no
reasonable notice of Lilley’s existence,
a deposition is an appropriate cure for
the city’s discovery violations. Given
the
work-product
doctrine,
the
deposition cannot go into Lilley’s
investigative report.
Nevertheless,
Adams’s attorneys are permitted to ask
questions
such
as
whether
Lilley
interviewed Adams, how and when the five
witnesses
were
notified
of
their
interviews, and when those interviews
were conducted.
! Adams’s attorneys will not be
permitted to depose McInnish. They were
on notice of McInnish’s involvement in
the internal-affairs investigation in
July 2011 but declined to file a motion
to compel when faced with an objection.
! Adams will be permitted to amend his
witness list to include Lilley.
! The city will pay Adams’s reasonable
costs and attorneys’ fees related to
Lilley’s deposition because the city
failed to notify Adams about Lilley’s
role
in
the
internal-affairs
investigation. The city will also pay
half of Adams’s reasonable costs and
attorneys’ fees for the six motions
addressed in this opinion (Doc. Nos. 80,
81, 83, 88, 90 & 94) as well as for the
evidentiary hearing of May 16, 2012.
The court finds that these sanctions are
30

appropriate because of the city’s
initial
failure
to
disclose
the
Alexander documents, the non-privileged
Lilley documents, and the privilege log.
These sanctions are further appropriate
given the city’s inconsistent positions
on whether the Alexander and Lilley
documents were disclosed in September
2011 and whether these documents were
privileged. The court, however, awards
only 50 % of Adams’s reasonable costs
and attorneys’ fees because Adams’s
attorneys should have been more diligent
in noticing these discovery problems in
the fall of 2011 and brought them to the
court’s attention before the eve of
trial.

*

*

*

Accordingly, it is ORDERED that:
(1) Plaintiff Willie Adams’s motion for a protective
order (Doc. No. 88) is denied because defendant City of
Montgomery has withdrawn its privilege assertions as to
the disclosed documents.
(2) Plaintiff Adams’s motion for in-camera review
(Doc No. 80) is granted to the extent that it seeks
in-camera

review

of

the

May

28

McInnish-Gipson

correspondence, the June 3 investigative report, and the
31

audio recordings because the court has already ordered an
in camera review of these documents and recordings (Doc.
No.

100).

To

the

extent

that

Adams’s

motion

for

in-camera review seeks the disclosure of these documents
and

recordings,

the

motion

is

denied

because

the

documents and recordings are protected under the workproduct doctrine.
(3) Plaintiff Adams’s motion to compel a privilege
log (Doc. No. 90) is denied because defendant City of
Montgomery has now produced a privilege log.
(4) Plaintiff Adams’s motion to compel the deposition
of Walter Lilley, Jr., and C. Michael “Mickey” McInnish
(Doc. No. 94) is granted as to Lilley and denied as to
McInnish.
(5) Plaintiff Adams’s motions for sanctions (Doc.
Nos. 81 & 83) are granted as outlined in Section II.C of
the

accompanying

respects.

opinion

and

denied

in

all

other

The parties are given until May 31, 2012, to

agree upon the amount defendant City of Montgomery owes

32

plaintiff Adams pursuant to the opinion in this case and
to file that agreement with the court; if they cannot
agree, plaintiff Adams is allowed until June 4, 2012, to
file a motion setting forth the appropriate costs and
attorneys’ fees he contends defendant City of Montgomery
owes him pursuant to the opinion.
DONE, this the 29th day of May, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE