Adams v. The City of Montgomery - Maintenance Department
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directing that: (1) plf Willie Adams's 88 MOTION for Protective Order is denied because def City of Montgomery has withdrawn its privilege assertions as to the disclosed documents; (2) plf Adams's 80 MOTION for In Camera Review is granted, as further set out in order; to the extent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
THE CITY OF MONTGOMERY,
CIVIL ACTION NO.
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
Three days before the scheduled trial date,
defendant City of Montgomery disclosed over 100 pages of
documents to plaintiff Willie Adams.
Some of these
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
disclosed documents and a set of audio recordings.
has filed six motions seeking various forms of relief
including sanctions, in-camera review of the allegedly
For the reasons that follow, these motions
will be granted in part and denied in part.
Overview of the Litigation
To provide context to this discovery dispute, the
court will first give a truncated synopsis of the facts
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
After a stint as a long-distance truck driver, he
returned to work for the city on August 10, 2007.
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.).
supervisor was James Ivey (white).
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
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
construction job taking longer than planned.
Counseling Record (Doc. No. 38-8) at 2.
Upon learning of this reassignment, Adams left work
to file an internal-affairs complaint alleging racial
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
speed up, but wasn’t told to do so.”
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
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
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
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.
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
Adams v. City of Montgomery, 2012 WL 1414979 (M.D.
Ala. Apr. 24, 2012) (Thompson, J.).
That order denied
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
retaliation claims arising out of his receipt of the May
29 and August 7 letters of reprimand and his September 3
This court granted the city’s request for
summary judgment on all other claims–-some of which have
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
An explanation of the two sets is
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.
Employment Opportunity Commission (EEOC) charge filed by
During discovery, Adams requested
access to other discrimination charges filed against the
Alexander’s charge as the sole example in its records.
privilege, the city has now withdrawn its objection and
concedes that these documents are discoverable.
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.
According to Adams, these documents revealed
several important facts:
Previously, Adams’s attorneys believed
that city attorney C. Michael “Mickey”
McInnish conducted the internal-affairs
! 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
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
privileged: (2) correspondence of May 28, 2008, from
Gipson; and (3) an investigative report of June 3, 2008,
from Lilley to Gipson that was reviewed and approved by
Pursuant to an order, this court conducted an
in camera review of the two documents and the audio
Chronology of the City’s Evolving Positions
Based on the documentary evidence provided by both
city’s shifting position on asserting the attorney-client
purposes of this chronology, the court will divide the
Lilley documents into two groups:
the undisclosed Lilley
correspondence, the June 3 investigative report, and the
audio recordings; and the disclosed Lilley documents,
which include all the other Lilley documents.
disclosures under Fed. R. Civ. P. 26(a)(1).
not listed as a potential witness.
March 8: In a response to interrogatories, the city
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
August 30: The city’s attorney contends she prepared
the Alexander documents and the non-privileged Lilley
asserts that she prepared a privilege log identifying the
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.
counsel believes that these documents were printed out on
this date but that she waited until September 8 to mail
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
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,
certificate of service on one of these documents says
May 3, 2012, at 6:57 p.m.: Adams’s attorneys email
the city about documents with Bates Stamps in the 400
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
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).
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
Defense counsel, however, notes that she
“cannot locate an executed copy of our privilege log” and
Doc. No. 81-1 at 2.
privilege (which coincide with the privilege log).
The city’s paralegal sends Bates Stamps 494 to
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.
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:
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
City Email (Doc. No. 81-12) at 2.
previously disclosed the Alexander documents.
May 5 and 6: Adams files motion for in camera review
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
believed the privilege log had never been sent.
that day, at an in-person conference with the court, the
city continues to assert attorney-client privilege for
Specifically, the city contends that the Lilley documents
were created “in anticipation of litigation.”
requests a trial continuance, and the city agrees that a
The court grants a continuance.
The city changes its story.
Now, the city
contends that it did provide the Alexander and disclosed
September 8, 2011, but concedes that it has no proof 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
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.
May 16: The court holds an evidentiary hearing on the
McInnish testifies about the policies
and practices of the city’s legal department and internal
McInnish elaborates on his reasons for
testifies concerning her failure to disclose documents.
The court does not credit the city’s
privilege log at any point prior to May 2012.
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.
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
The court further notes that the city has
Alexander and Lilley documents were properly disclosed or
Two issues need to be resolved.
assertions of privilege are valid.
First, this court
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.
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
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
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.
The doctrine is based on the
profession to perform its functions either without wits
or on wits borrowed from the adversary.”
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.
work-product doctrine is “grounded in the realities of
litigation in our adversary system.”
Nobles, 422 U.S. at
As such, it recognizes that “attorneys often must
rely on the assistance of investigators and other agents
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
Comm. Notes. Fed. R. Civ. P. 26(b).
The city points to several factors as evidence that
anticipation of litigation.
The city’s primary argument
comes from Adams’s internal-affairs complaint itself.
The form asks: “Have you begun any legal action against
this person or department?”
19-29) at 1.3
To which Adams replied “yes”
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.”
submitted for in-camera review, the court is convinced,
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.
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.
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 court is not saying that all
anticipation of litigation; nor can the city routinely
correctly emphasizes that the city conducts internalaffairs
What, if anything, then separates the
Adams investigation from the routine investigation?
Here, the undisclosed Lilley documents had a dual
They were prepared pursuant to the city’s
policy of investigation, but also, specifically, with an
whether a dual-purpose document is protected, the former
Fifth Circuit explained in binding precedent that “as
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
document was prepared or obtained because of the prospect
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.
(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).
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
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.”
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
later developments or the new standard should be adopted,
protection, as they were produced, and this court finds
“because of” anticipated litigation.
As stated, the
undisclosed Lilley documents cover far more ground than
investigation; they were, instead, the product of a much
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
other means.” Fed. R. Civ. P. 26(b)(3)(A).
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
Lilley documents should have been produced earlier in the
While numerous documents were not timely
disclosed Lilley documents.
Specifically, Adams asserts
he would have deposed Lilley and developed a more refined
timeline for his retaliation claim.
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.
privilege log and, therefore, improperly withheld all the
First, the city attempts to show that it did
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
unyielding in their assertion that they never received
these documents before the eve of trial.
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
disclose was “substantially justified” or “harmless.”
As to the disclosed Lilley documents, the city notes
Adams’s counsel aver that they believed
this was McInnish, whom they sought to depose.
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.
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
hindered by the city’s failure to disclose.
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.
city has failed to articulate any justification-–much
The city’s argument is properly construed as
a plea for reduced sanctions, not an absolution of its
Federal Rule of Civil Procedure 37 gives this court
ample discretion in imposing sanctions.
granting a default judgment, prohibiting the city from
supporting or opposing designated claims or defenses,
staying further proceedings, and ordering payment of
Adams requests sanctions ranging
depositions of Lilley and McInnish.
In determining the appropriate discovery sanction,
courts should consider: “(1) Defendant’s reasons for
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.”
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
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:
! Adams’s attorneys will be permitted
to depose city investigator Lilley.
reasonable notice of Lilley’s existence,
a deposition is an appropriate cure for
the city’s discovery violations. Given
deposition cannot go into Lilley’s
Adams’s attorneys are permitted to ask
interviewed Adams, how and when the five
interviews, and when those interviews
! 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
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
appropriate because of the city’s
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
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
correspondence, the June 3 investigative report, and the
audio recordings because the court has already ordered an
in camera review of these documents and recordings (Doc.
in-camera review seeks the disclosure of these documents
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
(5) Plaintiff Adams’s motions for sanctions (Doc.
Nos. 81 & 83) are granted as outlined in Section II.C of
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 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
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