Grider et al v. City of Auburn, Alabama et al

Filing 172

OPINION AND ORDER that the defendants motion to strike, contained in their reply brief (Doc. No. 116 ), is denied. Signed by Honorable Myron H. Thompson on 6/17/2009. (dmn)

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

PATRICK JAMES GRIDER, et al., Plaintiffs, v. CITY OF AUBURN, et al., Defendants.

) ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 3:07cv1031-MHT (WO)

OPINION AND ORDER A preliminary skirmish between the parties in their submissions on the defendants' motion for summary

judgment concerns whether the plaintiffs may use the testimony Manager. of David Watkins, the former Auburn City

The defendants argue that counsel for the

plaintiffs had improper ex parte contact with Watkins because counsel did not seek the permission of the city and its lawyers prior to contacting him. The defendants

argue that the Alabama Rules of Professional Conduct

could be read to prohibit such contact.

As a result, the

defendants ask this court to strike any reference to Watson's deposition testimony.1 It is not clear pursuant to what authority the

defendants make this request.

The defendants have cited

to cases that discuss disqualification of counsel for ex parte contact, but they do not point to any authority that cured putatively improper ex parte contact with the remedy they seek here. The plaintiffs logically assume

that the defendants' request is made pursuant to Federal Rule of Civil Procedure 12(f); that rule, however,

plainly applies only to pleadings, and a request to "strike" references to deposition testimony in a motion for summary judgment is not a request to strike material from a pleading. 2 James Wm. Moore, et al., Moore's

Federal Practice § 12.37[2] (3d ed. 1999) ("Only material included in a `pleading' may be subject of a motion to

1. The defendants do not ask for any sanctions against counsel for the plaintiffs and specifically deny requesting that counsel be disqualified from this action. 2

strike. ... Motions, briefs or memoranda, objections, or affidavits strike."). Moreover, in asking this court to strike references to testimony because of improper ex parte contact, the defendants conflate the issue of sanctions on opposing counsel with what they apparently assert as a may not be attacked by the motion to

"deliberative process privilege." Def.'s Reply (Doc. No. 116) at 9. a To the extent the defendants seek to assert process privilege with respect to

deliberative

Watkins's testimony, they have not provided the court with any detail that would allow it to rule in their favor on the issue. The defendants seek to strike "any

and all testimony" because Watkins apparently provided confidential reviews of his performance and, more

importantly, because he provided testimony about meetings between city officials and others. Duggan, meetings top city to officials, Watkins's However, Dunlap and about and these the

testified

prior

deposition,

3

defendants have provided absolutely no detail about what, if anything, was different about Watkins's contribution. Thus, even if the City of Auburn has not waived whatever privilege it now apparently asserts by allowing the

testimony of its other top officials (or by not asserting the privilege in a timely manner at Watkins's

deposition)2, it provides absolutely no basis for the court to determine what, if anything, Watkins revealed about the deliberative process that is purportedly

deserving of the "executive branch" privilege that the city claims. Finally, the defendants have not provided

any detail concerning why the purported privilege should exist at all given their acknowledgment that these

meetings were attended by city officials "and others." Def's. Reply (Doc. 116) at 9. ***

2. The defendants did not raise this issue until their reply brief, well after they were aware of counsel's contact with Watkins and well after Watkins's deposition. 4

As a result, it is ORDERED that the defendants motion to strike, contained in their reply brief ((Doc. No. 116), is denied. DONE, this the 17th day of June, 2009. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE