Clark v. Louisville Jefferson County Metro Government et al
Filing
195
MEMORANDUM OPINION AND ORDER by Magistrate Judge Colin H. Lindsay on 5/3/2021. For the reasons set forth, IT IS HEREBY ORDERED that the Louisville Defendants' Motion to Quash (DN 152 ) is DENIED. Plaintiff may depose Mike O'Connell in his capacity as Jefferson County Attorney regarding his July 21, 2020, Letter regarding Defendant Handy's sentencing. cc: Counsel (CDF)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:17-CV-419-GNS-CHL
JEFFREY DEWAYNE CLARK, et al.,
Plaintiffs,
v.
LOUISVILLE JEFFERSON COUNTY
METRO GOVERNMENT, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court is a Motion to Quash filed by Defendants Louisville Jefferson County
Metro Government, City of Louisville, James Clark, Kelly Jones, Robert Ennis, Charles Edelen,
Jim Woosley, and James Griffiths (collectively the “Louisville Defendants”). (DN 152.) Plaintiffs
Jeffrey Dewayne Clark (“Clark”) and Garr Keith Hardin (“Hardin”) (collectively “Plaintiffs”) filed
a response, and the Louisville Defendants filed a reply. (DNs 157, 164.) Therefore, the motion is
ripe for review.
For the following reasons, the Louisville Defendants’ Motion to Quash (DN 152) is
DENIED.
I.
BACKGROUND
A.
Factual and Procedural Background
This case involves Plaintiffs’ alleged wrongful convictions for the murder of Rhonda Sue
Warford in 1995. (DN 152-1, at PageID # 1076.) Specifically, Plaintiffs allege that Defendant
Mark Handy (“Handy”), a Louisville Police Department detective who investigated Warford’s
murder, engaged in investigative misconduct by fabricating false evidence and suppressing
exculpatory evidence. (DN 157, at PageID # 1096-97; DN 38.) Plaintiffs also allege that Handy’s
conduct was “not an isolated incident, but rather part of a long-standing and well-known pattern
in the L[ouisville Police Department] at the time of fabricating inculpatory evidence and
destroying or concealing exculpatory evidence.” (DN 157, at PageID # 1097.)
After this action was filed, Handy was indicted for perjury and tampering with physical
evidence related to his role in the investigations of Edwin Chandler (“Chandler”) and Keith West.
(DN 107, at PageID # 858.) On June 2, 2020, Handy pled guilty to one count of perjury for his
work on Chandler’s case. (DN 157, at PageID # 1097.) Prior to Handy’s sentencing hearing,
Jefferson County Attorney Mike O’Connell (“O’Connell”) wrote a letter dated July 21, 2020, to
the presiding judge in the state court matter, Judge Olu Stevens, urging him “to reject, vacate, and
set aside” Handy’s guilty plea and his plea agreement (the “Letter”). (Id. at 1097-98; DN 143-1.)
The Letter was written on the letterhead of the Jefferson County Attorney’s Office. (DN 143-1.)
In the Letter, O’Connell made various statements regarding Handy and his case, including:
•
“[T]he indictment [of Handy] was the first step toward justice.” (Id. at PageID #
1047.)
•
The plea “does not begin to tell the story of what Handy did to Edwin Chandler.”
(Id.)
•
“The offer picks out only one lie that Handy told.” (Id.)
•
“If ever a grant of probation would unduly depreciate the seriousness of the offense
it is the case of Commonwealth v. Mark Handy.” (Id. at 1050.)
•
“The plea bargain is manifestly against public interest.” (Id.)
•
“[T]he plea bargain does not adequately inform the public or the Court [of] the
harm Handy has done.” (Id.)
•
“Such conduct and lies by Handy were a grave human rights violation.” (Id.)
The Letter also included a summary of the facts underlying Chandler’s case and Handy’s
misconduct related to the same. (Id. at 1047-48.) O’Connell urged Judge Stevens to sentence
Handy to the maximum available sentence. (Id. at 1051.) Judge Stevens ultimately rejected the
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plea bargain’s recommended sentence, and Handy withdrew his plea. (DN 157, at PageID # 1098;
DN 149, at PageID # 1064.)
Given what they viewed as “exceptional admissions in O’Connell’s letter,” Plaintiffs
served a subpoena for O’Connell’s deposition. (DN 157, at PageID # 1098.) The Louisville
Defendants objected to the deposition and filed a Motion to Quash. (DNs 152, 157-3.) After
discussing the dispute with the Parties during a telephonic status conference, the Court directed
the Parties to proceed with briefing. (DN 154.)
B.
The Instant Motion
The Louisville Defendants argued that O’Connell, by virtue of his elected position as
Jefferson County Attorney, is their lead counsel and that “[i]t is highly unusual to depose the
attorneys for [a] party to the action for which a deposition is sought.” (DN 152-1, at PageID #
1077.) Specifically, the Louisville Defendants relied on the three-part test set out in Shelton v.
Am. Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986). (Id. at 1078.) Under that test, a party
seeking to depose the opposing party’s counsel must show that “(1) no other means exist to obtain
the information than to depose opposing counsel; (2) the information sought is relevant and
nonprivileged; and (3) the information is crucial to the preparation of the case.” Shelton, 805 F.2d
at 1327. Applying those factors to this case, the Louisville Defendants argued that Plaintiffs have
failed to satisfy the Shelton test because they did not identify what information they intended to
seek from O’Connell. (DN 152-1, at PageID # 1081.)
Plaintiffs argued that O’Connell is not counsel for Louisville Metro and, therefore, the
heightened Shelton standard does not apply. (DN 157, at PageID # 1099-1102.) Plaintiffs asserted
that the statements made in the Letter were not made in O’Connell’s capacity as counsel in this
case but “in his capacity as Jefferson County Attorney in the wholly separate matter of Defendant
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Handy’s state court criminal proceeding—taking an affirmatively different position there than
counsel for the City has taken in this case.” (Id. at 1099-1100.) Plaintiffs also pointed out that
O’Connell has not entered an appearance, participated in discovery, or attended depositions in the
instant case. (Id. at 1100.) Moreover, if this case were to go to trial, O’Connell would not be trial
counsel. (Id.) Therefore, since O’Connell is not opposing counsel, they argued that the standard
for determining whether he can be deposed is not the heightened Shelton standard, but the usual
“good cause” standard under Rule 26. (Id. at 1101.) Plaintiffs maintained that under that standard,
“[t]he City has not and cannot make out good cause to quash the deposition here, given the gravity
of O’Connell’s admissions and their clear relevance to Plaintiffs’ claims.” (Id.) However,
Plaintiffs also argued in the alternative that even if the heightened Shelton standard applies, they
are still entitled to depose O’Connell. (Id. at 1102-05.) Plaintiffs emphasized that “their intention
[is] to depose O’Connell as a fact witness solely with respect to the admissions he made on
Handy’s wide-ranging misconduct and the factual basis for those admissions.” (Id. at 1103.)
In their reply, the Louisville Defendants reiterated that O’Connell is in fact their lead
counsel such that the heightened Shelton standard applies. (DN 164, at PageID # 1145.) The
Louisville Defendants cited KRS § 69.210, which states that the County Attorney “shall institute,
defend, and conduct all civil actions in which the county or consolidated local government is
interested before any of the courts of the Commonwealth.” KRS § 69.210(1). The Louisville
Defendants argued that assistant county attorneys “may only perform their duties only at the
‘direction and control’ of O’Connell” such that he should be treated as lead counsel in this case.
(DN 164, at PageID # 1145 (quoting KRS § 69.300 (“[A]ssistant county attorneys . . . shall be
under the direction and control of the county attorney.”)).) They also argued that even though
4
Plaintiffs have now identified what information they intend to seek by deposing O’Connell, the
prongs of the Shelton test are still not met. (Id. at 1146-48.)
II.
DISCUSSION
A.
Legal Standard
Fed. R. Civ. P. 26(b) governs the scope of discovery. Fed. R. Civ. P. 26(b)(1) provides
that “[p]arties 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 . . . .” Fed. R. Civ. P. 26(b)(1).
This language is broadly construed by the federal courts to include “any matter that bears on, or
that reasonably could lead to other matter[s] that could bear on, any issue that is or may be in the
case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). “When faced with questions
over, or disputes about, what information or documents may be obtained based on their relevancy,
it is axiomatic that the trial court is afforded broad discretion to determine the boundaries of
inquiry.” Janko Enters. v. Long John Silver’s, Inc., No. 3:12-cv-345-S, 2013 WL 5308802, at *2
(W.D. Ky. Aug. 19, 2013) (citing Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1240 (6th Cir.
1981)). However, either on motion or on its own, the Court must limit discovery that is
unreasonably cumulative or duplicative; that can be obtained from another “more convenient, less
burdensome, or less expensive” source; that the seeking party has had ample opportunity to obtain;
or that is outside the scope permitted by Fed. R. Civ. P. 26(b)(1). Fed. R. Civ. P. 26(b)(2)(C)(i)(iii).
Fed. R. Civ. P. 45 allows parties, inter alia, to command a nonparty to appear at a certain
time and place to testify or produce documents. Fed. R. Civ. P. 45(a)(1)(A)(iii). Courts “have
held that the scope of discovery under a subpoena is the same as the scope of discovery under Rule
26.” Hendricks v. Total Quality Logistics, 275 F.R.D. 251, 253 (S.D. Ohio 2011). The Court must
5
quash any subpoena that imposes an undue burden or expense on the person subject to the
subpoena, fails to allow reasonable time to comply, requires compliance beyond the geographic
limits of Rule 45, or requires disclosure of “privileged or other protected matter, if no exception
or waiver applies.” Fed. R. Civ. P. 45(d)(1), (d)(3)(A). The “party seeking to quash a subpoena
bears the ultimate burden of proof.” Hendricks, 275 F.R.D. at 253.
Where a party seeks to depose opposing counsel, the Sixth Circuit has adopted the
heightened standard articulated by the Eighth Circuit in Shelton. Nationwide Mut. Ins. Co. v. Home
Ins. Co., 278 F.3d 621, 628 (6th Cir. 2002). A party seeking to depose the opposing party’s counsel
must show that “(1) no other means exist to obtain the information than to depose opposing
counsel; (2) the information sought is relevant and nonprivileged; and (3) the information is crucial
to the preparation of the case.” Shelton, 805 F.2d at 1327; Nationwide, 278 F.3d at 628.m
B.
Analysis
The Parties disagree as to whether O’Connell is “opposing counsel” in this case such that
the Shelton standard applies. In Shelton, the plaintiff sought to take the deposition of supervising
in-house counsel for the defendant in the case. Shelton, 805 F.2d at 1325. The Eighth Circuit held
that taking the deposition of opposing counsel should be done in only “limited circumstances” and
cited numerous reasons for concern about the practice. Id. at 1327. Specifically, the court
explained,
Undoubtedly, counsel’s task in preparing for trial would be much easier if he could
dispense with interrogatories, document requests, and depositions of lay persons,
and simply depose opposing counsel in an attempt to identify the information that
opposing counsel has decided is relevant and important to his legal theories and
strategy. The practice of forcing trial counsel to testify as a witness, however, has
long been discouraged and recognized as disrupting the adversarial nature of our
judicial system. Taking the deposition of opposing counsel not only disrupts the
adversarial system and lowers the standards of the profession, but it also adds to
the already burdensome time and costs of litigation. It is not hard to imagine
additional pretrial delays to resolve work-product and attorney-client objections, as
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well as delays to resolve collateral issues raised by the attorney’s testimony.
Finally, the practice of deposing opposing counsel detracts from the quality of client
representation. Counsel should be free to devote his or her time and efforts to
preparing the client’s case without fear of being interrogated by his or her opponent.
Moreover, the “chilling effect” that such practice will have on the truthful
communications from the client to the attorney is obvious.
Id.
When the Sixth Circuit adopted Shelton in Nationwide, it did so without comment on the
scope of its application. It merely reiterated that “[d]iscovery sought from an opposing counsel is
‘limited to where the party seeking to take the deposition has shown that (1) no other means exist
to obtain the information . . . ; (2) the information sought is relevant and nonprivileged; and (3)
the information is crucial to the preparation of the case.’” Nationwide, 278 F.3d at 628 (quoting
Shelton, 805 F.2d 1327). Factually, Nationwide was a suit between two insurance companies for
breach of contract that went to arbitration. Id. at 623-24. When one insurance company sought
confirmation of certain decisions by the arbitration panel, the other company alleged the arbitrators
were biased and sought to take the deposition of the opposing party’s counsel “on the question of
arbitral bias.” Id. at 624, 628-29. In upholding the district court’s denial of the motion for the
attorney’s deposition, the Sixth Circuit noted that the defendant had argued that the attorneys it
sought to depose were not opposing counsel but found that the plaintiff had failed to present any
evidence in support of its claim. Id. at 628-29. Accordingly, Nationwide did not specify the scope
of when Shelton should apply beyond the phrase “opposing counsel.”
Subsequent to Shelton, the Eighth Circuit clarified that Shelton “was intend[ed] to protect
against the ills of deposing opposing counsel in a pending case which could potentially lead to the
disclosure of the attorney’s litigation strategy,” not to “provide heightened protection to attorneys
who represented a client in a completed case and then also happened to represent that same client
in a pending case where the information known only by the attorneys regarding the prior concluded
7
case was crucial.” Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726, 730 (8th Cir. 2002). In
Pamida, the defendants sought to take the deposition of five attorneys who represented Pamida in
a patent infringement action in the indemnification action for costs incurred in defense and
settlement of the infringement action. Id. at 728-29. Defendants sought testimony regarding what
notice defendants were given by Pamida regarding the infringement action as well as regarding
whether the “attorneys’ fees sought by Pamida were reasonably incurred in defending the patent
infringement action.” Id. at 729. The five attorneys served as counsel for Pamida in both the
indemnification and infringement actions. Id. The Eighth Circuit held that defendants did not
need to meet the standard of Shelton to obtain the testimony they sought because Shelton’s
protection only applied to the ongoing indemnification action, not to the concluded infringement
action.
The Sixth Circuit has yet to address whether Pamida’s clarification of when Shelton applies
governs in the Sixth Circuit, and district courts in the Sixth Circuit are split as to the definition of
“opposing counsel” that warrants Shelton’s application.1 As one district court explained,
1
See Ellipsis, Inc. v. Color Works, Inc., 227 F.R.D. 496, 496-97 (W.D. Tenn. 2005) (refusing to apply Shelton to
request to depose different attorney at same firm as trial counsel of record where prospective deponent was the
secretary of plaintiff corporation, prepared corporation’s tax returns, and negotiated agreement at issue in case); Spine
Sols., Inc. v. Medtronic Sofamor Danek, Inc., No. 07-2175 JPM-DKV, 2008 WL 199709, at *3 (W.D. Tenn. Jan. 23,
2008) (refusing to apply Shelton to request to depose patent prosecution attorney in subsequent infringement action
because prosecution attorney was not litigation counsel and not clear that “allowing his deposition to be taken would
divulge any litigation strategy”); Massillon Mgmt., LLC v. Americold Realty Tr., No. 5:08CV0799, 2009 WL 614831,
at *5-6 (N.D. Ohio Jan. 21, 2009) (applying Shelton to request to depose in-house counsel); Myers v. Asset Acceptance,
LLC, No. 2:09-CV-696, 2010 WL 11492862, at *3 (S.D. Ohio Apr. 20, 2010) (refusing to apply Shelton to prevent
depositions of counsel who represented defendant in separate state court action because counsel was not trial/litigation
counsel in the instant case); Doe v. Univ. of the S., No. 4:09-CV-62, 2010 WL 11520216, at *2 (E.D. Tenn. May 11,
2010), aff’d, No. 4:09-CV-62, 2010 WL 11520217 (E.D. Tenn. July 15, 2010) (applying Shelton to request to take
deposition of defendant’s general counsel); Williams v. Wellston City Sch. Dist., No. 2:09-CV-566, 2010 WL 4513818,
at *4-5 (S.D. Ohio Nov. 2, 2010) (refusing to apply Shelton to request to depose attorney who was not “actively
litigating th[e] case on the defendants’ behalf”); Point/ARC of N. Ky., Inc. v. Philadelphia Indem. Ins. Co., No. CV
09-81-DLB-CJS, 2011 WL 13227981, at *4 (E.D. Ky. Jan. 11, 2011) (refusing to apply Shelton to request to depose
counsel for plaintiffs in concluded underlying action regarding negligent failure to supervise in subsequent breach of
contract and bad faith claim against plaintiff’s insurance company); Beaudry v. TeleCheck Servs., Inc., No. 3-07-0842,
2013 WL 12355782, at *2 (M.D. Tenn. Mar. 31, 2013) (refusing to use Pamida to limit application of Shelton and
applying Shelton to request to take deposition of defendant’s senior in-house legal counsel); Alomari v. Ohio Dep’t of
Pub. Safety, No. 2:11-CV-00613, 2013 WL 5180811, at *5 (S.D. Ohio Sept. 13, 2013), objections overruled, 2014
8
When the attorney whose deposition is requested is not litigation counsel, is not inhouse counsel who is involved to some extent in directing litigation, or is not an
attorney who has advised the client concerning the same or similar litigation or has
helped develop its defense strategy, the reasons for applying Shelton are much less
compelling because there is little or no risk that the attorney’s testimony might
reveal any litigation strategy, or that the purpose of the deposition is to drive a
wedge between the opposing party and its current counsel.
Williams, 2010 WL 4513818, at *5. See also Ellipsis, 227 F.R.D. at 497 (“[T]he Shelton test
should be limited to those instances where the attorney to be deposed is either trial/litigation
counsel or the subject matter of the deposition may elicit litigation strategy.”). However, many
district courts have applied the Shelton test to requests to depose in-house or general counsel for a
party because even though in-house counsel may not have appeared in the action, he or she often
has knowledge of or has helped develop a party’s litigation strategy. See, e.g., Alomari, 2013 WL
5180811, at *5.
Here, O’Connell is not counsel of record in this case and, as the Louisville Defendants
concede, “has not personally entered his appearance.” (DN 152-1, at PageID # 1080.) He has not
appeared at any court proceedings and has not attended any depositions. (DN 157, at PageID #
1100.) The Louisville Defendants argued in their reply that they have included “O’Connell’s name
on the pleadings, motions, discovery, etc. submitted in this case” and direct the Court to their
Motion to Quash as an example. (DN 164, at PageID # 1145.) The signature block on the
Louisville Defendants’ Motion to Quash, like many of their other filings in this matter, reads,
Respectfully submitted,
MICHAEL J. O’CONNELL
JEFFERSON COUNTY ATTORNEY
WL 12651191 (S.D. Ohio June 19, 2014) (applying Shelton to request to depose in-house counsel); Appalachian Reg’l
Healthcare, Inc. v. U.S. Nursing Corp., No. 717CV00004ARTEBA, 2017 WL 6048860, at *4 (E.D. Ky. Apr. 28,
2017) (refusing to apply Shelton to request to depose coverage counsel in subsequent action for breach of contract for
failure to defend, failure to procure liability insurance, and failure to indemnify because counsel represented client in
a concluded action and “the deposition sought cannot possibly be construed as seeking information related to litigation
strategy”).
9
/s/ Roy C. Denny
Roy C. Denny
Assistant Jefferson County Attorney
(DN 152.) Below Denny’s title, the signature block includes his address, phone number, and email address, as well as the phrase “Counsel for Defendants City of Louisville, Louisville Jefferson
County Metro Government, Sergeant Charles Edelen, Detective James Clark, Major James
Griffiths, Sergeant Jim Woosley, Detective Kelly Jones, and Detective Robert Ennis.” (Id.) While
this clearly evidences that Denny works for O’Connell, this does not constitute a signature by
O’Connell sufficient to trigger Rule 11 given that Denny denotes his signature with “/s/”. Fed. R.
Civ. P. 11(a). Accordingly, the Court concludes that O’Connell is not the Louisville Defendants’
trial or litigation counsel as that phrase has been used by other courts in this Circuit. Nonetheless,
that fact alone is not determinative in the instant case. As is evident from the Louisville
Defendants’ briefing and the statutory authority they cite, O’Connell’s position as the duly-elected
Jefferson County Attorney imbues him with important responsibilities including to “conduct all
business touching the rights or interests of the county or consolidated local government”;
“institute, defend, and conduct all civil actions in which the county or consolidated local
government is interested”; and “give legal advice to the fiscal court or consolidated local
government . . . in all matters concerning any county or consolidated local government business
within their jurisdiction,” among others. KRS § 69.210. Thus, though he has not entered an
appearance herein, O’Connell’s relationship to counsel of record in this case and duties make it
likely that he would be privy to litigation strategy and privileged communications with the
Louisville Defendants about the instant litigation. Thus, his deposition is exactly the type of
deposition to which the Shelton test is meant to apply.
10
While neither the Louisville Defendants nor Plaintiffs cited any cases specifically
regarding depositions of county attorneys, the Court finds O’Connell’s role similar to that of inhouse counsel, which as noted above many courts have found should be subject to the heightened
Shelton standard. The closest analogous authority of which the Court is aware is Chesher v. Allen,
122 F. App’x 184, 188 (6th Cir. 2005), in which the Sixth Circuit reversed a district court decision
regarding the depositions of the Hamilton County Prosecutor, the First Assistants to the Prosecutor
in both the Civil and Criminal Divisions, and an Assistant Prosecutor. The case involved claims
that several employees at the Hamilton County Morgue allowed a private photographer to
photograph their deceased relatives without their knowledge or consent and that there was an
attempt to cover up the matter. Chesher v. Neyer, 477 F.3d 784, 787 (6th Cir. 2007). Plaintiffs
sought the depositions of the attorneys based “on evidence obtained in prior discovery that
[p]laintiffs claimed demonstrated the possibility of a coverup to protect the County from liability,”
and they wanted to explore the coverup in the requested attorneys’ depositions. Chesher, 122 F.
App’x at 185. The attorneys were not parties to the case and were not counsel of record to the
defendants in the action; however, the magistrate judge still found that “[t]he fact that these
particular attorney ha[d] not entered an appearance as trial counsel d[id] not obviate the fact that
they [we]re counsel to the county defendants.” DN 128, Chesher v. Neyer, No. 1:01-cv-566-TSBTSH, at PageID # 435 (S.D. Ohio Oct. 28, 2003). The magistrate judge applied Shelton and
concluded that except for two limited areas of inquiry as to one of the attorneys, the plaintiffs had
failed to satisfy its heightened standard. Id. The magistrate judge also rejected the plaintiffs
coverup theory. Id. at PageID # 437-38. In considering objections to the magistrate judge’s order,
the district court reversed his “finding that the evidence does not support a cover-up theory.”
Chesher v. Neyer, 220 F.R.D. 523, 530 (S.D. Ohio 2004), rev’d and remanded sub nom. Chesher,
11
122 F. App’x 184. The district judge permitted the depositions of all four attorneys to go forward
based on his analysis of the crime/fraud exception to attorney client privilege. Id. at 531-33. The
Sixth Circuit found that the district judge had erred in not applying the Shelton test to the requested
depositions and in just assessing the application of the crime/fraud exception but not providing
any analysis as to why Shelton applied to these particular depositions. Id. at 188. The Court finds
that this factual similarity favors the application of Shelton to the request to depose O’Connell
herein.
Sinclair v. Lauderdale Cty., No. 2:14-CV-02908-SHM, 2015 WL 1393423, at *1 (W.D.
Tenn. Mar. 24, 2015), relied upon by Plaintiffs as part of their argument that Shelton does not
apply, is distinguishable from the instant case. Sinclair involved a request to take the deposition
of the Assistant District Attorney who prosecuted Sinclair in his subsequent § 1983 action based
on his prosecution. Id. at *1-2. The Sinclair court found that Shelton did not apply because the
Assistant District Attorney was “is not acting as opposing counsel to either Plaintiff or Defendant”
and was instead “a prosecutor on behalf of the State of Tennessee, who [wa]s not a party to th[e]
action, in a prior completed case.” Id. at *4. Here, Handy’s criminal case is ongoing, not
completed, and given Plaintiffs’ municipal liability claims, there is a greater likelihood of overlap
in terms of O’Connell’s knowledge about litigation strategy than there was in Sinclair.
Accordingly, this Court will require Plaintiffs to meet the heightened standard set forth in Shelton
and adopted by the Sixth Circuit in Nationwide before they may depose O’Connell.
Plaintiffs argued that even pursuant to Shelton, the Louisville Defendants’ Motion to Quash
should be denied. (DN 157, at PageID # 1102-05.) Plaintiffs contended that they intend to depose
O’Connell solely as a fact witness about what they construe as admissions in the Letter regarding
Handy’s sentencing and the basis for those admissions. (DN 157, at PageID # 1100, 1103.) They
12
represented that they “have no need to and no interest in questioning O’Connell about anything
related to the City’s litigation strategy in this case.” (Id. at 1100.) In fact, they go so far as to state
that “had O’Connell not sent the July 21st letter, Plaintiffs would never have noticed his
deposition.” (Id. at 1101.) Given Plaintiffs’ description of the scope of the deposition, the Court
concludes that Plaintiffs have made a sufficient showing pursuant to Shelton to be permitted to
depose O’Connell for the limited purposes they identified in their response.
As to the first Shelton prong, that “no other means exist to obtain the information than to
depose opposing counsel,” because O’Connell signed and presumably drafted the Letter, it is not
clear there is any other person who could speak to the basis for some of the admissions therein.
Shelton, 805 F.2d at 1327. Regardless of whether the factual assertions in the Letter are matters
of public record as contended by the Louisville Defendants, only O’Connell could specify which
of those factual assertions caused him to make the recommendation and other statements he did.
Thus, the first prong is satisfied. The second Shelton prong, that “the information sought is
relevant and nonprivileged,” is also satisfied. Id. The Louisville Defendants have conceded the
information sought is relevant (DN 164, at PageID # 1147), and given that the Letter was filed in
the public record, it is unclear how the information contained therein could be privileged. The
Louisville Defendants have also asserted that “the letter was written by O’Connell not in his
representative capacity of these defendants,” and given this statement, the Court finds it unlikely
that questioning regarding the Letter would trigger the application of attorney-client privilege or
work product doctrine. (DN 164, at PageID # 1144.) Finally, as to the third Shelton prong, that
“the information is crucial to the preparation of the case,” Plaintiffs’ municipal liability claims
center on Handy’s misconduct and the Louisville Defendants’ knowledge of that misconduct.
Shelton, 805 F.2d at 1326. The Letter discusses Handy’s misconduct in the Chandler case, which
13
as Plaintiffs point out was contemporaneous with Handy’s investigation of the Warford homicide
at issue in the instant case. (DN 157, at PageID # 1104.) Under those circumstances, the type of
testimony Plaintiffs seek to elicit from O’Connell is crucial to their case.2
Therefore, the Court concludes that Plaintiffs have demonstrated a sufficient basis to
depose O’Connell solely regarding the July 21, 2020, Letter. The Court cautions the Plaintiffs that
this should not be taken as a carte blanche to broadly question O’Connell about the Chandler case.
Consistent with their representations to the Court, Plaintiffs should carefully tailor their questions
to avoid any topics that might trigger the application of attorney-client privilege or the work
product doctrine. Further, while allowing the deposition to go forward does not prohibit O’Connell
from asserting privilege where applicable, the Court will be highly skeptical of any position that
he can answer no questions without violating privilege.
III.
ORDER
For the reasons set forth above, IT IS HEREBY ORDERED that the Louisville Defendants’
Motion to Quash (DN 152) is DENIED. Plaintiff may depose Mike O’Connell in his capacity as
Jefferson County Attorney regarding his July 21, 2020, Letter regarding Defendant Handy’s
sentencing.
cc: Counsel of record
May 3, 2021
Though it is evident from the briefs that the Parties disagree as to whether the Letter constitutes a binding party
admission, the Court need not and thus will not address that issue in the instant decision.
2
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