Littlepage v. Dukes et al
Filing
47
MEMORANDUM OPINION AND ORDER signed by Magistrate Judge H. Brent Brennenstuhl on 4/23/19; granting 40 Motion for Protective Order: Defendant City of Providence, Kentucky, is not required to produce Toni Ahl's report and related witness statements, identified in the privilege log at DN 46 -3, in response to Plaintiffs discovery requests. cc: Counsel(DJT)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:17-CV-00041-JHM
JEFFERY W. LITTLEPAGE
PLAINTIFF
VS.
WILLIAM DUKES, Jr, Individual capacity
and CITY OF PROVIDENCE, KENTUCKY
DEFENDANTS
MEMORANDUM OPINION
AND ORDER
Background
Defendant City of Providence, Kentucky, has filed a motion for protective order pursuant
to Fed. R. Civ. P. 26(c) and 37(a)(5) (DN 40, 41). Plaintiff Jeffery Littlepage has filed a response
(DN 43), and Providence has filed a reply (DN 44).
Nature of the Case
Defendant Dukes was employed as a police officer by the City of Providence (DN 1).
Littlepage alleges that Dukes assaulted him and otherwise used excessive force under color of law
in violation of Littlepage’s constitutional rights (Id.). He has also asserted claims under state law
for assault and malicious prosecution (Id.). In addition to suing Dukes in his individual capacity,
Littlepage has asserted an official-capacity claim against Providence (Id.). The incidents that give
rise to Littlepage’s complaint occurred on May 25-26, 2016 (Id.).
Littlepage filed this action on March 24, 2017, (DN 1). On June 26, 2018, Littlepage served
a request for production of documents on Providence (DN 46-2 Exhibit C).
Providence’s Motion
Providence seeks a protective order regarding documents prepared by Toni Ahl in her
investigation of the facts and circumstances giving rise to this lawsuit as those documents are
protected by the work-product doctrine and, therefore, not discoverable (DN 40, Motion). 1 The
documents are identified in a privilege log that Providence served on Littlepage (DN 41 PageID #
183 n. 12; DN 46-3 PageID # 298-301 Exhibit D).
In support of its motion, Providence has submitted the affidavit of its former Mayor, Eddie
Gooch (DN 41-2 PageID # 197-98 Affidavit). Gooch indicates that on June 9, 2016, Littlepage’s
attorney sent a letter of representation to the City Attorney for Providence (DN 41-2 PageID #
197-982; see DN 43-1, Exhibit 1 Letter). The letter includes a formal complaint, pursuant to KRS
15.520(3), against Dukes (DN 43-1, Exhibit 1 Letter). Gooch advises that Providence immediately
retained outside legal counsel in anticipation of Littlepage litigating his claims (DN 41-2 PageID
# 197-98).
Gooch indicates that on June 10, 2016, Providence suspended Dukes pending an
investigation into Littlepage’s complaints (DN 41-2 PageID # 198). He also reports that on June
17, 2016, Officer Dukes’ attorney sent a letter of representation to the City Attorney for Providence
(Id.). The letter challenged the legitimacy of Officer Dukes’ suspension (Id.).
Gooch indicates that on the advice of outside legal counsel (retained to defend Providence
against Littlepage’s claims) and the City Attorney (handling Dukes’ claims), Providence hired an
outside third-party investigator named Toni Ahl (DN 41-2 PageID # 198). Gooch explains that
1
It is not clear from the materials submitted by the parties which request or requests for production are the subject of
Providence’s motion for protective order (see DN 41, 43, 44, 46).
2
Gooch’s affidavit indicates the June 9, 2016 letter is attached as Exhibit 1 (DN 41-2 PageID # 197). Although
Providence’s filings did not include a copy of the letter (see DN 41 and 46), Littlepage did provide a copy with his
response (DN 43-1). Therefore, the Court will cite to the copy provided by Littlepage.
2
Providence employed Ahl to perform an investigation “from an employer perspective regarding
the factual circumstances surrounding Littlepage’s asserted claims and Dukes’ asserted
employment claims (as threatened by his lawyer)” (Id. internal quotations omitted). According to
Gooch, this was an investigation into Littlepage’s complaints against Dukes which served as the
basis for Providence suspending Dukes (Id.).
Gooch indicates that the investigation into Littlepage’s complaints concluded on January
13, 2017 (DN 41-2 PageID # 198). The same day, Providence filed a statement of charges against
Dukes (DN 46-1 Exhibit 3). Gooch advises that the hearing on those charges was scheduled for
February 15, 2017 (DN 41-2 PageID # 198). Two days before the hearing, February 13, 2017,
Dukes wrote a letter to Providence claiming his statutory rights to a hearing prior to his termination
had been violated and he was voluntarily resigning his position (Id.). Littlepage filed this action
on March 24, 2017 (DN 1).
Providence argues that it hired Ahl, an outside third-party investigator, to conduct the
investigation pursuant to the advice of the City Attorney and retained outside legal counsel (DN
41 PageID # 186-87). Providence explains this advice came after attorneys representing both
Dukes and Littlepage put Providence on notice of their clients’ intent to make claims against
Providence and potentially pursue their legal options (Id.). Providence asserts that Dukes’ position
and Littlepage’s positions were necessarily in direct conflict with each other and the underlying
facts and circumstances regarding Dukes’ suspension/potential termination and Littlepage’s
formal complaint and threatened lawsuit were one in the same (Id. PageID # 187). Providence
contends when it directed Ahl to prepare her report it had a subjective anticipation of litigation
(both from Dukes and Littlepage) that was objectively reasonable given the threatened legal action
by both parties (Id.).
Furthermore, Providence argues it did not hire Ahl to conduct the
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investigation for a business purpose (Id. PageID # 187-90). Providence also argues that Littlepage
has no substantial need for the statements Ahl collected in her investigation because she obtained
them weeks after the incidents giving rise to this lawsuit and Littlepage had the opportunity to
depose all the witnesses (Id. PageID # 190).
Littlepage’s Response
Littlepage begins by challenging some of the factual allegations in Providence’s
memorandum (DN 43 PageID # 202-03). First, Littlepage explains that his formal complaint
(dated June 9, 2016) related solely to Dukes’ employment and did not assert a claim of any kind
against Providence, rather it requested that Dukes be fired and/or charged criminally (Id.; DN 431 Exhibit 1). Next, Littlepage asserts that Providence did not hire defense counsel to represent it
in the Dukes matter, as Gooch’s self-serving affidavit seems to intimate (Id.). Rather, alleges
Littlepage, the City Attorney employed Ahl to investigate the complaint against Dukes,
administratively, pursuant to KRS 15.520 (DN 43 PageID # 202-03 citing DN 43-2 Exhibit 2
Officers Bill of Rights). Littlepage contends under that statute Providence is required to conduct
an investigation prior to bringing charges to remove Dukes (Id.). Littlepage asserts that defense
counsel never participated in any of the administrative employment dispute on behalf of
Providence or Dukes (Id.).
Littlepage contends that the Ahl report and related witness statements are not trial
preparation materials in this litigation (DN 43 PageID # 204-05). In support of his position,
Littlepage asserts that Gooch’s deposition testimony indicates Ahl “only prepared an investigation
of the facts in the administrative case” (Id. PageID # 205). Littlepage argues this shows the driving
force for the preparation of Ahl’s report and related witness statements was to fire Dukes in the
administrative proceeding (Id. PageID # 205-06, citing Young v. Chapman, 3:14-CV-666-JHM-
4
CHL, 2016 WL 1717226, at *4 (W.D. Ky. Apr. 27, 2016) (the burden is on the party claiming
protection to show that anticipated litigation was the “driving force” behind the preparation of the
material). Littlepage reasons that Providence has not shown Ahl’s report and related witness
statements were prepared because of this litigation (Id. PageID # 205-06).
If the Court concludes Ahl’s report and related witness statements are subject to workproduct protection, Littlepage alternatively claims a substantial need for the material (DN 43
PageID # 206-07). Littlepage explains that he has not been able to timely interview the main
witnesses, specifically those interviewed by Ahl, because they are Providence employees (Id.). He
is concerned that the memories of the Providence employees may have faded by the time he began
taking their depositions, almost three years after the incident (Id.).
Littlepage argues that Providence’s reliance on Lindon v. Kakavand, 5:13-CV-26-DCRREW, 2014 U.S. Dist. LEXIS 198818 (E.D. Ky. Apr. 29, 2014) is misguided because the driving
force or sole purpose behind the Ahl investigation was compliance with a statutory requirement
under the Officers Code of Conduct to conduct such an investigation before deciding whether to
terminate Dukes (DN 43 PageID # 207-09). Littlepage asserts the Ahl investigation was not
conducted because of any anticipation of this litigation (Id.).
Providence’s Reply
Providence indicates that following receipt of the June 9, 2016 letter3 from Littlepage’s
attorney and a June 17, 2016 letter from Dukes’ attorney, its insurance carrier immediately retained
defense counsel to defend Providence against claims asserted by Littlepage (DN 44 PageID # 22126).
Providence contends Gooch’s specific and detailed affidavit established that Ahl’s
3
Providence points out that the second page of the June 9, 2016 letter stated, “I anticipate supplementing this complaint
in the near future with additional information as well as possible other complaints . . .” (DN 44 PageID # 222-23).
5
investigation was initiated on the advice of both defense counsel and the City Attorney after
Providence received these letters because of the prospect of litigation against Providence stemming
from their complaints (Id.). Providence contends that it has satisfied its burden of showing Ahl’s
report was the product of a subjective anticipation of litigation that was objectively reasonable
(Id.). Providence explains that the primary objective of Ahl’s investigation was to provide defense
counsel and the City attorney with information regarding the factual circumstances surrounding
Littlepage’s complaints, not for administrative purposes under KRS 15.520(3) as asserted by
Littlepage (Id.). Providence also points out that the work-product doctrine applies to documents
produced in anticipation of other litigation (Id. citing Albritton v. CVS Caremark Corp., No. 5:13CV-218-TBR-LLK, 2015 U.S. Dist. LEXIS 152236, at *11 (W.D. Ky. Nov. 10, 2015) (citation
omitted)).4
Providence contends that Littlepage has not demonstrated substantial need for Ahl’s
investigative report and the statements taken in connection therewith because the information is
available to Littlepage through deposition (DN 44 PageID # 226-27). Providence points out, in
contrast to the facts in Merriweather v. UPS, No. 3:17-CV-349-CRS-LLK, 2018 U.S. Dist. LEXIS
124383 (W.D. Ky. July 25, 2018), these interviews by Ahl were not conducted on the same day as
the incident (Id.). Providence explains it has disclosed to Littlepage the names of the individuals
Ahl interviewed as well as the names of individuals likely to have information relevant to this
matter (Id.). Providence asserts that Littlepage can conduct his own discovery involving these
individuals and he has failed to show that he could not obtain the substantial equivalent through
other means (Id.).
4
Providence also points out that the Sixth Circuit has explained “documents do not lose their work product privilege
merely because [they were] created in order to assist with a business decision, unless the documents would have been
created in essentially similar form irrespective of the litigation” (Id. PageID # 222, citing United States v. Roxworthy,
457 F.3d 590, 598-99 (6th Cir. 2006) (internal quotations omitted)).
6
Discussion
Fed. R. Civ. P. 26(c) affords the Court the discretion to limit the scope of discovery under
certain circumstances. See Levitin v. Nationwide Mut. Ins. Co., No. 2:12-CV-34, 2012 U.S. Dist.
LEXIS 177738, at *3 (S.D. Ohio Dec. 14, 2012). Specifically, the Court may issue a protective
order "forbidding the disclosure or discovery" or "forbidding inquiry into certain matters, or
limiting the scope of disclosure or discovery to certain matters" to prevent "annoyance,
embarrassment, oppression, or undue burden or expense" where the movant has established "good
cause" for such an order. Fed. R. Civ. P. 26(c)(1)(A) and (D); Levitin, 2012 U.S. Dist. LEXIS
177738, at *3; Nix v. Sword, 11 F. App'x 498, 500 (6th Cir. 2001). "To show good cause, a movant
for a protective order must articulate specific facts showing clearly defined and serious injury
resulting from the discovery sought and cannot rely on mere conclusory statements." Nix, 11 F.
App'x at 500 (internal quotation marks and citation omitted).
Federal law applies to the question whether something is entitled to receive a qualified
protection from discovery because it is work-product. Fed.R.Civ.P. 26(b)(3); In Re Perrigo
Company, 128 F.3d 430, 437 (6th Cir. 1997); Toledo Edison Co. v. G.A. Technologies, Inc., 847
F.2d 335, 338-340 (6th Cir. 1988). The protection afforded work product is not a privilege as the
term is used in the Federal Rules of Civil Procedure or the law of evidence. Hickman v. Taylor,
329 U.S. 495, 509-510 & n. 9 (1947). Instead, work product provides a qualified protection from
discovery because work product materials, except for that which reveals an attorney’s mental
impressions and opinions, may be ordered produced if an adverse party demonstrates “substantial
need for the materials to prepare its case and cannot, without undue hardship, obtain their
substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3); In re Perrigo Co., 128 F.3d 430,
437 (6th Cir. 1997); Toledo Edison Co. v. G.A. Tech., Inc., 847 F.2d 335, 338-41 (6th Cir. 1988).
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To determine whether a document has been prepared “in anticipation of litigation,” and is
thus protected work product, the Court must ask two questions: (1) whether that document was
prepared “because of” a party's subjective anticipation of litigation, as contrasted with ordinary
business purpose; and (2) whether that subjective anticipation was objectively reasonable. United
States v. Roxworthy, 457 F.3d 590, 594 (6th Cir. 2006). Documents prepared in the ordinary
course of business, pursuant to regulatory requirements, or for other non-litigation purposes are
not considered prepared in anticipation, and as a result are not subject to the work product
protection. Solis v. Food’s Employers Labor Relations Assoc., 644 F.3d 221, 232 (4th Cir. 2011)
(citation omitted). However, if a document is prepared in anticipation of litigation, the fact that it
also serves an ordinary business purpose does not deprive it of protection. Roxworthy, 457 F.3d
at 598–99. Thus, the party claiming the document is subject to protection must show that
anticipated litigation was the “driving force behind the preparation of each requested document.”
Id. at 595 (quoting Nat'l Union Fire Ins. Co. of Pittsburgh v. Murray Sheet Metal Co., 967 F.2d
980, 984 (4th Cir.1992)). The party claiming the protection bears the burden of demonstrating the
work product protection applies. Solis, 644 F.3d at 232 (citation omitted).
The Court concludes that Providence has demonstrated the materials at issue were prepared
“because of” its subjective anticipation of litigation arising out of the incident that occurred on
May 25-26, 2016. See Roxworthy, 457 F.3d at 594. Further, Providence’s subjective anticipation
of litigation was objectively reasonable considering the circumstances that existed when
Providence followed the advice of its counsel and hired Ahl to perform an investigation regarding
the factual circumstances surrounding the incident involving Dukes and Littlepage. See Id.
Providence satisfied its burden of showing anticipation of litigation by submitting Gooch’s
affidavit which is based on his personal knowledge. See Id. at 597 (a party may satisfy its burden
8
of showing anticipation of litigation through affidavits made on personal knowledge, depositions,
or answers to interrogatories). Littlepage’s bare assertions, in response to Gooch’s affidavit, are
insufficient to overcome that proof. See Id. (a showing can be opposed or controverted through
affidavits made on personal knowledge, depositions, or answers to interrogatories). Further,
contrary to Littlepage’s assertion, the June 9, 2016 letter from his counsel (DN 43-1) substantiates
what is set forth in Gooch’s affidavit. While the letter did not expressly threaten to sue Providence,
the allegations made against Dukes raised two distinct issues that Providence and its retained
counsel would have analyzed from the stand point of municipal liability. Specifically, whether
Littlepage’s harm was caused by a constitutional violation; and, if so, whether Providence, as
Dukes’ employer, was responsible for that violation. See, Collins v. City of Harker Heights, Texas,
503 U.S. 115, 120 (1992). Additionally, while Ahl’s investigation may have proved helpful in
addressing Littlepage’s complaint, pursuant to KRS 15.520(3), the evidence strikes a fatal blow to
Littlepage’s general assertion that Providence has not shown the anticipated litigation by
Littlepage was the “driving force” behind the decision to hire Ahl to perform an investigation. See
Roxworthy, 457 F.3d at 595; Young, 2016 WL 1717226, at *4.
Having concluded that Ahl’s report and related witness statements are work-product, the
focus now shifts to Littlepage’s alternative argument. Specifically, he claims a substantial need
for this material. Providence is silent concerning Littlepage’s assertion that the material does not
reveal an attorney’s mental impressions or opinions. Thus, the Court must assess whether
Littlepage has demonstrated “substantial need” for this material to prepare his case and he “cannot,
without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P.
26(b)(3).
9
Littlepage’s reliance on Merriweather v. United Parcel Service, Inc., is misplaced because
the circumstances here are factually distinguishable from the two eye-witness statements UPS took
on the day of the accident while Merriweather was in the hospital. No. 3:17-CV-349-CRS-LLK,
2018 WL 3572527, at * 13 (W.D. Ky. July 25, 2018). Certainly, statements taken shortly after an
incident are more acute and unique because they provide an immediate impression of the facts.
See Id. Here, however, the statements were not taken on the day of the incident, May 25-26, 2016.
The privilege log indicates Ahl took the statements several months later, October 18, 2016 through
December 6, 2016 (DN 4-3). Thus, the circumstances here are more like the statement that UPS’s
insurance adjuster took from co-defendant Lee nearly three months after the accident. Id. In that
instance the court concluded Merriweather had not demonstrated a substantial need for the
statement, especially because he still had the opportunity to depose defendant Lee. Id. Here,
Littlepage has not demonstrated a substantial need for these statements, especially since he still
can depose the witnesses.
Given that Providence has demonstrated Ahl’s report and related witness statements are
work-product and Littlepage has not demonstrated a substantial need for the witness statements,
the Court concludes that Providence has established “good cause” for the issuance of a protective
order under Fed. R. Civ. P. 26(c).
10
Order
IT IS HEREBY ORDERED that the motion for a protective order filed by Defendant
City of Providence, Kentucky (DN 40) is GRANTED.
IT IS FURTHER ORDERED that Defendant City of Providence, Kentucky, is not
required to produce Toni Ahl’s report and related witness statements, identified in the privilege
log at DN 46-3, in response to Plaintiff’s discovery requests.
April 23, 2019
Copies: Counsel
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