Louisiana Crisis Assistance Center v. Marzano-Lesnevich
Filing
19
ORDER AND REASONS denying Defendant Marzano-Leznevich's 4 Motion to Strike. FURTHER ORDERED that Plaintiff LCAC shall submit a motion for attorney's fees and costs within 15 days. Defendant shall file any response to the Plaintiff's motion within seven days thereafter. Signed by Judge Carl Barbier. (gec, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LOUISIANA CRISIS ASSISTANCE
CENTER d/b/a LOUISIANA CAPITAL
ASSISTANCE CENTER
CIVIL ACTION
VERSUS
NO: 11-2102
ALEXANDRIA MARZANO-LESNEVICH
SECTION: J(1)
ORDER AND REASONS
Before the Court is Defendant’s Special Motion to Strike
(Rec. Doc. 4), Plaintiff’s Opposition (Rec. Doc. 15), and
Defendant’s Reply (Rec. Doc. 18).
The motion is before the Court
on supporting memoranda, without oral argument.
PROCEDURAL HISTORY AND BACKGROUND FACTS
Alexandria Marzano-Lesnevich served as an unpaid summer law
clerk at the Louisiana Capital Assistance Center (“LCAC”) while
she was a law student at Harvard University in 2003.
LCAC is a
nonprofit organization providing legal representation to indigent
capital defendants.
As a summer law clerk, she investigated the
facts of assigned cases, conducted case analysis, drafted
memoranda, managed client correspondence, and attended meetings
where attorneys discussed case strategies for specific clients.
After graduating from law school, Ms. Marzano-Lesnevich
pursued a career as a journalist and writer in lieu of a legal
1
career.
Nonetheless, her legal training has informed her
writing, as she has published several essays relating to her
experiences and dealing with the death penalty and sex crimes.
Among her published works is an essay titled In the Fade, which
was published in the Spring 2010 issue of a journal called The
Bellingham Review,1 and an essay entitled Longtermer’s Day, which
was published in a nonfiction periodical entitled Fourth Genre in
2010.2
Ms. Marzano-Lesnevich also published copies of these
works, along with several other fictional works, on her personal
website.3
In the Fade is a creative nonfictional description of
the criminal prosecution of an LCAC client named Ricky Langley
for the sexual assault and murder of a six-year old boy in
Calcasieu Parish, Louisiana.
Longtermer’s Day is a stylistically
similar account of the author’s experience visiting Angola Prison
and conversing with prisoners.
It is these works, along with a
forthcoming but yet uncompleted novel, which are at issue in this
suit.
The director of LCAC, Richard Bourke, first discovered the
existence of these works in 2001.
Believing that they contained
1
See Alexandria Marzano-Lesnevich, In the Fade, BELLINGHAM
REVIEW, Issue 62 (2010).
2
See Alexandria Marzano-Lesnevich, Longtermer’s Day, FOURTH
GENRE, Issue 12.1 (2010).
3
See Alexandria Marzano-Lesnevich,
http://www.alexandria-marzano-lesnevich.com/page1/page1.html/
(Last visited Oct. 26, 2011).
2
confidential client information, he directed his staff to contact
Ms. Marzano-Lesnevich and request that she withdraw her works
from publication, as well as to cease from disclosing any other
confidential information relating to LCAC clients.
In the
meantime, he also contacted the Bellingham Review to request
removal of the essay In the Fade from its website.
with this request in an effort to avoid litigation.
It complied
These
efforts eventually led to a conference call with Ms. MarzanoLesnevich and her retained counsel.
During the conference call,
Ms. Marzano-Lesnevich informed LCAC that she did not believe that
any of the information in her published essays was confidential.
She also informed Mr. Bourke and LCAC that she was in the process
of writing a novel relating to her experiences as a LCAC law
clerk and planned to seek publication upon the work’s
completion.4
LCAC subsequently filed suit in Civil District Court for
Orleans Parish, Louisiana on July 26, 2011, alleging breach of
fiduciary duty and breach of contract, and seeking injunctive
relief prohibiting Ms. Marzano-Lesnevich from future disclosure
or dissemination of confidential or privileged information
4
Ms. Marzano-Lesnevich describes the book as a “literary
work – part memoir based on her own experience as a victim of
sexual abuse, and part literary journalism about the criminal
prosecution of Ricky Langley for sexually assaulting and
murdering a six-year old boy in Calcasieu Parish.” See Rec. Doc.
4-2, p. 1-2. The work reportedly deals with essentially the same
subject matter as her essay In the Fade.
3
obtained in the course of her summer clerkship, as well as other
information relating to LCAC clients which disadvantages or
prejudices those clients.
Defendant removed the case to federal
court on August 24, 2011 and filed the instant Special Motion to
Strike the same day.
Plaintiff filed its Opposition on September
9, 2011, and the Defendant filed a Reply four days later on
September 13, 2011.
PARTIES’ ARGUMENTS
Defendant Marzano-Lesnevich seeks to dismiss Plaintiff’s
claims for injunctive relief pursuant to Louisiana Code of Civil
Procedure article 971, Louisiana’s “anti-SLAPP” statute.
Article
971 involves a burden-shifting procedure under which a defendant
must first make a prima facie showing that the action against her
arises out of an exercise of First Amendment rights with regards
to a public issue.
This shifts the burden to the plaintiff to
demonstrate a probability of success on the merits of his claim.
The Defendant raises several arguments in support of her in
support of her Special Motion to Strike.
First, she argues that
the publication of a literary work is an exercise of the right of
free speech, and because her essays and forthcoming novel explore
issues surrounding the death penalty and sexual abuse, two
important social issues, she insists that she has made the
required prima facie showing.
Next, she contends Plaintiff cannot and has not sustained
4
its burden of demonstrating a probability of success on the
merits of its claim for several reasons.
First, she argues that
the issuance of the prayed-for injunction would constitute an
unconstitutional prior restraint in violation of the First
Amendment.
She relies on several cases in which federal courts
have denied similar requests for injunctive relief against
publication of allegedly harmful material.
Next, she urges that
she owes no fiduciary or contractual duties to the Plaintiff, as
it has not established the existence of a contract or that the
Rules of Professional Conduct apply to her as a non-lawyer.
She
also adds that the disputed disclosures in this case are either
publicly known information or her own personal opinions, neither
of which she would be required to keep confidential.
Third, she
argues that LCAC has failed to demonstrate irreparable harm, as
required to obtain an injunction.
She urges that LCAC’s claims
that her writings “may” influence jurors, district attorneys, and
LCAC clients are wholly speculative.
Finally, she argues that
the injunction sought by LCAC does not comport with Rule 65(d) of
the Federal Rules of Civil Procedure because it is facially
overbroad.
In response, LCAC first argues that article 971 is
inapplicable in federal court in the first instance because it
“directly collides” with the Federal Rules of Civil Procedure.
While acknowledging that the Fifth Circuit seems to have assumed
5
that it was, LCAC urges that it never directly held that article
971 was applicable in federal court.
Next, even if article 971
is applicable, LCAC argues that Defendant has not carried her
initial burden of showing that the instant dispute arises from an
act in furtherance of her First Amendment rights because there is
no First Amendment right to disclose information in breach of a
duty of confidentiality.
In any case, it argues that it has demonstrated a
probability of success on the merits of its claim for injunctive
relief.
LCAC contends that it has shown all necessary elements
for claims for breach of fiduciary duty and breach of contract
under Louisiana law through the Declarations of LCAC’s officials
that were attached to its opposition to the Defendant’s motion.
Additionally, it submits that injunctive relief is proper to
prevent disclosure of confidential information.
LCAC also argues
it has shown a continuing threat of irreparable harm because
Defendant expresses an intention to continue to publish
confidential information in the future.
Finally, to the extent
that the injunction it seeks is overbroad, it argues that the
Court may tailor the injunction to the specific violations
proved.
DISCUSSION
A.
Louisiana Code of Civil Procedure Article 971
Article 971 was enacted in 1999 after the Legislature found
6
“a disturbing increase in lawsuits brought primarily to chill the
valid exercise of the constitutional rights of freedom of speech
and petition for redress of grievances.”
971, Legislative Findings.
LA. CODE CIV. P. art.
These lawsuits are commonly referred
to as “strategic lawsuits against public participation, or more
succinctly “SLAPPs.”
In keeping with this nomenclature,
legislative enactments designed to combat these lawsuits and to
encourage public participation in matters of public significance
have been dubbed “anti-SLAPP” or “SLAPP back” statutes.
Over
twenty five states have enacted such anti-SLAPP statutes.
Guam
Greyhound, Inc. v. Brizill, No. 07-021, 2008 WL 4206682, at *2
(Guam Terr. Sep. 11, 2008).
To achieve these goals, article 971 provides defendants
targeted by SLAPP suits with "a procedural device to be used
early in legal proceedings to screen meritless claims,” called a
special motion to strike.
Lee v. Pennington, 2002-0381, p. 4
(La. App. 4 Cir. 10/16/02), 830 So. 2d 1037, 1041.
Essentially,
the statute operates as a two-part burden-shifting framework.
When a special motion to strike is filed, the court is required
to stay all discovery in the proceedings, and the defendant must
make a prima facie showing that the claims asserted against her
arise from an act in furtherance of the exercise of her right of
petition or free speech under the Louisiana or United States
7
Constitution in connection with a public issue.5
Carr v. Abel,
10-CA-835, p. 9 (La. App. 5 Cir. 4/29/11), 64 So.3d 292, 297.
After the defendant makes this showing, the burden shifts to the
plaintiff to demonstrate a probability of success on the merits
of his claim.
Id.
If the plaintiff fails to demonstrate a
probability of success, his claims will be dismissed, and the
prevailing defendant will be entitled to recover attorney’s fees
and costs.
LA. CODE CIV. P. art. 971(B).
If the plaintiff
successfully defeats the motion, however, he can recover his own
attorney’s fees and costs, and the court’s ruling denying the
motion is admissible as substantive evidence later in the
proceeding.
Id. at (A)(3).
5
The statute provides a non-exhaustive list of acts which
are deemed to be acts “in furtherance of a person’s right of
petition or free speech under the United States or Louisiana
Constitution in connection with a public issue:”
(a) Any written or oral statement or writing made before a
legislative, executive, or judicial proceeding, or any other
official proceeding authorized by law.
(b) Any written or oral statement or writing made in
connection with an issue under consideration or review by a
legislative, executive, or judicial body, or any other
official body authorized by law.
(c) Any written or oral statement or writing made in a place
open to the public or a public forum in connection with an
issue of public interest.
(d) Any other conduct in furtherance of the exercise of the
constitutional right of petition or the constitutional right
of free speech in connection with a public issue or an issue
of public interest.
8
B.
The Erie Doctrine and Applicable Law
Federal courts sitting in diversity apply the substantive
law of the state in which they sit, but apply federal law to all
matters of procedure.
Exxon Corp. v. Burglin, 42 F.3d 948, 950
(5th Cir.1995) (citing Erie R.R. v. Tompkins, 304 U.S. 64
(1938)).
LCAC contends that article 971 is procedural in nature
and incompatible with the Federal Rules of Civil Procedure.
It
submits that while the Fifth Circuit assumed that article 971 was
applicable in federal court in Henry v. Lake Charles American
Press, LLC, it never squarely addressed the issue in its holding.
When a party alleges a direct conflict between a state law
and the Federal Rules, the court must first “determine whether,
when fairly construed, the scope of [the Federal Rule] is
‘sufficiently broad’ to cause a ‘direct collision’ with the state
law or, implicitly, to ‘control the issue’ before the court,
thereby leaving no room for the operation of [the state] law.”
All Plaintiffs v. All Defendants, 645 F.3d 329, 333 (5th Cir.
2011)(quoting Burlington N. R.R. Co. v. Woods, 480 U.S. 1, 4–5
(1987).
To determine whether a federal rule controls a
particular issue, courts examine the plain language of the Rule.
If the state law “directly collides” with the Federal Rule, the
Federal Rule will be applied in lieu of the competing state law
so long as the Federal Rule complies with the Rules Enabling Act,
28 U.S.C.§ 2072.
Id.
Where there is no direct conflict between
9
the state and Federal Rule, the state statute will be applied
only if failure to apply it will frustrate the “twin aims” of
Erie by discriminating against forum state residents and
promoting forum shopping.
Hanna v. Plumer, 380 U.S. 460, 468
(1965).
Courts confronted with the issue of whether state anti-SLAPP
statutes “directly collide” with the Federal Rules of Civil
Procedure have reached differing conclusions.
Ltd. Partnership v. Bernstein,
Compare Stuborn
245 F. Supp. 2d 312, 316 (D.
Mass. 2003)(concluding that Massachusetts’ anti-SLAPP statute
directly conflicts with the Federal Rules 12 and 56); South
Middlesex Opportunity Council, Inc. v. Town of Framingham, 2008
WL 4595369, at *11 (D. Mass. 2008)(agreeing with the holding in
Stuborn, Ltd. that Massachusetts’ anti-SLAPP statute directly
conflicts with Federal Rules 12 and 56); Satkar Hospitality Inc.
v. Cook County Bd. of Review, 2011 WL 2182106, *5 (N.D. Ill.
2011)(concluding that Illinois anti-SLAPP motion which allowed
assertion of a defense in lieu of filing an answer directly
conflicted with Federal Rule 12); 1524948 Alberta Ltd. v. Lee,
2011 WL 2899385, at *3 (N.D. Ga. 2011)(holding that Georgia’s
anti-SLAPP statute directly conflicts with Rule 8) with U.S. ex
rel Newsham v. Lockheed Missiles & Space Co., Inc., 190 F.3d 963,
972 (9th Cir. 1999)(holding that the anti-SLAPP statute “can
exist side by side” with Federal Rules 8, 12, and 56); Gardner v.
10
Martino, 563 F.3d 981, 991 (9th Cir. 2009)(no direction collision
between Oregon’s anti-SLAPP statute and the Federal Rules); Godin
v. Schencks, 629 F.3d 79, 86-87 (1st Cir. 2010)(finding no direct
conflict between Maine’s anti-SLAPP statute and Rule 12 and Rule
56); Armington v. Fink, no. 09-6785, 2010 WL 743524, at *3 (E.D.
La. 2010)(finding that Louisiana’s anti-SLAPP statute does not
conflict with Rule 56).
As noted, several courts, including two federal circuit
courts of appeal, have found that anti-SLAPP statutes do not
conflict with the Federal Rules.
Anti-SLAPP statutes have most
commonly been challenged as “directly colliding” with Federal
Rules 8, 12, and 56.
In U.S. ex rel Newsham v. Lockheed Missiles
& Space Co., the Ninth Circuit considered whether the California
anti-SLAPP statute conflicted with these rules and concluded that
they did not.
190 F.3d at 972-73.
It found that the special
motion to strike provided by the California anti-SLAPP statute
did not displace the availability of Rule 12 motions or motions
for summary judgment pursuant to Rule 56.
Even after the denial
of a defendant’s special motion to strike, it noted that a
litigant would still be free to bring a motion to dismiss
pursuant to Rule 12 or a motion for summary judgment pursuant to
Rule 56.
Id. at 972.
While acknowledging that a special motion
to strike and Rules 12 and 56 serve similar purposes – namely,
allowing defendants to eliminate meritless claims early on in the
11
litigation –
the Ninth Circuit nonetheless concluded that
“commonality of purpose . . .does not constitute a ‘direct
collision.’”
Id.
Similarly, the First Circuit Court of Appeals also recently
considered the issue of whether Maine’s anti-SLAPP statute
applies in federal court and concluded that it does.
F.3d at 88-90.
Godin, 629
It reasoned that Federal Rules 12 and 56 and
Maine’s anti-SLAPP statute are designed to answer similar, but
recognizably distinct questions.
While the Federal Rules are
designed to apply generally to all cases, an anti-SLAPP motion is
a particularized procedural device applicable to only a narrowly
drawn class of claims.
Thus, while Rule 12(b)(6) allows a
defendant to dismiss a plaintiff’s complaint based on its legal
deficiencies, an anti-SLAPP motion is designed to provide
dismissal on a different basis:
that the plaintiff’s claims are
based on the defendant’s exercise of constitutionally guaranteed
rights, and that the plaintiff cannot meet the special rules
created to protect such activities from being targeted in a
lawsuit.
Id.
Similarly, Maine’s anti-SLAPP motion does not
require consideration of whether disputed factual issues exist,
as does Rule 56, but instead requires consideration of the
categorically different question of “whether the defendant's
conduct had a reasonable basis in fact or law, and whether that
conduct caused actual injury.” Id. at 89 (citing Me. Rev. Stat.
12
14 § 556).
Based on these differences, the First Circuit
concluded that the anti-SLAPP statute is not designed to be a
substitute for the Federal Rules, but instead creates “a
supplemental and substantive rule” designed to offer additional
protection to defendants who are targeted for the exercise of
First Amendment activities.
C.
Id. at 88.
Does Article 971 Apply in Federal Court?
In Henry v. Lake Charles American Press, LLC, 566 F.3d 164
(5th Cir. 2009), the Fifth Circuit appears to have assumed that
article 971 applies in federal court, but the issue of whether
the article “directly collides” with the Federal Rules of Civil
Procedure was never raised by the parties and was thus not
addressed by the court. Id.; see also Armington, 2010 WL 743524,
at *3 n.2 (noting that the Fifth Circuit did not address whether
article 971 conflicts with the Federal Rules).
Thus, the law on
this issue is not settled.
Both Rule 12 and Rule 56, as well as article 971, are
designed to screen out meritless claims early in the litigation.
However, as the Ninth Circuit recognized in Lockheed, a mere
“commonality of purpose” does not constitute a “direct
collision.”
190 F.3d at 972.
It is clear that article 971 is
intended to provide an additional layer of protection to
individuals who have been targeted for the exercise of their
13
constitutionally protected free speech activities, beyond that
which is contemplated by a motion to dismiss pursuant to Rule 12
or a motion for summary judgment under Rule 56.
The Court finds
no evidence that these Rules were intended to apply so broadly
that they “control the issue” of providing the means to eliminate
meritless claims prior to trial.
333.
All Plaintiffs, 645 F.3d at
The First Circuit in Godin specifically rejected such an
“abstracted framing” of the scope of these Federal Rules.
F.3d at 89 n.16.
629
Additionally, Louisiana also has procedural
rules similar to Federal Rules 12 and 56, in addition to article
971, which lends further credence to the fact that article 971
was not intended to “answer the same question” as these Rules.
Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 130
S. Ct. 1431, 1434 (2010).
Furthermore, in providing for a mandatory award of
attorney’s fees to the prevailing litigant, the statute has
created substantive rights, which are beyond the purview of the
Federal Rules of Civil Procedure.
In Chambers v. NASCO, Inc.,
the Supreme Court held that a state law which provides attorney’s
fees is substantive for Erie purposes when it “embodies a
substantive policy.”
501 U.S. 32, 52 (1991); see also Gasperini
v. Center for Humanities, Inc., 518 U.S. 415, 429 (1996)
(recognizing that a state procedural law’s objective was
“manifestly substantive” and holding that the law should be
14
applied in federal court under Erie).
The Fifth Circuit has held
that a state statute providing attorneys fees to party who
prevails on the merits “embodies a substantive policy” and is
therefore substantive for purposes of Erie.
See Camacho v. Texas
Workforce Comm’n, 445 F.3d 407, 412 (5th Cir. 2006); Ashland
Chemical Inc. v. Barco Inc., 123 F.3d 261, 265 (5th Cir. 1997).
Here, while article 971 conditions the availability of attorney’s
fees and costs to success on the motion, and not to ultimate
success on the merits of the case, it is clear that the Louisiana
legislature recognized that success on the special motion to
strike is fundamentally tied to ultimate success on the merits of
the litigation.
If a defendant files a special motion to strike
and prevails, the litigation would be terminated in the
defendant’s favor.
Likewise, a plaintiff prevailing on a special
motion to strike will have necessarily shown a probability of
success on the merits of his claim.6
6
Accordingly, the Court
Although it is theoretically possible for a plaintiff who
prevails on an article 971 motion to subsequently fail to prevail
on the ultimate merits of his claims, this is not determinative.
Instead, what matters for purposes of classifying this provision
as substantive is the “substantive nature of the public policy
choices involved in deciding whether vindication of the rights
afforded by a particular statute is important enough to warrant
the award of fees.” Chambers, 501 U.S. at 51. Clearly, article
971 is emblematic of such legislative policy determinations. See
LA. CODE CIV. P. art. 971, Legislative Findings (“The legislature
finds and declares that it is in the public interest to encourage
continued participation in matters of public significance, and
that this participation should not be chilled through abuse of
the judicial process. To this end, it is the intention of the
legislature that the Article enacted pursuant to this Act shall
15
concludes that attorney’s fees provisions of article 971 embody a
substantive policy and must be applied in federal court under
Erie.
The primary thrust of LCAC’s contention that article 971
cannot apply in federal court is that it places a burden on a
plaintiff opposing a special motion to strike which exceeds that
which would otherwise apply under either Rule 12 or Rule 56.
The
text of the statute, at the least, might lead one to reasonably
believe this to be true.
In order to survive a motion for
summary judgment, Rule 56 requires the nonmovant to produce
evidence “sufficient to sustain a finding in favor of the
nonmovant on all issues as to which the nonmovant would bear the
burden of proof at trial.”
Johnson v. Deep East Tex. Reg’l
Narcotics Trafficking Task Force, 379 F.3d 293, 308 (5th Cir.
2004).
In order to overcome a special motion to strike, however,
a plaintiff must demonstrate “a probability of success on the
claim.”
See LA. CODE CIV. P. art. 971(A)(1).
One of the first
reported Louisiana cases applying article 971 specifically noted
that the probability of success standard was “legally ambiguous.”
See Stern, 2001-0914, p. 3; 806 So. 2d at 100.
be construed broadly.”)
16
Further, in at
least one reported decision, the court stressed that the two
standards were not equivalent and held that it was reversible
error for the trial court to have converted the special motion to
strike to a motion for summary judgment.
See Savoie v. Page,
2009-0415, p. 6 (La. App. 3 Cir. 2009), 23 So.3d 1013, 1017 (“The
issues and burdens imposed under LA. CODE CIV. P. art. 966 (the
summary judgment article) and those imposed under LA. CODE CIV. P.
art. 971 are entirely different.”).
However, the vast majority of decisions appear to suggest
that the burden imposed on a plaintiff opposing a special motion
to strike is functionally equivalent to the burden imposed on the
nonmovant in a motion for summary judgment.
In Estiverne v.
Times-Picayune, L.L.C., for example, in describing a plaintiff’s
burden to demonstrate “a probability of success” under article
971, the Louisiana Fourth Circuit Court of Appeal quoted a
Louisiana Supreme Court decision setting forth a defamation
plaintiff’s burden to overcome a motion for summary judgment,
implicitly holding that the burdens were the same.
4 (La. App. 4 Cir. 2006), 950 So. 2d 858, 860.
2006-0571, p.
Because the
plaintiff had failed to carry the summary judgment burden of
producing “evidence of sufficient quality and quantity to
demonstrate that he will be able to meet his burden of proof at
trial,” the court held that he had not demonstrated a probability
of success on the merits of his claim as required under article
17
971.
Id. (quoting Sasson v. Elder, 626 So. 2d 345, 350 (La.
1993)); see also, Melius v. Keiffer, (La. App. 4 Cir. 4/12/08),
980 So. 2d 167, (holding that failure to offer legally sufficient
proof on any essential element constituted a failure to establish
a probability of success); Rogers v. Ash Grove Cement Co.,
34,934, p. 4 (La. App. 2 Cir. 11/2/01), 799 So. 2d 841, 849
(Brown, J., dissenting)(“Although labeled a motion to strike,
Article 971's intent and purpose is the same as a summary
judgement motion.”); Henry, 566 F.3d at 176 (describing the
court’s determination of whether a plaintiff has demonstrated a
probability of success on the merits as “akin to a court
determining only that a plaintiff has presented a threshold
showing that allows her claim to proceed”).
Furthermore, the
Court notes that a federal district court in California,
interpreting the nearly identical provisions of the California
statute, concluded that it did not impose a burden greater than
Rule 56.
See Rogers v. Hope Shopping Network, Inc., 57 F. Supp.
2d 973, 984 n.6 (C.D. Cal. 1999).
Louisiana courts have
specifically noted the similarities between article 971 and
California’s anti-SLAPP and have looked to California case law
when there is no precedential Louisiana authority on point.
See Lee v. Pennington, 2002-0381, at p. 6; 830 So. 2d at 1043
(noting that the two statutes are “very similar in form,
language, and legislative intent”); see also Thomas v. City of
18
Monroe, Louisiana, 36,526, p. 6 (La. App. 2 Cir. 10/18/02), 833
So. 2d 1282, 1286 (noting that the two statutes are “virtually
identical”).
While several Massachusetts federal district courts have
drawn the opposite conclusion regarding the burdens imposed on a
plaintiff opposing an anti-SLAPP motion, see, e.g., South
Middlesex Opportunity Council, 2008 WL 4595369, at *10-11, the
Massachusetts anti-SLAPP statute is substantively different from
article 971.
Specifically, it requires a plaintiff to “show by a
preponderance of the evidence that the moving party’s petitioning
activities were devoid of any reasonable factual support or any
arguable basis in law,” a standard which had been explicitly
interpreted by the state’s highest court as more stringent than
the traditional summary judgment standard.
See id. (quoting
Baker v. Parsons, 434 Mass. 543, 544, 750 N.E.2d 953 (2011)).
In
contrast, the Louisiana statute, as explained above, has been
interpreted to impose the same burden necessary for a plaintiff
to withstand summary judgment.
Accordingly, those decisions are
readily distinguishable.
It might also be argued that article 971 allows a court to
resolve disputed issues of material fact in favor of the movant,
instead of the nonmovant as required under Rule 56.
When
evaluating a motion for summary judgment, a court is required to
view the facts and draw reasonable inferences in the light most
19
favorable to the party opposing the motion for summary judgment.
Scott v. Harris, 550 U.S. 372, 378 (2007).
The text of article
971 does not explicitly require any such favorable inferences to
be drawn.7
However, after a thorough review of the Louisiana
cases interpreting article 971, the Court was unable to find any
decisions which suggest that article 971 has been applied in such
a manner.
To the contrary, when Louisiana courts have found
disputed issues of material fact, they have found that a special
motion to strike should not be granted.
See, e.g., Bradford v.
Judson, 44,092, p.15 (La. App. 2 Cir. 2009), 12 So.3d 974, 984
(reversing trial court’s ruling granting summary judgment and
special motion to strike).
Accordingly, because the burdens and
standards imposed under article 971 as interpreted by Louisiana
courts directly correspond with the burdens and standards of Rule
56, the Court concludes that article 971 does not “directly
collide” with Rule 56.
LCAC also contends that the burdens imposed by article 971
far exceed those imposed by Rule 12(b)(6).
7
Although most often
The Court in Godin also noted that to the extent that
Maine’s anti-SLAPP statute could be interpreted to allow a judge
to resolve disputed material issues of fact prior to trial, it
could violate the Seventh Amendment. It conclued, however, that
the statute was “relatively young” and there was “no reason to
think the state courts would construe [it] so as to be
incompatible with the Seventh Amendment.” 629 F.3d at 90 n.18.
Similarly, here, based on the current Louisiana cases, article
971 has not been interpreted in such a way that Seventh Amendment
concerns exist.
20
used to challenge a lack of evidentiary support, a special motion
to strike can also be utilized to dismiss a complaint based on
legal deficiencies, in the same manner as a motion to dismiss
under Rule 12.
See, e.g., Ruffino v. Tangipahoa Parish Council,
965 So. 2d 414, 417-18 (“The petition filed by the [plaintiffs]
stated no legal grounds on which [they] might have prevailed, and
a motion to strike under article 971 was proper.”).8
As an
initial matter, LCAC’s references to “burdens” with respect to
the questions of law such a motion would present are somewhat
misguided.
Burdens are implicated by questions of evidence, but
not the questions of law which arise when a special motion to
strike is based on the legal defects of a plaintiff’s complaint.
While the standards by which a court decides a question of law
are significant, “the issue of who bears the ‘burden of proof’
regarding those standards cannot affect the legal question” that
such a motion would present.
Rogers, 57 F. Supp. 2d at 984 n.4.
While LCAC offers little elaboration on this contention, it
perhaps means to suggest that the requirement of showing a
“probability of success” to overcome this type of motion
necessarily entails more than is required to survive a motion to
dismiss under Rule 12.
Indeed, the Fifth Circuit in Henry held
that the burden of demonstrating a probability of success as
required under article 971 “requires more than that which is
21
necessary to survive a normal motion to dismiss.”
F.3d at 181.
Henry, 566
However, the anti-SLAPP motion in Henry was used to
challenge the sufficiency of the plaintiff’s evidence, and not to
allege that the plaintiff’s allegations were defective as a
matter of law.
The burden of demonstrating a probability of
success for that type of motion, as discussed above, is identical
to that necessary to withstand a motion for summary judgment.
That such a burden would require more than that which is
necessary to overcome a motion to dismiss is relatively
uncontroversial.
See Reese v. Anderson, 926 F.2d 494, 498 (5th
Cir. 1991)(noting that “the evidentiary burden on the nonmovant
in a summary judgment motion is significantly greater than in a
motion to dismiss”).
When a special motion to strike
successfully identifies legal deficiencies in the plaintiff’s
complaint, however, it allows the court to conclude that no
evidentiary showing substantiating the allegations of the
complaint could save the plaintiff’s claims.
Accordingly, the
introduction of any evidence to establish a probability of
success would be irrelevant.
The more salient issue is whether the standards for
evaluating such a motion under article 971 are inconsistent with
the Federal Rules which would govern a motion to dismiss pursuant
to Rule 12(b)(6).
When confronted with a motion to dismiss,
under Rules 8 and 12, a court must construe the plaintiff’s
22
complaint liberally and must accept all well-pleaded factual
allegations as true.
EPCO Carbon Dioxide Products, Inc. v. JP
Morgan Chase Bank, NA, 467 F.3d 466, 467 (5th Cir. 2006).
The
motion should only be granted if the plaintiff fails to plead
sufficient facts to state a claim for relief that is plausible on
its face.
Colony Ins. Co. V. Peachtree Const., Ltd., 647 F.3d
248 (5th Cir. 2011)(quoting Bell Atl. Corp. v. Twombley, 550 U.S.
544, 570 (2007)).
When ruling on a special motion to strike
which mounts a legal challenge to a plaintiff’s complaint, there
is nothing in the text of the article 971 to necessarily require
a court to evaluate the motion under standards different from
Federal Rules 8 or 12.
Further, the California federal district
courts have accepted that the substantially similar California
anti-SLAPP statute does not require standards inconsistent with
these Rules when used in this manner.
See Rogers, 57 F. Supp. 2d
at 984 (noting that the Ninth’s Circuit’s holding in Lockheed
“did not endorse a standard for a special motion to strike
different from the standard for a Rule 12(b)(6) motion”); see
also Four Navy Seals v. Associated Press, 413 F. Supp. 2d 1136,
1150 (S.D. Cal. 2005); Aeroplate Corp. v. Arch Ins. Co., 2006 WL
3257487, *9 (E.D. Cal. 2006).
Accordingly, the Court concludes
that article 971 does not directly conflict with Rules 8 or 12.
Having found that article 971 does not "directly collide"
with the Federal Rules, the Court must turn to the second part of
23
the Erie inquiry and determine whether failure to apply article
971 would frustrate the dual purposes of the Erie doctrine.
Hanna, 380 U.S. at 468.
See
It is evident that failing to apply
Louisiana’s anti-SLAPP statute would disserve both Erie purposes.
Declining to apply article 971 would inequitably deprive
Louisiana defendants targeted by meritless SLAPP lawsuits of an
important procedural weapon to which they would otherwise be
entitled to use in state court.
See Armington, 2010 WL 743524,
at *3 n.2 (“Louisiana has important interests in the application
of its anti-SLAPP law, and its application will ensure that
defendants, whether in diversity or not, will be protected from
meritless defamation claims and the resulting fishing expeditions
that might chill the exercise of their speech rights.”).
Furthermore, as the Ninth Circuit recognized, the threat of forum
shopping would be eliminated by applying the statute in federal
court.
See Lockheed Missiles & Space Co., Inc., 190 F.3d at 973.
Otherwise, a plaintiff determined to bring a meritless SLAPP suit
would inevitably make the calculated choice to proceed in a
federal forum without fear of the sting of having to pay the
defendant’s attorney’s fees.
Accordingly, the Court concludes
that article 971 of the Louisiana Code of Civil Procedure is
applicable in federal court.
D.
The Merits of the Instant Article 971 Motion:
Having concluded that article 971 applies in federal court,
24
the Court now turns to the merits of the instant motion.
First,
Defendant Marzano-Lesnevich must prove that the instant lawsuit
arises from act in furtherance of the exercise of her right of
petition or free speech under the Louisiana or United States
Constitution in connection with a public issue.
art. 971(A).
LA. CODE CIV. P.
LCAC contends that the Defendant cannot meet her
prima facie burden that the publication of her essays was an act
in furtherance of her First Amendment rights because no person
has a First Amendment right to disclose confidential information
in breach of a confidentiality agreement.
This contention,
however, begs the question of whether the Defendant’s
publications were protected speech under the First Amendment in
the first place.
Although the statutory text is silent on this
issue, the Court concludes that article 971 should not be
interpreted to require a defendant to establish as a matter of
law that her speech was actually protected by the First Amendment
as a part of this prima facie burden.
Under LCAC’s proposed construction of the statute, the
second inquiry under article 971 – whether a plaintiff has
demonstrated a probability of success on the merits – would
essentially become superfluous:
if a defendant were required to
show that the First Amendment actually protects her speech, a
plaintiff cannot, by definition, demonstrate a probability of
success on the merits.
Furthermore, the Court notes that the
25
California Supreme Court has rejected precisely the same argument
with respect to the application of the burden-shifting framework
of the California anti-SLAPP statute.
See Navellier v. Sletten,
52 P.3d 703, 712-713 (Cal. 2002)(“The Legislature did not intend
that in order to invoke the special motion to strike the
defendant must first establish her actions are constitutionally
protected under the First Amendment as a matter of
law.”)(internal citations omitted); see also Fox Searchlight
Pictures, Inc. v. Paladino, 89 Cal. App. 4th 294, 305 (Cal. App.
2 Dist. 2001)(“Fox argues its suit does not fall within the SLAPP
statute because Paladino has no First Amendment right to disclose
privileged and confidential documents or to refuse to return
those documents to Fox, their rightful owner. The same argument
could be made by the plaintiff in a defamation suit—the defendant
has no First Amendment right to engage in libel or slander.
defamation suits are a prime target of SLAPP motions.”).
Yet,
Here,
the Court agrees with the analysis of the California Supreme
Court in Flately v. Mauro that “any claimed illegitimacy of the
defendant's acts is an issue which the plaintiff must raise and
support in the context of the discharge of the plaintiff's
burden” to show a probability of success on the merits. 139 P.3d
2, 15 (Cal. 2006)(internal citations omitted).
Thus, all that is required in order for a defendant to
satisfy her initial burden under article 971 is to show that the
26
acts which form the underlying basis by the lawsuit fall within
the purview of article 971(F)(1).
Included among the enumerated
activities which constitute an “act in furtherance of a person’s
right . . . of free speech” under article 971(F)(1) is “[a]ny
written or oral statement or writing made in a place open to the
public or a public forum in connection with an issue of public
interest.”
LA. CODE CIV. P. art. 971(F)(1)(c).
The face of the
plaintiff’s complaint clearly reveals that gravamen of its claims
arise from the Defendant’s two essays published online and in a
literary journal, and its claim for injunctive relief seeks to
prohibit her from publishing further works or otherwise
disclosing information which could be prejudicial to LCAC
clients.9
It is clear that the publication of a work of
literature is among the purest exercises of the right to free
speech guaranteed under the First Amendment.
Additionally, these
essays were published both in literary journals and on the
9
In particular, LCAC alleges that: “Marzano-Lesnevich
published an essay entitled "In the Fade” in the Spring 2010
volume of the Bellingham Review, which divulges confidential and
privileged information learned while Marzano-Lesnevich was
employed by LCAC . . .”; Rec. Doc. 1-1, p. 4, ¶ 9;
“Marzano-Lesnevich reposted her essay "In the Fade” on a personal
website and that she was also posting and/or promoting other
essays and writings in which Marzano-Lesnevich discloses
confidential and privileged information and other information
from her representation of LCAC's clients which is prejudicial
and harmful to LCAC's clients. Marzano-Lesnevich's website also
suggests that Marzano-Lesnevich is currently working on a full
length book about her work with LCAC.” Rec. Doc. 1-1, p. 5, ¶
11.
27
Defendant’s personal website, which constitute “places open to
the public” within the meaning of article 971(F)(1)(c).
Furthermore, courts applying article 971 have concluded that
a wide variety of activities involving the publication of written
works or dissemination of news stories constitute acts in
furtherance of the right of free speech, even when the content of
those publications are alleged to be unprotected by the First
Amendment.
See, e.g., Henry, 566 F.3d at 181 (publication of a
series of allegedly defamatory newspaper articles ); Armington,
2010 WL 743524 at *5 (publication of allegedly defamatory article
recounting events at Memorial Medical Center in the wake of
Hurricane Katrina); Alexanian v. Brown, No. 07-00806, 2009 WL
2356443, at *6 (W.D. La. July 29, 2009)(publication of
purportedly defamatory newspaper article regarding practices and
procedures of animal control facility); Starr v. Boudreaux, 20070652, p. 4 (La. App. 1 Cir. 2007),
978 So. 2d 384, 389
(publication of newspaper article regarding sudden removal of
radio station from the airwaves); Estiverne, 2006-0571, at p. 4;
950 So. 2d at 860 (publication of allegedly defamatory article
describing prosecution of ex-lawyer’s theft of elderly client’s
funds); Thomas, 36,526, at p. 7; 833 So. 2d at 1286-87
(broadcasting allegedly slanderous news report detailing alleged
sexual criminal conduct of a city official); Lee, 830 So. 2d at
1044 (publication of defamatory articles and airing of newscasts
28
regarding police officer’s rape charges).
It is also evident that the subject of the Defendant’s
articles clearly implicate matters of public concern.
The
Supreme Court has held that speech involves a matter of public
concern when it can be
fairly said to relate to “any matter of
political, social, or other concern to the community.” Connick v.
Myers, 461 U.S. 138, 146 (1983).
Defendant’s published essays
explore issues surrounding the death penalty, sexual abuse, sex
offender laws, and the operation of the criminal justice system
in general.
concern.
Clearly, all of these constitute matters of public
See, e.g., Garrett v. Estelle, 556 F.2d 1274, 1279
(noting that “the death penalty is a matter of wide public
interest”).
While the essays also may contain speech unprotected
by the First Amendment because it breaches a fiduciary duty or a
contractual duty, that inquiry is properly allocated to the
second part of the burden-shifting framework.
Accordingly, the
Defendant has met her prima facie burden of demonstrating that
the acts giving rise to the Plaintiff’s lawsuit against her
constitute acts in furtherance of her right to free speech.
E.
Has LCAC Shown a Probability of Success on the Merits?
Because the Defendant has met her prima facie burden, the
Court must grant the Defendant’s special motion to strike unless
LCAC has demonstrated a probability of success on the merits of
its claims.
LA. CODE CIV. P. art. 971(A).
29
Here, Defendant’s
special motion is directed exclusively at LCAC’s claim for
injunctive relief.
LCAC specifically seeks preliminary and
permanent injunctive relief prohibiting the Defendant from
“present and future disclosure, publication, or dissemination of:
(i) attorney-client communications, work product, and other
confidential and privileged information, which she obtained while
working as a law clerk for LCAC; and (ii) information relating to
her representation of LCAC’s clients which disadvantages or
otherwise prejudices LCAC’s clients.”10
Defendant Marzano-
Lesnevich argues that LCAC cannot establish a probability of
success because the prayed-for injunction would constitute a
prior restraint, in violation of the First Amendment.
As an initial matter, Defendant appears to have assumed that
article 971 and the special motion to strike may be used to
selectively eliminate discrete claims or theories of relief, as
opposed to dispensing with the entire lawsuit.
The Court is
unaware of any reported Louisiana case addressing the issue, but
in the Court’s view, the special motion to strike was not
intended to be utilized in this manner.
As previously explained, the Louisiana Legislature enacted
article 971 to address the rising number of lawsuits brought to
harass and intimidate those individuals who have exercised their
10
Rec. Doc. 1-1, p. 7.
30
constitutionally protected rights of free speech or petition for
redress of grievances.
Findings.
See LA. CODE CIV. P. art. 971, Legislative
It is evident that the types of lawsuits that the
anti-SLAPP motions was intended to eliminate are those which are
completely devoid of merit and which “abuse . . . the judicial
process.”
See id.; Armington, 2010 WL 743524 at *3 (noting that
the article 971 “is intended to weed out only clearly meritless
claims”); Stern, 806 So. 2d at 100 (explaining that the purpose
of article 971 is to eliminate “frivolous and meritless claims”).
It was not, in the Court’s view, intended to be used against
lawsuits which are partially valid and seek to vindicate legally
cognizable rights, but which also contain a claim or theory which
is somehow legally deficient or otherwise barred by the First
Amendment.
To accept the Defendant’s proposed use of the special
motion to strike would mean that a plaintiff who pleads and
substantiates any number of legally cognizable claims, but who
also pleads a claim as to which the Defendant has a valid First
Amendment defense, would be forced to pay the Defendant’s
attorney’s fees and costs.
There is no evidence that the
Louisiana Legislature intended article 971 to be applied in this
manner.
See Delta Chem. Corp., v. Lynch, et al, 2007-0431, p.14
(La. App. 4 Cir. 2/27/08); 979 So. 2d 579, 588 (explaining that
the provisions of article 971 awarding attorney’s fees and costs
are penal in nature and must be strictly construed).
31
Notably, the California Supreme Court has interpreted the
identical provisions of the California anti-SLAPP statute in a
similar fashion.
See Oasis West Realty, LLC v. Goldman, 250 P.3d
1115, 1120 (Cal. 2011)(“If the plaintiff can show a probability
of prevailing on any part of its claim, the cause of action is
not meritless and will not be stricken; once a plaintiff shows a
probability of prevailing on any part of its claim, the plaintiff
has established that its cause of action has some merit and the
entire cause of action stands.”)(emphasis added)(internal
citations omitted); Mann v. Quality Old Time Service, Inc., 15
Cal. Rptr. 3d 215, 223 (Cal. Ct. App. 2004)(“Stated differently,
the anti-SLAPP procedure may not be used like a [normal] motion
to strike,
. . . eliminating those parts of a cause of action
that a plaintiff cannot substantiate.”).
A defendant has other procedural tools to eliminate
meritless theories, as opposed to meritless lawsuits, such as a
normal motion to strike pursuant to Rule 12(f) or a motion for
summary judgment under Rule 56.
Thus, for purposes of satisfying
the secondary burden of demonstrating a probability of success on
the merits, if a plaintiff can demonstrate a probability of
success as to any part of its claim, then the cause of action has
at least some merit, and the special motion to strike must be
denied.
Accordingly, with respect to the present motion, even if
the Plaintiff’s request for preliminary injunctive relief would
32
be barred by the prior restraint doctrine as the Defendant
suggests, the Court must determine only whether LCAC has
demonstrated a probability of success on either of its claims for
breach of contract or breach of fiduciary duty.
F.
LCAC’s Breach of Contract Claim:
The Plaintiff argues that it has stated and substantiated a
claim for breach of contract under Louisiana law.
The First
Amendment does not bar enforcement of a contract restricting
speech or the right to publish certain information between
private parties.
The United States Supreme Court, along with
several others, has concluded that First Amendment rights are not
absolute, and may be limited by contract.
See Cohen v. Cowles
Media Co., 501 U.S. 663, 670–71, 111 S.Ct. 2513, 115 L.Ed.2d 586
(1991)(holding that the First Amendment did not bar enforcement
of restrictions on speech or publication which are “selfimposed”); Krystkowiak v. W.O. Brisben Companies, Inc., 90 P.3d
859, 865 (Colo. 2004); Perricone v. Perricone, 972 A.2d 666, 680
(Conn. 2009)(holding that a confidentiality agreement constitutes
a valid waiver of First Amendment rights, even in the absence of
any express reference to the First Amendment).
In order to establish a claim for breach of contract under
Louisiana law, a plaintiff must prove (1) an undertaking of an
obligation to perform, (2) a breach of that agreement by the
obligor, and (3) damages suffered by the obligee.
33
Favrot v.
Favrot, 2010-CA-0986, p. 14-15, (La. App. 4 Cir. 2/9/11), 68 So.
2d 1099, 1109-10 (citing Jackson Joint Venture v. World Constr.
Co., Inc., 499 So.2d 426, 427 (La. App. 4th Cir.1986)).
Unless
the law prescribes a writing, a contract may formed orally
through offer and acceptance of the parties.
1927.
LA. CIV. CODE art.
LCAC alleges that the Defendant orally agreed to abide by
the Louisiana Rules of Professional Responsibility, and in
particular, the rules regarding the rules regarding the
preservation of confidential information regarding LCAC clients.
In order to establish the existence of an oral contract
alleged to have a value exceeding $500, as is alleged here, the
existence of the contract must be proved by at least one witness
and “other corroborating circumstances.”
LA. CIV. CODE art. 1846.
To demonstrate the existence of the Defendant’s oral contract,
the Plaintiff has submitted the declaration of Richard Bourke,
LCAC’s director, describing LCAC’s “long-standing policy” of
affirmatively requesting its summer law clerks to abide by the
ethical rules governing lawyers in Louisiana.
The Plaintiff also
submits the declaration of Melanie Carr, who oversaw the training
program for LCAC’s summer law clerks during the Defendant’s
clerkship.
She avers that she specifically informed the
Defendant that her employment was conditioned upon her
understanding and agreeing that (1) information learned during
the course of employment is presumed to be confidential; (2)
34
confidential information may only be shared with other LCAC
employees working on a particular case; and (3) clients possess
the sole right to waive confidentiality and that this waiver must
be in writing.
She further avers that the Defendant stated that
she understood these conditions and specifically agreed to them.
Louisiana courts have held that a party to a lawsuit may serve as
his own credible witness for the purpose of satisfying the
requirements of article 1846.
See Gutierrez v. Moezzi,
2006-CA-1395, p. 9 (La. App. 4 Cir. 4/11/07), 957 So. 2d 842,
847-48.
Accordingly, LCAC has satisfied the first requirement of
Civil Code article 1846.
With regards to the second requirement of article 1846, the
existence of “other corroborating circumstances,” the Court finds
that the circumstances surrounding Defendant’s summer clerkship
are sufficiently corroborative of the existence of the oral
agreement.
The declaration of Richard Bourke states that he has
reviewed research memoranda written by the Defendant during her
internship, and that they had been labeled “Confidential” and
“Subject to the Attorney-Client Privilege,” which may demonstrate
that the Defendant understood herself to be bound by a duty of
confidentiality.
Furthermore, the Louisiana Rules of
Professional Conduct impose an ethical duty on LCAC’s supervising
attorneys to “make reasonable efforts” to ensure that the conduct
of their non-lawyer employees is compatible with the ethical
35
obligations imposed on lawyers.
R. 5.3(c).
See La. Rules of Prof. Conduct
While the Defendant points out that the “reasonable
efforts” standard of Rule 5.3 did not necessarily require LCAC to
obtain a confidentiality agreement from its law clerks, it is
clear that Rule 5.3 provides, at the very least, strong incentive
for obtaining such an agreement.
Indeed, a lawyer who fails to
comply with Rule 5.3 can be subject to disciplinary action for
the non-lawyer’s disclosure of a client’s confidential
information.
See In re Wahlder, 728 So.2d 837, 840 (La.
1999)(noting that a licensed attorney ultimately has
responsibility for the actions of his staff under Rule 5.3).
As
a result, the Court finds that the circumstances surrounding the
Defendant’s clerkship, along with the declarations produced are
sufficient to demonstrate the existence of “other corroborating
circumstances” as required by Civil Code article 1846.
The Defendant also argues that, even if she were bound by a
confidentiality agreement, LCAC has failed to show that the
Defendant ever breached that agreement by disclosing confidential
information.
LCAC has identified seven passages from the
Defendant’s two essays which are alleged to contain confidential
and privileged information pertaining to its clients.
After
reviewing the disputed passages, some of the information
contained therein is information available in public records.
For instance, one passage from the essay Longtermer’s Day, for
36
example, describes the facts of the crime involving a young man,
identified only by the pseudonym “Corey,” who was facing a
capital murder charge.
Much of the passage LCAC identifies
merely recites the information available in the LCAC client’s
arrest warrant and subsequent confession to police in a more
stylized narrative form.11
Similarly, the essay In the Fade
contains some information pertaining to former-LCAC client Ricky
Langley which is easily garnered from the public record.
The
mere fact that Langley is a convicted child molester, for
instance, is well-established in the court records detailing
Langley’s three prosecutions and convictions for murdering a
seven-year old boy in Calcasieu Parish.12
In other contexts, courts have held that a party under a
duty of confidentiality does not breach that duty by disclosing
11
See Rec. Doc. 18-1, Exh. 9.
12
After a previous conviction for child molestation, Ricky
Langley was convicted of first-degree murder in 1994, and the
case was remanded on appeal. See State v. Langley, 95-1489 (La.
4/14/98), 711 So. 2d 651. The trial court subsequently granted
Langley’s motion to quash his indictment, and that judgment was
affirmed on appeal by the Louisiana Supreme Court. State v.
Langley, 1995-1489 (La. 4/3/02), 813 So. 2d 356. After Langley
was re-tried and convicted for first-degree murder, the Louisiana
Supreme Court overturned the verdict based on structural defects
in the trial court’s actions. State v. Langley, 2004-269 (La.
App. 3 Cir. 12/29/04), 896 So. 2d 200. After he was re-indicted,
the Louisiana Supreme Court held that he could not be re-tried
for first-degree murder. State v. Langley, 2006-1041 (La.
5/2207), 958 So. 2d 1160. Langley was re-tried for second-degree
murder and convicted, and his conviction was affirmed on appeal.
State v. Langley, 2010-969 (La. App. 3 Cir. 4/6/11).
37
information available in the public record.
See, e.g., Williams
v. Coffee County Bank, 308 S.E.2d 430, 432 (Ga. Ct. App.
1983)(“It would be anomalous indeed to permit appellant to
recover for appellees' breach of an implied duty of
confidentiality when the only information disclosed was a matter
of public record and indisputedly was not confidential.”);
Schaefer v. General Elec. Co., No. 3:07-CV-0858, 2008 WL 649189,
at *13 (D. Conn. Jan. 22, 2008)(holding that information
available from public records is not confidential).
With respect
to the duty of confidentiality imposed on lawyers, however, many
courts have concluded that an attorney breaches his ethical
duties by disclosing even information which is a matter of public
record.
See, e.g., Brennan's, Inc. v. Brennan’s Restaurants,
Inc., 590 F.2d 168, 172 (5th Cir. 1979)(“As we have noted before,
the “use of the word ‘information’ ... is particularly revealing
of the drafters' intent to protect all knowledge acquired from a
client.... This is true without regard to whether someone else
may be privy to it.”); Akron Bar Ass'n v. Holder, 810 N.E.2d 426,
435 (Ohio 2004) (explaining that “an attorney is not free to
disclose embarrassing or harmful features of a client's life just
because they are documented in public records”); In re Anonymous,
654 N.E.2d 1128, 1129-30 (Ind. 1995) (holding that a lawyer
violated the duty of confidentiality, even though that
information “was readily available from public sources and not
38
confidential in nature”); Lawyer Disciplinary Bd. v. McGraw, 461
S.E.2d 850, 851 (W. Va. 1995) (“The ethical duty of
confidentiality is not nullified by the fact that the information
is part of a public record or by the fact that someone else is
privy to it.”).
For the purposes of resolving the instant special motion to
strike, however, it is unnecessary to determine whether the
disclosure of publicly availably information would constitute a
breach of a contractual duty of confidentiality under these
circumstances, because LCAC has identified several passages which
contain information which is not a matter of public record.
One
passage in Longtermer’s Day, for example, discloses the fact that
the client’s “mental and emotional state deteriorated rapidly in
jail,” and that the supervising attorney had stopped allowing
women to visit him.
This information, as the Defendant
acknowledges, is not drawn from the public record.
While the
Defendant points out that the client is only identified by the
pseudonym “Corey,” considered alongside the other information
revealed in the essay, his identity could easily be ascertained.
Similarly, another portion of the essay In the Fade reveals the
details of a conversation between an LCAC attorney and the
Defendant wherein the attorney discloses that LCAC client Ricky
Langley was threatening to kill himself, and asks her if she
would visit him in prison to “sit with him for a while” and “tell
39
him that he’s not a bad man.”13
This information, as LCAC points
out, was not unknown outside of LCAC personnel.
While the
Defendant points out that the LCAC attorney representing Langley
disclosed the fact that he had previously attempted suicide at
the opening statements of his trial in 2002, this does not reveal
the fact that he communicated such a threat to his attorneys
during the Defendant’s clerkship in 2003.14
Both LCAC and the
clients it defends have a legitimate interest in maintaining the
confidentiality of sensitive information regarding the state of a
client's mental health, as well as how LCAC's supervising
attorneys respond to such issues within
15
Finally, LCAC has produced evidence that it has been harmed
by the disclosure of this information.
The harm that results
from the disclosure of a client’s confidential information,
whether by an attorney or by those on whom he relies, is the
same.
The preservation of a client’s confidential information,
as has been explained in a vast number of judicial opinions,
fortifies the client’s trust in his attorney.
See In re American
Airlines, Inc., 972 F.2d 605, 618-20 (5th Cir. 1992)(“The trust a
13
See Rec. Doc. 15-5, Exh. A-1, p.7
14
See Rec. Doc. 18-3, Exh. 12.
15
Because the Court concludes that the Plaintiff has shown
that at least some of the information contained in the essays was
confidential in nature, it is unnecessary to address the
remaining passages also alleged to contain confidential
information.
40
lawyer's duty of loyalty inspires in clients encourages them
freely to confide in the lawyer and freely to rely on the advice
provided by the lawyer.”).
This relationship is all the more
critical in the high-stakes capital cases handled by LCAC, where
the client’s life, quite literally, is at stake.
As the director
of LCAC has explained, death penalty cases often impose severe
emotional strains on their clients, and the development of a
mitigation defense requires unearthing a client’s most painful
emotional memories and experiences.
The disclosure of sensitive
information regarding a client’s mental health or other
information disclosed by a client in confidence may result in
reluctance on the part of future LCAC clients to share such
information with their attorneys, thereby compromising LCAC’s
ability to provide those clients with effective representation.
While this injury is somewhat less concrete than the typical
injury alleged in a breach of contract claim, it is certainly no
less real.
G. Conclusion
In conclusion, the Court finds that LCAC has made a showing
sufficient to support a jury verdict with respect to all the
essential elements of its breach of contract claim.
As a result,
it is unnecessary to address the merits of LCAC’s breach of
fiduciary duty claim, or the other ancillary arguments raised by
the parties.
Accordingly,
41
IT IS ORDERED that Defendant Marzano-Leznevich’s Special
Motion to Strike (Rec. Doc. 4) is DENIED.
Plaintiff LCAC, as the
prevailing party, is entitled to reasonable attorney fees and
costs.
See LA. CODE CIV. PROC. art. 971(B).
However, a prevailing
party may only recover attorney's fees associated with the motion
to strike.
at 588.
See Delta Chem. Corp., 2007-0431 at p.14; 979 So.2d
As a result,
IT IS FURTHER ORDERED that LCAC shall submit a motion for
attorney’s fees and costs associated with opposing the
Defendant’s special motion to strike within fifteen (15) days.
The Defendant shall file any response to the Plaintiff’s motion
within seven (7) days thereafter.
New Orleans, Louisiana, this 23rd day of November, 2011.
____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
42
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