Adams v. City of New Orleans, et al

Filing 190

Minute Order. Proceedings held before Magistrate Judge Daniel E. Knowles, III: Motions Hearing held on 2/23/2017 re 174 MOTION to Quash Subpoena, 180 MOTION to Supplement Motion to Quash Subpoena. IT IS ORDERED that the 174 Motion to Quash Subpoena and the Ex Parte 180 Motion to Supplement Motion to Quash Subpoena and to Seek a Protective Order are GRANTED IN PART and DISMISSED AS MOOT IN PART as outlined in document. (cms)

MINUTE ENTRY
KNOWLES, M.J.
FEBRUARY 23, 2017
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
REGINALD ADAMS

CIVIL ACTION

VERSUS

NO. 15-1543

CITY OF NEW ORLEANS, ET AL.

SECTION "E" (3)

On February 22, 2017, the Motion to Quash Subpoena [Doc. #174] and the Ex Parte Motion
to Supplement Motion to Quash Subpoena and to Seek a Protective Order [Doc. #180] came on
for oral hearing before the undersigned. Present were Michael Magner on behalf of plaintiff and
Lisa Jordan on behalf of movant Roger W. Jordan, Jr. (“Jordan”). After the oral hearing, the Court
took the motion under advisement. Having reviewed the pleadings and the case law, the Court
rules as follows.
I.

Background
The factual background of this lawsuit has been outlined before, and there is no need to

repeat it here. Adams v. City of New Orleans, Civ. A. No. 15-1543, 2016 WL 4272711 (E.D. La.
Aug. 15, 2016); Adams v. City of New Orleans, Civ. A. No. 15-1543, 2016 WL 4275246 (E.D. La.
Aug. 15, 2016).
II.

The Parties’ Arguments
On January 6, 2017, plaintiff issued a subpoena on Jordan. The subpoena seeks to compel

Jordan’s attendance at a February 3, 2017 deposition. Jordan is not a party to this case. Jordan had
no involvement whatsoever in any of the prosecutions of plaintiff which form the basis of this
lawsuit and would not even become employed at the Orleans Parish District Attorney’s Office
(“DA’s office”) until six years after plaintiff’s first conviction.

MJSTAR: 00:25

Citing Rule 45(b)(1), Jordan asks the Court to quash the subpoena because (1) plaintiff
failed to serve him personally, and (2) plaintiff failed to tender the fees for one day’s attendance
and mileage at the time that he served the subpoena. Citing Fifth Circuit case law, Jordan notes
that a subpoena must be quashed if plaintiff failed to personally serve the movant and
simultaneously tender the fees for one day’s attendance and mileage.
Plaintiff then served Jordan with another subpoena on February 9, 2017, scheduling the
deposition on March 3, 2017. This subpoena remedied the deficiencies outlined above.
Jordan now asks the Court to quash the deposition because he has no information relevant
to plaintiff’s claims. He did not work at the DA’s office when plaintiff was tried and convicted in
1983. At the time of plaintiff’s second conviction, Jordan had worked at the DA’s office for less
than a year and in the trial division less than six months. He held no supervisory position. Should
the Court not quash the subpoena, Jordan asks it to limit the deposition to Jordan’s personal
knowledge of policies and procedures at the DA’s office during the time of plaintiff’s first and
second trials.
Plaintiff seeks to depose Jordan as to two cases that he tried in 1995 and 1996, six years
after plaintiff’s second conviction. Jordan contends that any policies and procedures in 1995 and
1996 are irrelevant and disproportionate to plaintiff’s claims given the six-year gap between
convictions. Citing Supreme Court precedent, Jordan notes that contemporaneous or subsequent
conduct can not serve as the basis for a pattern-and-practice violation under Monell v. Department
of Social Services of the city of New York, 436 U.S 658 (1978).. Prior notice, he maintains, is
necessary under Monell. Jordan contends that any marginal information that he may have may be
obtained through other means by plaintiff.
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Jordan also contends that much of the information is privileged as it relates to
investigations and allegations of misconduct against offenders. Jordan further argues that any
marginal information that he may have does not warrant a nine-hour deposition. He testified in
the post-conviction proceedings in both of the earlier lawsuits, and plaintiff can obtain his
testimony from the transcripts (which, he maintains, would be more reliable given that less time
had passed between then and now).
Plaintiff notes that the DA’s office hired Jordan in 1989, one year before plaintiff’s second
conviction. He thus argues that Jordan may possess information relevant to the policies and
procedures in place at the time of plaintiff’s second conviction. Plaintiff also notes that Jordan is
the only DA to ever be disciplined by the Louisiana Attorney Disciplinary Board for failure to
disclose Brady material in the criminal trial of Shareef Cousins.
Plaintiff further notes that Jordan was involved in the exhumation of homicide victim
Debra Ulfers, the second wife of Ronald Ulfers, whose first wife, Cathy Ulfers, was the homicide
victim who plaintiff was convicted of killing. Plaintiff contends that Jordan may have information
on Ronald Ulfers and the extent to which the DA’s office considered him a suspect in the murder
of Cathy Ulfers.
Lastly, plaintiff notes that the deposition is less than one-half mile from Jordan’s offices
and has been scheduled to begin at 11:00 a.m. on March 3, 2017 to allow Jordan to attend court
that day. He thus maintains that it is not an undue burden on Jordan.
In a reply memorandum and a supplemental opposition, the parties elaborate on these
arguments.
III.

Law and Analysis
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The Court first notes that the issues of service, fees, and mileage are no longer in dispute.
Accordingly, the Motion to Quash Subpoena [Doc. #174] is DISMISSED AS MOOT as to these
issues.
With regard to the requests for production related to the first subpoena and the second
motion [Doc. #180], the Court finds that Adams’ discovery requests and a deposition of Jordan
are reasonably calculated to lead to the discovery of admissible evidence and proportionate to the
needs of this lawsuit. Fed. R. Civ. P. 26(b)(1). Having reviewed the requests and the notice of
deposition, the Court finds that they are narrowly-tailored to lead to the discovery of admissible
evidence as to Adams’ Monell claim. The Court thus orders Jordan to respond to the discovery
requests and to sit for a deposition with the following caveats:
(1)

(2)

(3)

(4)

The Court temporally limits the discovery requests and the deposition
testimony (apart from any specific allowance outlined below) to five (5)
years before and five (5) years after from the murder of Debra Ulfers.
With regard to the personnel file of Jordan and any documents received
from the Louisiana Attorney Disciplinary Board (“LADB”), the Court notes
that they have already been produced. However, the Court orders that these
documents be redacted of all personal and financial information. Moreover,
the Court orders that the use and disclosure of any of these documents be
limited to the underlying lawsuit. They shall not be used or disclosed
outside this litigation without an order from this Court. Plaintiff shall also
produce to Jordan his personnel file and any documents received from the
LADB in the same form as said documents were produced to him. Plaintiff
shall further disclose to Jordan the parties who have access to these
documents and any parties who have signed the Confidentiality Order
attached to the protective order earlier entered by this Court.
The documents and deposition testimony are further limited in scope to: a)
information about plaintiff’s prosecutions, up to and including the date of
plaintiff’s 2014 release, b) information related to the exhumation of Debra
Ulfers’ body, c) DA’s office training and policy regarding compliance with
Brady during movant’s tenure in the DA’s Office, and d) discipline within
the DA’s Office for Brady violations.
Plaintiff is prohibited from obtaining testimony or information related to: a)
Brady violations or other Constitutional violations reflected in complaints
to the Louisiana Office of Disciplinary Counsel from which formal charges
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(5)

did not arise, and b) other allegations of misconduct extending beyond
Brady violations.
Given the tenuous stance of Jordan to plaintiff’s convictions, the deposition
of Jordan shall be limited to three (3) hours. Should plaintiff need more
time, he must telephone the Court and demonstrate good cause why a longer
deposition is necessary.

Jordan also asks this Court to prohibit plaintiff from asking him about specific instances of
Brady violations occurring after plaintiff’s convictions. This, the Court will not do. The Court
finds that Adams is correct here with regard to the discoverability of subsequent or
contemporaneous conduct. Despite Connick v. Thompson, 563 U.S. 51 (2011), district courts
continue to hold that “‘[s]ubsequent or contemporaneous conduct can be circumstantial evidence
of the existence of preceding municipal policy or custom.’” Williams v. Connick, Civ. A. No. 121274, 2014 WL 1246771, at *6 (E.D. La. Mar. 25, 2014) (quoting Chepilko v. City of New York,
No. 06-CV-5491, 2012 WL 398700, *15 (E.D.N.Y. Feb. 6, 2012) (and cases cited therein)); see
also Starks v. City of Waukegan, No. 09 C 348, 2013 WL 5874563, at *2 (N.D. Ill. Oct. 31, 2013)
(“[A] Monell claim may rest on alleged constitutional violations that occur after misconduct at
issue in that case.”); Groark v. Timek, 989 F. Supp. 2d 378, 398 (D.N.J. 2013) (“Subsequent
incidents . . . may be relevant to show a continuous pattern that supports a finding of an accepted
custom or policy.”); Bordanaro v. McLeod, 871 F.2d 1151, 1167 (1st Cir. 1989) (“Post-event
evidence can shed some light on what policies existed in the city on the date of an alleged
deprivation of constitutional right.”). Accordingly, discovery in this case cannot be “limited to acts
that occurred only before the incident in question,” and the subpoena should not be quashed as to
this issue on the basis of relevance or disproportionality. Williams, 2014 WL 1246771, at *6. The
Court also notes that Adams is also correct as to admissibility. Admissibility is entirely different
from discoverability. Whether evidence is admissible at trial does not control whether it is
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discoverable, as long as it is reasonably calculated to lead to the discovery of admissible evidence
and proportionate to the needs of the case.
IV.

Conclusion
For the foregoing reasons,
IT IS ORDERED that the Motion to Quash Subpoena [Doc. #174] and the Ex Parte

Motion to Supplement Motion to Quash Subpoena and to Seek a Protective Order [Doc. #180] are
GRANTED IN PART and DISMISSED AS MOOT IN PART as outlined above.

DANIEL E. KNOWLES, III
UNITED STATES MAGISTRATE JUDGE

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