Adams v. City of New Orleans, et al

Filing 239

ORDER: For the foregoing reasons, IT IS ORDERED that the 194 Motion to Quash Deposition of Subpoena for Michal Magner, Adams's Attorney of Record, or for a Protective Order is GRANTED.IT IS FURTHER ORDERED that the 196 Motion for Leave to Fi le a Third Amended Complaint is DENIED. IT IS FURTHER ORDERED that Plaintiff's 209 Motion to Compel Defendants to Provide Good-Faith Responses to Plaintiff's Court-Ordered Proposed Stipulations is DENIED. HOWEVER, and because the parties have already done so, the Court orders the parties to meet and confer in good faith one more time no later than ten (10) days from the date of this Order, and to continue their on-going efforts to resolve as many disputed issues before trial. All requests for fees and costs are denied. Signed by Magistrate Judge Daniel E. Knowles, III on 5/17/2017. (cms)

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)
ORDER

Before the Court are three motions: (1) Motion to Quash Deposition of Subpoena for
Michal Magner, Adams’s Attorney of Record, or for a Protective Order [Doc. #194]; (2) Motion
for Leave to File a Third Amended Complaint [Doc. #196]; and (3) Plaintiff’s Motion to Compel
Defendants to Provide Good-Faith Responses to Plaintiff’s Court-Ordered Proposed Stipulations
[Doc. #209].

The Court heard oral argument on all three motions and took the motions under

advisement.

Having reviewed the motions, the oppositions, and the case law, the Court rules as

follows.
I.

Background
The factual background of this lawsuit has been outlined numerous times and need not be

repeated here.

Adams v. City of New Orleans, Civ. A. No. 15- 1543, 2016 WL 4275246 (E.D.

La. Aug. 12, 2016).
II.

The Motion to Quash
Michael Magner is lead counsel for Adams in this lawsuit and also represented Adams in

his post-conviction proceedings.

Defendants informed Adams that they intended to question

Magner as to his comments to the press and his participation and interaction with the attorney
general’s office and the Court.

On March 8, 2017, the parties deposed Colin Clark, the assistant

Attorney General (“AG”) who signed the consent judgment stating that Adams is innocent.
Adams contends that defendants could have asked Clark whatever they intend to seek from

Magner.
Adams argues that defendants had ample opportunity to obtain the information that they
seek through less burdensome means and maintains that defendants could have asked Magner
about his press statements – which already speak for themselves – through an interrogatory or
request for admission.

He also contends that defendants have not explained how the AG’s

investigation into the case is relevant or crucial to their defenses.
Citing case law, Adams argues that defendants must carry the burden here because they
seek to depose his counsel.

Adams contends that defendants have not met that burden.

Defendants note that Magner made comments to the press and to others that the Assistant
District Attorneys (“ADAs”) in Adams’ case were rogue and intentionally hid evidence from
Adams’ attorneys.

Defendants note that they do not intend to depose Magner as to his

representation of Adams in this civil case.

Defendants argue that they have no obligation to show

Magner the press statements about which they intend to depose him.
Defendants contend that Magner was acting as a member of the Innocence Project
(“IPNO”).

They argue that there can be no claim of work-product or attorney-client privileges

given that they seek to depose Magner as to statements made in public.

Defendants maintain that

no other means exist to obtain the information because any questions directed to third parties would
be hearsay.

The information is also relevant and non-privileged and crucial to the preparation of

defendants’ case.

They maintain that if – as Magner alleged – the ADAs were rogue, then

Cannizarro can not be held responsible, and Adams case against him fails.
Adams first notes that the deadline for fact depositions was March 10, 2017, and defendants
failed to serve the subpoena on him until March 13, 2017.
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[Doc. #171].

Adams also contends that defendants fail to identify with specificity what they intend to
ask Magner.

While counsel originally stated that he wanted to question Magner in his capacity

as Adams’ counsel during post-conviction proceedings, he now maintains that he seeks to question
him as a member of IPNO.
Under the factors outlined in the case law, Adams argues that deposing counsel is a last
resort to obtaining relevant, non-privileged information.

Defendants have failed to demonstrate

that they have sought the information through other, less intrusive means.

Adams also maintains

that courts are reticent to order the deposition of opposing counsel when it may reveal the thought
processes of the attorney.

And, he notes, while public statements may not be privileged, their

underlying preparation and related advice are protected.

Adams maintains that defendants are in

the best position to determine whether the conduct of their own counsel violated Adams’ rights,
not Magner: Whether counsel went rogue and failed to follow instructions would best be known
by those on the inside.
Lastly, Adams asks for his fees and costs incurred in this discovery dispute as he gave
defendants ample case law and arguments to save the Court and the parties from this dispute.
After the oral hearing, the Court took the motion under advisement and allowed the parties
to submit letter correspondence to the Court in which they discuss in more detail the proposed
topics on which to depose Magner.

The parties did so, and the Court has reviewed the

correspondence.
An opposing party's counsel is not “absolutely immune from being deposed.” Shelton v.
Am. Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986); see also Hall v. Louisiana, No. Civ. A.
12-657-BAJ, 2014 WL 1652791, at *4 (M.D. La. Apr. 23, 2014) (same). However, courts should
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only allow an opponent's counsel to be deposed in limited circumstances – i.e., when the party
seeking the deposition has shown that: (1) “no other means exist to obtain the information than to
depose opposing counsel;” (2) “the information sought is relevant and nonprivileged”; and (3) “the
information is crucial to the preparation of the case.” Shelton, 805 F.2d at 1327. Shelton makes
clear that the party asking to depose its opponent's counsel bears the burden of proof.
The Court does not find that defendants have met their burden here. They have not
explained why no other, less intrusive means exist to obtain the information.

Indeed, it appears

from the record that defendants have not even attempted to obtain the information that they seek
from any less, non-intrusive means. And it is still far from clear to the Court that the majority of
the information that defendants seek is not privileged.

The press statements speak for

themselves, and any questions regarding their preparation and/or drafting would delve into
privileged matters.

In addition, questions concerning “[n]on-privileged [s]tatements regarding

Reginald Adams case to members of OPDA and others” tread too closely to the line of privilege
for the Court.

Simply by saying “non-privileged” does not make it so.

And the Court still does

not understand how the information is crucial to the case. If, for example, Magner has underlying
support that the ADA’s went rogue, then he obtained it from defendants themselves, and they
should already have it. Accordingly, the Court grants the motion.
II.

The Motion to Amend
Adams seeks to amend his complaint to assert a claim that a pervasive “code of silence”

existed at the NOPD that caused officers to manipulate evidence that Ronald Ulfers had murdered
his wife and that Adams had murdered her.

Adams meticulously details the independent

investigation that he performed to discover this evidence outside of the normal discovery process.
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Adams maintains that he could not have timely amended his complaint because he was
unaware of the code of silence on August 22, 2016, the deadline to amend. Citing case law, he
argues that courts often allow a plaintiff to amend after that plaintiff’s beliefs are corroborated by
hard evidence.

He notes that a code of silence is difficult to discern because – by its own name

– nobody discusses it.

He also contends that the lapse of time between his conviction and now

has hampered his discovery efforts. Adams lists the evidence that he has discovered to support
his beliefs.

Adams also notes that the deadline to amend predated all depositions in this lawsuit,

and several officers – when deposed – have admitted to the code of silence.
Adams also argues that the amendment is important because it adds new, material
allegations.

He contends that defendants are not prejudiced because evidence of the NOPD’s

customs, practices, and policies is and should always have been in their possession.

He maintains

that there is no discovery that defendants would need from him, and all other deadlines have not
passed.

Therefore, Adams argues, no continuance will be required.
Turning to Rule 15, Adams contends that there is no undue delay, bad faith, or dilatory

motive for those reasons outlined above.

He also maintains that the amendment is not futile,

noting that the Fifth Circuit has held that when officers who have violated the code of silence are
retaliated against, the code of silence is the direct and proximate cause.
In its opposition, the City1 maintains that all of the facts related to Adams’ new claim have
been known to him since the outset of this litigation.

It notes that on May 4, 2016, Adams

produced correspondence to defendants that outlined the Thomas and Hero cases and the Algiers
Seven incident.

While Adams argues that he only recently learned of these cases, the

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While numerous defendants filed pleadings during this round of motion practice, the Court refers
to them collectively as “defendants” or “the City” (whose pleadings most parties adopted).

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correspondence proves that he knew of them well over a year ago.
The City also contends that Adams has consistently insinuated that a code of silence existed
at the NOPD.

Citing Adams’ complaint, it notes that he alleged in his earlier complaints that the

defendant police officers knew of evidence that Ronald Ulfers had murdered his wife Debra but
had kept quiet about it.

The City cites a slew of other allegations from Adams that imply that a

code of silence existed at the NOPD.
Citing the “new” evidence on which Adams relies, the City contends that it is no less
speculative than any of the other allegations that Adams has cited.

It argues that much of the

evidence was produced by Adams to defendants early on in the lawsuit.

It maintains that the

evidence that Adams now cites to support his claim actually does not support the new allegations.
The City also argues that the amendment is not important because it does not add to Adams’
case in any significant manner.

Adams has remaining theories of recovery, it contends, so

dismissal of this one will not leave him “dead in the water,” as required by case law.

The City

also argues that it will be prejudiced because it will have to bear the time and expense of redeposing numerous witnesses.

The failing health of one or more of these witnesses require that

the trial go forward as scheduled, so no continuance can cure this prejudice.
The City argues that the new claim is a patent attempt to insert prejudicial testimony
regarding police brutality and excessive force before the jury. This evidence does not relate to
Adams’ Brady claims in any way.

The City maintains that Adams’ amendment is also futile as

it fails to meet the standards outlined in Iqbal and Twombly.

Adams’ allegation that the NOPD

had an unofficial “code of silence” can not meet the Monell standards given that Adams must
allege that it was an official policy or custom. The City maintains that Adams’ attempt to support
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his allegation with highly general reports and disparate instances of police brutality and excessive
force that bear no similarity to his claims. It contends that Adams’ allegations point only to other
bad or unwise acts and do not support his claims of manufactured and suppressed evidence.
Citing case law, the City argues that the Fifth Circuit requires that the amendment must describe
similar instances specific to Adams’ own constitutional deprivation.
The City also maintains that the amendment is futile because Adams must allege causation,
i.e., that the specific instances of conduct led to Adams’ own constitutional deprivations.
However, the City notes that the evidence to which Adams now cites is wholly unrelated to Adams
or his rights.
The City also asserts that Adams has failed to plead any actual or constructive knowledge
on the part of city policymakers so as to impose liability under Monell.

It notes that there were

different chiefs of police by the time of Adams’ two trials.

The City suggests that Adams’

procedural ambush indicates that he is acting in bad faith.

It again relies on Adams’ own

production to contend that he knew about the evidence long before he filed the amendment.
Adams had informed defendants of his intent to file the new claim on the day after the close of
discovery, thereby precluding defendants from participating in any discovery as to the claim.
Defendants also point out that should the Court grant the motion, it should be contemplated
that defendants will file another round of Rule 12(b)(6) motions, thereby necessitating a
continuance of the trial and of all other deadlines.
Adams must satisfy the Rule 16 “good cause” test because the amendment deadline in the
scheduling order passed before he filed the instant motion. S & W Enters., L.L.C. v. SouthTrust
Bank of Ala., N.A., 315 F.3d 533, 536 (5th Cir. 2003). Federal Rule of Civil Procedure 16(b)
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governs amendment of pleadings after a scheduling order's deadline to amend has expired. Fahim
v. Marriott Hotel Servs., Inc., 551 F.3d 344, 348 (5th Cir. 2008).
Rule 16(b) provides that once a scheduling order has been entered, it “may be modified
only for good cause and with the judge's consent.” Fed. R. Civ. P. 16(b). It requires a party “to
show that the deadlines cannot reasonably be met despite the diligence of the party needing the
extension.” S & W Enters., 315 F.3d at 535 (internal citations omitted). Four factors are relevant
to good cause: “(1) the explanation for the failure to timely move for leave to amend; (2) the
importance of the amendment; (3) potential prejudice in allowing the amendment; and (4) the
availability of a continuance to cure such prejudice.” Sw. Bell Tel. Co. v. City of El Paso, 346 F.3d
541, 546 (5th Cir. 2003) (citing S & W Enters., 315 F.3d at 536). If the party meets the good-cause
standard, the deadline can be extended, and the more liberal standard of Rule 15(a) will then apply
to the request for leave to amend. Tex. Indigenous Council v. Simpkins, 544 F. App'x 418, 420 (5th
Cir. 2013)
The Court finds that Adams only recently learned of the depths of the alleged code of
silence through discovery.

While defendants point to exhibits to their motion to support their

argument that Adams knew of his claims more than a year ago, the Court finds that the documents
do not reference the specific facts on which Adams relies here.

For example, Exhibit A to their

opposition appears to be a production log that does not reference specific documents [Doc. #2071], and Exhibit B is a discussion of the New Orleans Police Department Consent Decree, which
neither references the Thomas or Hero cases, nor the Algiers Seven incident.

[Doc. #207-2].

Notwithstanding this finding, however, the Court finds that the other three factors favor
denial of the motion.

The amendment is not important to the extent that Adams will not be left
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without a lawsuit should the Court deny the motion; he has numerous other claims pending.
Meaux Surface Prot, Inc. v. Fogleman, 607 F.3d 161, 167 (5th Cir. 2010).

See

In Meaux, the Fifth

Circuit colorfully held that “[w]ithout lost profits, Meaux would have no remaining theory of
recovery. Because disallowing the amendment would have left Meaux dead in the water, the court
held that modification of the pretrial order was ‘warranted to prevent substantial injustice.’ This
finding is watertight.” Id. at 167.

That is not the case here.

Moreover, the Court finds that defendants would suffer substantial prejudice were it to
grant the motion, and this Court can not definitively state that any continuance will be granted.
The deadlines are fast approaching, and the parties have already submitted their witness and exhibit
lists for trial. To some extent, discovery would have to be re-opened, and (as outlined below), that
is not a certainty.

While Adams states that defendants have all of the discovery that they need,

this Court can not simply take Adams’ word that his opposing parties have everything that they
need to defend themselves in this lawsuit when defendants affirmatively state to the Court that
they simply do not.
occasions.

This is an old lawsuit, and the District Court has continued it on numerous

The Court simply can not allow Adams to alter the lawsuit at this point.

findings, this Court need not reach Rule 15.
III.

Given these

The motion is denied.

The Motion to Compel
The District Court ordered Adams to propound proposed stipulations as to facts and the

authenticity of documents on defendants.

At a status conference, she ordered the parties to

engage in good faith negotiations over the stipulations to resolve as many issues as possible prior
to trial.
Adams complied with the order, and, after an agreed-to continuance, defendants responded.
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Defendants only agreed to three of 15 stipulations, despite that the other 12 are allegedly matters
of public record and undisputed, such as the arrest of Roland Burns and the vacatur of Adams’
conviction by Judge Laurie White. Defendants refuse to stipulate to the authenticity of any of the
documents.

Adams argues that defendants have failed to engage in good faith negotiations to

stipulate to undisputed facts or even to propose alternative language for said stipulations.
Adams contends that defendants wholly fail to provide factual bases for their refusal to
stipulate to the proposed facts.

He notes that the City simply states that it refuses to stipulate

because the DA’s office refuses to stipulate.

Adams maintains that defendants are wasting the

Court’s – and, in the future, the jurors’ – resources and time by refusing to stipulate.
In the alternative, Adams asks the Court for leave to propound requests for admission on
defendants.
The City argues that a stipulation is by its very nature voluntary and can not be compelled.
The City also notes that the District Court has already denied Adams’ request to propound further
requests for admission after the deadline for written discovery, and Adams simply seeks to
circumvent this order.
The City contends that it only qualified its response to the stipulations because it does not
seek to undermine Cannizzaro’s defense by stipulating to anything to which he will not.

It notes

that the District Court only ordered that it respond to the proposed stipulation and, wherever
possible, offer proposed revisions.

It did so, even offering some revisions.

The City contends

that Adams’s motion is simply an “I didn’t get what I want” motion.
The City argues that proposing revisions to 225 proposed stipulations could potentially
lead to the disclosure of its trial strategy.

Citing Fifth Circuit case law, it maintains that courts
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have consistently recognized a party’s discretion to reject a factual stipulation, even if true.
Defendants note that Adams has asked defendants to stipulate to the authenticity of over
110,000 documents, which is in and of itself unreasonable. The vast majority of said documents
were not created by the DA’s office, and the police report at the crux of this matter has no author.
Defendants also note that no judge has found Adams factually innocent, and the statue
under which he seeks compensation bars him from using any vacatur of his conviction as proof in
a civil action.
With regard to the other cases on which Adams seeks to rely to prove his Brady claim,
Defendants contend that none of them is similar to Adams’, and the Supreme Court has held that
dissimilar cases can not prove municipal liability.
After the oral hearing, the Court ordered the parties to meet and confer in good faith in an
attempt to reach an agreement as to more of the proposed stipulations.

The parties have done so

and have informed the Court of their efforts, which are on-going.
“Rule 16 of the Federal Rules of Civil Procedure does not authorize a court to force parties
to stipulate to facts to which they will not voluntarily agree.” J.F. Edwards Const. Co. v. Anderson
Safeway Guard Rail Corp., 542 F. 2d 1318, 1322 (7th Cir. 1976); see also Identiseal Corp. of
Wisconsin v. Positive Identification Sys., Inc., 560 F. 2d 298, 302 (7th Cir. 1977) (“The language
of the rule does not, by its terms, confer upon the court the power to compel the litigants to obtain
admissions of fact and of documents even if it is clear that such admissions would simplify the
trial of the case. Instead, the rule requires the parties to appear and consider the possibility of
admissions which would lessen their task at trial.”); see also Parr v. United States, 255 F. 2d 86,
88 (5th Cir. 1958) (“It is a general rule that ‘A party is not required to accept a judicial admission
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of his adversary, but may insist on proving the fact.’ The reason for the rule is to permit a party ‘to
present to the jury a picture of the events relied upon. To substitute for such a picture a naked
admission might have the effect to rob the evidence of much of its fair and legitimate weight.’”);
United States v. Sewell, 457 F.3d 841, 844 (8th Cir. 2006) (“Generally, ‘the prosecution is entitled
to prove its case by evidence of its own choice,’ and ‘a criminal defendant may not stipulate or
admit his way out of the full evidentiary force of the case as the Government chooses to present
it.’”). This Court can not order a party to stipulate to a fact or to the authenticity of a document if
the Court does not consent to do so.

The motion is denied in this regard.

The motion is also denied to the extent that Adams seeks leave to propound requests for
admission after the discovery deadline.

The District Court has already denied this request, and

this Court agrees.
IV.

Conclusion
For the foregoing reasons,
IT IS ORDERED that the Motion to Quash Deposition of Subpoena for Michal Magner,

Adams’s Attorney of Record, or for a Protective Order [Doc. #194] is GRANTED.
IT IS FURTHER ORDERED that the Motion for Leave to File a Third Amended
Complaint [Doc. #196] is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Compel Defendants to Provide
Good-Faith Responses to Plaintiff’s Court-Ordered Proposed Stipulations [Doc. #209] is
DENIED.

HOWEVER, and because the parties have already done so, the Court orders the

parties to meet and confer in good faith one more time no later than ten (10) days from the date
of this Order, and to continue their on-going efforts to resolve as many disputed issues before
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trial.
All requests for fees and costs are denied.
New Orleans, Louisiana, this 17th day of May, 2017.

DANIEL E. KNOWLES, III
UNITED STATES MAGISTRATE JUDGE

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