Cain et al v. New Orleans City et al

Filing 214

ORDER AND REASONS DENYING 185 Motion for Protective Order; GRANTING IN PART AND DENYING IN PART 192 Motion to Compel as set forth in document. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 12/8/2016. (mmv) (NEF: J. Vance)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ALANA CAIN ET AL.

CIVIL ACTION

VERSUS

NO. 15-4479

CITY OF NEW ORLEANS ET AL.

SECTION “R” (2)

ORDER AND REASONS ON MOTIONS
The sole remaining defendants at present1 are the thirteen judges of the Criminal
District Court for the Parish of Orleans, State of Louisiana, and Robert Kazik, the
Judicial Administrator for that court. They filed a Motion for Protective Order, Record
Doc. No. 185, seeking an order that plaintiffs may conduct no discovery in this potential
class action involving claims that defendants unconstitutionally use threats of
imprisonment, imprisonment and arrest warrants issued by the court’s collections
department, rather than by judges themselves, to collect court debts from indigent
criminal defendants. Plaintiffs’ claims include an allegation that because some of the
assessed fees go to the statutorily authorized “Judicial Expense Fund,” which the judges
use for financing some of the court’s and their expenses, the judges have “an intolerable
financial conflict of interest” that deprived plaintiffs of their due process rights to neutral
judicial action. Record Doc. No. 7, First Amended Class Action Complaint, ¶¶ 92-99 &
Count Four, ¶¶ 151-52. The only claims remaining in this case are for declaratory relief

1

A motion is currently pending seeking the return to the case of previously dismissed defendants,
including by amending the complaint. Record Doc. No. 183.

against the judges and Kazik in his individual capacity. Record Doc. No. 119 at p. 28;
Record Doc. No. 123 at p. 4.
Plaintiffs filed a timely memorandum in opposition to the motion for protective
order, Record Doc. No. 195, and both sides filed supplemental memoranda. Record Doc.
Nos. 210, 211. In their supplemental memorandum, defendants alternatively request that
discovery be stayed at least until the court decides their pending motion for summary
judgment, Record Doc. No. 202, based on plaintiffs’ alleged lack of standing.
In addition, plaintiffs filed a Motion to Compel, Record Doc. No. 192, in which
they seek additional responses and document production as to certain of their
interrogatories and requests for production. Defendants filed a timely written opposition
memorandum. Record Doc. No. 200. Thereafter, in response to my orders re-noticing
and setting plaintiffs’ motion for submission and providing counsel with an opportunity
to advise the court what issues in plaintiffs’ motion remain to be determined, plaintiffs
filed supplemental memoranda. Record Doc. Nos. 209 - 213.
Discovery is currently stayed until January 1, 2017, and the deadlines on all other
pending motions have been suspended pending further orders of the court, to give the
presiding district judge time to determine plaintiffs’ pending motion for review of my
prior denial of plaintiffs’ motion to amend their complaint and to facilitate settlement
negotiations and efforts to formulate a stipulation of facts that may streamline further
proceedings. Record Doc. No. 205.
2

Having considered the record, the applicable law and the written submissions of
counsel, IT IS ORDERED that the motions are determined as follows.
(A)

DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER
Fed. R. Civ. P. 26(c)(1) governs motions for protective orders. The Rule provides

in pertinent part:
A party or any person from whom discovery is sought may move for a
protective order . . . . The court may, for good cause, issue an order to
protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense, including one or more of the following:
(A) forbidding the disclosure or discovery;
(B) specifying terms . . . for the . . . discovery; . . . .
Fed. R. Civ. P. 26(c)(1) (emphasis added).
The requirement “of a showing of good cause to support the issuance of a
protective order indicates that ‘[t]he burden is upon the movant to show the necessity of
its issuance, which contemplates a particular and specific demonstration of fact as
distinguished from stereotyped and conclusory statements.’” In re Terra Int’l, Inc., 134
F.3d 302, 306 (5th Cir. 1998) (quoting United States v. Garrett, 571 F.2d 1323, 1326 n.3
(5th Cir. 1978)); see also United States v. Talco Contractors, Inc., 153 F.R.D. 501, 513
(W.D.N.Y. 1994) (“Good cause must be established and not merely alleged.”).
Defendants have not met their burden to show good cause. First, they have cited
no authority mandating that discovery should be stayed pending the court’s decision on
their motion for summary judgment. Whether to stay discovery pending resolution of
a dispositive motion is within the court’s discretion. Rynearson v. United States, 601 F.
3

App’x 302, 305 (5th Cir. 2015), cert. denied sub nom. Rynearson v. Lands, 136 S. Ct.
1448 (2016) (citing Brazos Valley Coal. for Life, Inc. v. City of Bryan, 421 F.3d 314,
327 (5th Cir. 2005)); Carder v. Cont’l Airlines, Inc., 595 F. App’x 293, 300 (5th Cir.
2014) (citing Itel Corp. v. M/S Victoria U, 710 F.2d 199, 202 (5th Cir. 1983)).
Discovery is stayed until January 1, 2017. Defendants have not articulated good
cause for an additional stay until the court rules on their summary judgment motion. If
the presiding district judge decides that the named plaintiffs lack standing, the decision
would not be dispositive of the merits of the case, and a dismissal of the named plaintiffs’
claims without prejudice would not preclude other persons who are members of the
proposed class from bringing their similar claims. I therefore consider defendants’
motion for a protective order in light of the existing parties and claims.
Second, defendants’ argument that discovery is barred by absolute judicial or
quasi-judicial (in Kazik’s case) immunity is unavailing. The court has already held in
ruling on defendants’ motions to dismiss that plaintiffs’ claims for declaratory relief
against the judges and against Kazik in his individual capacity are not subject to judicial
or quasi-judicial immunity. Defendants have cited no authority in the instant motion to
undermine that holding. In the absence of immunity, plaintiffs are free to pursue relevant
and proportional discovery regarding their claims for declaratory relief.
None of the decisions that defendants cite regarding judicial or quasi-judicial
immunity are on point. Those cases involved attempted discovery regarding particular
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cases in which the judge or quasi-judicial official from whom discovery was sought and
who was held to be immune had participated in some way in adjudicating the underlying
case, a judicial function that was clearly protected by immunity. See, e.g., Gary W. v.
State of La., 861 F.2d 1366, 1369 (5th Cir. 1988) (court-appointed special master “was
performing a quasi-judicial function” when she submitted formal recommendation and
could not be deposed about her mental processes in making that recommendation).
In contrast, plaintiffs in the instant matter assert that the discovery they seek is
relevant to the Orleans Parish Criminal Court judges’ policy-making function, which is
administrative or executive rather than judicial in nature. It is well established that
judicial and quasi-judicial immunity apply only to “tasks that are an integral part of the
judicial process” and “were undertaken in the judge’s role of resolving and adjudicating
issues, rather than administrative, legislative, or executive functions performed by a
judge which are not entitled to immunity.” Adams v. Comm. on Judicial Conduct &
Disability, 165 F. Supp. 3d 911, 921-22 (N.D. Cal. 2016) (citing Forrester v. White, 484
U.S. 219, 230 (1988); Mullis v. U.S. Bankr. Ct., 828 F.2d 1385, 1388 (9th Cir.1987)
(citing Pierson v. Ray, 386 U.S. 547 (1967); Bradley v. Fisher, 80 U.S. (13 Wall.) 335,
347 (1872))); see also Forrester, 484 U.S. at 228 (“Administrative decisions, even though
they may be essential to the very functioning of the courts, have not . . . been regarded
as judicial acts” for purposes of judicial immunity.).

5

Defendants next argue that a judicial privilege, sometimes known as the judicial
deliberative process or mental processes privilege, precludes plaintiffs from obtaining
any discovery from them, including depositions of the judges and Kazik. As the parties’
memoranda indicate and my own research confirms, very few decisions discuss this
privilege, “undoubtedly because its existence and validity has [sic] been so universally
recognized. Its source is rooted in history and gains added force from the constitutional
separation of powers of the three departments of government.” United States v. Aguilar,
994 F.2d 609, 616 (9th Cir.), as amended (Aug. 9, 1993), opinion withdrawn, 11 F.3d
124 (9th Cir. 1993), and on reh’g, 21 F.3d 1475 (9th Cir. 1994), aff’d in part, rev’d in
part, 515 U.S. 593 (1995) (citing Nixon v. Sirica, 487 F.2d 700, 740 (D.C. Cir. 1973)
(MacKinnon, J., dissenting)); accord In re Certain Complaints Under Investigation by an
Investigating Comm’ee of the Judicial Council of the Eleventh Cir., 783 F.2d 1488, 1519
(11th Cir. 1986), superseded by statute on other grounds as stated in In re McBryde, 120
F.3d 519, 524 (5th Cir. 1997) (citing Nixon, 487 F.2d at 740); see also Charles W.
Sorenson, Jr., Are Law Clerks Fair Game? Invading Judicial Confidentiality, 43 Val. U.
L. Rev. 1, 66-67 (2008) (footnotes omitted) (“[A] judicial deliberations privilege, with
roots in the common law as well as constitutional, functional, and separation of powers
principles, is well-entrenched in both state and federal courts. . . . The relatively small
amount of attention to the privilege in case law and secondary sources should not be
attributed to the novelty or tenuousness of the privilege.”).
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Thus, “a judge may not be compelled to testify concerning the mental processes
used in formulating official judgments or the reasons that motivated him in the
performance of his official duties,” i.e., “matters within the scope of his adjudicative
duties.” Ciarlone v. City of Reading, 263 F.R.D. 198, 202 (E.D. Pa. 2009) (quotations
omitted) (citing United States v. Morgan, 313 U.S. 409, 422 (1941); Fayerweather v.
Ritch, 195 U.S. 276, 306-07 (1904); Robinson v. Comm’r of Internal Revenue, 70 F.3d
34, 38 (5th Cir. 1995); Grant v. Shalala, 989 F.2d 1332, 1344-45 (3d Cir. 1993); United
States v. Roebuck, 271 F. Supp. 2d 712, 718 (D.V.I. 2003); United States v. Edwards,
39 F. Supp. 2d 692 (M.D. La. 1999)) (emphasis added).
The Supreme Judicial Court of Massachusetts (the highest appeals court in that
state) exhaustively reviewed decisions from federal and state courts upholding the
judicial deliberative process privilege and summarized the purposes of the privilege as
follows:
1. Finality. To ensure the finality of judgments, judges have long
been barred from testifying to impeach their own verdicts. . . . “[T]he
finality and integrity of judgments would be threatened by a rule that
enabled parties to attack a judgment by probing the mental processes of a
judge.” . . . Washington v. Strickland, 693 F.2d 1243, 1263 (5th Cir.
1982), rev’d on other grounds, 466 U.S. 668 . . . (1984).
2. Quality and integrity of decision-making. In addition to ensuring
the finality of judgments, protecting judges from the post hoc probing of
their mental processes also ensures the integrity and quality of judicial
decision-making. Federal and State courts faced with requests to question
judges or their law clerks regarding judicial deliberations have underscored
the importance of protecting that process, not just for the sake of the
judge’s personal interests, but to ensure the quality and integrity of
decision-making that benefits from the free and honest development of a
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judge’s own thinking and candid communications among judges and
between judges and the courts’ staff in resolving cases before them.
....
3. Independence and impartiality. The judiciary’s independence
from the other branches of government and from outside influences and
extraneous concerns has been one of the cornerstones of our constitutional
democracy, intended to ensure that judges will be free to decide cases on
the law and the facts as their best judgment dictates, without fear or favor.
....
Equally important [as judicial immunity] to ensuring judicial
independence and the free and impartial judging of disputes among parties
regardless of how powerful or powerless they might be (or how popular or
unpopular their causes) is the protection of a judge’s deliberative process.
. . . . The privilege also protects confidential communications among
judges and between judges and court staff made in the course of and related
to their deliberative processes in particular cases.
In re Enforcement of Subpoena, 463 Mass. 162, 168-69, 171-72, 174, 972 N.E.2d 1022,
1029 (2012) (additional citations omitted).
A party raising a claim of judicial privilege has the burden of
demonstrating that the matters under inquiry fall within the confines of the
privilege. The judicial privilege is grounded in the need for confidentiality
in the effective discharge of the . . . judge’s duties. In the main, the
privilege can extend only to communications among judges and others
relating to official judicial business such as, for example, the framing and
researching of opinions, orders, and rulings.
Matter of Certain Complaints, 783 F.2d at 1520.
As the emphasized language in the quotations above indicates, the deliberative
process privilege primarily protects judicial decision-making in the context of
adjudicating particular cases. See also Hale v. State Farm Mut. Auto. Ins. Co., No. 12cv-660-DRH-SCW, 2015 WL 12791328, at *2-3 (S.D. Ill. Jan. 16, 2015) (Plaintiffs
alleged that defendant State Farm devised a scheme to elect Justice Karmeier to the
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Illinois Supreme Court and to conceal State Farm’s involvement in the financing and
management of the justice’s campaign, so that he could preside over a class action that
was pending in the Illinois Supreme Court.2 Plaintiffs sought to depose the justice about
his recruitment as a candidate, his campaign and his fundraising. “[W]hile the topics do
not necessarily relate to the deliberative process surrounding the Avery decision on the
merits, examination of the topics highlights the real crux of the issue before the Court–all
of these topics relate to Justice Karmeier’s decision not to recuse himself, and the Illinois
Supreme Court’s decision not to compel his recusal, in Avery. The decision not to recuse
is the most important deliberative choice at issue here. . . . [T]he testimony Plaintiffs
seek from Justice Karmeier is directly relevant to his deliberative judicial determination
not to recuse in the Avery case and, potentially, others. . . . Plaintiffs want to impeach
a decision of Justice Karmeier and the Illinois Supreme Court.”).
Some state courts have held that the judicial deliberative process privilege is
absolute. E.g., In re Enforcement of Subpoena, 463 Mass. at 174. However, the
Eleventh Circuit held in the leading case in the federal courts that the privilege is a
qualified one, which does not prevent disclosure in every instance.
[T]he investigating party can attempt to show the importance of the inquiry
for which the privileged information is sought; the relevance of that
information to its inquiry; and the difficulty of obtaining the desired
information through alternative means. The court then must weigh the
investigating party’s demonstrated need for the information against the

2

Avery v. State Farm Mut. Auto. Ins. Co., 216 Ill. 2d 100, 835 N.E.2d 801 (2005).

9

degree of intrusion upon the confidentiality of privileged communications
necessary to satisfy that need.
In re Certain Complaints, 783 F.2d at 1522. If a sufficient showing of need is made, the
qualified privilege can be overcome even if the information sought falls within its scope.
The Eleventh Circuit held that a federal judge’s appointment diaries, daily
schedules, calendars, travel itineraries, guest sign-in sheets, telephone message books,
logs and memoranda “would not ordinarily be expected to reveal the substance of
communications among [the judge], his colleagues, and his staff concerning [his] official
duties,” but that, even if the documents contained some substantive communications, the
judge’s qualified privilege was overcome by the relevance and serious need of the
materials by the Eleventh Circuit’s judicial committee, which was investigating multiple
allegations of judicial misconduct, including that the judge had accepted a bribe in return
for an official act. Id. at 1520. The appeals court also held that the testimony of the
judge’s law clerks clearly “implicate[d] communications among a judge and his staff
concerning performance of judicial business” and was “presumptively privileged.” Id.
at 1522. However, the qualified privilege was “overridden” by the committee’s need for
the law clerks’ testimony to investigate “a matter of surpassing [public] importance” that
involved “grave” allegations against a sitting judge, “implicate[d] concerns of fairness
and thoroughness of a high order,” and for which there was no adequate substitute. Id.
Weighing those concerns against the judge’s interest in the confidentiality of his inchambers communications, the Eleventh Circuit found that the judge’s
10

assertion of a confidentiality interest is generalized in nature. [He] has not
directed the attention of this court to any further, specific need for secrecy
over and above those needs which normally apply and give rise, in the first
place, to a privilege. On the other side of the balance, again, the
Committee’s particular need for these witnesses’ testimony implicates
concerns of great moment.
Id. at 1523-24. “Therefore, having weighed the competing concerns in the balance, we
hold that the Committee’s need for these witnesses’ testimony outweighs [the judge’s]
asserted interest in non-disclosure. We add that while the Committee’s questions to [the
law clerks] were manifestly relevant here, we would enforce the subpoenas upon a lesser
showing of relevance so long as a reasonable degree of materiality could be discerned.”
Id. at 1525.
In the absence of any binding Fifth Circuit precedent concerning the judicial
deliberative process privilege, I find that the Eleventh Circuit’s reasoning in In re Certain
Complaints is persuasive and that the decision counsels against the blanket prohibition
of discovery that defendants seek in the instant case. Privileges, as exceptions to the
demand for relevant evidence and derogations from the search for the truth, are strictly
construed. As I and other judges have held,
[s]pecial caution should be exercised in recognizing a privilege in a civil
rights case because “application of the federal law of privilege, rather than
state law, in civil rights actions is designed to ensure that state and county
officials may not exempt themselves from the very laws which guard
against their unconstitutional conduct by claiming that state law requires
all evidence of their alleged wrongdoing to remain confidential.”

11

Chauvin v. Lee, No. 99-2200, 2000 WL 6268, at *2 (E.D. La. Jan. 4, 2000) (quoting
Torres v. Kuzniasz, 936 F. Supp. 1201, 1213 (D.N.J. 1996)) (citing Hinsdale v. City of
Liberal, 961 F. Supp. 1490, 1495 (D. Kan.), aff’d, 981 F. Supp. 1378 (D. Kan. 1997)
(citing United States v. Nixon, 418 U.S. 683, 710 (1974))); accord Carr v. Monroe Mfg.
Co., 431 F.2d 384, 389 (5th Cir. 1970); Williams v. Connick, No. 12-1274, 2014 WL
6698299, at *3 (E.D. La. Nov. 26, 2014).
Plaintiffs’ claims raise serious constitutional concerns of significant public
interest. Obtaining the desired information through alternative means may be difficult.
However, plaintiffs’ written discovery requests in general address administrative, rather
than judicial, decision-making. The specific relevance and proportionality of particular
discovery requests are addressed below in the ruling on plaintiffs’ separately pending
motion to compel discovery responses. Having weighed the competing concerns in the
balance, I find that plaintiffs’ need for discovery outweighs defendants’ interest in a
blanket prohibition of all discovery, including depositions, from these defendants.
For the foregoing reason, defendants have not carried their burden to show good
cause for the requested blanket protective order, and their motion is DENIED. Of course,
the court cannot foresee every deposition question that might be asked. Thus, if during
a deposition a particular question strays into the arena of a particular judge’s adjudicative
deliberations, rather than administrative or executive matters, the privilege may be
asserted in the manner contemplated in Fed. R. Civ. P. 30(c)(2).
12

(B)

PLAINTIFFS’ MOTION TO COMPEL
In this motion, plaintiffs seek (a) answers to their Interrogatories Nos. 1, 4, 6, 7,

8, 9, 13 and 14 to the judges and Nos. 3, 4, 5, 6 and 15-20 to Kazik, and (b) additional
written responses and document production as to their Requests for Production Nos. 2,
11 and 12 to the judges and Nos. 7 and 14 to Kazik. On November 28, 2016, counsel for
both sides met in person in my office in a conference that I supervised. Record Doc. No.
212. At that time, counsel comprehensively and in good faith engaged in discussions in
an attempt to resolve their discovery dispute. As they subsequently reported to the court,
Record Doc. No. 213, agreement was reached that defendants would supplement certain
of their discovery responses and that plaintiffs would accept, at least in the short run,
narrower production in response to some of the broadest requests.
Much of the parties’ discovery dispute discussed during the conference centered
upon proportionality concerns. The parameters established by Rule 26 are that
permissible discovery extends only to that which is non-privileged, relevant to claims and
defenses in the case and within the applicable Rule’s proportionality limits, regardless
whether those limits arise from the indistinguishable standards of Fed. R. Civ. P. 26(b)(1)
and (b)(2)(C) as they existed at the time this case was filed or in those same amended
Rules, which became effective less than three months after filing and as presently
configured. Proportionality analysis includes consideration of various factors, including
the importance of the issues at stake, the amount in controversy, the parties’ relative
13

access to information, the parties’ resources, the importance of the discovery in resolving
the issues, and whether the burden or expense of the proposed discovery outweighs its
likely benefit.
Evaluating this discovery against these standards leads to the mixed conclusion
that some of plaintiffs’ requests are excessive and beyond what is necessary and
beneficial to resolution of this case. As to the specific proportionality factors, the issues
at stake are important matters of civil rights and public interest. Oddly, although
plaintiffs themselves are allegedly impoverished, the legal resources they bring to bear,
including 12 counsel of record, appear superior to those of defendants, at least in terms
of sheer numbers. The discovery appears important to resolution of the issues at stake
for the most part, although not in its entirety. However, the burden and expense appear
substantial, in light of the vast scope of the discovery requests, and outweigh the
discovery’s likely benefit to the case of requiring the full range of responses plaintiffs
seek. The only remaining claims are for declaratory relief, so the amount in controversy
is negligible.
During and after the November 28th conference, plaintiffs addressed some of
defendants’ proportionality objections by agreeing that they would accept as an adequate
document production in response to some of their requests a streamlined sample of the
vast universe of materials originally requested, while continuing to seek the full relief

14

originally requested in their motion. In light of these discussions, plaintiffs’ motion is
determined as follows.
The motion is dismissed without prejudice insofar as it seeks (1) sworn
verification of interrogatory answers, which the parties have agreed will be provided in
the form of the verification of a single judge acting with authority for all; and (2) answers
to Interrogatories Nos. 1, 4, 9 and 14 to the judges and Nos. 3 and 15 through 20 to
Kazik, which defendants have agreed to supplement. If plaintiffs contend that the
answers remain deficient after supplementation, their right to file a new motion
addressing any such alleged deficiencies is preserved, but only after the current discovery
stay is lifted.
The motion is granted as to Interrogatories Nos. 6 through 8 to the judges and Nos.
4 through 6 to Kazik. The objections are overruled for the reasons set out above denying
defendants’ motion for a protective order. Even if the asserted privilege applied in this
case seeking declaratory relief and principally concerning administrative, rather than
adjudicative, functions of the judges, none of the purely factual information requested
in these interrogatories, relating to highly relevant facts, could be expected to reveal any
such adjudicative deliberations.
The motion is denied as to Interrogatory No. 13 to the judges. The current answer
is sufficient, as long as the answer and the referenced exhibits are truthful and accurate.
Of course, defendants are under a continuing obligation to supplement this response “in
15

a timely manner if [they] learn that in some material respect [it] is incomplete or
incorrect,” Fed. R. Civ. P. 26(e)(1)(A), an obligation I am confident the judges will take
seriously in providing the promised sworn verification of their interrogatory answers.
The motion is denied as to Request for Production No. 2 to the judges. The
response is sufficient and appropriately limited to what is relevant and proportional in
response to this overly broad request, i.e., the operations of the court’s collections
department. The response clearly states that defendants have no such documents.
In light of the supplementation agreement reached by the parties at the November
28th conference, the motion is dismissed without prejudice insofar as it seeks production
of the overly broad and proportionally inappropriate panoply of materials requested in
Requests for Production Nos. 12 to the judges (court budget and income materials) and
14 to Kazik (“all accounting documents detailing the revenues and expenditures of the
Judicial Administrator and the Collections Department”). The materials defendants have
agreed to produce through supplementation of their prior responses listed in the last three
bullet points set out in Record Doc. No. 213 at p. 1 should be sufficient to provide
plaintiffs with proportionally appropriate, relevant materials responsive to these requests.
If, after receiving and reviewing these materials, plaintiffs contend that this production
remains insufficient, their right to file a new motion seeking particularly identified
additional responsive materials is preserved, but only after the current discovery stay is
lifted.
16

The motion is granted in part and denied in part as to Request No. 11 to the judges
(“all warrants for failure to pay fines and/or fees . . . in the past five years”) and Request
No. 7 to Kazik (“all communications . . . that reference fines and/or fees collection
practices, policies, or individual collections cases”). The judges initially responded in
part to Request No. 11 that “[w]e do not possess those copies.” Record Doc. No. 192-9
at p. 7. In addition, the burden imposed on defendants in responding to this vast request
and its lack of proportionality are apparent on the face of the request. As a result of the
November 28th conference, the court has been advised that “Plaintiffs have a better
understanding now about what the Defendants will have to do to comply, and Plaintiffs
are, accordingly, willing to work with a representative subsample of certain materials that
exist only in paper form, while reserving the right to seek additional information in the
future.” Record Doc. No. 213 at p. 2. Unfortunately, the parties could not agree on what
might constitute an appropriate sub-sample. Accordingly, this part of the motion is
denied in part insofar as it seeks production of all materials that might be responsive to
these requests, but is granted in part as follows:
IT IS ORDERED that, after the discovery stay is lifted, for each section of court,
plaintiffs must select the names of no more than ten (10) persons from 2015 and five (5)
persons from each of 2013 and 2014, who were either arrested on capias warrants issued
by the court’s collections department or who have outstanding fines and fees, and submit
the names to defense counsel. Within 30 days of receipt of those names, defendants must
17

make available to plaintiffs for inspection and related Rule 34 activities the court case
records of the identified persons, consisting of the docket master, the paper record
maintained by the clerk of court and the computer and paper files maintained by the
court’s collections department, all of which are “[t]he records of the criminal court,”
according to defendants’ opposition memorandum. Record Doc. No. 200 at pp. 1-2.
This production from the computer and paper files of the collections department
concerning the individuals identified by plaintiffs as part of this sub-sample must include
any communications with the identified individuals and any policies or practices of the
collections department or the court concerning collection of fees or fines owed by those
persons.
Finally, the letter submitted by plaintiffs’ counsel following the November 28th
conference states that “Plaintiffs continue to seek full relief as follows: A complete readonly copy of the Collections Department’s electronic database, known as ‘GCR.’”
Record Doc. No. 213 at p. 2. None of the requests for production placed at issue in this
motion expressly seek unfettered inspection of this database. No good explanation has
been provided of exactly what kind of information is maintained on that database, what
kind of burden might be placed on defendants in permitting its inspection, or why the
benefits of unfettered access to these materials might outweigh any burden. It seems
likely that the database should include some information responsive to some requests,
while also including information that is irrelevant to the claims and defenses in the case.
18

The court has insufficient evidence at this time, either from plaintiffs or defendants, to
determine whether the broad-ranging access to this database plaintiffs apparently seek
is justified either on relevance or proportionality grounds. Accordingly, that request is
denied at this time. If, after plaintiffs receive and review the materials provided herein
and the discovery stay is lifted, plaintiffs determine that they have some continuing need
for a complete read-only copy of GCR, they may submit such a Rule 34 request to
defendants, who must respond in the manner contemplated by Fed. R. Civ. P. 34(b)(2).

8th
New Orleans, Louisiana, this _________ day of December, 2016.

JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE
CLERK TO NOTIFY:
HON. SARAH S. VANCE

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