Cain et al v. New Orleans City et al
ORDER & REASONS denying 220 MOTION for APPEAL OF MAGISTRATE JUDGE DECISION to District Court. Signed by Judge Sarah S. Vance on 3/7/2017. (mmm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ALANA CAIN, ET AL.
CITY OF NEW ORLEANS, ET AL.
SECTION “R” (2)
ORDER AND REASONS
Thirteen judges of the of Criminal District Court for the Parish of
Orleans, State of Louisiana and Robert Kazik, Judicial Administrator
(collectively, the Judicial Defendants) move for review and reversal 1 of
Magistrate Judge Wilkinson’s order2 granting plaintiffs’ motion to compel
answers to several interrogatories.
The Court denies the Judicial
Defendants’ motion because defendants have failed to show that Magistrate
Judge Wilkinson’s order is clearly erroneous or contrary to law.
In this section 1983 civil rights action, Plaintiffs allege that defendants
maintain an unconstitutional scheme of jailing indigent criminal defendants
R. Doc. 220.
R. Doc. 214.
For a full factual background see R. Doc. 228.
and imposing excessive bail amounts for nonpayment “offenses” in an effort
to collect unpaid court costs. After amendments to plaintiffs’ complaint and
orders resolving several motions to dismiss, the remaining defendants are:
(1) thirteen judges of the of Criminal District Court for the Parish of Orleans,
State of Louisiana; (2) Judicial Administrator Robert Kazik; and (3) Orleans
Parish Sheriff Marlin Gusman.
On August 25, 2016, the Judicial Defendants moved for a protective
order preventing plaintiffs from conducting any discovery in this case. 4
Plaintiffs timely opposed. 5
While the motion for protective order was
pending, plaintiffs moved to compel document production and responses to
interrogatories.6 The Judicial Defendants timely opposed this motion, 7 and
both sides filed supplemental memoranda addressing both the motion for
protective order and the motion to compel. 8
On November 30, 2016 Magistrate Judge Wilkinson issued an order
denying the Judicial Defendants’ motion for a protective order and granting
in part plaintiffs’ motion to compel. 9
R. Doc. 185.
R. Doc. 195.
R. Doc. 192.
R. Doc. 200.
R. Doc. 210; R. Doc. 211.
R. Doc. 214.
In his order, Magistrate Judge
Wilkinson found that the Judicial Defendants had failed to show good cause
to grant a blanket protection order. 10 Magistrate Judge Wilkinson also
granted plaintiffs’ motion to compel as to six interrogatories, and rejected
the motion to compel as to sixteen other interrogatories. 11
The Judicial Defendants now appeal Magistrate Judge Wilkinson’s
order, and argue that Magistrate Judge Wilkinson erred in granting
plaintiffs’ motion to compel as to interrogatories 6 through 8 to the Judges
and interrogatories 4 through 6 to Kazik. 12 Plaintiffs oppose the Judicial
Defendants’ appeal.13 The first three disputed interrogatories are directed to
the Judges, and state:
If it is your contention that you authorized the Judicial
Administrator and/or his employees and/or Collections
Department employees or any other person to sign your name to
a warrant and/or issue a warrant for failure to pay fines and/or
(a) state all facts which support your contention and identify all
witnesses with knowledge of said facts,
(b) identify all documents which support your contention and all
persons who have custody, control, or possession of said
Id. at 3-12.
Id. at 13-17.
R. Doc. 220.
R. Doc. 226.
(c) describe how and if you have ever rescinded that authority. 14
The remaining interrogatories are directed to Kazik, and state:
Please identify every judge and/or section of court that has
authorized you and your employees to issue warrants for failure
to pay fines and fees and explain how each judge and/or section
communicated the granting of that authority to you and/or your
employees. Please indicate relevant dates.
Please identify every judge and/or section of court that has
declined to authorize you and/or your employees and/or
Collections Department employees to issue warrants for failure
to pay fines and fees, or rescinded your authority to issue such
warrants and explain how each judge and/or section
communicated the rescinding of that authority to you and/or
your employees and/or Collections Department employees.
Please indicate relevant dates.
Please describe the procedure – for each section of court – by
which you and members of your office or Collection Department
employees apply for such warrants and the process by which such
warrants are printed and signed and issued. This includes the
process by which notice of such a warrant is made to the OPSO
and the City police. 15
R. Doc 192-11 at 4.
R. Doc. 192-12 at 3-4.
A magistrate judge’s ruling on a non-dispositive civil motion may be
appealed to the district court. Fed. R. Civ. P. 72(a). When a timely objection
is raised, the district judge must review the magistrate judge’s ruling and
“modify or set aside any part of the order that is clearly erroneous or contrary
to law.” Id. Under this standard, a magistrate judge’s ruling “should not be
rejected merely because the court would have decided the matter
differently.” Arvie v. Tanner, No. 12-1638, 2012 WL 3597127, at *1 (E.D. La.
Aug. 21, 2012) (internal quotations omitted). Instead, “[a] finding is ‘clearly
erroneous’ when although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S.
364, 395 (1948). A legal conclusion, however, is contrary to law “when the
magistrate fails to apply or misapplies relevant statutes, case law, or rules of
Ambrose-Frazier v. Herzing Inc., No. 15-1324, 2016 WL
890406, at *2 (E.D. La. Mar. 9, 2016). Therefore, the court applies plenary
review to the Magistrate Judge’s legal conclusions. See Haines v. Liggett
Grp. Inc., 975 F.2d 81, 91 (3d Cir. 1992) (“[T]he phrase ‘contrary to law’
indicates plenary review as to matters of law.”); Bruce v. Hartford, 21 F.
Supp. 3d 590, 594 (E.D. Va. 2014) (“For questions of law there is no practical
difference between review under Rule 72(a)’s contrary to law standard and a
de novo standard.” (internal quotations and modifications omitted)).
The Judicial Defendants argue that the disputed interrogatories
implicate both the deliberative process privilege and the judicial process
privilege. Each privilege is considered in turn.
A. Deliberative Process Privilege
The Judicial Defendants assert that any response to the challenged
interrogatories would be protected by the deliberative process privilege. The
purpose of the deliberative process privilege is to enhance the quality of
government decisions by assuring individuals “who offer information and
opinions to the Government that their communications will be kept in
confidence.” Shermco Indus., Inc. v. Sec’y of Air Force, 613 F.2d 1314, 1318
(5th Cir. 1980). The privilege is narrowly construed. Pennison v. United
States, No. CV 16-3615, 2016 WL 5390394, at *4 (E.D. La. Sept. 27, 2016).
For the deliberative process privilege to apply, the information sought
must be both “predecisional” and “deliberative.” Vaughn v. Rosen, 523 F.2d
1136, 1144 (D.C. Cir. 1975). Information is “predecisional” if it was “prepared
in order to assist [a government] decisionmaker in arriving at his decision.”
Hopkins v. U.S. Dep’t of Hous. & Urban Dev., 929 F.2d 81, 84 (2d Cir. 1991)
(quoting Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S. 168,
It is “deliberative” if “it reflects the give-and-take of the
consultative process.” Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d
141, 151 (D.C. Cir. 2006).
As found by the Magistrate Judge, the Judicial Defendants’
deliberative process privilege argument fails for two reasons. First, as the
party asserting the privilege, the Judicial Defendants bear the burden of
demonstrating that it applies. See In re Santa Fe Int’l Corp., 272 F.3d 705,
710 (5th Cir. 2001) (“A party asserting a privilege exemption from discovery
bears the burden of demonstrating its applicability.”). The Judicial
Defendants have failed to meet this burden. Specifically, defendants fail to
show that plaintiffs’ requests encompass documents that are predecisional
and deliberative. See Klein v. Jefferson Parish School Bd., No. 00-2401,
2003 WL 1873909, *4 (E.D. La. Apr. 10, 2003) (privilege covers only those
documents “generated before the adoption of an agency policy or decision
and prepared in order to assist agency decision maker in arriving at his or
her decision” (citing Skelton v. U.S. Postal Service, 678 F.2d 35 (5th Cir.
1982)). Indeed, by the plain language of the interrogatories, plaintiffs appear
to request only the sort of “opinions and interpretations which embody the
[court’s] effective law and policy” and therefore do not implicate the
privilege. Id. (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 148
(1975)). Accordingly, Magistrate Judge Wilkinson found that the challenged
interrogatories requested “purely factual information.” 16 See Hopkins, 929
F.2d at 85 (“The [deliberative process] privilege does not, as a general
matter, extend to purely factual material.”). Defendants make no showing
that this finding was clearly erroneous.
Second, even if the Judicial Defendants had met their burden to show
that the deliberative process privilege applies here, the privilege is not an
unqualified one. Rather, “[w]hen documents are protected by the
deliberative process privilege, the party seeking such materials may still
obtain them if ‘his need for accurate fact finding overrides the government’s
interest in nondisclosure.’” Pennison, 2016 WL 5390394, at *4 (quoting
Klein 2003 WL 1873909, at *4). Magistrate Judge Wilkinson specifically
found that the challenged interrogatories relate to “highly relevant facts” and
would therefore remain discoverable even if privileged.17 This factual finding
is accorded considerable deference, and defendants make no attempt to
undermine it. Accordingly, the Court finds that Magistrate Judge
R. Doc. 214 at 15.
Wilkinson’s rejection of the Judicial Defendants’ asserted deliberative
process privilege was neither clearly erroneous nor contrary to law.
B. Judicial Process Privilege
The Judicial Defendants further assert that the judicial process
privilege covers information sought in the challenged interrogatories. In his
order, Magistrate Judge Wilkinson concluded that: (1) the judicial process
privilege raised by defendants “primarily protects judicial decision-making
in the context of adjudicating particular cases,” and (2) the challenged
interrogatories do not seek protected information. 18 Defendants cite no
authority tending to undermine either conclusion.
unconvincingly attempt to distinguish two of the many cases Magistrate
Judge Wilkinson cited in his lengthy discussion of the judicial process
privilege. Both cases, in fact, support a finding that the privilege is limited
to information relating to judicial deliberations. See Matter of Certain
Complaints Under Investigation by an Investigating Comm. of Judicial
Council of Eleventh Circuit, 783 F.2d 1488, 1520 (11th Cir. 1986) (“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.”); Hale v. State Farm Mut.
Id. at 8.
Auto. Ins. Co., No. 12-0660, 2015 WL 854506, at *5 (S.D. Ill. Feb. 26, 2015)
(permitting discovery that did not concern judge’s “deliberative process
while on the Illinois Supreme Court”).
As found by Magistrate Judge
Wilkinson, the interrogatories at issue concern administrative functions
performed by judges, rather than adjudicative deliberations, and the judicial
process privilege therefore does not apply.
Finally, defendants again ignore Magistrate Judge Wilkinson’s finding
that even if the information sought were privileged, any protection would be
overridden by plaintiffs’ interest in disclosure. This finding, as noted, is not
clearly erroneous and provides an independent basis for denying defendants’
For the forgoing reasons, the Judicial Defendants’ Motion for District
Court Review and Reversal of Magistrate’s Order Pursuant to Fed. R. Civ. P
72 is DENIED.
New Orleans, Louisiana, this _____ day of March, 2017.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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