Jones v. Cannizzaro et al

Filing 100

ORDER AND REASONS: For all the foregoing reasons, defendant's 83 motion is GRANTED. The deposition notice and subpoena issued to defense counsel of record are quashed at this time as set forth in document. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 3/27/2019. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROBERT JONES

CIVIL ACTION

VERSUS

NO. 18-503

LEON CANNIZZARO ET AL.

SECTION “H” (2)

ORDER AND REASONS ON MOTION
This is a civil rights action in which Robert Jones ("plaintiff") alleges that the
office of the Orleans Parish District Attorney (defendant Leon Cannizzaro in his official
capacity), engaged in a practice of suppressing information and evidence in violation of
Brady v. Maryland, 373 U.S. 83 (1963) for more than twenty (20) years. Complaint,
Record Doc. No. 1. Plaintiff alleges that this practice resulted in the violation of his
rights during his lengthy criminal proceedings dating back to the 1990s. Id. Plaintiff
seeks compensatory damages, costs and attorneys' fees. Id. at p. 47.
Plaintiff served a notice of deposition and subpoena on defendant, specifically to
depose defense counsel of record Donna Andrieu, an Assistant Orleans Parish District
Attorney. Record Doc. No. 83-2, at pp. 1-6. Plaintiff also attached requests for
production of documents to the subpoena. Record Doc. No. 83-2, at pp. 8-19. Defendant
filed a motion for protective order and to quash the deposition and subpoena. Record
Doc. No. 83. Plaintiff filed a timely opposition memorandum. Record Doc. No. 91.

Having considered the parties' written submissions, the record and the applicable
law, IT IS ORDERED that defendant's motion is GRANTED and the deposition notice
and subpoena are quashed at this time for the following reasons.
Fed. R. Civ. P. 26(c)(1) provides that "[a] party or any person from whom
discovery is sought may move for a protective order in the court where the action is
pending. 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 . . .
forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery
to certain matters."
“Generally, federal courts have disfavored the practice of taking the deposition of
a party’s attorney; instead, the practice should be employed only in limited
circumstances.” Theriot v. Parish of Jefferson, 185 F.3d 477, 491 (5th Cir. 1999) (citing
Shelton v. Am. Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986)).
As Magistrate Judge Bourgeois of the Middle District of Louisiana has noted,
article 508 and the federal common law essentially employ the same
substantive analysis in considering whether to allow the deposition of
opposing counsel. Compare La. C. Evid. art. 508 (considering whether the
information sought is (a) essential to the case, (b) not intended to harm or
harass, (c) narrowly tailored and (d) not available from any other source),
with Fed. R. Civ. P. 26(b), (g) (discovery requests may not be overly broad
or intended to harass), and Shelton, 805 F.2d at 1327 (considering, among
other things, whether the information is “crucial” and may be obtained by
any other means).
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Hall v. Louisiana, 2014 WL 1652791, at *4 n.4 (M.D. La. Apr. 23, 2014) (citing Shelton,
805 F.2d at 1327).
A few months after issuing its decision in Theriot, the Fifth Circuit further
addressed the issue in Nguyen v. Excel Corp., 197 F.3d 200 (5th Cir. 1999) , explaining
that, “[b]ecause depositions of opposing counsel are disfavored generally and should be
permitted in only limited circumstances, one would suspect that a request to depose
opposing counsel generally would provide a district court with good cause to issue a
protective order.” 197 F.3d at 209 (footnotes omitted). The court noted the analysis
adopted by the United States Court of Appeals for the Eighth Circuit in Shelton, 805 F.2d
at 1327, forbidding a party from deposing opposing counsel unless (1) no other means
exist to obtain the information, (2) the information sought is relevant and non-privileged,
and (3) the information is crucial to the preparation of the case. See id. at 208. The Fifth
Circuit in Nguyen held that the district court “did not abuse its discretion in authorizing
the depositions of defense counsel, even assuming the applicability of the Shelton
inquiry.” Id. at 209 (footnote omitted); cf. Murphy v. Adelphia Recovery Trust, 2009
WL 4755368, at *2 (N.D. Tex. Nov. 3, 2009) (“While the Fifth Circuit has not explicitly
adopted Shelton, it has indicated that the same three factors inform a district court’s
discretion in determining whether to authorize the deposition of opposing counsel.”
(citing Nguyen, 197 F.3d at 209)). "Regardless of the movant, . . . the party asking to
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depose its opponent's counsel bears the burden of proof." Hall v. Louisiana, 2014 WL
1652791, at *4.
Applying the foregoing precedent in this case militates in favor of granting
defendant's motion and quashing the deposition and subpoena, at least at this time.
Generally, the scope of discovery permits the discovery of "any nonprivileged matter that
is relevant to any party's claim or defense and proportional to the needs of the case . . .
." Fed. R. Civ. P. 26(b)(1). Plaintiff argues that the information sought is discoverable
because he must prove a policy, practice or custom of Brady violations, and as the
Orleans Parish District Attorney’s Chief of Appeals, Andrieu has knowledge of this
policy, practice or custom, as well as knowledge of the Assistant District Attorneys she
supervised and her investigation of the “Menner memo,” a key piece of evidence. Record
Doc. No. 91 at p. 5. Defendant argues that the information sought cannot be relevant
because "Andrieu . . . did not begin working at [the D.A.'s office] until 2001, years after
[plaintiff's] convictions . . . was not involved in the prosecution of [plaintiff] and would
not have first-hand knowledge of any alleged Brady violation that may have occurred
during the prosecution. . . . [and since] the handling of [plaintiff's] post-conviction
applications cannot give rise to a Brady violation, it is not relevant to his Brady claim in
this case . . . ." Record Doc. No. 83-1 at p. 3. As plaintiff notes, I have previously found
that "policies and procedures relevant to [plaintiff's] Monell claims . . . at least through
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the 2017 dismissal of the charges against him are relevant to plaintiff's claims that
defendant's conduct was improper for decades following his conviction." Record Doc.
No. 60 at pp. 1-2. Similarly, whatever knowledge Andrieu may have about the subject
policies and procedures of her office is relevant.
The information sought likewise does not appear to be privileged. Plaintiff stated
in its opposition memorandum that he only wishes to depose Andrieu about "factual
information that pre-dates this litigation." Record Doc. No. 91 at p. 6 (emphasis added).
The attorney-client privilege “only protects disclosure of confidential communications
between the client and attorney; it does not protect disclosure of underlying facts.”
United States v. Edwards, 39 F. Supp. 2d 716, 723 (M.D. La. 1999) (citing Upjohn Co.
v. United States, 449 U.S. 383, 395-96 (1981) (emphasis added); In re Six Grand Jury
Witnesses, 979 F.2d 939 (2d Cir. 1992); United States v. Freeman, 619 F.2d 1112 (5th
Cir. 1980); Computer Network Corp. v. Spohler, 95 F.R.D. 500 (D.D.C. 1982)).
“‘Pre-existing facts that underlie the client’s confidential communications, whether oral
or written, are not privileged simply because the client disclosed them to an attorney for
the purpose of obtaining legal services.’” Id. at 736 (quoting Weinstein’s Federal
Evidence, § 503.14[4][a] (2d ed. 1998), citing Upjohn, 449 U.S. at 395). Additionally,
even if some information sought in the deposition is privileged, a deponent need not

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answer a question in a deposition when necessary to "preserve a privilege." Fed. R. Civ.
P. 30(c)(2).
However, while the information sought may be relevant and non-privileged, in the
disfavored circumstances of an attempt to depose opposing counsel of record, plaintiff
has failed to show that this discovery is proportional, that no other means exist to obtain
the information that he seeks from Andrieu's deposition testimony or that the information
is "crucial" to preparation of the case. Plaintiff has not shown that he tried and failed to
obtain the information from other sources such as (1) defendant's Rule 30(b)(6)
deposition; (2) the individual deposition of Harry Connick, Sr., one of the current District
Attorney's predecessors who is alleged to have been largely responsible for the
challenged practices and procedures, Record Doc. No. 1, Complaint at pp. 31-32; ¶¶109118; Record Doc. No. 61 (order concerning deposition schedule for Harry Connick, Sr.);
or (3) the deposition of Fred Menner, the author of the "Menner memo." These other
depositions should be an adequate substitute under these particular circumstances for
Andrieu's individual testimony. While plaintiff argues that Andrieu is "uniquely
positioned" and can provide "a comprehensive view" of the information sought, Record
Doc. No. 91 at p. 4, plaintiff admits that other individuals employed by the District
Attorney's office should have knowledge of this information. Record Doc. No. 91 at p.
3 ("other [D.A.] personnel joined Ms. Andrieu for the interview of the Menner Memo's
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author"); p. 4 n. 1 (". . . the individual who tasked Ms. Andrieu with [investigating the
Menner memo] could presumably also testify to this fact . . .").
Significantly, Andrieu has already testified about these topics generally and her
testimony is already in plaintiff's possession. See Record Doc. Nos. 91-2 at pp. 5-8
(testifying about her position as D.A.'s office Chief of Appeals and the attorneys she
supervised); pp. 9-18 (testifying about her familiarity with the Menner memo and her
investigation thereof); pp. 19-29 (testifying about Brady policies in the office); pp. 30-36
(testifying about Brady practices in the office Appeals Division specifically); 91-3 at pp.
5-6 (testifying about her position and training in the Appeals Division); pp. 8-17
(testifying about Brady practices in the Appeals Division specifically); pp. 18-24
(testifying about training and reviewing Orleans Parish Assistant District Attorney
Graham Bosworth, who worked on plaintiff's post-conviction proceeding in 2007); pp.
24-28 (testifying about appearing in court during plaintiff's post-conviction proceedings);
pp. 36 -53 (testifying about the steps her office took concerning plaintiff's application for
post-conviction relief); pp. 53-78 (testifying about Assistant District Attorneys Graham
Bosworth and Brad Scott that she supervised in her capacity as Chief of Appeals); pp.
77-78 (testifying about conversations with Scott after she learned about the Menner
memo); pp. 84 - 85 (testifying about her investigation regarding the Menner memo); pp.

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93-95 (testifying about her understanding of the Menner memo); pp. 99 - 124; 126-131
(testifying as to her interview of Menner and her investigation about his memo).
Courts within the Fifth Circuit analyzing the Shelton factors have found that
whether information is crucial may involve whether it can be obtained through other
means. See, e.g., Premier Dealer Services, Inc. v. Duhon, 2013 WL 5720354, at *5 (E.D.
La. Oct. 21, 2013) (Roby, M.J.); Hall, 2014 WL 1652791, at *5; McKinney/Pearl
Restaurant Partners, L.P. v. Metropolitan Life Insurance Company, 2016 WL 3033544,
at *6-7 (N.D. Tex. May 26, 2016). Because plaintiff has not shown that this information
cannot be obtained by other means, he has likewise not shown that deposing Andrieu is
crucial to his case. If Andrieu possesses crucial information that cannot be obtained from
any other source, plaintiff must prove that fact. At this time, he has failed to do so.
As to the proportionality component of the Rule 26(b)(1) scope of discovery, for
the same reasons outlined above, the needs of the case, the importance of the discovery
and its added burden or expense are all factors that weigh against a finding that this
deposition and subpoena duces tecum are appropriately proportional. In addition, ample
opportunity to obtain the same information and materials that opposing counsel may
possess is available by other discovery in this matter, such that this discovery will be
unreasonably cumulative or duplicative. Fed. R. Civ. P. 26(b)(2)(c)(i)-(ii).

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For all the foregoing reasons, defendant's motion is GRANTED. The deposition
notice and subpoena issued to defense counsel of record are quashed at this time. As was
clarified at oral argument, the parties' witness lists are not due to be filed until June 3,
2019. Record Doc. No. 50 at p. 2. Plaintiff intends to list Andrieu on his trial witness list.
Defendant does not and intends to move to strike Andrieu from plaintiff's witness list, for
some of the reasons asserted in this motion, a matter that the parties must timely present
to the presiding district judge pre-trial for her to decide. After this anticipated motion
practice, if the presiding district judge determines that Andrieu will be a witness at trial,
she must then be deposed.

27th
New Orleans, Louisiana, this _________ day of March, 2019.

JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE

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