Clark v. State of Louisiana, et al
Filing
119
ORDER granting in part 100 Motion to Compel Discovery such that within 30 days of the date of this Order, the defendants shall more fully respond to the plaintiffs Requests for Production Nos. 2(a), 8, 12 and 19 as outlined above. Within 30 days o f the date of this Order, the defendants shall file a supplemental memorandum addressing the alleged potential threat to security presented by the production of documentation requested in the plaintiffs Requests for Production Nos. 3(a) and (b) and 4(a) and (b). The plaintiffs request for costs and attorneys fees associated with the instant Motion be and it is hereby DENIED. Signed by Magistrate Judge Richard L. Bourgeois, Jr on 8/8/2014. (SMG)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JEFFERY C. CLARK
CIVIL ACTION
VERSUS
THE STATE OF LOUISIANA, ET AL.
NO. 00-0956-JJB-RLB
ORDER
This matter comes before the Court on the plaintiff’s Motion to Compel Responses to
Discovery (Rec. Doc. 100). This Motion is opposed.
Pursuant to Order dated September 27, 2012 (Rec. Doc. 66), the Court established a
deadline for written discovery of January 31, 2013, with an additional caveat that motions to
compel relative thereto be filed on or before March 4, 2013. It was anticipated by the parties and
the Court that upon the completion of written discovery, depositions would be undertaken in this
case. Thereafter, on January 8, 2013, the Court issued an Order granting a Consent Motion to
Extend Discovery Deadlines (Rec. Doc. 70), which Order extended the deadline for written
discovery to March 18, 2013. There was no provision in the referenced Order for the filing of
pertinent motions to compel.
The parties exchanged discovery responses on March 18, 2013, and on or about May 1,
2013, counsel for the plaintiff contacted counsel for the defendants to request a discovery
conference, which conference thereafter took place shortly thereafter. The defendants concede,
in their response to the instant Motion, that “[d]uring that conference, defendants’ counsel
agreed to address plaintiff Clark’s concerns .... [and] subsequently sought to diligently address
plaintiff Clark’s concerns.” See Rec. Doc. 102 at p. 4. There is no indication that the defendants
objected to the timeliness of the plaintiff’s request. According to the plaintiff, the parties agreed
to reconvene on May 24, 2013, to further discuss discovery issues, and on that date, an email
forwarded to the plaintiff’s attorney reflects that the parties “touched base about the outstanding
issues with respect to paper discovery” and agreed to speak again in two weeks because counsel
for the defendants had requested additional time. See Rec. Doc. 100-2 at p. 2. Additional emails
exchanged between the parties reflect that on June 7, 2013, counsel for the plaintiff requested an
update, to which counsel for the defendants responded that inquiries were taking “longer than
expected” and that the defendants were not “purposefully delaying.” See id. at p. 5. In addition,
on June 10, 2013, counsel for the defendants again indicated that matters had “taken longer than
anticipated,” and requested an additional fourteen (14) days. See id. at p. 4. Finally, on June 25,
2013, the parties again communicated regarding discovery issues. The email exchanges between
the parties reflect that counsel for the defendants agreed to provide supplementation relative to
certain prior responses but otherwise indicated that the parties had reached an impasse and would
need to pursue any further resolution regarding discovery issues “through appropriate motions to
the court.” See id. at pp. 10-11.
During the same period covered by the foregoing communications between the parties,
the defendants filed a Motion for Leave to Take [the Plaintiff’s] Deposition (Rec. Doc. 72), and
the plaintiff filed a Motion for Contempt and Sanctions pertaining to a different discovery issue
(Rec. Doc. 73). Proceedings relative to the latter Motion were finally concluded by Ruling dated
August 6, 2013 (Rec. Doc. 97), and while the former Motion was still pending, the plaintiff filed
the instant Motion to Compel Responses to Discovery on October 22, 2013. The plaintiff
concedes that the instant Motion is tardy but notes that there are no other deadlines in place and
no pending trial date that would cause prejudice to the defendants.
Based on the foregoing, and in the exercise of the Court’s discretion, the Court will not
penalize the plaintiff by denying the instant Motion as untimely. As noted by the plaintiff, there
are currently no other deadlines in place in this case, and there is no pending trial date. Further,
inasmuch as the defendants will likely face paper discovery in connection with other litigation
arising out of the same events at issue in this case, there is no apparent prejudice that will result
to the defendants by addressing the instant discovery Motion. Notwithstanding, in light of the
admitted tardiness of the plaintiff’s Motion, the Court will deny the request therein for costs and
attorneys’ fees associated with the Motion.
Turning to a consideration of the issues raised in the instant Motion to Compel, the
plaintiff first seeks responses to his Requests for Admissions Nos. 11-15. These Requests relate
to whether, and to what extent, the defendants provided assistance to prosecutors in connection
with the plaintiff’s criminal case arising out of the events at issue herein. The Court agrees with
the defendants that these Requests are irrelevant to the claims asserted in this civil litigation.
Accordingly, the plaintiff’s Motion will be denied in this respect.
The plaintiff next complains regarding the defendants’ Response to Interrogatory No. 11,
which Interrogatory requested information regarding any and all “legal action[s] taken against
LSP” as a result of the events at issue in this case, including information regarding the results of
such legal actions, any settlement amounts, and any policy or personnel changes made as a result
thereof. The defendants objected to this Interrogatory as calling for information that is
irrelevant, not calculated to lead to the discovery of admissible evidence, subject to attorneyclient or work-product privilege, and equally available to the plaintiff as to the defendants. The
Court finds this objection to be well-taken. The plaintiff is aware of the litigation commenced
before this Court relative to the events occurring at LSP (the Louisiana State Penitentiary) in
December, 1999, and it is likely that any other “legal actions” pertaining to the referenced events
were commenced and prosecuted in the state district court for the Parish of West Feliciana, State
of Louisiana, where LSP and the defendants are located and where the incidents occurred. The
requested information regarding “legal actions,” therefore, is equally accessible to the plaintiff.
Moreover, information regarding amounts paid in settlement to unrelated plaintiffs would appear
to be irrelevant to the issues asserted in this litigation. Finally, to a fair degree of certainty, any
policy or personnel changes which may have occurred as a result of the events of December,
1999, likely occurred in response to the events themselves and not as a consequence of any socalled “legal actions.” The Court further notes that “LSP,” as such, is not a juridical entity under
Louisiana law against which “legal action” may be taken in the State of Louisiana in any event.
The plaintiff next complains regarding the defendants’ Response to Interrogatory No. 12,
which requested the location of the personnel files of Charles Ronald Cockerham and David W.
Ross, both of whom were employed at the Louisiana State Penitentiary on the night of the events
complained of herein. The referenced Interrogatory also requested any and all facts relative to
the loss or destruction of the referenced personnel files if unavailable. The defendants responded
to this Interrogatory as calling for information which is irrelevant and/or is not reasonably
calculated to lead to the discovery of admissible evidence. The defendants further asserted that,
subject to the referenced objection, the referenced personnel files were no longer available,
having been destroyed as a result of either Hurricane Katrina or the applicable retention period.
Inasmuch as the defendants may not be compelled to produce that which they do not possess, the
Court will not compel a further response to the plaintiff’s Interrogatory in this regard.1
Notwithstanding, the Court notes that the defendants’ conclusory objection on the grounds of
relevancy is entirely inadequate and does not overcome the defendants’ burden in objecting to
the referenced discovery. S.E.C. v. Brady, 238 F.R.D. 429, 437 (N.D. Tex. 2006) (“Broad-based,
non-specific objections ... fall woefully short of the burden that must be borne by a party making
an objection to an interrogatory or document request”).
The plaintiff next complains regarding the defendants’ Response to Request for
Production No. 2(a), pursuant to which the plaintiff requested “[l]ogs of activity inside the
Education Building, the disciplinary units where inmates were transferred, the gates to the
prison, locations where interrogations took place, and any other relevant locations.” The
defendants produced certain documentation in response to this Request but objected to the
remainder as being overly broad, unduly burdensome, not calculated to lead to the discovery of
admissible evidence, and as presenting a potential threat to security. The Court rejects the
defendants’ conclusory assertions in this regard. The defendants acknowledge that they have
already produced a substantial quantity of “logs of activity,” and their assertion of over-breadth,
excessive burden, and potential threat to security relative to the remainder are entirely
1. The Court notes that the plaintiff may potentially have other options available for
seeking the requested information, as for example, through a Rule 30(b)(6) deposition of the
Records Custodian of the Louisiana Department of Public Safety and Corrections, seeking to
determine whether the referenced personnel files have in fact been lost or destroyed or whether
they may have been “imaged or archived” in accordance with Department Regulation No. A-02015. See Rec. Doc. 102-2 at p. 5.
conclusory and do not meet the defendants’ burden in over-coming this discovery request. See
McLeod, Alexander, Powell & Apfell, P.C. v. Quarks, 894 F.2d 1482, 1485 (5th Cir. 1990)
(placing the burden on the party opposing discovery to “show specifically how ... each [request]
is not relevant or how each [request] is overly broad, burdensome or oppressive”); S.E.C. v.
Brady, supra, 238 F.R.D. at 437. Pursuant to Mcleod, supra, the defendants bear the burden of
showing specifically how, despite the broad and liberal construction afforded to the federal
discovery rules, each interrogatory or document request is overly broad or not reasonably
calculated to lead to the discovery of admissible evidence. Id., 894 F.2d at 1485. Having failed
to do so, the Court finds that the defendants should be required to respond to the plaintiff’s
Request for Production No. 2(a) and to produce those logs responsive to this Request which have
not previously been provided.
The plaintiff next complains regarding the defendants’ Response to Requests for
Production Nos. 3(a) and (b) and 4(a) and (b), pursuant to which the plaintiff requested
“[d]ocuments used for the training of corrections officers and/or wardens at LSP” during the year
preceding the events at issue, and the “rules, policies, procedures, standards or protocol[s] in
effect at LSP” at the time of those events, specifically pertaining to “how corrections officers
and/or deputy sheriffs should respond to hostage events, or escape attempts ... [or] inmate fights,
altercations, or violence.” The defendants objected to these Requests as being vague,
ambiguous, irrelevant, overly broad, unduly burdensome, not calculated to lead to the discovery
of admissible evidence, and as presenting a potential threat to security. Again, the Court finds
that the defendants’ conclusory assertions of ambiguity, irrelevance, over-breadth and undue
burden are non-specific and, as a result, are insufficient to overcome the policy which favors a
liberal disclosure of documentation pertinent to the plaintiff’s claims. See McLeod, supra.
Further, with regard to the defendants’ assertion that production of the referenced documents,
more than 13 years after the occurrence of the events complained of, would compromise the
security of the institution, this assertion is also conclusory and has not been supported by
anything other than speculation or conjecture. Notwithstanding, in light of the possibility that
the policies and procedures currently in effect are similar to or identical to those in effect during
the relevant time period, and in light of the potential that dissemination within the prison
environment of policies and procedures relative to hostage events and escape attempts may
negatively impact upon the security of the institution, the Court deems it advisable to allow
further briefing relative to this issue. Accordingly, the Court will direct the defendants to
address this issue with greater detail and specificity in a supplemental memorandum.2 The Court
2. Whereas the defendants now assert, in their opposition to the instant Motion to
Compel, that the referenced documents are privileged and confidential pursuant to La. R.S. 44:3,
the defendants did not assert such confidentiality in their initial objections to the plaintiff’s
Requests and, accordingly, this contention has theoretically been waived. See, e.g., Stevens v.
Omega Protein, Inc., 2002 WL 1022507 (E.D. La. May 16, 2002). Further, “[w]hen considering
a federal claim, federal courts apply federal common law, rather than state law, to determine the
existence and scope of a privilege.” Coughlin v. Lee, 946 F.2d. 1152, 1159-60 (5th Cir. 1991).
Although federal courts will consider state policies supporting a privilege in weighing the
government’s interest in confidentiality, the privilege created by the referenced statute appears to
be a qualified privilege at best and is subject to a balancing test. Id. Further, some courts
reviewing statutes similar to La. R.S. 44:3 have concluded that these statutes do not create an
evidentiary privilege, as such, “but are merely exceptions to the general rule that the public has a
right to inspect any public record.” See Darensburg v. Lee, 2004 WL 1158039, *2 (E.D. La.
May 21, 2004). In any event, privileges are strictly construed as being exceptions to the general
rule regarding the discoverability of relevant evidence and as being derogations from the search
for the truth, and the party opposing production bears the burden of demonstrating the existence
and applicability of the privilege. Id. As a result, a party opposing production must make a
“‘substantial threshold showing’ that specific harms are likely to result from disclosure.” Id.
(citation omitted). Further, special caution must 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
further grants leeway to the parties, at least at this juncture, to enter into or reach an
accommodation which restricts the dissemination of specific sensitive documentation within the
confines of the prison environment. See, e.g., Betzer v. Stephens, 2003 WL 22175993, *6 (E.D.
La. Sept. 19, 2003) (ordering the production of rules, regulations and or policies “pursuant to a
confidentiality agreement”).
The plaintiff next complains regarding the defendants’ Response to Request for
Production No. 8, pursuant to which the plaintiff requested the “personnel files for all Staff
present during the Incident and alleged Escape Attempt,” including documentation regarding
grievances, complaints, accusations, disciplinary charges, awards, honors, decorations or
accommodations pertinent to each staff member. The defendants objected to this Request as
being vague, ambiguous, irrelevant, overly broad, unduly burdensome, and not calculated to lead
to the discovery of admissible evidence. With regard to this Request, the Court finds that the
defendants’ assertion of over-breadth is well-taken to the extent that it includes a request for the
personnel files of all LSP staff present during the referenced incident. Notwithstanding this
limitation, the Court finds that the plaintiff’s request for the personnel files of the named
defendants in this proceeding is warranted and should be subject to production. Specifically,
there is nothing to support the defendants’ conclusory assertion that such documentation is
irrelevant or is not reasonably calculated to lead to the discovery of admissible evidence, and
there is no showing that production of such documentation would be overly burdensome.
requires all evidence of their alleged wrongdoing to remain confidential.” Id. See also Zantiz v.
Seal, 2013 WL 2459269, *5 (E.D. La. June 6, 2013) (citation omitted) (ordering the production,
inter alia, of “conduct and training manuals and written policy statements ... insofar as they
relate to use of force against inmates”).
Further, although the defendants now assert that the referenced documents are confidential
and/or that production thereof could compromise the security of the prison, the defendants did
not assert such confidentiality or potential threat in their initial objections to the plaintiff’s
Request and, accordingly, these contentions are deemed to have been waived and, in any event,
are rejected. See Betzer v. Stephens, supra, 2003 WL 22175993 at *4 (ordering the production
of the personnel files of named defendants but denying production of the files of nondefendants). The Court notes, however, that the defendants are permitted to redact from the
referenced personnel files any sensitive personal information.
The plaintiff next complains regarding the defendants’ Response to Request for
Production No. 11, pursuant to which the plaintiff requested “the locations of [the plaintiff],
Robert Carley, Joel Durham, David Mathis, or David Brown were housed from 1/1/19901/1/2010 ... including the cell and/or bed number tier, building, camp, and classification.”
Whereas the defendants have produced the Master Prison Record of the plaintiff, they objected
to this Request relative to the other named inmates as being overly broad, unduly burdensome,
irrelevant and not calculated to lead to the discovery of admissible evidence. The Court finds
this objection to be well-taken inasmuch as, on its face, the referenced Request is over-broad to
the extent that it seeks irrelevant information regarding the locations of inmates who are not
parties to this proceeding and covering a 10-year period preceding the date of the events in
question. Accordingly, the Court will not compel any further response to this Request.
The plaintiff next complains regarding the defendants’ Response to Request for
Production No. 12, pursuant to which the plaintiff requested “all complaints from inmates or
others filed against the Tactical Team that was used to restore order to the Education Building
following the alleged Escape Attempt.” The defendants objected to this Request as being vague,
ambiguous, irrelevant, overly broad, unduly burdensome, and not calculated to lead to the
discovery of admissible evidence. Initially, to the extent that the plaintiff’s reference to “all
complaints” may be interpreted as including legal complaints filed by inmates in state or federal
court, the Court will not compel a response to this request for the reasons stated above relative to
the plaintiff’s Interrogatory No. 11 – because the requested information is equally available to
the plaintiff. Notwithstanding, the request for documentation regarding other complaints and
grievances made by inmates and others which arise out of the events complained of by the
plaintiff herein are clearly relevant to the issues under consideration and/or may reasonably lead
to the discovery of admissible evidence, and so should be produced. The defendants’ assertion
of over-breadth and undue burden are conclusory and are not supported by any factual
representations, see McLeod, supra, and the Court notes that much, if not all, of the requested
documentation regarding other complaints and grievances by inmates has likely been previously
compiled in connection with other litigation arising out of the events in question. Finally,
although the defendants now assert that the referenced documentation is confidential under
Louisiana law, the defendants did not assert such privilege or confidentiality in their initial
objections to the plaintiff’s Request and, accordingly, this contention has been waived. The
defendants may, however, redact from the referenced documentation sensitive personal
information which is not appropriate for public disclosure.
The plaintiff next complains regarding the defendants’ Response to Request for
Production No. 15, pursuant to which the plaintiff requested “a list of which inmates had hobby
craft lockers located in the Education Building from 6/1/1999-12/30/1999 and the locations of
their lockers.” The defendants objected to this Request on the basis of relevance and also
asserted that they had “no such document.” Inasmuch as the defendants may not be compelled to
produce that which they do not possess, the Court will not compel a response to the plaintiff’s
Request in this regard.
Finally, the plaintiff complains regarding the defendants’ Response to Request for
Production No. 19,3 pursuant to which the plaintiff requested any and “all documents related or
equipment used, signed out, or deployed at LSP from 12/28/1999-12/30/1999 for all staff or law
enforcement.” The defendants objected to this Request as being vague, ambiguous, irrelevant,
overly broad, unduly burdensome, not calculated to lead to the discovery of admissible evidence,
and as presenting a potential threat to security. In this regard, the Court agrees with the
defendants’ assertion that, to the extent the Request relates to equipment used, signed out or
deployed by LSP staff or law enforcement other than the defendants, the Request is over-broad
on its face. Otherwise, the Court finds that the defendants’ objection as to irrelevance, overbreadth, undue burden and threat to security is conclusory and does not overcome the burden to
provide the requested information. Accordingly, the Court will direct the defendants to respond
to this Request to the extent that it relates to the named defendants in this proceeding.
Based upon the foregoing,
IT IS ORDERED that the plaintiff’s Motion to Compel Discovery (Rec. Doc. 100), be
and it is hereby GRANTED IN PART, such that, within thirty (30) days of the date of this
Order, the defendants shall more fully respond to the plaintiff’s Requests for Production Nos.
3. Although the plaintiff initially complained regarding the defendants’ Responses to
Requests for Production Nos. 13, 14 and 16, the plaintiff has now indicated that he “is satisfied”
with the defendants’ Responses to these Requests.
2(a), 8, 12 and 19 as outlined above.
IT IS FURTHER ORDERED that, within thirty (30) days of the date of this Order, the
defendants shall file a supplemental memorandum addressing the alleged potential threat to
security presented by the production of documentation requested in the plaintiff’s Requests for
Production Nos. 3(a) and (b) and 4(a) and (b).
IT IS FURTHER ORDERED that the plaintiff’s request for costs and attorneys’ fees
associated with the instant Motion be and it is hereby DENIED.
Signed in Baton Rouge, Louisiana, on August 8, 2014.
s
RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE
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