Swoboda v. Manders et al

Filing 64

RULING denying 58 Motion for Reconsideration of Ruling Compelling Production of Privilege Documents. Signed by Magistrate Judge Stephen C. Riedlinger on 6/12/2015. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

MICHAEL SWOBODA
CIVIL ACTION
VERSUS
NUMBER 14-19-SCR
KARL MANDERS, ET AL
RULING ON MOTION FOR RECONSIDERATION OF RULING
COMPELLING PRODUCTION OF PRIVILEGE DOCUMENTS
Before the court is a Motion for Reconsideration of Ruling
Compelling Production of Privilege Documents filed by defendant
Continental

Incorporated,

Record document number 58.

Inc.

d/b/a

Continental

Enterprises.

The motion is opposed.1

Through this motion the defendant seeks reconsideration and
reversal of the court’s April 20, 2015 Ruling on Motion to Compel
Discovery2 which granted in part the plaintiff’s Motion to Compel.
In that ruling the court found that the defendant did not establish
the attorney-client privilege or work product protection as to
withheld communications/documents containing information about the
G36 investigation that led to the plaintiff’s arrest.3

Defendant

seeks reversal insofar as the court found the documents were not
protected by the work product doctrine.

Defendant argued that on

this issue the court’s ruling was incorrect and manifest injustice

1

Record document number 61.

2

Record document number 49.

3

Id., pp. 9-14.

will result if it is required to provide the communications to the
plaintiff over the objection of Heckler & Koch, Inc., (“H&K”) which
is the holder of the privilege.

In support of its request for

reconsideration the defendant submitted the declaration of Stephen
G. Farkas, an attorney who is

H&K’s general counsel and vice

president for contracts.4
Essentially for the reasons set forth in the plaintiff’s
opposition memorandum, the defendant has failed to provide a
sufficient basis for the court to reconsider and reverse the
ruling.

There is no basis to find that Farkas’ statements in his

declaration are new and could not have been provided earlier when
the motion was pending.

Furthermore, even if the information is

considered, it does not establish that the documents are protected
attorney work product.

Farkas’s declaration, in light of all the

other circumstances, does not lead to any conclusion other than
that the documents generated by H&K, or by the defendant on behalf
of H&K, during the investigation are anything other than documents
created in the ordinary course of business.

As previously stated,

the defendant’s regular business is to conduct investigations.
Farkas’s declaration contains nothing to change this conclusion.
His statements indicate that it is also part of H&K’s business to
investigate conduct that may infringe on its intellectual property
rights.

4

The fact that H&K chose to assign this business function

Record document number 58-2.
2

to Farkas does not transform the documents connected with this
business activity into attorney work product.
Accordingly,

the

Motion

for

Reconsideration

of

Ruling

Compelling Production of Privilege Documents filed by defendant
Continental Incorporated, Inc. d/b/a Continental Enterprises, is
denied.
Baton Rouge, Louisiana, June 12, 2015.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

3