Swoboda v. Manders et al

Filing 67

RULING: The 55 Motion for Reconsideration and Clarification of Ruling is granted in part. With regard to the documents the plaintiff has been ordered to produce in response to Request for Production Nos. 10 and 11, the plaintiff is not required to disclose, and may redact, the contents of any document/communication that are not factual work product and which unequivocally meet the definition of core work product under Rule 26(b)(3)(B). The remaining aspects of the plaintiff's motion are denied. Signed by Magistrate Judge Stephen C. Riedlinger on 06/16/2015. (BCL)

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
AND CLARIFICATION OF RULING
Before

the

court

is

a

Motion

for

Reconsideration

and

Clarification of Ruling filed by plaintiff Michael Swoboda. Record
document number 55. The motion is opposed by defendant Continental
Incorporated, Inc. d/b/a Continental Enterprises.1
Plaintiff filed this motion to obtain reconsideration and
clarification of a portion of the court’s April 27, 2015 Ruling on
Motion to Compel.2

In the ruling the court determined that

defendant’s Continental Incorporated, Inc.’s Motion to Compel
should be granted as to Request for Production Nos. 10 and 11
insofar as the requests encompassed documents related to the
allegations

in

the

plaintiff’s

complaint.

In

reaching

this

conclusion, the court rejected the plaintiff’s arguments that the
documents were protected by the attorney-client privilege and the
work product doctrine, and that it was unnecessary for him to

1

Record document number 60. Plaintiff also filed a reply
memorandum. Record document number 66.
2

Record document number 54.

supply a privilege log or other means of providing the information
required by Rule 26(b)(5)(A).
In his request for reconsideration, the plaintiff continued to
maintain that he did not waive his privilege objections because he
was not required to produce a privilege log with respect to
communications that arose after the filing of the suit, and in any
event he did not have to provide a privilege log until after the
court

ruled

requests.
have

on

his

objections

to

the

scope

of

the

document

Plaintiff also noted that his attorneys in this case

actively

consulted

with

his

attorneys

in

the

Indiana

litigation on matters related to his criminal arrest and this case.
Therefore, plaintiff argued, these communications between counsel
are covered by the attorney-client privilege and are protected from
discovery

as

work

product.

Plaintiff

asserted

that

these

communications contain case strategy, legal theories, conclusions,
advice and opinions, which under Rule 26(b)(3)(B), Fed.R.Civ.P. are
never discoverable.

In the alternative, the plaintiff asked the

court to allow him to submit a privilege log at this time, or be
allowed to produce the documents for the court’s review in camera.3
Defendant argued that there is no basis for the court to
change or clarify the ruling because the plaintiff merely restates

3

Plaintiff stated that to the extent the court’s ruling
required production of responsive documents used to draft the
complaint, which do not include attorney emails, those documents
have been produced.
2

the arguments he made in opposition to the original motion.
For the reasons explained in the April 27 ruling, and the
reasons set forth in the defendant’s opposition this motion, there
is no basis to reverse the ruling with regard to Request for
Production Nos. 10 and 11.

The court also notes that even if the

plaintiff’s overbreadth objections were pending, nothing prevented
the plaintiff from making this objection but at the same time
providing a privilege log or other more detailed description of the
responsive

documents

he

withheld

that

were

related

to

the

allegations in the complaint.
However, modification is warranted regarding the production of
responsive
conclusions,

documents
opinions

that
or

contain
legal

the

mental

theories

of

the

impressions,
plaintiff’s

attorneys or other representatives concerning this litigation.
Under Rule 26(b)(3)(B), Fed.R.Civ.P., the court is required to
protect

against

disclosure

of

opinion

or

core

work

product

contained in any documents the plaintiff has been ordered to
produce in response to defendant’s Request for Production of
Document Nos. 10 and 11.4

Therefore, in response to these two

4

There is a distinction between factual work product and core
work product. If a court determines that a document is attorney
work product, it must next ask whether the document is “factual”
work product, or “core” work product that could reveal an
attorney's mental process or legal strategy, which are entitled to
the highest protection afforded by law. Although factual work
product is subject to disclosure once the required showings are
made, core work product is entitled to more stringent protection.
(continued...)
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document requests, insofar as the plaintiff was ordered to produce
any documents related to allegations in the plaintiff’s complaint,
the plaintiff is not required to disclose, and may redact, the
contents of any document/communication that are not factual work
product and which unequivocally meet the definition of core work
product under Rule 26(b)(3)(B) - i.e., the mental impressions,
conclusions, opinions, or legal theories of a party’s attorney or
other representative concerning the litigation. This clarification
and modification of the discovery ruling addresses the plaintiff’s
concern that the production of documents responsive to Request for
Production Nos. 10 and 11 will cause manifest injustice because it
will reveal the litigation strategy and mental impressions of his
attorneys to opposing counsel.
Accordingly, the Motion for Reconsideration and Clarification
of Ruling filed by plaintiff Michael Swoboda is granted in part.
With regard to the documents the plaintiff has been ordered to
4

(...continued)
If a particular document contains some factual work product and
some core work product, and the requesting party demonstrates
substantial need for the former, the proper course is to order
disclosure of factual content, such as statements of witnesses, but
permit redaction of counsels’ notations that constitute core work
product. See, Lassere v. Carroll, 2014 WL 7139138, *2-5 (E.D.La.
December 15, 2014); Vasquez v. City of New York, 2014 WL 6356941,
*1-2 (S.D.N.Y., 2014); Blockbuster Entm’t Corp. v. McComb Video,
Inc., 145 F.R.D. 402, 403 (M.D.La. 1992); United States v. El Paso
Co., 682 F.2d 530, 542 (5th Cir. 1982); United States v. Nobles,
422 U.S. 225, 238–39 (1975); In re Katrina Canal Breaches Consol.
Litig., 2010 WL 2522968, at *1 (E.D. La. June 14, 2010); Upjohn Co.
v. United States, 449 U.S. 383, 400-01, 101 S.Ct. 677 (1981); Dunn
v. State Farm Fire & Cas. Co., 927 F.2d 869, 875 (5th Cir.1991).
4

produce in response to Request for Production Nos. 10 and 11, the
plaintiff is not required to disclose, and may redact, the contents
of any document/communication that are not factual work product and
which unequivocally meet the definition of core work product under
Rule 26(b)(3)(B).

The remaining aspects of the plaintiff’s motion

are denied.
Baton Rouge, Louisiana, June 16, 2015.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

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