Loupe v. O'Bannon et al

Filing 50

ORDER denying 46 Motion to Quash. Status Report due 1/10/2017. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 12/19/2016. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

KRISTIN LOUPE

CIVIL ACTION

VERSUS
NO. 14-573-BAJ-RLB
ROBIN O’BANNON, ET AL.
ORDER
Before the Court is Plaintiff’s Motion to Quash. (R. Doc. 46). The motion is opposed.
(R. Doc. 48). Oral argument was held on December 12, 2016. (R. Doc. 49).
I.

Background
Kristin Loupe (“Plaintiff”) commenced the instant action on September 11, 2014, against

Assistant District Attorney Robin O’Bannon (“O’Bannon”) and other defendants, seeking
damages for injuries allegedly associated with prosecutorial and law enforcement abuse that led
to a deprivation of Plaintiff’s constitutionally protected rights. (R. Doc. 1).
Plaintiff’s Amended Complaint alleges that Plaintiff was called to testify as a witness on
January 24, 2014, at a bond hearing in the Honorable Alvin Turner’s courtroom in Ascension
Parish. (Doc. 20, “Am. Compl.” at ¶ 2). The hearing was held to determine the appropriate bond
for David Adams, Jr., Plaintiff’s boyfriend, following a report of a domestic dispute. (Am.
Compl. at ¶ 2.). While testifying, Plaintiff was unable to recall the details of the domestic event,
but acknowledged that Adams hurt her arm during the incident. (Am. Compl. at ¶ 4).
Plaintiff alleges that O’Bannon became angry as a result of Plaintiff’s refusal to testify
that Adams hit her in the face, and requested that Judge Turner have Plaintiff arrested. (Am.
Compl., ¶¶ 5-6).1 Plaintiff asserts that Judge Turner refused O’Bannon’s request. (Am. Compl.,
1

As set forth below, O’Bannon disputes that these events occurred as alleged.

¶ 6). Thereafter, Sheriff’s Deputy Blake Prejean was called to testify, and stated under oath that
Plaintiff did not report that she was hit in the face. (Am. Compl., ¶ 7). Plaintiff alleges that
O’Bannon then ordered Plaintiff to be arrested for filing a false police report despite “a complete
lack of evidence and any proable cause that the Plaintiff had committed a crime.” (Am. Compl.,
¶ 8). Plaintiff asserts that O’Bannon acted with deliberate malice to exact revenge when she
could not elicit favorable testimony. (Am. Compl., ¶ 8).
The Ascension Parish District Attorney’s Office prosecuted Plaintiff for criminal
mischief and filing a false police report. (Am. Compl., ¶¶ 17-20). Ultimately, Plaintiff was
found not guilty of the charges. (Am. Compl., ¶ 21).
On November 4, 2016, O’Bannon’s counsel issued subpoenas to the Livingston Parish
Detention Center and the Ascension Parish Jail for all incoming and outgoing phone call
recordings, and any transcription of those recorded calls, made by or made to David Adams . . .
from October 18, 2013 and the present. (R. Doc. 46-3; R. Doc. 46-4).
On November 18, 2016, O’Bannon’s counsel issued a subpoena to the Livingston Parish
Detention Center for all phone call recordings, and any transcription of those recorded calls,
made by David Adams to any of seven listed phone numbers between October 18, 2013 and
February 21, 2014. (R. Doc. 46-5). Plaintiff represents that the seven listed telephone numbers
belong to Plaintiff and David Adam’s father, mother, grandfather, and grandmother. (R. Doc. 461 at 3).
Plaintiff filed her motion on October 23, 2016, seeking an order quashing the foregoing
subpoenas. (R. Doc. 46).

2

II.

Law and Analysis
Plaintiff seeks an order quashing the Rule 45 subpoenas issued by O’Bannon. Because

the subpoenas seeks compliance in New Orleans, Louisiana, the U.S. District Court for the
Eastern District of Louisiana is the appropriate court to seek relief pursuant to Rule 45. See Fed.
R. Civ. P. 45(d)(3). Accordingly, Plaintiff’s motion is denied to the extent it seeks a ruling
pursuant to Rule 45.2
That said, “any person from whom discovery is sought may move for a protective order
in the court where the action is pending . . . to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). Accordingly,
the Court will construe the instant motion as seeking a protective order pursuant to Rule 26(c)(1)
and will, as the court where the action is pending, consider the motion on its merits.
Rule 26(c)’s “good cause” requirement provides that the party seeking a protective order
has the burden “to show the necessity of its issuance, which contemplates a particular and
specific demonstration of fact as distinguished from stereotyped and conclusory statements.” In
re Terra Int'l, Inc., 134 F.3d 302, 306 (5th Cir. 1998) (quoting United States v. Garrett, 571 F.2d
1323, 1326 n.3 (5th Cir. 1978)).
Here, Plaintiff argues that the subpoenas “are not reasonably calculated to lead to the
discovery of admissible evidence and were issued for an improper purpose.” (R. Doc. 46-1 at 1).
More specifically, Plaintiff argues that the only information relevant to her claims of arrest
without probable cause and retaliation for exercising her First Amendment rights, as well as any
related defenses, “is what was said by the witnesses at the hearing, which was transcribed by a
court reporter, and the parties’ actions at the hearing.” (R. Doc. 46-1 at 4). Plaintiff argues that
The Court need not reach O’Bannon’s additional arguments regarding Plaintiff’s standing pursuant to
Rule 45 and other procedural defects with regard to the instant motion as brought pursuant to Rule 45.
2

3

any “after-acquired evidence to establish probable cause or justify [O’Bannon’s] actions at the
hearing” will be inadmissible because probable cause is determined at the time of arrest. (R. Doc.
46-1 at 4). Plaintiff further argues that O’Bannon has issued the subpoenas for the improper
purpose of obtaining information to execute a personal vendetta against Plaintiff. (R. Doc. 46-1
at 5).
O’Bannon opposes the issuance of a protective order on the basis that many of the sought
telephone calls and recordings constitute public records and David Adams had no expectation of
privacy while in prison. O’Bannon also notes that copies of calls involving David Adams while
incarcerated from October 18, 2013 through December 8, 2015 were entered into the public
record as exhibits. (R. Doc. 48-2 at 5). These calls are already in O’Bannon’s possession.
O’Bannon also denies that she requested Judge Turner to order the arrest of Plaintiff or
otherwise ordered the arrest of Plaintiff, claiming that the arresting officer made his own
probable cause determination. (R. Doc. 48 at 3). Based on the foregoing, O’Bannon argues that
the information sought is relevant to the identification of other witnesses, as well as Plaintiff’s
credibility and motive. (R. Doc. 48 at 8-9). Excerpts from the phone records in O’Bannon’s
possession indicate that the additional phone records may contain information relevant to these
issues. (R. Doc. 48 at 9-10). In particular, at oral argument, the parties acknowledged that
Plaintiff would be a witness in this matter. The calls involving Plaintiff reveal a bias directed
toward O’Bannon that is appropriate to explore through discovery and likely cross examination
at trial. Other calls involving third parties reflect personal knowledge about the events in
question and the credibility and/or veracity of Plaintiff’s version of events.
At oral argument, O’Bannon’s counsel agreed to provide to plaintiff’s counsel all
telephone recordings and transcripts in his possession, custody, or control, that fall within the

4

scope of the subpoenas at issue on or before December 16, 2016. (R. Doc. 49). In addition,
O’Bannon’s counsel agreed to withdraw the November 4, 2016 subpoena to the Livingston
Parish Detention Center (R. Doc. 46-3) in light of the subsequent November 18, 2016 subpoena
to the Livingston Parish Detention Center (R. Doc. 46-5). Finally, O’Bannon’s counsel agreed to
limit the scope of the November 4, 2016 subpoena to the Ascension Parish Jail (R. Doc. 46-4) to
the seven listed phone numbers found in the subsequent November 18, 2016 subpoena to the
Livingston Parish Detention Center (R. Doc. 46-5). O’Bannon’s counsel noted, however, that he
was uncertain whether the Ascension Parish Jail had the technological capacity to separate
recordings and transcripts of phone calls by telephone number.
Having considered the record and the arguments of the parties, as well as the foregoing
limitations to the subpoenas agreed to by O’Bannon’s counsel, the Court concludes that Plaintiff
has not demonstrated good cause for the issuance of a protective order that would result in
effectively quashing the Rule 45 subpoenas. The subpoenas seek information within the scope
of discovery.3 Plaintiff has not provided particular and specific demonstrations of fact indicating
that an order precluding compliance with the Rule 45 subpoenas is required to protect her from
annoyance, embarrassment, oppression, or undue burden or expense.
Nevertheless, as discussed at oral argument, the Court finds it prudent to provide counsel
the opportunity to review any telephone recordings and transcripts produced in response to the

“Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain
discovery regarding any non-privileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the importance of the issues at stake in the action, the
amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible
in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1).
3

5

subpoenas for sensitive and/or confidential information prior to providing such information to
their clients.
III.

Conclusion
For the foregoing reasons,
IT IS ORDERED that Plaintiff’s Motion (R. Doc. 46) is DENIED.
IT IS FURTHER ORDERED that O’Bannon’s counsel shall provide a copy of this

Order, as well as both subpoenas that remain at issue (R. Doc. 46-5; R. Doc. 46-4), to Livingston
Parish Detention Center and Ascension Parish Jail.
IT IS FURTHER ORDERED that Livingston Parish Detention Center shall provide
responses to the subpoena issued on November 18, 2016 (R. Doc. 46-5) to O’Bannon’s counsel
on or before January 6, 2017, unless otherwise agreed upon by the parties.
IT IS FURTHER ORDERED that Ascension Parish Jail shall provide responses to the
subpoena issued on November 4, 2016 (R. Doc. 46-4) to O’Bannon’s counsel on or before
January 6, 2017, unless otherwise agreed upon by the parties. If technologically feasible
without imposing an undue burden on Ascension Parish Jail, it shall only produce telephone
recordings and transcriptions limited to the telephone numbers listed in the attachment to the
November 18, 2016 subpoena to Livingston Parish Detention Center. (R. Doc. 46-5 at 4).
IT IS FURTHER ORDERED that on January 10, 2017, O’Bannon’s counsel shall file
a status report into the record indicating what documents have been provided and/or indicate
when the parties have agreed on production to take place.
IT IS FURTHER ORDERED O’Bannon’s counsel shall provide copies of any and all
responses to the subpoenas to Plaintiff’s counsel within 3 business days of his receipt of such
documents.

6

IT IS FURTHER ORDERED that for a period of 14 days after Plaintiff’s counsel’s
receipt of such documents, these materials are designated attorney’s eyes/ears only. On or before
the conclusion of that time period, counsel are directed to confer regarding the nature of the
content of these communications, whether any protective order should be issued regarding those
conversations (particularly those involving only non-parties or those that the parties agree are
beyond the scope of relevant or admissible evidence). During this 14 day period, neither counsel
shall provide or otherwise disclose the content of the phone recordings and/or transcripts to their
clients or any other individual outside of their respective law firms. Should there be any dispute
about the use of this information that requires court resolution, these foregoing limitations shall
continue pending such resolution.
Signed in Baton Rouge, Louisiana, on December 19, 2016.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

7