Johnson v. Holliday et al

Filing 123

ORDER: Defendants Motion to Compel 108 is GRANTED to the extent it seeks an order requiring Plaintiff to supplement his responses to Request for Production No. 7 and No. 10. Plaintiff must provide a supplemental production and/or privilege log on or before February 17, 2017. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 02/06/2017. (ELW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
TONY JOHNSON (#295222)

CIVIL ACTION

VERSUS

NO. 15-38-JWD-RLB

TYLER HOLLIDAY, ET AL.
ORDER
Before the Court is Defendants’ Motion to Compel (R. Doc. 108) filed on December 15,
2016. The deadline to file an opposition has expired. LR 7(f). Accordingly, the Motion is
unopposed.
I.

Background
Defendants seek an order requiring supplemental responses to Defendant’s Second Set of

Requests for Production of Documents Numbers 7 and 10 served on April 7, 2016.1 Request for
Production Number 7 requests any documents produced by Plaintiff or on his behalf from
January of 2013 through June of 2015 pertaining to the alleged sexual assaults. (R. Doc. 108-2 at
5). On May 17, 2016, Plaintiff provided certain documents in response, but withheld other
documents subject to the attorney-client privilege and work product doctrine. (R. Doc. 108-3).
Request for Production Number 10 similarly requests the production of all documents,
including any audio or video recordings, provided to or received by any third party to the action
that relates to the allegations or claims in the action. (R. Doc. 108-2 at 6). On May 17, 2016,
Plaintiff provided certain documents that he provided to third party experts, further stating that

Defendants’ motion states that the “specific discovery requests pertinent to this instant dispute are:
Request for Production No. 7 and Request for Production No. 9 which will be reproduced below in
following sections along with plaintiff’s responses to same.” (R. Doc. 108-1 at 2). The motion then
provides the text for Request for Productions No. 7 and No. 10, and the responses to those requests. (R.
Doc. 108-1 at 5-6).
1

he “has received no items from any third party beyond those already produced in discovery.” (R.
Doc. 108-3 at 4).
Defendants then reviewed recorded conservations between Plaintiff and a third party,
Evonne Macera. (R. Doc. 108-1 at 2). Defendants represent that Plaintiff stated in these
recorded conversations that Ms. Macera should receive a copy of all documents from Plaintiff’s
counsel as requested by Plaintiff to his counsel. (R. Doc. 108-1 at 2).
On September 23, 2016, Defendants requested production of all documents, including
video or audio recordings, produced to Ms. Macera by Plaintiff or Plaintiff’s counsel, as well as
the substance of any conversation between Ms. Macera and Plaintiff or Plaintiff’s counsel related
to the lawsuit. (R. Doc. 108-5).
On October 7, 2016, Plaintiff’s counsel provided “all letters sent to Ms. Macera from Mr.
Long’s office” and further stated that Plaintiff’s counsel would “ensure that he has disclosed all
responsive communications.” (R. Doc. 108-6 at 1).2
On October 17, 2016, Plaintiff supplemented his response to Request for Production No.
10 by providing recordings obtained from the West Feliciana Parish Office and again identifying
the documents sent to Ms. Macera from Mr. Long’s office. (R. Doc. 108-4 at 4). Plaintiff’s
counsel also sent an e-mail verifying that based on the records at Mr. Long’s office, the extent of
items sent to Ms. Macera has been produced regardless of whether Plaintiff “wished for Ms.
Macera to receive a copy of all documents set to [Plaintiff].” (R. Doc. 108-11 at 2). The email
also verifies that no additional documents had been sent to Ms. Macera from any of Plaintiff’s
counsel other than Mr. Long. (R. Doc. 108-11 at 2).

Defendants attached copies of the letters sent to Ms. Macera from Mr. Long’s office to their motion. (R.
Docs. 108-7, 108-8, 108-9, 108-10).
2

2

On December 2, 2016, defense counsel requested, in addition to reasserting the foregoing
request for supplementation, “the document or correspondence from Plaintiff to Mr. Long that
Plaintiff references in the phone call to Ms. Macera on June 20, 2014 wherein Plaintiff states that
he sent a letter to Mr. Long specifically requesting for Mr. Long to send Ms. Macera copies of
everything that is sent to Plaintiff.” (R. Doc. 108-12 at 2). Plaintiff’s counsel responded that the
“fact that Mr. Johnson may have wanted Mr. Long to break privilege by sharing certain letters
does not mean Mr. Long did so” and “[a]bsent actual evidence of an actual disclosure of
privileged communication, this is a fishing expedition.” (R. Doc. 108-12 at 1).
At some point, Defendants issued a Rule 45 subpoena to Ms. Macera. Defendants do not
submit a copy of the subpoena with their motion, but indicate that it requested “any documents
sent to her by plaintiff or plaintiff’s counsel.” (R. Doc. 108-1 at 3). Defendants further represent
that Ms. Macera “produced several documents that she had received from plaintiff or plaintiff’s
counsel to defendants which were not previously identified or produced by plaintiff as having
been sent to Ms. Macera.” (R. Doc. 108-1 at 3; see R. Docs. 108-13, 108-14, and 108-15).
Defendants also submit a copy of Plaintiff’s privilege log, which indicates that various
correspondence sent from Mr. Long to Plaintiff while he was incarcerated were withheld on the
basis of attorney-client privilege and the work product doctrine. (R. Doc. 108-16).
II.

Law and Analysis
“Unless otherwise limited by court order, the scope of discovery is as follows: Parties

may obtain discovery regarding any nonprivileged 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

3

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).
There is no dispute that some information covered by Defendants’ Request for
Production Numbers 7 and 10 would fall within the scope of discovery. The only objection
made by Plaintiff was lodged with regard to Request for Production Number 7 to the extent it
seeks information that is subject to the attorney-client privilege and work product doctrine.
Defendants have obtained from a third party, Ms. Macera, at least one attorney-client
communication between Plaintiff and his counsel, Mr. Long, that would qualify for the attorneyclient privilege if confidentiality were maintained.3 The attorney-client privilege, however, was
waived when the document was provided to Ms. Macera. See Nguyen v. Excel Corp., 197 F.3d
200, 207 (5th Cir. 1999) (“When relayed to a third party that is not rendering legal services on
the client's behalf, a communication is no longer confidential, and thus it falls outside of the
reaches of the privilege.”); Indus. Clearinghouse, Inc. v. Browning Mfg. Div. of Emerson Elec.
Co., 953 F.2d 1004, 1007 (5th Cir. 1992) (“The privilege protects only confidential
communications. . . .”); United States v. El Paso Co., 682 F.2d 530, 539 (5th Cir. 1982) (“To
retain the attorney-client privilege, the confidentiality surrounding the communications made in
that relationship must be preserved.”).4

This letter is dated July 9, 2014. (R. Doc. 108-13). Plaintiff’s privilege log does not identify any
documents withheld on the basis of attorney-client privilege or work product on this date. (R. Doc. 10816).
4
Defendants argue that the disclosure of attorney-client communications to Ms. Macera constitutes an atissue waiver of all information withheld on the basis of attorney-client privilege and/or work product. See
Fed. R. Evid. 502(a) (“When the disclosure is made in a federal proceeding . . . and waives the attorneyclient privilege or work-product protection, the waiver extends to an undisclosed communication or
information in a federal or state proceeding only if: (1) the waiver is intentional; (2) the disclosed and
undisclosed communications or information concern the same subject matter; and (3) they ought in
fairness to be considered together.”). Given the briefing before the Court, the Court will first require
3

4

In light of the documents obtained by Defendants through the subpoena of Ms. Macera,
the Court will grant the instant motion to the extent it seeks an order requiring Plaintiff to
supplement his responses to Request for Production No. 7 and No. 10 and/or produce a
supplemental privilege log.
III.

Conclusion
Based on the foregoing,
IT IS ORDERED that Defendant’s Motion to Compel (R. Doc. 108) is GRANTED to

the extent it seeks an order requiring Plaintiff to supplement his responses to Request for
Production No. 7 and No. 10.
IT IS FURTHER ORDERED that Plaintiff must provide a supplemental production
and/or privilege log on or before February 17, 2017. Plaintiff must produce and/or supplement
the privilege log to identify any attorney-client communications being withheld that were
disclosed to Ms. Macera and are otherwise responsive to Request for Production No. 7 and No.
10. Nothing in this Order shall preclude Plaintiff from supplementing his responses as allowed
pursuant to Rule 26(b)(5)(A) of the Federal Rules of Civil Procedure. Following that
supplemental production, if Defendant has a good faith basis to believe that some additional,
relevant, discoverable information is being improperly withheld, Defendant may re-urge its
motion within 7 days of any supplemental production and following a Rule 37 conference.
Signed in Baton Rouge, Louisiana, on February 6, 2017.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE
Plaintiff to supplement his responses to Request for Production No. 7 and No. 10 to the extent he has
withheld and/or failed to identify any responsive documents. The Court will then determine, if necessary,
the extent of any waiver of the attorney-client privilege if an appropriate motion is filed. The Court does
not determine at this time whether any documents provided to Ms. Macera by Plaintiff’s counsel are
responsive to Request for Production No. 7 and No. 10 or otherwise fall within the scope of discovery.

5