U L Coleman Co Ltd vs. Bossier City-Parish Metropolitan Planning Commission et al

Filing 222

MEMORANDUM ORDER granting in part and denying in part 199 Motion to Set Guidelines for the Deposition of James Hall. Signed by Magistrate Judge Mark L Hornsby on 12/12/11. (crt,Whidden, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION

U. L. COLEMAN CO., LTD, ET AL

CIVIL ACTION NO. 08-cv-2011

VERSUS

JUDGE HICKS

BOSSIER CITY-PARISH METROPOLITAN
PLANNING COMMISSION, ET AL

MAGISTRATE JUDGE HORNSBY

MEMORANDUM ORDER
Introduction
This is a civil rights lawsuit. Plaintiffs allege that Bossier City officials conspired to
torpedo Plaintiffs’ proposed Walker Place development by denying curb cut access to the
Bossier City Parkway. Before the court is Plaintiffs’ Motion to Set Guidelines for the
Deposition of James Hall. Doc. 199. For the reasons that follow, the motion is granted in
part and denied in part.
Mr. Hall is the City Attorney for Bossier City. Plaintiffs argue that Mr. Hall’s client
is the City, not the individual council or board members. Plaintiffs contend that the City’s
privilege must therefore be limited to communications between Mr. Hall and the full City
Council. Plaintiffs also argue (in their reply brief) that the crime-fraud exception to the
privilege is applicable.
Defendants respond that, pursuant to Section 8.01 of the City’s Charter, Mr. Hall
represents the City Council, the individual council members, the Mayor, and all boards and
commissions of City government – including the Metropolitan Planning Commission

(“MPC”). Defendants acknowledge that, to the extent Mr. Hall has personal knowledge
obtained from non-privileged communications, his testimony is not subject to the attorneyclient privilege. Defendants also acknowledge that Mr. Hall’s communications of facts to
the City Council, Mayor, or other City representative, is not immune from discovery.
However, Defendants ask the court to prohibit Plaintiffs from asking any questions that
would call for the disclosure of any communications related to legal advice sought from or
opinions rendered by Mr. Hall.
Analysis
[I]t is now well established that communications between government agencies
and agency counsel are protected by the privilege as long as they are made
confidentially and for the purpose of obtaining legal advice for the agency.
The questions raised, however, are invariably problematic in light of the
principle that the reasons and bases of government actions which affect the
governed should be transparent.

Epstein, The Attorney-Client Privilege and Work-Product Doctrine (ABA 2007), Vol. 1, p.
81. See also Ross v. City of Memphis, 423 F.3d 596, 603 (6th Cir. 2005)(holding that a
municipality can assert the attorney-client privilege in civil proceedings). Non-disclosure
impinges on open government, but public officials are duty-bound to understand and respect
constitutional, judicial, and statutory limitations on their authority; thus, their access to
candid legal advice directly and significantly serves the public interest. In re County of Erie,
473 F.3d 413, 419 (2nd Cir. 2007). See also Wasserman, The Attorney-Client Privilege and
Work Product Immunities in Federal Court Civil Rights Litigation Involving State and Local
Governments, 806 PLI/Lit 855, 911-913 (Oct. 29, 2009)(attorney-client privilege plays a
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vital role in fostering adherence to law and preventing government entities from being
disadvantaged in litigation).
The court is satisfied, after studying Section 8.01 of Bossier City’s Charter, that an
attorney-client relationship exists between the City Attorney and the City, the Mayor, the
City Council, and Bossier City’s duly established boards and commissions. Chase v. City
of Portsmouth, 236 F.R.D. 263, 265 (E.D. Va. 2006)(the identity of who may assert the
privilege and who may waive it is a question of local governmental law). This does not mean
that every conversation Mr. Hall had with every councilman or other city representative
about the proposed Walker Place development is privileged. Plaintiffs’ motion was filed
before the deposition of the City Attorney, so the court is unable to examine the specific
context of any particular communications to determine whether the individual with whom
the City Attorney was communicating was acting as a client in their capacity as a City
employee. Buonauro v. City of Berwyn, 2011 WL 116870 (N.D. Ill. 2011)(“To determine
whether communications were made primarily for the purpose of providing legal services,
the court must consider the context in which they were made.”), modified on reconsideration,
2011 WL 2110133 (N.D. Ill. 2011). The court can say that, as a municipality, Bossier City
may act only through its employees, so these communications may be protected by the
attorney-client privilege. Criswell v. City of O’Fallon, 2008 WL 250199 (E.D. Mo. 2008).
Generally, the conversations will be protected only if they were made (a)
confidentially and (b) for the purpose of obtaining or providing legal advice. The presence
of (or voluntary disclosure to) a third party may constitute a waiver of the privilege. Alldread
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v. City of Grenada, 988 F.2d 1425, 1434 (5th Cir. 1993); Dzierbicki v. Township of Oscoda,
2009 WL 1491116 (E.D. Mich. 2009)(no waiver found where presence of third parties was
necessary to provide information to the attorney to enable him to render legal advice to the
town’s decision makers). Furthermore, the privilege extends only to communications and
not to the underlying facts. Bross v. Chevron, 2009 WL 854446 (W.D. La. 2009); Myers
v. City of Highland Village, 212 F.R.D. 324, 326 (E.D. Tex. 2003). And if Mr. Hall’s advice
pertained to political issues, rather than legal issues, the advice is not privileged. In re
Lindsey, 148 F.3d 1106 (D.C. 1998). Beyond confirmation of these general principles, the
court cannot opine further.
Plaintiffs’ argument that Mr. Hall does not represent the MPC because the MPC was
formed by an Act 189 of the Louisiana Legislature in 1954, rather than the City Charter, is
not persuasive. The MPC was established by Bossier City Ordinance 579 of 1954 (pursuant
to the authority granted by the Louisiana Legislature in Act 189). The court finds that the
MPC is, at least for the purposes of the attorney-client privilege, a “board or commission”
under Section 8.01 of the City’s Charter. Accordingly, the attorney-client privilege may exist
regarding confidential communications between Mr. Hall and the MPC (or its Executive
Director).
Plaintiffs’ argument for application of the crime-fraud exception to the privilege is
also unpersuasive. The showing attempted by Plaintiffs in their reply brief falls far short of
what courts have required before applying that exception. See, e.g., Wood v. Freeman, 854
F.2d 780, 789-790 (5th Cir. 1988); Industrial Clearinghouse v. Browning, 953 F.2d 1004,
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1008 (5th Cir. 1992); Whitney Nat. Bank v. Hachity, 2001 WL 167748 (E.D. La. 2001);
Criswell v. City of O’Fallon, 2008 WL 250199 (E.D. Mo. 2008)(whether the advice of the
City’s attorney was sought in furtherance of the alleged illegal activity required a finding on
the ultimate question in the lawsuit; movant failed to meet its burden of showing the crimefraud exception applied).
THUS DONE AND SIGNED in Shreveport, Louisiana, this 12th day of December,
2011.

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