Chastant v. Prudential Insurance Co of America

Filing 55

MEMORANDUM RULING re 54 Order on Motion to Quash Witness Subpoenas [rec doc 32 and 35]. Signed by Magistrate Judge Patrick J Hanna on 09/08/2011. (crt,Davenport, M)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
LAURIE ANN FUTRAL CHASTANT

CIVIL ACTION NO. 11-CV-626

VERSUS

JUDGE HAIK

PRUDENTIAL INSURANCE CO. OF
AMERICA

MAGISTRATE JUDGE HANNA

MEMORANDUM RULING
This case involves an effort by the widow of Dr. Robert Chastant to collect
death benefits allegedly owed to her as a result of his murder in December of
2010. It is contended by one or more of the defendants that the plaintiff has not
been excluded by law enforcement as a suspect in the murder of her husband, and
therefore, they are unable to determine the proper beneficiary. Before the Court
are two Motions to Quash Witness Subpoenas filed by Sheriff Louis M. Ackal
[Doc. 32 and 35]. The motions arise out of the issuance of two separate
subpoenas to Jerry “Bubba” Savoie, whose real name is Gerald Savoy, to appear
and testify in a deposition. One subpoena was issued by the plaintiff [the subject
of Doc. 32], and the other by the defendant, Paul Chastant, as Trustee on behalf of
Robert B. Chastant D.D.S. Defined Benefit & Profit Sharing Plan [the subject of
Doc. 35]. For the reasons which follow, the motions will be GRANTED.

Factual background
Savoy is the Commander of the Bureau of Investigations of the Iberia Parish
Sheriff’s Office who has overall control of the murder investigation. On June 14,
2011, Ismaeil Viera-Tovar pleaded guilty to the murder of Dr. Chastant in the 16th
Judicial Court for the Parish of Iberia. The parties attempted to depose Viera after
his plea, however, he refused to testify. Therefore, as he is “unavailable,” the
parties wish to depose Captain Savoy and review the investigative file materials to
determine what Viera told the police.1 In particular, the defendant contends he
needs this information in order to oppose a motion for summary judgment filed by
the plaintiff on August 26, 2011 which is currently set for hearing on October 13
before the district court.2
Sheriff Ackal bases the motions on La. R.S. 44:3(A), a provision of the
Louisiana Public Records Act, which exempts from ‘public records’ disclosure
records or information pertaining to pending criminal litigation or any criminal
litigation which can be reasonably anticipated, until such litigation has been

1

The actual subpoenas are not in the record, and it was not clear whether the
deposition notices called for testimony and/or document production. However, at the
evidentiary hearing, the parties indicated they sought the production of statements of
Viera. It was determined that there were no written statements, rather, the documents in
question were summaries prepared by detectives from their interviews of Viera.
2

Doc. 45.
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finally adjudicated or otherwise settled.

In opposition to the motions, the defendant argues that the public records
provision “is inapplicable to the issues before the Court.” 3 Both the plaintiff and
the defendant contend that federal law applies to determine whether the documents
are privileged and that this Court should apply the ten factors found in
Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D. Pa. 1973). According to the
plaintiff, the Court should conduct an in camera inspection of the documents, then
apply the Frankenhauser factors per In re: United States Department of Homeland
Security, 459 F.3d 565, 570 (5th Cir 2006).
Consistent with Louisiana law, the subject motions were set for
evidentiary hearing on September 2, 2011 in which evidence was received in the
form of testimony from Captain Savoy, the minutes and transcript of the change of
plea hearing of Viera, the autopsy report of the decedent, and the Pro Se Verbal of
Viera’s deposition at which Viera refused to testify. In addition, the Court received,
for in camera inspection, the summaries of the interviews of Viera which the
parties wish to have produced and the movant seeks to protect.
According to Savoy, there is an ongoing criminal investigation into the

3

Doc 36, p. 3.
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murder of Dr. Chastant and the information contained in the summaries contains
detailed information that would prejudice the investigation if disclosed. In addition,
investigators are awaiting test results of DNA samples and carpet fiber evidence
that are currently being analyzed at the Crime Lab which, once returned, may lead
to interviews of additional witnesses. The file materials contain other information,
including the location of a witness which, if disclosed, presents a security issue,
detective’s notes, as well as notes of witness interviews, telephone toll information
and a listing of evidence accumulated thus far. Other than in conjunction with the
prosecution of Viera, the case has not been submitted to the Grand Jury, and until
such time as the investigation is complete and the material is turned over to the
District Attorney, Captain Savoy is not in a position to say whether the case ever
will be submitted to the Grand Jury.
Captain Savoy testified that the turnaround for results from the Crime Lab is
difficult to determine given the volume of samples submitted. However, the
evidence was submitted approximately two months ago under a high-priority flag
from his office and “assuming normal circumstances,” he would expect a
turnaround time of two-three months from the date of the hearing.

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Applicable Substantive Law
The examination of the pleadings conducted by the undersigned reveals that,
as conceded by the parties, even though there is a claim brought under ERISA in
this litigation, all of the claims on the merits will be determined by applying state
substantive law as this court’s jurisdiction is based on diversity. 4
Under F.R.E. Rule 501:
[I]n civil actions and proceedings, with respect to an element of a
claim or defense as to which State law supplies the rule of decision,
the privilege of a witness, person, government, State, or political
subdivision thereof shall be determined in accordance with State law.
Since the federal evidentiary rules apply and state law supplies the rule of
decision on all of the underlying claims, the analysis of asserted evidentiary
privileges will be made based on state law. However, the Court finds the result
would be the same under either federal common law or state statutory law.
The Fifth Circuit has specifically clarified the existence of a law enforcement
privilege “beyond that allowed for identities of confidential informants.”5 After
conducting a lengthy jurisprudential analysis, citing Coughlin v. Lee, 946 F.2d

4

The parties agree that even though at least one of claims made in this litigation
involves interpretation of ERISA qualification/disqualification standards, that
interpretation will be made based on state law.
5

In re: United States Department of Homeland Security, 459 F.3d 565, 569 (%th
Cir. 2006).
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1152, 1159-1160 (5th Cir. 1991) the Fifth Circuit instructed the district court to
conduct an in camera review to evaluate whether the law enforcement privilege
applies to the pertinent documents:
In making its determinations, the court must balance ‘the government’s
interest in confidentiality against the litigant’s need for the documents.’
. . . The court, therefore, should consider the Frankenhauser factors.
*

*

*

‘Although a district court has considerable leeway in weighing the
different factors, . . .the failure to balance at all requires remand . . . to
consider the respective interests’ . . . Here, the district court must apply
the Frankenhauser test, even if in a flexible manner, when making its
privilege determinations.
In re United States Department of Homeland Security, 459 F.3d at 569-570,
(citations omitted).
As set forth below, in applying the the Public Records Act exception to
determine whether disclosure should be precluded, the Louisiana Supreme Court
called for the consideration of Frankenhauser-like objective factors in the balancing
process. In re: Matter Under Investigation, 2007-1853 (La. 7/1/09); 15 So.3d 972,
991-993.
The purpose of the Louisiana Public Records Act is to keep the public
reasonably informed, while at the same time balancing the public’s right of access
against the public interest of protecting and preserving the public records from
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unreasonable dangers of loss or damage, or acts detrimental to the integrity of the
public records. The Act sets forth the means by which a person may obtain access
to public records. It also recognizes exceptions which restrict access to some
records. Among the exceptions is La. R.S. 44:3(A)(1), relied upon by the mover in
this case, which provides:
A. Nothing in this Chapter shall be construed to require disclosures of
records, or the information contained therein, held by the offices of the
attorney general, district attorneys, sheriffs, police departments,
Department of Public Safety and Corrections, marshals, investigators,
public health investigators, correctional agencies, communications
districts, intelligence agencies, or publicly owned water districts of the
state, which records are:
(1) Records pertaining to pending criminal litigation or any criminal
litigation which can be reasonably anticipated, until such litigation has
been finally adjudicated or otherwise settled, except as otherwise
provided in Subsection F of this Section; ...
C. Whenever the same is necessary, judicial determination pertaining to
compliance with this section or with constitutional law shall be made
after a contradictory hearing as provided by law. An appeal by the
state or an officer, agency, or department thereof shall be suspensive....
Louisiana courts considering the question have defined “criminal litigation”
to be an adversarial contest begun by formal accusation and waged in judicial
proceedings in the name of the State. Criminal litigation is “pending” when the
formal accusation is instituted either by the district attorney(bill of information) or
by the grand jury(indictment). Nix v. Daniel, 669 So.2d 573, 575(La. App. 1st Cir.

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1996). As there has been no indictment or bill of information filed against anyone
other than the defendant Viera, even though that judgment may not yet be final,
there is arguably no criminal litigation pending. Therefore, the issue is whether
criminal litigation can be reasonably anticipated. The Louisiana Supreme Court
provided explicit guidance in determining this issue:
The generally understood meaning of the term reasonably anticipated is
reasonably foreseen or contemplated. The term reasonably anticipated
does not require a certainty or even a near certainty. Thus, criminal
litigation can be said to be reasonably anticipated when it is reasonably
foreseen or contemplated. The plain language of the statute does not
require a finding that criminal litigation will be pursued or will almost
certainly be pursued for the exemption to apply. Rather, the exemption
applies if it is reasonably foreseen or contemplated, i.e., if it is
reasonably anticipated, that criminal litigation will be brought against
some potential criminal defendant who was part of the investigation.
*

*

*

[T]he determination of whether criminal litigation is reasonably
anticipated within the meaning of La. R.S. 44:3 must be made on a
case-by-case basis in the context of a contradictory hearing wherein the
opportunity to present evidence and cross-examine witnesses is
present. The determination must rest on more than an assertion by the
prosecutorial authority that criminal litigation is or is not reasonably
anticipated. Were the determination based solely on the testimony of
the prosecutor, inconsistencies and caprice could enter the
determination of whether the Public Records Act requires disclosure of
the records at issue. The prosecutorial authority could change its mind,
a new prosecutorial administration could enter office, new evidence
could be discovered, a witness could come forward, or an absconded
defendant could be found. The determination of whether criminal
litigation is reasonably anticipated is subject to factors both within the
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prosecutorial authority's discretion and outside of its control.
We therefore find that a court's determination of whether criminal
litigation is reasonably anticipated pursuant to La. R.S. 44:3(A)(1)
must be guided by objective factors. These factors must serve the dual
purpose of protecting the public's right to know and safeguarding a
prosecutorial authority's ability to preserve the integrity of an
investigatory file when criminal prosecution is reasonably anticipated,
which is the purpose of the limited exemption provided by the statute at
issue. The determination should take into account, among other things
the court finds relevant: whether criminal litigation may still be
initiated given the prescriptive period of the offense to be charged; the
temporal and procedural posture of each case; whether criminal
litigation has been finally adjudicated or otherwise settled; the assertion
of the prosecutorial authority as to its intent or lack thereof to initiate
criminal litigation; whether the prosecutorial authority has taken
objective, positive and verifiable steps to preserve its ability to initiate
criminal litigation, including, but not limited to, preserving evidence,
maintaining contact with witnesses, and continuing an investigation;
the time it would take to appropriately investigate and try an offense;
the prosecutor's inherent authority to determine whom, when and how
he will prosecute, La.C.Cr.P. art. 61; the severity of the crime; the
availability of witnesses, victims and defendants; the spoilation of
evidence; the reasonable likelihood that a missing witness or an
absconded defendant might be found; and the reasonable likelihood
that additional witnesses might be willing to come forward with the
passage of time. As always, the burden of proving that the record is not
subject to inspection, copying, or reproduction by a member of the
public rests with the custodian. La. R.S. 44:31(3).
In re: Matter Under Investigation, 2007-1853 (La. 7/1/09); 15 So.3d 972, 991-993.
Under federal common law, the Frankenhauser analysis calls for the court to
weigh ten factors:
(1) the extent to which disclosure will thwart governmental processes by
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discouraging citizens from giving the government information; (2) the
impact upon persons who have given information of having their
identities disclosed; (3) the degree to which governmental selfevaluation and consequent program improvement will be chilled by
disclosure; (4) whether the information sought is factual data or
evaluative summary; (5) whether the party seeking discovery is an
actual or potential defendant in any criminal proceeding either pending
or reasonably likely to follow from the incident in question; (6) whether
the police investigation has been completed; (7) whether any
interdepartmental disciplinary proceedings have arisen or may arise
from the investigation; (8) whether the plaintiff's suit is non-frivolous
and brought in good faith; (9) whether the information sought is
available through other discovery or from other sources; (10) the
importance of the information sought to the plaintiff's case.
In re: U.S. Department of Homeland Security, 459 F.3d 570.
Analysis
The Court finds, by applying the factors required by the Louisiana Supreme
Court, there is criminal litigation that is “reasonably anticipated” under the Louisiana
statute. Further, the Court finds that the exemption to disclosure under the Public
Records Act is applicable to bar the discovery sought at this stage of this litigation.
The criminal investigation by the Sheriff’s Office is and has been quite active
over the last nine months and may come to a fairly prompt conclusion one way or the
other once the DNA/carpet fiber analysis results are received from the Crime Lab.
The sheriff’s office has requested the analysis be given priority treatment and the
period to await the results could be as little as 60 to 90 days.

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The decedent was murdered in a highly publicized incident nine months ago.
The law enforcement authorities have not concluded that Viera, who pleaded guilty
to the murder, acted alone. They have continued to conduct their investigation in a
manner that reasonably advances the investigation by identifying witnesses,
obtaining telephone toll records, conducting interviews and obtaining DNA/carpet
fiber samples which have been submitted for analysis. In short, the investigation
continues to proceed to the point it can be submitted to the district attorney for
determination of whether to bring the case to the Grand Jury. However, it has not yet
reached that point due to the delay in obtaining the results from the Crime Lab.
The delay in payment of insurance benefits may be understandably difficult on
the plaintiff, and the defendant is in a position that it cannot reasonably oppose the
pending motion for summary judgment on the merits because the law enforcement
authority is in possession of the information the defendant needs and Mr. Viera is not
willing to testify. There can be little dispute the information sought is important and
cannot be discovered from other sources at this point.
However the fact remains that there is an ongoing, active, murder
investigation and the plaintiff has not been eliminated as a suspect. There are
witnesses whose identity, location and statements need to be protected until, at a
minimum, the DNA/carpet fiber analysis results come back. The statement
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summaries from interviews of Viera are of such detail that disclosure at this stage
could undermine the investigation. In addition, the files contain both factual data and
evaluative summaries along with other evidence, which if disclosed prior to the
completion of the investigation, could also undermine the investigatory process.
Under federal common law, Frankenhauser factors 1, 2, 4, 5, and 6, as set
forth in the above analysis, militate strongly in favor of protecting the information
from disclosure at this time. Factors 3 and 7 are not applicable. Factors 8, 9 and 10
weigh in favor of allowing the discovery.
There is no evidence of unreasonable delay, lack of purpose or any ulterior
motive to protect the information this Court finds relevant from disclosure other
than to protect the integrity of the investigation. The Court finds that the factors,
when balanced between the public’s right to know, including Mrs. Chastant, and the
prosecuting authority’s ability to preserve the integrity of the investigation, weigh
strongly in favor of delaying this discovery under either federal or state law.
However, the delay is not indefinite, since by its nature the privilege expires upon
the lapse of an unreasonable period of time. Brown v. Thompson, 430 F. 2d 1214,
1215(5th Cir. 1970).
Counsel for the sheriff agreed that, at such time as the DNA/carpet fiber
evidence came back and the district attorney made a decision whether to bring the
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case to the grand jury, there would be no problem with the deposition going forward,
and therefore, production of the statement summaries of Viera. The district attorney
may have a different view, however, and therefore, the Court will order that, no
earlier than 90 days from the date of this Court’s order, if the deposition has not gone
forward and/or the requested information has not been produced voluntarily, counsel
for the movants may re-urge their request for the discovery sought.
Conclusion
The court finds that the motions to quash are well grounded by applying the
factors required under either the Louisana Public Records Act or federal common
law. However, the Court also finds that the plaintiff and defendant may be entitled
to the information at a later point in time, i.e. when the laboratory results are returned
to the investigating authority and a decision is made whether to present the case to
the Grand Jury. Therefore, the Court will allow the parties to re-urge their request for
the discovery sought if the same has not been provided voluntarily within ninety
days of this Court’s order. If the prosecuting authority still has a basis for protecting
the information from disclosure at that time, it may seek relief from the court.
Signed at Lafayette, Louisiana this 8th day of September, 2011.

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