White Marlin Open, Inc. v. Heasley et al

Filing 94

MEMORANDUM ORDER DENYING 80 Motion for Protective Order on Post-Complaint Polygraph Information (Non-Testifying Experts) as therein set forth. Signed by Judge Richard D. Bennett on 3/29/2017. (hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
WHITE MARLIN OPEN, INC., et al.,
Plaintiffs,

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Defendant.
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Civil Action No.: RDB-16-3105

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PHILLIP G. HEASLEY,

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v.

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MEMORANDUM ORDER
This Memorandum Order recapitulates the results of the Motions Hearing conducted
on March 29, 2017 to address defendant Philip G. Heasley’s (“Heasley”) Motion for
Protective Order (“Heasley’s Motion”) (ECF No. 80). For the reasons stated on the record
and as set forth below, Heasley’s Motion is DENIED.
On February 23, 2017, the parties advised this Court that a discovery dispute had
arisen among them with respect to defendant Heasley’s refusal to respond to deposition
questions and written discovery requests regarding “whether Heasley, Morris, Bohannon or
Hagen 1 took polygraphs subsequent to the ones administered on August 21, 2016” by the
White Marlin Open (“WMO”). (ECF No. 76) (emphasis in original.) See also ECF Nos. 75,
77.

At the time, Heasley asserted that the very fact of whether he or his shipmates

underwent any post-complaint polygraphs was privileged, both as attorney-client
communications and as attorney work product. (ECF No. 77.)
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The four anglers on board the vessel Kallianassa during the 43rd Annual White Marlin Open in August 2016.
See ECF No. 70 at 3.

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During an off-the-record teleconference with this Court conducted on February 27,
2017, counsel for Heasley conceded that information regarding any post-complaint
polygraphs which Heasley and his shipmates was not subject to the attorney client privilege,
but maintained that this information and any related materials are privileged as attorney work
product. See ECF No. 79. This Court then issued an expedited briefing schedule to allow
the parties to set forth fully their positions on this matter. (Id.) Pursuant to that schedule,
Heasley’s opening brief was due on March 8, 2017, WMO’s response in opposition was due
on March 15, 2017, and Heasley’s reply was due on March 20, 2017. (Id.)
On March 8, 2017, Heasley filed his Motion for Protective Order on Post-Complaint
Polygraph Information. (ECF No. 80.) In his Motion, Heasley expanded upon his prior
arguments, including his contention that he was not required to produce even a privilege log
describing his assertion of privilege. (Id.) Among its arguments in opposition to Heasley’s
Motion, WMO asserted that the fact of whether Heasley or the crew took subsequent
polygraphs was not work product and that it was relevant, among other purposes, to
determine if Heasley sought to avail himself of his rights under the Tournament Rules to
take a polygraph of his own within ten days of his earlier, allegedly failed polygraphs. (ECF
No. 81 at 3-4.) WMO further asserted that even if the polygraphs were privileged work
product, Heasley should be required to produce a privilege log stating “(1) whether he or any
crew member took a subsequent polygraph, (2) when and where that polygraph was
administered, (3) by whom it was administered, (4) who first consulted the examiner and
when, (5) who hired the examiner, and (6) the purpose of the examination.” (Id. at 7.)
A hearing was scheduled for March 29, 2017 to address Heasley’s Motion. (Via email
to counsel.) Prior to the hearing, on March 27, 2017, counsel for plaintiffs Kostzyu and
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Hutchison notified the Court via email that a new discovery dispute had arisen among the
parties. Consistent with this Court’s procedure regarding discovery disputes, the parties
were directed to file two-page letters outlining their respective positions. (Via email to
counsel.) The parties filed their letters on March 28, 2017. (ECF Nos. 89, 90, 91.)
In their letters, plaintiffs WMO, Kosztyu, and Hutchison stated that on March 23,
2017, Heasley produced a “purported supplemental expert disclosure, naming an entirely
new expert witness—an additional polygraph examiner named John Palmatier.” (ECF No.
89.) WMO explained that “Dr. Palmatier’s opinions relate to an entirely new subject
matter—polygraph examinations taken by Mr. Heasley and Mr. Bohannon on March
16, 2017, and a polygraph examination taken by Mr. Hagen on March 18, 2017.” (Id.)
(emphasis added.) Plaintiffs sought to exclude or strike any testimony and/or report offered
by Dr. Palmatier as untimely pursuant to this Court’s Scheduling Order (ECF Nos. 51, 79)
and Rules 26 and 37 of the Federal Rules of Civil Procedure. 2 (Id.) Plaintiffs also noted that
the opinions offered by Dr. Palmatier are “contrary to the opinions offered by Dr. Iacono,
one of Heasley’s original experts,” who previously opined that “Heasley and the crew ‘would
not be expected to produce valid polygraph tests if they were ever retested.’” (Id.)
On March 29, 2017, this Court conducted a hearing to address Heasley’s Motion and
plaintiffs’ Motions in limine. (ECF No. 92.) Having heard the arguments of counsel and for
the reasons stated on the record, this Court concluded that Heasley’s Motion would be
denied because the facts of whether, when, where, and by whom Heasley and the crew
underwent post-complaint polygraph examinations were not privileged fact work product.
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As set forth on the record, this Court construes plaintiffs’ motions (ECF Nos. 89, 90) as Motions in limine
and/or for discovery sanctions pursuant to Rule 37. Heasley has been accorded ample opportunity to
respond to plaintiffs’ motions, both through his responsive letter (ECF No. 91) and during the March 29,
2017 hearing. No further briefing on this matter will be entertained.

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Specifically, this Court noted that it was not clear whether any post-complaint polygraphs
were taken “in anticipation of litigation,” as they may have been taken as part of Heasley’s
efforts to avail himself of the WMO Tournament Rules. Even more importantly, this Court
stated that Heasley failed to demonstrate that the facts of whether, when, where, and by
whom Heasley and the crew underwent post-complaint polygraph examinations involved
“the mental impressions, conclusions, opinions, or legal theories concerning the litigation,”
and are, as a threshold matter, not privileged. See generally Nat’l Union Fire Ins. Co. of Pittsburgh,
Pa. v. Murray Sheet Metal Co., 967 F.2d 980, 984–85 (4th Cir. 1992). Indeed, this Court
concluded that Heasley was required to produce this information pursuant to Federal Rule
26(b)(5)(A)(ii). 3
Moreover, this Court noted that even if this information were privileged fact work
product, Heasley unequivocally waived this privilege by attempting to make testimonial use
of related work product material—that is, through his March 23, 2017 production of the
Palmatier polygraph examinations of Heasley, Bohannon, and Hagen. 4 See Nutramax Labs.,
Inc. v. Twin Labs. Inc., 183 F.R.D. 458, 463 (D. Md. 1998) (Grimm, J.) (citing United States v.
Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975) for the proposition that where
“counsel attempts to make a testimonial use of [work product information] the normal rules
of evidence come into play with respect to cross-examination and production of the
documents.”) See also Black & Decker Corp. v. United States, 219 F.R.D. 87, 92 (D. Md. 2003)

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Heasley is not required to disclose at this point the contents of any post-complaint polygraph examinations,
but plaintiffs may be entitled to any fact work product contained therein on a showing of substantial need. If
appropriate, plaintiffs may raise this matter with the Court in the future.

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As noted on the record, the fact that Heasley would produce to plaintiffs the results of a post-complaint
polygraph examination only three days after filing a reply brief seeking to exclude precisely such information
is logically inconsistent and reflects a complete reversal on the part of Heasley.

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(“[T]he waiver of fact attorney work product may extend to all fact work product of the
same subject matter…”). 5
Finally, this Court heard argument from counsel on plaintiffs’ Motions in limine
related to Heasley’s untimely disclosure of Dr. Palmatier, but ultimately withheld judgment
on this issue. (ECF Nos. 89, 90.) To assist this Court’s assessment, Heasley agreed to
produce for in camera review copies of the video evidence of Dr. Palmatier’s polygraph
examinations of Heasley and the shipmates.
Accordingly, for the reasons stated on the record and as clarified above, it is this 29th
day of March, 2017, hereby ORDERED that:
1. Defendant Heasley’s Motion for Protective Order (ECF No. 80) is DENIED;
2. Within seven (7) days of this Order, Heasley SHALL PRODUCE to plaintiffs the
following information in response to plaintiffs’ written discovery requests:
a. Whether Heasley or any crew member underwent polygraph examinations
subsequent to August 23, 2016;
b. When those polygraphs were administered;
c. Where those polygraphs were administered;
d. By whom those polygraphs were administered;
3. Heasley SHALL PRODUCE for in camera review copies of the video evidence of
Dr. Palmatier’s polygraph examinations of Heasley and the shipmates;
4. Barring a subsequent Order of this Court, no further briefing on plaintiff’s
Motions in limine (ECF Nos. 89, 90) will be entertained.
________/s/____________
Richard D. Bennett
United States District Judge

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In light of this ruling and pending Heasley’s forthcoming disclosures, this Court did not reach the question
of whether plaintiffs had demonstrated “substantial need” for the purportedly privileged fact work product—
another basis on which plaintiffs might overcome Heasley’s assertion of privilege. See Fed. R. Civ. P.
26(b)(3)(A). See Sher v. Barclays Capital Inc., ELH-TJS-11-1982, 2013 WL 3279801, at *4 (D. Md. June 26,
2013).

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