Ortiz v. Roche et al

Filing 99

Magistrate Judge Katherine A. Robertson: MEMORANDUM AND ORDER entered. Plaintiffs Motion is DENIED IN PART and otherwise GRANTED consistent with the terms of this Opinion. The Motion is DENIED insomuch as the Defendants' may take deposition t estimony from Mr. Rand about facts that he learned as a result of his investigation in the instant case. They also may take testimony from him about the circumstances surrounding Mr. Coffeys statement, including how it came to be obtained, at whose direction it was obtained, and the manner in which it was obtained, including any written or oral communications between Mr. Rand and Mr. Pineiro with respect to Mr. Coffeys statement. Finally, the Defendants' are entitled to ask Mr. Rand about any oral communications he had with Mr. Pineiro during their October 19, 2016 meeting with Mr. Coffey. In all other respects, the Motion is GRANTED. (Finn, Mary)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JOSE L. ORTIZ,
Plaintiff,
v.
THE CITY OF WORCESTER, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

No. 4:15-cv-40037-TSH

MEMORANDUM AND ORDER ON JOINT MOTION BY PLAINTIFF AND HIS
PRIVATE INVESTIGATOR TO QUASH SUBPOENA FOR THE
INVESTIGATOR’S TESTIMONY AND FOR PROTECTIVE ORDER
(Dkt. No. 64)
I.

RELEVANT BACKGROUND

In this case, plaintiff Jose L. Ortiz (“Plaintiff”) has sued the City of Worcester, its City
Manager, its Chief of Police, and four detectives assigned to the city’s Gang and Vice Squad. In
a seven-count complaint, he asserts violations of his constitutional rights under the Fourth and
Fourteenth Amendments to the United State Constitution pursuant to 42 U.S.C. § 1983, and
associated state law claims (Dkt. No. 1). According to the complaint, Plaintiff’s claims are based
on events that occurred on March 8, 2014 when Worcester detectives executed a search warrant
at 1069 West Boylston Street. Plaintiff, who was working as a livery driver on the day in
question, was directed by his employer to drive one Luis Garcia-Tobar to 1069 West Boylston
Street. Plaintiff and his passenger arrived at the address as the search warrant was being
executed. Mr. Garcia-Tobar was arrested. Plaintiff was allegedly assaulted by police officers,
handcuffed, and dragged into the house at 1069 West Boylston Street before the officers on the
scene were ordered to release him for transportation by ambulance to the hospital (id. at 3-7, ¶¶
17-29, 51-76). Jeremiah Coffey was also arrested at 1069 West Boylston Street on March 8,
2014, and was subsequently convicted and incarcerated (Dkt. No. 82-6 at 3).
1

II.

THE DISCOVERY DISPUTE

Mr. Coffey was a percipient witness of some of the interactions between Plaintiff and the
defendant detectives on March 8, 2014 (Dkt. No. 65-2). On October 19, 2016, Richard P. Rand,
a private investigator employed by Plaintiff’s counsel, met with Mr. Coffey at MCI-Concord and
obtained a handwritten statement from Mr. Coffey detailing what he had observed on March 8th.
Mr. Coffey did not know the names of the police detectives who executed the search warrant at
his residence. On photographs provided to Mr. Coffey, he identified by descriptive nicknames
some of the police officers who executed the warrant at 1069 West Boylston Street (id. at 4-7).
Mr. Rand signed his name to Mr. Coffey’s statement as a witness (id. at 1-3). Plaintiff’s counsel
proceeded to produce a copy of Mr. Coffey’s statement, with the attached annotated
photographs, to the defendants.
On or about November 21, 2016, counsel for the defendants issued a deposition subpoena
to Mr. Rand, commanding him to appear at a stated address in Worcester on December 19, 2016
at 10:00 a.m. to give deposition testimony on the topic of “[his] investigation in connection with
[the case of Jose L. Ortiz v. City of Worcester, et al.] and Jeremiah Coffey, Jr.” (Dkt. No. 65-3 at
1). Plaintiff’s counsel sought to dissuade defense counsel from proceeding with Mr. Rand’s
deposition on the grounds that there was little to nothing that could be asked of Mr. Rand that
would not be protected by the work product doctrine or the attorney-client privilege. Defendants
declined to withdraw the subpoena (Dkt. No. 65-4). Presently before the court is an ensuing
motion, filed jointly by Plaintiff and Mr. Rand, to quash the deposition subpoena directed to Mr.
Rand and for a protective order precluding the defendants from seeking his testimony on grounds
of attorney-client privilege and work product protection (Dkt. No. 64) (“the Motion”). The
defendants oppose the Motion (Dkt. No. 66). The court heard argument from the parties on

2

April 4, 2017 and the Motion is ripe for decision (Dkt. No. 92). For the reasons set forth below,
the court grants the Motion in part and denies it in part.
III.

ANALYSIS

The Motion raises the following two issues: (1) whether the defendants are entitled to
discover facts learned by Mr. Rand during the course of his investigation; and (2) whether
plaintiff’s production of Mr. Coffey’s statement is a waiver of work product protection, and, if
so, the scope of any such waiver. These issues were identified and ably addressed by Magistrate
Judge Robert Collings in his opinion in Bear Republic Brewing Co. v. Central City Brewing Co.,
275 F.R.D. 43 (D. Mass. 2011), in which he ruled on a discovery dispute that arose in
circumstances very similar to those in the instant case. The Bear Republic opinion is a
substantial basis for the following rulings.
1. Discovery of Facts Learned by Mr. Rand During his Investigation
The deposition subpoena directed to Mr. Rand, as previously noted, seeks testimony from
him about his investigation in connection with Plaintiff’s lawsuit. The subpoena does not
attempt to command the production of documents, such as notes made by Mr. Rand related to his
investigation or emails to or from Plaintiff’s counsel (Dkt. No. 65-3). To the extent the
defendants seek testimony from Mr. Rand about facts related to Plaintiff’s case that he has
learned through his investigation, there is a substantial body of case law holding that the
defendants are entitled to discover this information. See Bear Republic, 275 F.R.D. at 45 (the
answer to the question of whether a party can require an opponent’s investigator to testify to
facts learned during the course of an investigation “is manifestly in the affirmative”). See also
U.S. v. Dentsply Int’l, 187 F.R.D. 152, 155-57 (D. Del. 1999) (directing government to answer
an interrogatory requesting that the Department of Justice (“DOJ”) reveal all facts relevant to the

3

DOJ’s case against the defendant that were known to 184 individuals and entities interviewed by
the DOJ; collecting additional cases); Laxalt v. McClatchy, 116 F.R.D. 438, 442 (D. Nev. 1987)
(the “deponents must answer questions which seek to discover . . . relevant facts in the case,
regardless of whether those facts were discovered in their roles as defendants’ investigators”)
(citing Eoppolo v. Nat’l R.R. Passenger Corp., 108 F.R.D. 292 (E.D. Pa. 1985)). Plaintiff and
Mr. Rand have not pointed to any contrary authority. Accordingly, the court rules that the
defendants are entitled to question Mr. Rand about facts he learned during his investigation into
Plaintiff’s allegations.
Courts that have ruled that an investigator employed by a party’s attorney must disclose
facts learned during an investigation have also, however, noted the risk that “a[n investigator’s]
discussion of factual matters may reveal counsel’s tactical or strategic thoughts.” Laxalt, 116
F.R.D. at 443 (citing Powell v. U.S. Dept. of Justice, 584 F. Supp. 1508, 1520 (N.D. Cal. 1984)).
See Bear Republic, 275 F.R.D. at 45. “The caselaw dealing with attorneys’ investigators shows
that they should generally be afforded the same protection as the attorney for whom they work.”
Alexander v. F.B.I., 192 F.R.D. 12, 18 (D.D.C. 2000). The work product doctrine protects
tangible work product, see Fed. R. Civ. P. 26(b)(3)(A), and intangible work product, such as an
investigator’s oral communications with a party’s counsel about, for example, the structure of the
investigation and impressions gleaned from interviews conducted by the investigator, disclosure
of which would tend to reveal counsel’s tactical or strategic thoughts or evaluation of the case.
See Bear Republic, 275 F.R.D. at 45; Nesse v. Pittman, 202 F.R.D. 344, 356 (D.D.C. 2001);
Alexander, 192 F.R. at 18. “As a result, at a deposition of an investigator, counsel must ‘. . .
carefully tailor his [or her] questions in the deposition so as to elicit specific factual material and

4

avoid broad based inquiries, . . . which could lead to the disclosure of trial strategies.’” Bear
Republic, 275 F.R.D. at 45 (quoting Laxalt, 116 F.R.D. at 443).
Borrowing from Magistrate Judge Collings’ opinion in Bear Republic:
[W]hat is discoverable are the facts Mr. [Rand] learned during the course of his
investigation. Unless there has been a waiver of the work product protection, . . .
Rule 26(b)(3)(A), Fed. R. Civ. P. protects from disclosure “. . . documents and
tangible things that are prepared in anticipation of litigation or for trial by or for
another party. . .”. And it is clear that Mr. [Rand’s] work was for a “party”,
[Plaintiff], and was done “in anticipation of litigation or for trial.” Thus, any
reports Mr. [Rand] prepared for [Plaintiff’s] counsel would not be discoverable
(absent waiver), but the facts recited in the reports would be. For these reasons,
the [c]ourt will not quash the deposition subpoena to Mr. [Rand] to the extent that
[the defendants] seek[] testimony respecting the facts which he uncovered during
the course of his investigation.
Id. at 45-46 (quoting Fed. R. Civ. P. 26(b)(3)(A)).
2. Waiver of Work Product Protection Based on Production
of Mr. Coffey’s Statement
Defense counsel argue in their opposition to the Motion that they are entitled to elicit
testimony from Mr. Rand about the circumstances of his interview of Mr. Coffey, including the
writing and the signing of Mr. Coffey’s statement, who was present when Mr. Coffey wrote the
statement, 1 whether Mr. Coffey was offered any inducement for providing a statement, 2 and

1

In the defendants’ opposition to the Motion, they represent that Plaintiff’s counsel, attorney
Hector Pineiro, attended Mr. Rand’s meeting with Mr. Coffey (Dkt. No. 66 at 2). This
representation appears to be undisputed. Accordingly, this opinion assumes that both Mr.
Pineiro and Mr. Rand met with Mr. Coffey at MCI Concord on October 19, 2016 for the purpose
of obtaining a written statement from him.
2
In their opposition to the Motion, the defendants assert that there have been allegations of
illegal inducements paid to witnesses in two other cases in which Mr. Pineiro has tendered
affidavits of witnesses (Dkt. No. 66 at 2). This reference appears to be intended to invoke the
crime-fraud exception to the attorney-client privilege and the work product doctrine as a basis for
deposing Mr. Rand. “’To bring the crime-fraud exception to bear, the party invoking it must
make a prima facie showing: (1) that the client was engaged in (or was planning) criminal or
fraudulent activity when the attorney-client communications took place; and (2) that the
communications were intended by the client to facilitate or conceal the criminal or fraudulent
activity.’” In re Grand Jury Proceedings, 802 F.3d 57, 65-66 (1st Cir. 2015) (quoting In re
5

what, if anything, was said, in the course of the meeting during which Mr. Coffey wrote his
statement (Dkt. No. 66 at 2). They claim this right on the grounds that Mr. Rand made himself a
fact witness by signing Mr. Coffey’s statement (id. at 1). The defendants offer no support for
this theory.
In the court’s view, the question posed by Plaintiff’s production of Mr. Coffey’s
statement is, instead, whether disclosure of the statement constituted a waiver of work product
protection and, if so, the extent of that waiver. See Bear Republic, 275 F.R.D. at 46;
Commonwealth of Mass. v. Mylan, Inc., Civil Action No. 2003-11865-PBS, 2010 WL 2545607,
at **1-2 (D. Mass. June 21, 2010). Mr. Coffey’s written statement, which was obtained by
Plaintiff’s counsel and his investigator, is indisputably work product, and, therefore, a document
that Plaintiff was not required to produce in the absence of a showing by the defendants of
substantial need. See Hickman v. Taylor, 329 U.S. 495, 510 (1947) (statements, correspondence,
and memoranda created or taken by an attorney or his agent in the course of his representation of
a party constitute work product); Fed. R. Civ. P. 26(b)(3)(ii) (a party is not ordinarily required to
produce work product to an opponent unless the opponent shows substantial need of the

Grand Jury Proceedings (Gregory P. Violette), 183 F.3d 71, 75 (1st Cir. 1999)); see also In re
Grand Jury Subpoena, 220 F.R.D. 136, 152 (D. Mass. 2004) (a party seeking to invoke the crime
fraud exception to the work product doctrine must provide prima facie evidence that its claim of
crime or fraud has some foundation in fact). Whatever may be required to establish a prima facie
showing for purposes of invoking the crime-fraud exception, a brief representation by counsel in
a legal memorandum that there are allegations of fraud in other cases is plainly insufficient to
meet a party’s threshold burden of making a prima facie evidentiary showing sufficient to
warrant piercing the attorney-client privilege or work product protection. The defendants have
pointed to no evidence supporting crime or fraud by Plaintiff in procuring Mr. Coffey’s
statement. To the contrary, at his deposition, Mr. Coffey testified that he was never offered any
inducement by Mr. Pineiro (or anyone else) to make a statement about what he saw on March 8,
2014 (Dkt. No. 82-6 at 21). The defendants have offered no evidence to support reliance on the
crime-fraud exception as a basis for deposing Mr. Rand. Accordingly, the court’s ruling does
not, in any way, rest on the crime-fraud exception to the attorney-client privilege or work
product protection.
6

materials). It is undisputed that Plaintiff’s counsel intentionally produced a copy of Mr. Coffey’s
statement to the defendants, thereby waiving work product protection in connection with the
document. See Bear Republic, 275 F.R.D. at 46-47.
Federal Rule of Evidence 502 applies in the event of disclosure of information protected
by the work product doctrine. It provides, in pertinent part, as follows:
(a) DISCLOSURE MADE IN A FEDERAL PROCEEDING OR TO A FEDERAL OFFICE OR
AGENCY: SCOPE OF A WAIVER. When the disclosure is made in a federal
proceeding . . . and waives . . . 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.
Fed. R. Evid. 502(a) (2016).
Applying the terms of Rule 502(a), by producing Mr. Coffey’s statement, Plaintiff has
waived protection for undisclosed communications, tangible or intangible, which concern the
same subject matter, and which ought, in fairness, to be considered in conjunction with that
subject matter. The “subject matter” as to which Plaintiff has waived work product protection is
Mr. Coffey’s written statement. “What ‘in fairness’ should be ‘considered’ along with what has
been disclosed is all the circumstances involved with respect to this [statement], including how it
came to be obtained, at whose direction it was obtained, and the manner in which it was obtained
. . . [and including] any written or oral communications between [Mr. Rand] and counsel for
[Plaintiff] with respect to [Mr. Coffey’s statement].” Bear Republic, 275 F.R.D. at 49-50
(quoting Fed. R. Evid. 502(a)). The defendants are entitled to testimony from Mr. Rand on each
of these subjects based on Plaintiff’s limited waiver of work product protection.
Messrs. Pineiro and Rand were both present on October 19, 2016 when Mr. Coffey wrote
out his statement (Dkt. No. 65 at 2). The defendants also seek testimony from Mr. Rand about
7

any communications that may have occurred between Mr. Rand and Mr. Pineiro in Mr. Coffey’s
presence. They are entitled to Mr. Rand’s testimony on this point insofar as any such
communications were oral. “Protection under the work product doctrine . . . is . . . waived . . .
when disclosure ‘substantially increases the opportunity for potential adversaries to obtain the
information.’” Schanfield v. Sojitz Corp. of Am., 258 F.R.D. 211, 214 (S.D.N.Y. 2009) (quoting
Merrill Lynch & Co. v. Allegheny Energy, Inc., 229 F.R.D. 441, 445-46 (S.D.N.Y. 2004)).
“[T]he question is not whether the material will end up in the hands of others. Rather, the critical
inquiry ‘is whether disclosure of documents [or intangible information] protected by the work
product doctrine . . . increases the opportunities for potential adversaries to obtain the
information.’” Bryan Corp. v. Chemwerth, 296 F.R.D. 31, 40 (D. Mass. 2013) (quoting In re
Raytheon Sec. Litig., 218 F.R.D. 354, 360 (D. Mass. 2003)). Mr. Coffey was an unaligned third
party who remained free to disclose the contents of any conversation he heard between Mr.
Pineiro and Mr. Rand to whomever he chose, including the defendants. Indeed, the defendants
were free to, and did, take Mr. Coffey’s deposition (Dkt. No. 82-6). Accordingly, there is no
work product protection for any oral communications that Mr. Pineiro had with Mr. Rand while
in Mr. Coffey’s presence.
The foregoing discussion sets the outside parameters of Plaintiff’s waiver of work
product protection concerning Mr. Coffey’s statement and oral and written communications
between Messrs. Pineiro and Rand.
IV.

CONCLUSION AND ORDER

Plaintiff’s Motion is denied in part and otherwise granted consistent with the terms of this
opinion. The Motion is DENIED insomuch as the defendants may take deposition testimony
from Mr. Rand about facts that he learned as a result of his investigation in the instant case.

8

They also may take testimony from him about the circumstances surrounding Mr. Coffey’s
statement, including how it came to be obtained, at whose direction it was obtained, and the
manner in which it was obtained, including any written or oral communications between Mr.
Rand and Mr. Pineiro with respect to Mr. Coffey’s statement. Finally, the defendants are entitled
to ask Mr. Rand about any oral communications he had with Mr. Pineiro during their October 19,
2016 meeting with Mr. Coffey. In all other respects, the Motion is GRANTED.

It is so ordered.

/s/ Katherine A. Robertson____
KATHERINE A. ROBERTSON
United States Magistrate Judge

DATED: May 10, 2017

9