Diaz et al v. Devlin et al

Filing 169

District Judge Timothy S. Hillman: ORDER entered. MEMORANDUM AND ORDER. Plaintiffs Objection (Docket No. 139) is overruled.(Castles, Martin)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_____________________________________________________
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v.
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SGT. JAMES P. DEVLIN, DET. NICHOLAS E. NASON,
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DET. JEFFREY CARLSON,
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LT. DET. JOSEPH SCAMPINI, SGT. RICHARD CIPRO,
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DET. JAMES CARMODY, OFF. ANTHONY LORENTE,
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DET. TERRENCE GAFFNEY, DET.JOHN MORRISEY,
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DET.SHAWN BARBALE, DET.RONALD REMILLARD,
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OFF. REBECCA AGUILAR, OFF. ELIAS BAEZ,
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CITY OF WORCESTER, CHIEF GARY J. GEMME,
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CAPT. PAUL SAUCIER,
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CITY MANAGER EDWARD M. AUGUSTUS,
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POLICE INFORMANT CR-1, and OFFS. JOHN DOE 1-4,
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Defendants.
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______________________________________________________)
MARIANNE DIAZ, individually and as mother and next
friend of two minor children Jane Doe and Jane Roe,
BRYANT ALEQUIN, and JOSHUA MATOS,
Plaintiffs,

CIVIL ACTION
NO. 16-40039-TSH

MEMORANDUM AND ORDER
August 28, 2018
HILLMAN, D.J.
Background
On April 3, 2018, Magistrate Judge Hennessy issued an Order (Docket No.
137)(“Order”) granting Defendants’ Motion To Compel The Affidavit of Non-Party Witness
Robert Sykes (Docket No. 125). Before the Court is Plaintiffs’ Objection (Docket No. 139) to
that Order. For the reasons stated below, Plaintiffs’ Objection is overruled.

Facts
As detailed in the Order, Plaintiffs allege the Massachusetts State Police used excessive
force while executing a no-knock search warrant at their residence on August 19, 2015. One of
the Plaintiffs was purportedly held at gunpoint, prevented from clothing herself, and frisked
under her bathrobe. A second Plaintiff, who was asleep on the couch, was allegedly commanded
to get on the ground, and, in an effort to comply, his hand was stepped on by an officer, causing
it to fracture. Finally, a third Plaintiff was allegedly forced to the ground at gunpoint after
officers kicked down a bathroom door.
Robert Sykes, a tenant in the building, was a witness to the events described above. To
memorialize his observations, Mr. Sykes signed an affidavit that was drafted by Plaintiffs’
counsel on or about September 15, 2015 (the “Sykes Affidavit”). Plaintiffs disclosed the
existence of the Sykes Affidavit to the Defendants in November 2017, however, Plaintiffs’
counsel asserted it was attorney work-product, and thus, not discoverable. Defendants deposed
Mr. Sykes on December 5, 2017, but when asked to describe the contents of his affidavit, he
testified, “I can’t because I don’t remember . . . . It’s been too long.”
After reviewing the Sykes Affidavit in camera, Magistrate Judge Hennessy found it was
“nothing more than statements of facts within the affiant’s personal knowledge,” and, as such,
not protected by the attorney work-product doctrine. While noting an affidavit could, in certain
circumstances, reveal attorney work-product, Magistrate Judge Hennessy determined Mr.
Sykes’s Affidavit did not disclose any protected material. Further, assuming arguendo that the
affidavit was work-product, the Magistrate Judge held that Defendants’ need for it outweighed
Plaintiffs’ interest in preventing disclosure. More specifically, because Mr. Sykes’s deposition

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answers were “incomprehensible,” the affidavit would provide “clarity concerning [Mr. Sykes’s]
account of the relevant events.”
Standard Of Review
The order of a magistrate judge may be reversed only if it is “clearly erroneous or
contrary to the law.” Fed. R. Civ. P. 72(a). Consequently, the order must be accepted unless there
is a “strong, unyielding belief that a mistake [was] made.” Phinney v. Wentworth Douglas Hosp.,
199 F.3d 1, 4 (1st Cir. 1999) (quoting Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152
(1st Cir. 1990)); see also United States v. Garcia, 983 F.2d 1160, 1166 (1st Cir. 1993) (a
magistrate judge’s discovery order may be set aside only where it is clearly erroneous or contrary
to the law). An order is “clearly erroneous” if the magistrate judge made a mistake concerning a
question of fact. See Concrete Pipe & Prods. v. Constru. Laborers Pension Tr., 508 U.S. 602,
622 (1993). Moreover, an order is “contrary to the law” if the magistrate judge made a mistake
with respect to a legal determination. See PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 14-15
(1st Cir. 2010). “[T]here is no practical difference between . . . [the] ‘contrary to law’ standard
and review under . . . [the] de novo standard.” Id. at 15.
Discussion
Plaintiffs object to Magistrate Judge Hennessy’s Order on the following grounds: (1)
Plaintiffs contend there is no case law, other than trial court opinions, to support Magistrate
Judge Hennessy’s finding; (2) Plaintiffs claim Magistrate Judge Hennessy mistakenly relied on
Stamps v. Town of Framingham, 38 F.Supp.3d 134 (D. Mass. 2014) to find the work-product
doctrine does not protect purely factual statements; and (3) Plaintiffs assert Magistrate Judge
Hennessy’s decision would “introduce a glaring divergence of holdings” in light of this Court’s

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decision in Ortiz v. City of Worcester, Civ. Act. No. 15-40037-TSH, 2017 WL 1948523
(D.Mass. May 10, 2017).
Attorney Work-product Doctrine
The work-product doctrine prevents certain attorney-prepared materials from becoming
discoverable. Protected materials include an attorney’s “files and mental impressions . . .
reflected, of course, in the interviews, statements, memoranda, correspondence, briefs, mental
impressions, personal beliefs, and countless other tangible and intangible ways.” Hickman v.
Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 685 (1947). The doctrine protects “an attorney’s ability to
formulate legal theories and prepare cases,” and prevents the parties from “freeloading” off each
other’s work. Stamps v. Town of Framingham, 38 F.Supp.3d 134, 145 (D. Mass. 2014) (citing
Jean v. City of New York, 2010 WL 148420, at *2 (E.D.N.Y. Jan. 12, 2010)). “Whatever the
outer boundaries ... are, the rule clearly applies to memoranda prepared by an attorney in
contemplation of litigation which set forth the attorney’s theory of the case and his litigation
strategy.” N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 154-55, 95 S.Ct. 1504 (1975). Facts,
on the other hand, are not protected from disclosure by the work-product doctrine. Mutual
knowledge of relevant facts is essential to proper litigation, and therefore, “either party may
compel the other to disgorge whatever facts he has in his possession ... .” Hickman, 329 U.S. at
507, 67 S.Ct. 685; see also Fed. R. Civ. P. 26(b)(3) Advisory Comm. Note (1970) (“No change
is made in the existing doctrine, noted in the Hickman case, that one party may discover relevant
facts known or available to the other party, even though such facts are contained in a document
which is not itself discoverable.”). Further, “[a] party should not be allowed to conceal critical,
non-privileged, discoverable information ... simply by ... attempting to hide behind the
workproduct doctrine.” Xerox Corp. v. IBM, 64 F.R.D. 367, 381-82 (S.D.N.Y. 1974). As such,

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relevant, underlying facts contained in materials prepared by an attorney have generally been
held to be discoverable. See EEOC v. Jamal & Kamal, Inc., Civ. Act. No 06-2667, 2006 WL
2690226, at *2 (E.D.La. Sep. 18, 2006); see also Upjohn v. United States, 449 U.S. 383, 395-96,
101 S.Ct. 677 (1981) (finding the attorney-client privilege, for example, protects the disclosure
of communications, but not the underlying facts in the communications); In re Murphy, 560 F.2d
326, 336 n.20 (8th Cir. 1977) (noting relevant facts contained in work-product are discoverable
upon a proper showing).
In this case, the document at issue is a signed witness affidavit prepared by the Plaintiffs’
attorneys. There is disagreement among the courts concerning the applicability of the workproduct doctrine to signed witness statements and affidavits. Compare Murphy v. Kmart Corp.,
259 F.R.D. 421, 430 (D.S.D. 2009) (holding affidavits are merely statements of fact, and thus,
not protected) and Tuttle v. Tyco Elecs. Installation Servs., Civ. Act. No. 2:06-cv-581, 2007 WL
561530, at *4 (S.D. Ohio Dec. 21, 2007) (determining the doctrine protects information relevant
to the “evolution of an affidavit,” but not the final version) with E.E.O.C. v. Rose Casual Dining,
L.P., Civ. Act. No. 02-7485, 2004 WL 231287, at *2-3 (E.D. Pa. Jan. 23, 2004) (“Witness
statements prepared at the direction of counsel in anticipation of litigation ... are classic examples
of attorney work product ...”) and Kintera, Inc. v. Convio, Inc., 219 F.R.D. 503, 510 (S.D. Cal.
2003) (finding signed witness statements are fact work-product, regardless of whether they
contain the mental impressions of counsel). While a judge in this Court has previously
recognized that an attorney’s verbatim recordation of a witness statement may be discoverable,
see Molloy v. Trawler Flying Cloud, Inc., 10 F.R.D. 158, 159 (D.Mass. 1950), the issue has
never been decided by the First Circuit.

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Given that there is no binding precedent in this Circuit, Magistrate Judge Hennessy cited
a number of cases from other district courts that he found to be persuasive. See FDIC v.
Arrillaga-Torrens, 212 F. Supp. 3d 312, 367-68 (D.P.R. 2016)(defendant’s counsel refused to
disclose copies of witness affidavits, citing work-product doctrine. Court after stating that trial is
intended to “’be less a game of blind man’s bluff and more a fair contest with the basic issues
and facts disclosed to the fullest extent,’” ordered that affidavit that was solely comprised of
factual information to be disclosed); Ford Motor Co. v. Edgewood Props., 257 F.R.D. 418, 42122 (D.N.J. 2009)(attorney’s role in preparing a witness affidavit “does not suffice to convert
what is otherwise purely factual testimony by an affiant into work product.” In so holding, the
court noted that the “primary purpose of [the work-product doctrine] is to protect counsel’s trial
strategies and mental impressions, not its choice as to an affiant’s testimony of underlying
facts.”); Murphy, 259 F.R.D. 421, at 424 (attorney-prepared documents are discoverable if they
contain “relevant and nonprivileged facts”); Basaldu v. Goodrich Corp., Civ.Act.No. 4:06-cv-23,
2009 WL 1160915, at *2 (E.D. Tenn. Apr. 29, 2009)(affidavit, even when prepared by an
attorney, is still the witness’s own statement. To that end, “’an attorney’s memorialization of
events, effectively acting as a stenographer, does not fall within the sphere of documentation
protected by the work product privilege.’”) .
That attorney prepared affidavits comprised of factual statements are not protected by the
work-product doctrine appears to be the majority view. See Murphy, 259 F.R.D., at 431. See also
Hernandez v. Starbucks Coffee Co., Civ. Act. No. 0:09-cv-60074-WPD. 2010 WL 11505468
(S.D. Fla. Apr. 23, 2010); Basaldu v. Goodrich Corp., Civ.Act.No. 4:06-cv-23, 2009 WL
1160915, at *2 (E.D. Tenn. Apr. 29, 2009); Walker v. George Koch Sons, Inc., Civ. Act. No.
2:07cv274 KS-MTP, 2008 WL 4371372, at *5-6 (S.D. Miss. Sep. 18, 2008)( “affidavits merely

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recite relevant facts within the affiants’ personal knowledge, rather than revealing an attorney’s
mental impressions or legal strategy” and as such, the mere fact that an attorney drafted an
affidavit does not make it work-product); Tuttle, 2007 WL 4561530, at *2 (work-product
doctrine protects an attorney’s mental impressions, conclusions, and/or legal theories, but not
underlying facts. Consequently, “[a]ffidavits are normally not protected by the work-product
doctrine for the very reason that an affidavit ‘purports to be a statement of facts within the
personal knowledge of the witness, and not an expression of the opinion of counsel’”).
Plaintiffs’ First Objection
Plaintiffs assert that “[o]ther than trial court opinions, there is simply no case law to
sustain the notion that attorney fact work-product does not fall within the plain language of
Fed.R.Civ.P. 23(b)(3) [sic] “ 1. Plaintiffs further argue that “there may be a body of trial court
sentiment favoring abolition or contraction of the fact work-product privilege;” however, “not
one appellate case . . . endorses [this] position.” As previously noted, the First Circuit has not
addressed the issue of whether third-party witness affidavits are protected by the work-product
doctrine. While this Court is not bound by the holdings of other district courts, like Magistrate
Judge Hennessy, I am persuaded by the reasoning in the abovementioned cases which hold that
the work-product doctrine does not protect third party witness affidavits containing primarily
factual information rather than mental impressions and opinions of counsel.
Plaintiffs’ Second Objection
Plaintiffs also claim Magistrate Judge Hennessy mistakenly relied on Stamps to find the
work-product doctrine does not protect purely factual statements. More specifically, counsel

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 Plaintiffs cite to Fed. R. Civ. P. 23(b)(3), which concerns the certification of class actions. I presume that
this was merely a typographical error and that Plaintiffs intended to cite to Fed. R. Civ. P. 26(b)(3), which concerns
attorney work-product.  

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contends that the reasoning of Stamps is “inapplicable” because that case involved a dispute over
notes taken by a police officer during the course of duty, whereas the instant case involves an
affidavit prepared by an attorney in anticipation of litigation. First, even if I were to assume that
Magistrate Judge Hennessy improperly applied Stamps to the facts of this case, I would still find
that the affidavit is discoverable based on my reading of other applicable case law, as discussed
above. Moreover, I do not find that Magistrate Judge Hennessy’s reliance on Stamps was
misplaced. In Stamps, the court found the officer’s notes contained “purely factual statements
and [did] not include any opinions or impressions.” Stamps, 38 F.Supp.3d at 145. As such, the
court held disclosure would not implicate any of the interests protected by the work-product
doctrine, including “’an attorney’s ability to formulate legal theories and prepare cases,
preventing opponents from freeloading off their adversaries’ work, and preventing interference
with ongoing litigation.’” Id (citation to quoted case omitted). It is true that the primary focus of
Stamps concerned the relationship between the work-product doctrine and non-party actors.
However, in making its ruling, the court carefully analyzed the type of documents that are
traditionally protected as work-product and found that statements that contain primarily factual
information are not protected. That reasoning is equally applicable in this case.
Plaintiffs’ Third Objection
Plaintiffs assert that this Court has recognized that third-party witness statements are
attorney work-product, and if the Magistrate Judge Hennessy’s finding is affirmed, there would
be “. . . a glaring divergence of holdings . . . .” More specifically, Plaintiffs cite to Ortiz, an
opinion authored by Magistrate Judge Robertson. In Ortiz, Magistrate Judge Robertson held that
a witness’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

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in the absence of a showing by the defendants of substantial need.” Ortiz, 2017 WL 1948523, at
*4. Magistrate Judge Robertson made this conclusion without doing an analysis of whether a
witness’s affidavit comprised of factual statements is protected by the work-product doctrine. It
does not appear that the party that sought to compel disclosure made this argument. This may be
due to the fact that the statement itself was deemed discoverable because the producing party
waived work-product protection by inadvertently producing it. The primary issue before
Magistrate Judge Robertson was whether the party seeking disclosure could make inquiry at a
deposition about the circumstances surrounding the making of the statement. Accordingly, I
have never ruled on this issue and my affirmance of Magistrate Judge Hennessy’s ruling does not
create any type of conflicting precedent by this Court.
They Sykes Affidavit must be Disclosed
The disclosure of Mr. Sykes’s affidavit does not implicate any of the interests protected
by the work-product doctrine. Like Magistrate Judge Hennessy, I have conducted an in camera
reviewed the Sykes Affidavit and find that it contains only factual information and does not
incorporate any opinions or impressions of counsel. Accordingly, this Court sees no reason why
counsel’s ability to formulate legal theories and/or prepare a case would be affected by its
disclosure. Moreover, even if I were to find that the Sykes Affidavit was covered by the workproduct doctrine, I find that Magistrate Judge Hennessy correctly determined that the Defendants
have established a substantial need for its disclosure and that the equivalent information
contained therein cannot be obtained without undue hardship.
For the reasons stated above, I find that Magistrate Judge Hennessy’s Order was not
clearly erroneous or contrary to the law. Therefore, Plaintiffs’ objections are overruled and they

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shall produce the Sykes Affidavit to the Defendants on or before Wednesday, September 5,
2018.
Conclusion
Plaintiff’s Objection (Docket No. 139) is overruled.

SO ORDERED.

/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
U.S. DISTRICT COURT JUDGE

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