McRaney v. The North American Mission Board of the Southern Baptist Convention, Inc.

Filing 199

ORDER ON DISCOVERY ISSUE. Signed by Magistrate Judge David A. Sanders on 12/22/22. (cs)

Case: 1:17-cv-00080-GHD-DAS Doc #: 199 Filed: 12/22/22 1 of 3 PageID #: 1438

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
WILL MCRANEY
V.

PLAINTIFF
CIVIL ACTION NO. 1:17-CV-80-GHD-DAS

THE NORTH AMERICAN MISSION BOARD
OF THE SOUTHERN BAPTIST CONVENTION, INC.

DEFENDANT

ORDER
After a hearing on the plaintiff Will McRaney’s Motion to Compel Production of
Discovery Material from the Defendant, the court ordered the Defendant North American
Mission Board of the Southern Baptist Convention, Inc.’s (“NAMB”) to submit all responsive
documents to Request for Production No. 9 for in-camera review. The plaintiff’s Request for
Production No. 9 seeks
[a] Any agreement(s) You have entered into with any individual or organization
that you believe limits or constrains, in any way, the ability or authority of any such
individual or organization to speak, write or comment about Plaintiff, about
NAMB, or about this case (including but not limited to any severance agreements,
non-disclosure agreements, nondisparagement agreements, or “cooperation
agreements”).
In its discovery response, NAMB identifies in its privilege log “four agreements between
NAMB and certain NAMB employees prepared by counsel for NAMB and entered into for the
purpose of facilitating the exchange of information related to this litigation between those
employees and counsel for NAMB.” Docket 154-4 at 6. These documents were withheld citing
the work product doctrine. Id. NAMB states these agreements “were created to ensure these
employees protected information they obtained while assisting counsel both during their
employment and if they ever left NAMB” and “may reveal counsel’s mental impressions.”
Docket 169. The plaintiff contends he “is entitled to know how witnesses or potential witnesses

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are constrained in their ability to speak or provide testimony in this case” and requests that the
court compel production of these agreements in their entirety.
Under Federal Rule of Civil Procedure 26(b)(1), parties may “obtain discovery regarding
any non-privileged matter that is relevant to any party's claim or defense…” FED. R. CIV. P.
26(b)(1). “[A] party claiming privilege must (1) expressly claim privilege and (2) sufficiently
describe the nature of documents or communications, without revealing the protected
information, such that the opposing party is able ‘to assess the claim.’” SmartPhone Tech. LLC v.
Apple, Inc., No. 6:10-cv-74 LED-JDL, 2013 WL 789285, at *1 (E.D. Tex. Mar. 1,
2013) (quoting FED. R. CIV. P. 26(b)(5)(A)(ii)). “The work product doctrine insulates a lawyer's
research, analysis, legal theories, mental impressions, notes and memoranda of witness'
statements from an opposing counsel's inquiries.” Dunn v. State Farm Fire & Cas. Co., 122
F.R.D. 507, 510 (N.D. Miss. 1988) (citing Upjohn Co. v. United States, 449 U.S. 383, 400
(1981); United States v. El Paso Co., 682 F.2d 530, 542 (5th Cir. 1982)).
The work product protection applies only to documents “prepared in anticipation of
litigation.” Fed.R.Civ.P. 26(b)(3). “A party asserting work-product protection over particular
materials must demonstrate: (1) the materials sought are tangible things; (2) the materials sought
were prepared in anticipation of litigation or trial; (3) the materials were prepared by or for a
party's representative.” Mondis Tech., Ltd., 2011 WL 1714304, at *2 (E.D. Tex. May 4,
2011) (citing SEC v. Brady, 238 F.R.D. 429, 441 (N.D. Tex. 2009)). The party seeking
production must establish (1) a substantial need of the privileged materials and (2) an inability to
obtain the substantial equivalent of the material through other means without undue hardship.
Hodges, Grant & Kaufmann v. U.S. Gov't, Dep't of the Treasury, I.R.S., 768 F.2d 719, 721 (5th
Cir. 1985). “The burden of establishing that a document is work product is on the party who

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asserts the claim, but the burden of showing that the materials that constitute work product
should nonetheless be disclosed is on the party who seeks their production.” Id.
Examination of the agreements between NAMB and certain NAMB employees reveals
that while the documents were prepared in anticipation of litigation, they do not contain
counsel’s “research, analysis, legal theories, mental impressions, notes [or] memoranda of
witness' statements.” See Dunn v. State Farm Fire & Cas. Co., 122 F.R.D. at 510. These
agreements intend to protect the content of “litigation activities” to the extent they include
information that is legally privileged and inadmissible in a hearing or at trial under the work
product doctrine and/or attorney-client privilege; however, the agreement itself contains no such
protected information. To the extent NAMB believes the identities of the current and former
employees who signed these agreements constitute work-product, the court disagrees.
The confidentiality and nondisclosure agreement attempts to cover only matters protected
by the attorney-client and work product privileges and specifically defines what constitutes work
product. This agreement also includes an enforcement provision allowing for equitable relief,
and the possibility for other remedies, in the event of a breach or threatened breach of the
agreement. The mere existence of these agreements raises the possibility of a potential witness
self-censoring testimony and withholding information based on the belief that it is privileged,
even without a formal invocation of the privilege. Even if NAMB’s selection of the employees
subject to these agreements can be construed as work product, the plaintiff is entitled to know
which employees are subject to these agreements. Accordingly, NAMB is ordered to produce the
agreements identified in its privilege log under a protective order if they so choose no later than
December 30, 2022.
This the 22nd day of December, 2022.
/s/ David A. Sanders
UNITED STATES MAGISTRATE JUDGE