Jiang v. Porter et al
Filing
131
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs motion to compel discovery from the SNAP defendants [Doc. # 116 ] is granted in part and denied in part, as set forth above. IT IS FURTHER ORDERED that the SNAP defendants shall have until July 11, 2016, to comply with this order and produce documents and answer interrogatories as set forth above. Signed by District Judge Carol E. Jackson on 6/27/2016. (CLO) (Main Document 131 replaced on 6/27/2016) (JAB).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
REV. XIU HUI “JOSEPH” JIANG,
Plaintiff,
vs.
TONYA LEVETTE PORTER, et al.,
Defendants.
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Case No. 4:15-CV-1008 (CEJ)
MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion to compel discovery from
defendants SNAP, David Clohessy, and Barbara Dorris (the “SNAP defendants”),
pursuant to Fed. R. Civ. P. 37(a). The defendants have responded in opposition,
and the issues are fully briefed.
I.
Privilege Logs
Plaintiff first requests that the Court compel the SNAP defendants to produce
a complete privilege log. Federal Rule of Civil Procedure 26(b)(5)(A) requires that
“[w]hen a party withholds information otherwise discoverable by claiming that the
information is privileged . . . the party must: (i) expressly make the claim; and (ii)
describe the nature of the documents, communications, or tangible things not
produced or disclosed . . . in a manner that, without revealing information itself
privileged or protected, will enable other parties to assess the claim.” Courts have
consistently interpreted this requirement to mean that the party must produce a
document index or privilege log.
Jacobson v. Metro. St. Louis Sewer Dist., No.
4:14-CV-1333 (AGF), 2015 WL 5330428, at *3 (E.D. Mo. Sept. 14, 2015) (citing
Baranski v. United States, No. 4:11-CV-123 (CAS), 2014 WL 7335151, at *6 (E.D.
Mo. Dec. 19, 2014)).
Upon review of defendants’ objections to discovery requests and their
amended privilege log, the Court finds that defendants have expressly asserted
privileges to certain requests and sufficiently described the nature of the documents
or information not produced or disclosed on the basis of those privileges, in
compliance with Rule 26(b)(5)(A). Thus, the Court will deny plaintiff’s request to
compel defendants to produce an additional privilege log.
II.
Work Product Objections in the Redaction Log
Next, plaintiff asks the Court to overrule defendants’ assertions of workproduct objections in their redaction log.
As to the first two categories of
documents of which plaintiff complains—redacted emails that occurred before the
filing of plaintiff’s complaint and the SNAP defendants’ communications with the
media about plaintiff—defendants state that they will produce the documents
identified.
Because defendants have no objection to providing these documents,
they will be ordered to produce them. With regard to the redacted June 26, 2015
email exchange between David Clohessy and St. Louis City Circuit Attorney Jennifer
Joyce, defendants state that the common interest privilege applies. The Court will
address this objection below.
As to the redacted June 26, 2015 email between Clohessy and the father of
another individual who accused plaintiff of abuse, defendants claim that this issue
was not raised during the parties’ efforts to resolve the discovery disputes.
However, plaintiff identified this communication in an email to the SNAP defendants’
counsel regarding the parties’ discovery disputes. See Ex. 20, p. 3 [Doc. #117-4].
2
Defendants have not explained how the work-product privilege applies to this
email. See Rabushka ex rel. United States v. Crane Co., 122 F.3d 559, 565 (8th
Cir. 1997) (stating that the party who claims the benefit of a privilege has the
burden of demonstrating that the privilege applies).
As such, the Court will order
the defendants to produce the email exchange plaintiff identified. See Ex. 19, p. 11
[Doc. #117-3].
Finally, plaintiff argues that defendants have not demonstrated that the
redacted June 26, 2015 emails between defendants David Clohessy, Barbara Dorris,
and SNAP president Barbara Blaine constitute work product.
In response,
defendants state that these emails are internal emails within SNAP, sent the day
after this lawsuit was filed, regarding the lawsuit and strategies for dealing with it.
Under Federal Rule of Civil Procedure 26(b)(3), a party ordinarily “may not
discover documents and tangible things that are prepared in anticipation of
litigation or for trial,” unless the party seeking discovery “shows that it has
substantial need for the materials to prepare for the case and cannot, without
undue hardship, obtain their substantial equivalent by other means.”
“[T]o be
entitled to protection, the documents must have been prepared after a ‘specific
threat’ of litigation became ‘palpable.’”
Lloyd’s Acceptance Corp. v. Affiliated FM
Ins. Co., No. 4:05-CV-1934 (DDN), 2012 WL 1389708, at *4 (E.D. Mo. Apr. 23,
2012) (quoting Black v. Pilot Travel Ctrs., LLC, No. 09-4170-KES, 2011 WL
1828039, at *2 (D.S.D. May 12, 2011)).
The timing of the emails exchanged
supports defendants’ assertion that they were prepared in anticipation of litigation.
Plaintiff has not shown a substantial need for the emails. Thus, the Court will deny
his motion to compel defendants to produce them.
3
III.
Common Interest Objections in the Redaction Log
Plaintiff also asks the Court to overrule the SNAP defendants’ common
interest doctrine objections as a basis for withholding three documents:
(1) a
January 16, 2015 email exchange among Barbara Dorris, Ken Chackes, David
Clohessy, and Nicole Gorovsky; (2) a June 17, 2015 email exchange among David
Clohessy, Barbara Dorris, and Ken Chackes; and (3) a June 26, 2015 email
exchange between David Clohessy and St. Louis City Circuit Attorney Jennifer
Joyce. With regard to the January 16 and June 17 email exchanges, both of which
were generated prior to the filing of the instant lawsuit, defendants state they will
withdraw their common interest objections.
The Court will consider defendants’
other assertions of privilege as a basis for redacting these emails below.
With
respect to the June 26 email exchange, which occurred after this lawsuit was filed,
defendants argue that the common interest doctrine applies.
The common interest doctrine “expands the coverage of the attorney-client
privilege” in certain circumstances:
If two or more clients with a common interest in a litigated or nonlitigated matter are represented by separate lawyers and they agree to
exchange information concerning the matter, a communication of any
such client that otherwise qualifies as privileged . . . that relates to the
matter is privileged as against third persons. Any such client may
invoke the privilege, unless it has been waived by the client who made
the communication.
In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 922 (8th Cir. 1997)
(quoting Restatement (Third) of the Law Governing Lawyers § 126(1)).
“This
doctrine softens the ordinary requirement that lawyer-client communications must
be made in confidence in order to be protected by the privilege.” Id.
4
The requisite “common interest” exists where “the parties have an identical
(or nearly identical) legal interest as opposed to a merely similar interest” or a
commercial interest. Green Edge Enters., LLC v. Rubber Mulch, LLC, No. 4:02-CV566 (TIA), 2006 WL 2623855, at *1 (E.D. Mo. Sept. 12, 2006) (quoting J.E. Dunn
Constr. Co. v. Underwriters at Lloyd’s London, No. 05-0092-CV-W-FJG, 2006 WL
1128777, at *1 (W.D. Mo. Apr. 25, 2006)).
The parties invoking the common
interest privilege “must establish that any exchange of privileged information was
‘made in the course of formulating a common legal strategy,’ and that the parties
understood that the communication would be in furtherance of the shared legal
interest.”
Fireman’s Fund Ins. Co. v. Gream Am. Ins. Co., 284 F.R.D. 132, 140
(S.D.N.Y. 2012) (quoting Sokol v. Wyeth, Inc., No. 4:07-CV-8442 (KNF), 2008 WL
3166662, at *5 (S.D.N.Y. Aug. 4, 2008)).
Here,
defendants
have
not
demonstrated
that
the
parties
to
the
communication at issue have an identical legal interest made in the course of
formulating a common legal strategy. The circuit attorney has never been a party
in this case, nor has she been an attorney for any party in this case. Thus, there is
no merit to defendants’ suggestion that she shared a common interest with David
Clohessy in defending against plaintiff’s claims in this matter. As such, the Court
will overrule defendants’ common interest objection and order the defendants to
produce an unredacted copy of the June 26, 2015 email exchange between Circuit
Attorney Jennifer Joyce and Clohessy.
IV.
Redacted Materials Not Accounted for in the Redaction Log
Next, plaintiff states that the SNAP defendants’ redaction log fails to account
for several redactions in their document production. Defendants agree to correct
5
any errors in the log for redactions for which they have failed to account. Because
defendants have no objection to correcting mistakes in the redaction log, the Court
will order defendants to provide privilege log entries supporting these redactions.
V.
Rape Crisis Center Privilege
The SNAP defendants objected to many of plaintiff’s discovery requests on
the basis of a rape crisis center privilege derived from Mo. Rev. Stat. § 455.003. In
their response to the instant motion, defendants first suggest that it is appropriate
under Federal Rule of Evidence 501 for the Court to recognize and apply all of
Missouri’s state privileges to plaintiff’s supplemental state law claims. The Court’s
subject matter jurisdiction in this case is based on federal question. 28 U.S.C. §
1331.
Federal law governing the issue of privilege applies to pendent state law
claims that are part of a case in which federal law claims are asserted and
jurisdiction is based on 28 U.S.C. § 1331. Fed. R. Evid. 501 advisory committee’s
note to 1975 enactment; see Agster v. Maricopa Cnty., 422 F.3d 835, 839 (9th Cir.
2005); Continental Cas. Co. v. Under Armour, Inc., 537 F.Supp.2d 761, 768 n.3 (D.
Md. 2008) (collecting cases holding that federal privilege law trumps state law for
all claims in federal question cases with supplemental state law claims). Without
any basis for doing so under federal precedent, the Court declines defendants’
conclusory suggestion to recognize and adopt all of Missouri’s state statutory and
common law privileges in this case under the narrow authority of Rule 501.
Rule 501 of the Federal Rules of Evidence “authorizes federal courts to define
new privileges by interpreting ‘common law principles . . . in the light of reason and
experience.’” Jaffee v. Redmond, 518 U.S. 1, 8 (1996) (quoting Fed. R. Evid. 501).
The recognition of any new privilege based on a confidential relationship should be
6
determined on a case-by-case basis. Id. (quoting the S. Rep. No. 93-1277, at 13
(1974), reprinted in 1974 U.S.C.C.A.N. 7051, 7059).
The Supreme Court has
cautioned, however, that testimonial exclusionary rules and privileges “must be
strictly construed and accepted ‘only to the very limited extent that permitting a
refusal to testify or excluding relevant evidence has a public good transcending the
normally predominant principle of utilizing all rational means for ascertaining
truth.’” Trammel v. United States, 445 U.S. 40, 50 (1980) (quoting Elkins v. United
States, 364 U.S. 206, 234 (1960) (Frankfurter, J., dissenting)).
judicial
recognition
of
a
new
evidentiary
privilege
under
A party seeking
Rule
501
must
“demonstrate with a high degree of clarity and certainty that the proposed privilege
will effectively advance a public good.”
In re Sealed Case, 148 F.3d 1073, 1076
(D.C. Cir. 1998); see Under Seal v. United States, 755 F.3d 213, 221 (4th Cir.
2014) (stating that federal courts should create a new privilege “only after careful
consideration in the face of a strong showing of need for the privilege” (quoting In
re Grand Jury Investigation, 918 F.2d 374, 383 (3d Cir. 1990))). “Federal common
law recognizes a privilege only in rare situations.”
In re Grand Jury Subpoena
Duces Tecum, 112 F.3d 910, 918 (8th Cir. 1997) (collecting cases).
Defendants ask the Court to adopt a privilege set forth in Mo. Rev. Stat. §
455.003. Section 455.003 requires persons employed by or volunteering at a rape
crisis center “to maintain confidentiality of any information that would identify
individuals served by the center and any information or records that are directly
related to the advocacy services provided to such individuals.”
Mo. Rev. Stat. §
455.003.1. The statute also provides that any person employed by or volunteering
at a rape crisis center “shall be incompetent to testify concerning any confidential
7
information” described in subsection one, “unless the confidentiality requirements
are waived in writing by the individual served by the center.”
Mo. Rev. Stat. §
455.003.2.
Missouri state courts have not interpreted section 455.003 as having created
an evidentiary privilege.
Instead, the Missouri Supreme Court has held that a
statutory section related to domestic violence shelters, found within the same
chapter as and with identical language in its relevant provisions to Mo. Rev. Stat. §
455.003, “is not a recognition of a new legally privileged communication, but rather
is a recognition of the confidentiality of an entire body of information.” State ex rel.
Hope House, Inc. v. Merrigan, 133 S.W.3d 44, 49–50 (Mo. banc 2004) (citing Mo.
Rev.
Stat.
§
455.220).
In
holding
thus,
the
court
defined
“privileged
communication” as a “communication that is protected by law from forced
disclosure,” and a “privilege” as “an evidentiary rule that gives a witness the option
not to disclose the fact asked for, even though it might be relevant . . . esp. when
the information was originally communicated in a professional or confidential
relationship,” such as physician-patient and husband-wife.
Id. at 49 (quoting
Black’s Law Dictionary (7th ed. 1999)). The court concluded that the confidentiality
requirements
of
section
455.220
did
not
establish
legally
privileged
communications. Id. at 49–50.
Based on the Missouri Supreme Court’s rationale in Merrigan, thus, the
confidentiality requirements for rape crisis centers set forth in section 455.003
establish a state statutorily mandated confidentiality policy, rather than create an
evidentiary privilege. “Defendants should understand that ‘concern for protecting
confidentiality does not equate to privilege.’” Richardson v. Sexual Assault/Spouse
8
Abuse Research Ctr., Inc., 270 F.R.D. 223, 227 (D. Md. 2010) (quoting Spacecon
Speciality Contractors, LLC v. Bensinger, No. 09-cv-02080-KLM, 2010 WL 3927783,
at *4 (D. Colo. Oct. 1, 2010)). “[T]he mere fact that a statute may provide that
certain documents are to be treated as confidential does not automatically establish
an evidentiary privilege that completely precludes them from being discovered.”
Id.
“Documents that are not privileged, but that are confidential, are more
appropriately produced subject to a protective order.” Id.; see Virmani v. Novant
Health Inc., 259 F.3d 284, 287 n.4 (4th Cir. 2001) (“There is an important
distinction between privilege and protection of documents, the former operating to
shield the documents from production in the first instance, with the latter operating
to preserve confidentiality when produced.
An appropriate protective order can
alleviate problems and concerns regarding both confidentiality and scope of the
discovery material produced in a particular case.”).
Therefore, the confidentiality requirements of Mo. Rev. Stat. § 455.003 do
not establish a legally recognized evidentiary privilege.
Accordingly, section
455.003 does not provide a basis for the Court to recognize a new federal
privilege.1
To the extent that any other federal courts have recognized communications
between victims of domestic violence or sexual assault and crisis center counselors
1
Even if the Court were to find that section § 455.003 creates an evidentiary privilege, the scope of
the privilege would not allow the SNAP defendants to refuse to respond to interrogatories seeking
information regarding public statements SNAP defendants have made related to plaintiff, nor would it
allow the SNAP defendants to refuse to respond to interrogatories seeking information about
communications between the SNAP defendants and other defendants in this matter or third parties
that are tangential, rather than directly related to advocacy services provided to victims of sexual
assault. See Mo. Rev. Stat. § 455.003 (describing as confidential “any information that would identify
individuals served by the center and any information or records that are directly related to the
advocacy services provided to such individuals”); see, e.g., Ex. 12, Interrogatories Nos. 2–3, 5–6, 9–
10, 12 [Doc. #116-12]; Exs. 13 & 14, Interrogatories Nos. 1–2, 4–5, 7, 9, 11–12 [Docs. ## 117-1,
117-2]; Ex. 15, Requests for Production Nos. 4, 8–9, 11 [Doc. #116-13].
9
as privileged, those courts recognized the privilege as an extension of the
psychotherapist-patient privilege.
See Jaffee, 518 U.S. at 15 (“[C]onfidential
communications between a licensed psychotherapist and her patients in the course
of diagnosis or treatment are protected from compelled disclosure under Rule
501.”); Richardson, 764 F. Supp. 2d at 740 (holding that the psychotherapistpatient privilege applied to a communication with an unlicensed counselor at a
domestic abuse resource center, who worked under the direct supervision of a
licensed social worker); United States v. Lowe, 948 F. Supp. 97, 99 (D. Mass.
1996) (extending the psychotherapist-privilege to rape crisis counselors who were
not licensed but were under the direct control and supervision of a licensed
psychotherapist).
Here, defendants argue for the recognition of a new privilege,
rather
extension
than
an
of
the
recognized by federal common law.
existing
psychotherapist-patient
privilege
Moreover, unlike the aforementioned federal
courts, this Court has no basis for concluding that the psychotherapist-patient
privilege would apply to communications with counselors at SNAP.
See United
States v. Ghane, 673 F.3d 771, 783 (8th Cir. 2012) (stating that the burden placed
on those wishing to invoke the benefit of the psychotherapist-patient privilege
requires “a showing that ‘1) [the individual on the receiving end of the
communications at issue is a licensed psychotherapist, 2) [the defendant’s]
communications . . . were confidential, and 3) the communications were made
during the course of diagnosis or treatment[]’” (quoting United States v. Romo, 413
F.3d 1044, 1047 (9th Cir. 2005))); see also Jane Student 1 v. Williams, 206 F.R.D
306, 310 (S.D. Ala. 2002) (concluding that the federal psychotherapist privilege
does not extend to unlicensed social workers or professional counselors because
10
“[t]he Court’s research reveals that there is no consensus among the states that
unlicensed professionals such as social workers and professional counselors are
covered by the privilege; rather, there is near unanimity that the privilege does not
extend to such unlicensed persons[]”).
In summary, defendants’ assertions of the purported rape crisis center
privilege in response to plaintiff’s discovery requests are overruled.
Defendants
must provide any requested information they have withheld on the basis of this
privilege. The parties may request that the information be disclosed or produced
subject to a protective order. See Fed. R. Civ. P. 26(c).
VI.
Documents Relating to Payments from and Communications
with Attorneys at Law Firm Chackes, Carlson & Gorovsky
Plaintiff next seeks to compel the SNAP defendants to disclose documents
relating to payments from and communications with attorneys at the law firm
Chackes, Carlson & Gorovsky between January 1, 2005 and June 25, 2015.
See
Requests for Production Nos. 13 & 16 [Doc. #116-4]; Ex. 19, pp. 4, 10 & 12 [Doc.
#117-3].
The complaint contains allegations against the SNAP defendants of
defamation, intentional infliction of emotional distress, and conspiracy to violate
plaintiff’s civil rights. In the instant motion, plaintiff asserts that SNAP has referred
clients to Chackes, Carlson & Gorovsky and engaged in aggressive, public
promotion of the attorneys’ lawsuits for years. In return, plaintiff states that SNAP
has received substantial financial contributions from Chackes, Carlson & Gorovsky.
This law firm represents one of the minor’s parents in this case. Plaintiff states that
the law firm also was pursuing a civil lawsuit against him based on false allegations
at the time of the communications at issue.
Plaintiff argues that the history of
referrals and contributions between the lawyers of Chackes, Carlson & Gorovsky
11
and SNAP is relevant to this case, because it would give the SNAP defendants a
financial incentive to participate in a conspiracy to secure plaintiff’s conviction and
to make false statements about plaintiff with reckless disregard for whether
accusations against plaintiff were true.
Because the rules of discovery are broad, the burden is typically on the party
resisting discovery to explain why discovery should be limited. Jo Ann Howard &
Assocs., P.C. v. Cassity, 303 F.R.D. 539, 542 (E.D. Mo. 2014). That is, after the
proponent of discovery makes a threshold showing of relevance, the party opposing
a motion to compel has the burden of showing its objections are valid by providing
specific explanations or factual support as to how each discovery request is
improper. Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1993); St. Paul
Reinsurance Co., Ltd. v. Commercial Fin. Corp., 198 F.R.D. 508, 511–12 (N.D. Iowa
2000).
Plaintiff has demonstrated the relevance of the documents relating to
payments from and communications with attorneys at Chackes, Carlson &
Gorovsky.
In response, defendants have asserted boilerplate objections of work-
product and common interest privilege without establishing the applicability of
these privileges to the information sought. Defendants also claim that the requests
are burdensome because they lack any topic or time limitation.
Because the
requests are limited to communications regarding referrals to and payments from
one law firm over a set period of time, however, the Court does not find the
requests to be overbroad or unduly burdensome. With respect to the defendants’
assertion of a purported rape crisis center privilege, the Court has addressed this
objection above. To the extent that the documents sought contain private financial
12
information,
the
parties
may
request
a
protective
order
to
maintain
the
confidentiality of the information. See Fed. R. Civ. P. 26(c).
VII.
Boilerplate Objections
Lastly, plaintiff requests that the Court overrule certain boilerplate objections
the SNAP defendants have asserted.
In particular, plaintiff argues that the
objections to the following discovery requests constitute impermissible boilerplate
objections:
Requests for Production Nos. 2–3, 6, 8–10 [Doc. #116-13],
Interrogatories Nos. 9, 11–12 [Doc. #116-12], and Interrogatories Nos. 7, 10–12
[Docs. ##117-1-2].
The Court has addressed defendants’ assertions of privilege in connection
with documents and information withheld and identified in defendants’ privilege or
redaction logs above. The Court will not assume that defendants are withholding
further documents or information on the basis of an asserted privilege or objection
that are not already identified and described in their privilege log. See Fed. R. Civ.
P. 11(b). In complying with this order to the extent that it overrules defendants’
assertions of privilege and other objections to plaintiff’s discovery requests,
however, the Court reminds defendants of their obligations to comply with Federal
Rules of Civil Procedure 26(b)(5), 33(b)(4), and 34(b)(2)(C). See also, e.g., Nye v.
Hartford Accident & Indem. Co., Civ. No. 12-5028-JLV, 2013 WL 3107492, at *8
(D.S.D. June 18, 2013) (“Boilerplate objections are unacceptable.” (internal
quotations omitted)); St. Paul Reinsurance Co., 198 F.R.D. at 511–12 (“[T]he mere
statement by a party that the interrogatory or request for production was overly
broad, burdensome, oppressive and irrelevant is not adequate to voice a successful
objection.
On the contrary, the party resisting discovery must show specifically
13
how each interrogatory or request for production is not relevant or how each
question is overly broad, burdensome or oppressive.” (internal quotations,
citations, and brackets omitted)).
*
*
*
*
*
For the reasons discussed above,
IT IS HEREBY ORDERED that plaintiff’s motion to compel discovery from
the SNAP defendants [Doc. #116] is granted in part and denied in part, as set
forth above.
IT IS FURTHER ORDERED that the SNAP defendants shall have until July
11, 2016, to comply with this order and produce documents and answer
interrogatories as set forth above.
____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 27th day of June, 2016.
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