Dudley v. City of Kinston et al

Filing 239

ORDER granting in part and denying in part 98 Motion to Compel. Counsel should read the order in its entirety for critical deadlines and information. Signed by US Magistrate Judge Robert T. Numbers, II on 3/31/2021. (Sellers, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:18-CV-00072-D
Howard Dudley,
Plaintiff,
v.

Order

City of Kinston & A.N. Greene, in his
individual capacity,
Defendants.

Plaintiff Howard Dudley spent over two decades in prison until the Wrongful Convictions
Clinic at the Duke University School of Law persuaded authorities to vacate his conviction and
dismiss the charges against him. He has now sued A.N. Greene and the City of Kinston claiming,
among other things, that Greene failed to turn over exculpatory and impeachment evidence to the
district attorney who prosecuted Dudley.
As part of discovery, Defendants subpoenaed the Clinic’s files on Dudley. The Clinic
resisted producing some responsive documents because, it claims, the attorney-client privilege, the
work-product doctrine, or both insulate the documents from discovery.
Defendants have asked the court to compel the Clinic to produce the requested records.
They argue that Dudley has waived the attorney-client privilege through public statements and the
claims in his complaint. And they claim that they are entitled to the Clinic’s fact work product
because they have a substantial need for it.
After considering the parties’ filings and holding a hearing, the court will grant the motion
in part and deny it in part. Dudley has waived the attorney-client privilege for certain
communications in two ways. First, he has publicly discussed otherwise-confidential attorney-

client communications in public and during a deposition. And second, because of the nature of the
claims he brought, he has put certain communications he may have had with his attorneys at issue.
So the Clinic will need to produce the relevant portions of responsive documents.
But the Clinic need not produce any of its fact work product. After reviewing the evidence
submitted by Defendants and conducting an in-camera review of the withheld documents, the court
has determined that Defendants have not shown a substantial need for the Clinic’s work product.
The Clinic must supplement its production as required by this order within 10 days from
its date of entry. And if any disputes arise after this order, the court will address them directly with
the Clinic and the parties.
I.

Background
For six years, the Clinic worked to overturn Dudley’s conviction for a crime he claimed he

did not commit: molesting his then-nine-year-old daughter, Amy Moore. Resp. in Opp. at 1, D.E.
111. Its efforts were ultimately successful as Dudley gained his freedom and had the charge
dismissed in 2016.
In April 2018, Dudley filed a lawsuit alleging that his conviction resulted from
constitutional violations by the City of Kinston and one of its police officers, A.N. Greene. Compl.
passim, D.E. 1. Among Dudley’s claims was an allegation that Greene failed to “disclose
exculpatory and impeachment evidence” to the district attorney ahead of Dudley’s trial (the Bradyrelated 1 claim). See, e.g., Compl. ¶ 131. The evidence Greene supposedly withheld related to

1
In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court held that “suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.” Law enforcement officers can also violate
a defendant’s due process rights if they suppress evidence that is favorable to a defendant and material to the charges
against him. See Barbee v. Warden, Md. Penitentiary, 331 F.2d 842, 846–47 (4th Cir. 1964).

2

information from Paul Porter, Moore’s guardian ad litem, and Johnnye Waller, a Lenoir County
Social Worker, calling Moore’s allegations into question. Id. ¶ 9.
The Complaint alleges that in December 1991, months before Dudley’s trial, Porter told
Greene about an interview he conducted with Moore. Id. ¶ 72. During this conversation, Porter
allegedly said that he doubted her “reliability and the truthfulness of her allegations.” Id. ¶ 73.
Porter also allegedly shared with Greene his belief that that Moore made up her story and that the
molestation never occurred. Id. According to the Complaint, Greene never told the District
Attorney about Porter’s statements. Id. ¶ 74.
Dudley also claims that Porter shared his concerns with Waller. Id. ¶ 90. According to the
Complaint, Waller passed this information along to Greene. Id. ¶ 91. Yet Greene supposedly never
told the district attorney about his conversation with Waller. Id. ¶ 93.
Once discovery began, Defendants subpoenaed the Clinic’s records on Dudley. Mot. to
Compel Ex. A, D.E. 98–2. One subpoena asked for the “defense file” of Nicholas Harvey,
Dudley’s trial attorney. D.E. 98–2 at 4. Another sought the Clinic’s “investigative file” about
Dudley’s case. Id. at 9. And yet another subpoena sought the files of an attorney who represented
Dudley in connection with juvenile matters involving Moore. Id. at 14.
Although the Clinic produced many documents, it maintained that the attorney-client
privilege and work-product doctrine allowed it to withhold some documents. Defendants disagree.
Instead, Defendants claim Dudley has waived the attorney-client privilege for
communications about Porter’s concerns in two ways. The first waiver is said to have occurred
when Dudley gave a speech at Duke Law School and discussed a conversation he had with his trial
attorney about Porter. During the speech, Dudley mentioned that he believed Porter could provide
testimony that would help exonerate him. Duke University, Howard Dudley Embraces His

3

Freedom, YouTube (April 22, 2016), https://www.youtube.com/watch?v=GX4Lq1qqqyM (last
visited Mar. 31, 2021) at 32:55–33:08. So it bothered Dudley when he did not see Porter in the
courtroom on the first day of his trial. Dudley said, “I began to ask my lawyer concerning him.
And I never really got an answer to why he wasn’t there to testify on my behalf.” Id. 33:12–23.
Later in his speech, Dudley said,
At some point in time during the trial Mr. Harvey looked at me and said, “This is
not going well for you.” I said, “Well, what do they have on me?” I wanted to know
what am I doing here? What do they have on me? I said, “I don’t have a criminal
record. There’s no evidence.” I said, ‘Everything that they have, from what I can
see, is that Amy made a statement which was false and the only person that could
have spoke [sic] on my behalf to prove to this that this it was false, he is nowhere
to be seen.”
Id. 34:24–35:02.
Dudley also recounted a conversation he had with Porter about Porter’s interview of
Moore. Dudley Dep. Tr. at 57:5–24, D.E. 98–4. According to Dudley, Porter said that he concluded
that Moore’s mother had coerced her into making allegations against Dudley. Id. at 57:16–22.
Dudley said that he learned this information and passed it along to his attorney before his criminal
trial. Id. at 57:1–3, 57:25–8:1, 58:4–5.
The Defendants’ second waiver argument focuses on the Complaint’s Brady-related claim.
According to Defendants, whether Dudley or his attorney knew about the allegedly withheld
information is a key issue in the case. So, they argue, by bringing the Brady-related claim, Dudley
has put communications he may have had with his attorney about this topic at issue. Mem in Supp.
at 7.
There is also an argument advanced by the Defendants that they are entitled to various
notes of interviews the Clinic did with potential witnesses. Even if these documents are work
product, the Defendants believe they are entitled to them because they have a substantial need for

4

them. They once again rely on the importance of any knowledge Dudley and his attorney had about
the allegedly withheld evidence. And they claim that they have made other attempts to obtain this
information through depositions, but witnesses’ memories have faded over time.
The court held an evidentiary hearing on this matter in December 2020. After the hearing,
the court asked the Clinic to submit an updated privilege log, which it did.
II.

Analysis
Resolving this motion requires determining when documents lose the protections of the

attorney-client privilege or work-product doctrine. The court will summarize each doctrine and the
circumstances that lead to loss of their protections. After laying that groundwork, the court will
address the issues raised in the parties’ briefs 2 as to why the protections should or should not apply
in this case. Ultimately, the law allows Defendants to obtain only some documents they seek from
the Clinic.
A.

Attorney-Client Privilege

The attorney-client privilege is the oldest of the common-law privileges and serves to
encourage free communications between attorneys and their clients. Upjohn Co. v. United States,
449 U.S. 383, 389 (1981). It “affords confidential communications between lawyer and client
complete protection from disclosure.” Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998).

2

Defendants’ motion seeks a production of all documents responsive to their subpoenas. D.E. 98. But their supporting
brief contains narrower arguments that focus on specific types of documents. D.E. 98-1. As courts across the nation
have done, the court will find that Defendants have waived arguments that they did not raise in their brief. See Ohr
Somaych/Joseph Tanenbaum Educ. Ctr. v. Farleigh Int’l Ltd., 483 F. Supp. 3d 195, 206 n.6 (S.D.N.Y 2020); Magee
v. Life Ins. Co. of N. Am., 261 F. Supp. 2d 738, 748 n.10 (S.D. Tex. 2003); Front Range Nesting Bald Eagle Studies
v. U.S. Fish & Wildlife Svc., 353 F. Supp. 3d 1115, 1130 n.9 (D. Colo. 2018); Mesa Grande Band of Mission Indians
v. Salazar, 657 F. Supp. 2d 1169, 1173 (S.D. Cal. 2009).

5

The Clinic, as the party invoking the privilege, bears the burden of showing that the
privilege applies and that Dudley has not waived it. United States v. Jones, 696 F.2d 1069, 1072
(4th Cir. 1982). To make this showing, it must establish four things. First that the holder of the
privilege either was or was seeking to become a client. NLRB v. Interbake Foods, LLC, 637 F.3d
492, 501–02 (4th Cir. 2011). 3 Second that the person receiving the communication is an attorney
(or an attorney’s subordinate) and acted as an attorney when they received it. Id. Third that the
communication relates to facts conveyed by a client outside the presence of strangers and to
receiving legal services. Id. And fourth that the party has claimed the privilege and not waived it.
Id.
When assessing whether the privilege applies, the court should not just take the proponent
at their word. Instead, “[i]t is incumbent upon the proponent to specifically and factually support
his claim of privilege, usually by affidavit . . . and an improperly asserted privilege is the
equivalent of no privilege at all.” Byrnes v. Jetnet Corp., 111 F.R.D. 68, 71 (M.D.N.C. 1986).
Conclusory allegations are not enough. See N. River Ins. Co. v. Stefanou, 831 F.2d 484, 487 (4th
Cir. 1987).
Defendants claim that the Clinic cannot meet its burden to show that its communications
with Dudley are privileged. They argue that since the privilege does not prevent discovery of facts,
they are entitled to any facts in the Clinic’s communications with Dudley. They also claim that
Dudley has waived the privilege through his public statements and by bringing a Brady-related
claim that put communications with his attorney at issue.

3

Given that federal law supplies the rules of decision here, federal law applies to privilege issues. Fed. R. Evid. 501.

6

1.

Applicability of the Privilege to Documents Containing Facts Alleged
in the Complaint.

According to Defendants, “a significant portion” of the subpoenaed materials are not
eligible for protection under the attorney-client privilege. 4 Mem. in Supp. at 8. They argue that the
attorney-client privilege does not prevent “the disclosure of underlying facts.” Id. And that the
privilege does not apply to information that the defendant has or intends to make public. Id. So,
according to Defendants, “the privilege does not protect any of the facts alleged in the Complaint,
and accordingly” the Clinic should produce “any documents mentioning such facts[.]” Id. at 9.
The Clinic largely ignores the Defendants’ arguments on this issue. Resp. in Opp. at 8–9,
D.E. 111. Instead, it maintains that Dudley has not placed its advice at issue. Id. And even though
the Defendants did not raise this argument in their brief, the Clinic argues that the Defendants’
affirmative defense based on Dudley’s actual guilt does not result in a waiver of the privilege. 5 Id.
Defendants are correct that not all attorney-client communications are created equal when
it comes to their privileged status. Communicating factual information to an attorney does not
render that information immune from discovery. Upjohn, 449 U.S. at 395–96. Similarly,
unprivileged documents do not suddenly gain privileged status because they ended up in an
attorney’s hands. In re Allen, 106 F.3d 582, 604 (4th Cir. 1997). And the privilege does not apply
if a client understands or intends that the attorney will share the communicated information with
others outside the privileged relationship. In re Grand Jury Proceedings, 33 F.3d 342, 354–55 (4th
Cir. 1994).

4

Interspersed in this section of Defendants’ brief are claims that mimic their other arguments about the waiver
occasioned by bringing the Brady-related claim. Since the court address those issues elsewhere, it will not address
them here.
5
As noted above, because Defendants did not discuss a waiver caused by their “actual innocence” defense in their
initial brief, the court is not addressing it. See supra at n.1.

7

But these exceptions do not extend as far as the Defendants would like them to. For
example, while a fact conveyed to an attorney is discoverable, the attorney-client communication
that conveyed that fact is not. So the privilege does not allow a client to “refuse to disclose any
relevant fact . . . merely because he incorporated a statement of such fact into his communication
to his attorney.’” Upjohn, 449 U.S. at 395–96 (quoting City of Philadelphia v. Westinghouse Elec.
Corp., 205 F. Supp. 830, 831 (E.D. Pa. 1962)). But a client cannot “be compelled to answer the
question, ‘What did you say or write to the attorney?’” Id.
So while Dudley could not refuse to respond to discovery requests or deposition questions
that involve facts that he communicated to his attorneys, he can refuse to produce the
communications themselves. Thus, so long as it is otherwise appropriate, the Clinic can withhold
its communications with Dudley even if they contain factual information.
Nor can the court agree that, in general, the privilege offers no protection for
communications related to facts in a complaint. Courts have repeatedly rejected the position that
the privilege no longer applies simply because a communication involved facts that ended up in a
pleading. See, e.g., United States v. Grace, 455 F. Supp. 2d 1140, 1146 (D. Mont. 2006); Uniroyal
Chem. Co. v. Syngenta Crop Prot., 224 F.R.D. 53, 56 (D. Conn. 2004); Burlington Indus. v. Exxon
Corp., 65 F.R.D. 26, 35 (D. Md. 1974). Such a rule would hollow out the privilege’s core because
there would no longer be any protection for communications about facts at issue in a civil case. So
any waiver here would have to stem from Dudley’s statements or conduct.
2.

Waiver of the Attorney-Client privilege

Defendants next assert that the Clinic cannot rely on the attorney-client privilege to
withhold documents that relate to “the allegedly exculpatory and impeachment evidence” Dudley
and his trial counsel learned from Porter. Mem. in Supp. at 4–5. They argue that Dudley has waived

8

the privilege on that topic by publicly discussing the conversations he had with his trial counsel
about Porter. They also claim Dudley impliedly waived the privilege since what he and his attorney
knew about Porter’s concerns at the time of his trial is relevant to his Brady-related claim.
The client, as the holder of the attorney-client privilege, can waive its protections. This
wavier can occur either expressly or impliedly. Hawkins v. Stables, 148 F.3d 379, 384 n.4 (4th
Cir. 1998). A party can waive the privilege by sharing the confidential information with others
outside the privileged relationship. Id. Waiver can also occur if a client puts privileged matters at
issue. Small v. Hunt, 152 F.R.D. 509, 512 (E.D.N.C. 1994). Regardless of the type of waiver
alleged, the party asserting the privilege “must establish . . . that the privilege was not waived.”
Jones, 696 F.2d at 1072; Zeus Enters. v. Alphin Aircraft, Inc., 190 F.3d 238, 244 (4th Cir. 1999).
a)

Waiver by Public Disclosure

Dudley discussed conversations he had with his trial attorney about Paul Porter both in a
public speech and his deposition. And Dudley did not just make passing reference to a
conversation. Instead, he revealed the substance of those conversations. This type of disclosure
constitutes a waiver of the attorney-client privilege. See ePlus Inc. v. Lawson Software, Inc., 280
F.R.D. 247, 256 (E.D. Va. 2012) (“Waiver can occur by public revelation.”). The Clinic does not
argue otherwise.
But determining that Dudley waived the privilege is not the end of the inquiry. The court
must determine the waiver’s scope. Within the Fourth Circuit, voluntary disclosure “not only
waives the privilege as to the specific information revealed, but also waives the privilege as to the
subject matter of the disclosure.” Hawkins, 148 F.3d at 384 n.4. As a result, the privilege will no
longer apply to “other communications relating to the same subject matter.” Id. (quoting Jones,
696 F.2d at 1072).
9

When deciding the bounds of a subject-matter waiver courts should consider “the substance
of the protected information that has been publicly disclosed.” E.I. Dupont de Nemours & Co. v.
Kolon Indus., Inc., 269 F.R.D. 600, 607 (E.D. Va. 2010). The statements that led to the wavier of
the privilege involve the knowledge that he and his trial counsel had about Porter’s concerns about
Moore’s truthfulness before and during his trial. So Dudley can no longer claim the privilege for
communications relating to that subject-matter.
There is also a question over whether the waiver only includes Dudley’s communications
with his trial counsel or with subsequent attorneys too. Dudley made his public comments about
his conversations with his trial counsel after his release in 2016. By making those comments, he
lifted the veil of confidentiality that applied to all previous conversations on that topic. So the
waiver applies to any attorney-client communications with any attorneys on that subject matter
until then. 6 And, again, the Clinic does not argue otherwise. So the Clinic cannot assert the
attorney-client privilege over any documents dealing with the subject-matter of the waiver,
regardless of the attorney involved in the communication.
3.

At-Issue Waiver of the Attorney-Client Privilege

Defendants also argue that Dudley waived the privilege by placing what he and his attorney
knew about the allegedly withheld information at issue. They maintain that if Dudley or his trial
counsel knew that information, then he cannot prevail on his Brady-related claim. So, the argument
goes, Dudley cannot use the attorney-client privilege to shield this information from discovery.
Defendants specifically focus on “allegedly exculpatory information from Amy Moore’s guardian
ad litem Paul Porter” that was known by Dudley or his trial counsel. 7 Mem. in Supp. at 7 n.4 & 8,

6

Given the temporal scope of the documents at issue, the court need not address whether the waiver applies
prospectively.
7
In a footnote, Defendants also claim that knowledge of his post-conviction counsel is at issue. If a party relegates
an argument to a footnote, courts may choose to not address it. Gregorio v. Hoover, 238 F. Supp. 3d 37, 43 n.7

10

98–1.
Federal courts recognize that a client can waive the attorney-client privilege by placing the
otherwise confidential communication at issue in litigation. Small v. Hunt, 152 F.R.D. 509, 512
(E.D.N.C. 1994). And Defendants claim that two cases that federal courts regularly look to when
assessing if an at-issue waiver occurred—Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975), and
Rhone-Poulenc Rorer Inc., v. Home Indem. Co., 32 F.3d 851 (3rd Cir. 1994)—weigh in their
favor. 8
The Clinic’s brief does not mention either of these tests. Instead, it relies on a blanket
assertion that the Clinic’s advice is not at issue and argues about the unraised issue of an actual
guilt defense. Resp. in Opp. at 8–9.
The analysis of this issue will proceed in two parts. To begin with the court will review the
elements of Dudley’s Brady-based claim to determine what facts are at issue. Then the court will
consider whether either Hearn or Rhone-Poulenc support finding an at issue waiver.
a)

Elements of Dudley’s Brady-Related Claim

Determining whether counsel’s advice is at issue requires looking at what Dudley needs to
prove to prevail on his Brady-based claim. A due process claim based on the allegation that an
officer suppressed evidence favorable to a defendant has three elements. First, that “the evidence
at issue was favorable to him[.]” Owens v. Baltimore City State’s Attorneys Off., 767 F.3d 379,
396 (4th Cir. 2014). Second, that the officer “suppressed the evidence in bad faith[.]” Id. And third,
that “prejudice ensued.” Id. at 396-97.

(D.D.C. 2017); Weslowski v. Zugibe, 96 F. Supp. 3d 308, 314 (S.D.N.Y. 2015). Given importance of the attorneyclient privilege, the court declines to address this argument without it being fully developed in Defendants’ brief.
8
While the Fourth Circuit has cited Rhone-Poulenc with approval, it has not formally adopted one of these tests.
United States ex rel. Drakeford v. Tuomey, 792 F.3d 364, 377 n.8 (4th Cir. 2015).

11

The second factor is particularly relevant to this motion. Courts have noted that even when
an officer does not turn evidence over to the prosecutor “suppression does not occur when a
criminal defendant is already aware of the exculpatory information. Burgess v. Baltimore Police
Dep’t, 300 F. Supp. 3d 696, 704 (D. Md. 2018) (citing Barnes v. Thompson, 58 F.3d 971, 975–76
(4th Cir. 1995); Stockton v. Murray, 41 F.3d 920, 927 (4th Cir. 1994)). Accord United States v.
Parker, 790 F.3d 550, 562 (4th Cir. 2015) (“[A] Brady violation has not occurred if the defense is
aware, or should have been aware, of impeachment evidence in time to use it in a reasonable and
effective manner at trial.”); United States v. Catone, 769 F.3d 866, 872 (4th Cir. 2014) (“[T]o
establish a Brady violation, the exculpatory material must be known to the government but not to
the defendant.”). So if Dudley or his attorney knew of the allegedly withheld evidence, Dudley’s
Brady-related claim will fail.
b)

The Hearn Test

The Hearn test focuses on three issues. To begin with, a court should consider whether the
“assertion of the privilege was a result of some affirmative act, such as filing suit, by the asserting
party[.]” Hearn, 68 F.R.D. at 581. The next question is whether “through this affirmative act, the
asserting party put the protected information at issue by making it relevant to the case[.]” Id. And
finally, the court looks to whether “application of the privilege would have denied the opposing
party access to information vital to his defense.” Id.
All three Hearn factors are satisfied here. Dudley’s claim of privilege has arisen because
of the suit he filed. And, as noted above, there is no Brady violation if the defendant or his attorney
knew of the allegedly withheld evidence. So this information is relevant to Dudley’s claim.
Moreover, given the importance of awareness by Dudley or his attorney of the allegedly withheld
information, denying Defendants access to this information would deprive them of information
12

vital to their defense.
The Clinic responds that the court should not find a waiver because “Dudley has not
injected the Clinic’s privileged communications into the present lawsuit.” Resp. in Opp. at 8. It
also argues that Dudley’s “claims are not based on the Clinic’s legal advice.” Id.
But Hearn doesn’t ask if claims are based on an attorney’s legal advice. Instead, it focuses
on whether Dudley has put “protected information at issue” in this case. Hearn, 68 F.R.D. at 581.
And as discussed above, his knowledge and the knowledge of his trial counsel are directly at issue.
So, under Hearn, an at-issue waiver has occurred.
c)

The Rhone-Poulenc Test

Like Hearn, Rhone recognized that a client could waive the attorney-client privilege by
putting privileged matters at issue. Rhone-Poulenc, 32 F.3d at 863. But Rhone parts company with
Hearn over when that waiver occurs. While Hearn makes the privileged information’s relevance
the determinative factor in the analysis, Rhone does not. Id. (“Advice is not in issue merely because
it is relevant, and does not necessarily become in issue merely because the attorney’s advice might
affect the client’s state of mind in a relevant manner.”). The Third Circuit objected to the use of
Hearn to get at privileged communications simply because the “the client’s state of mind may be
in issue in the litigation[.]” Id. Instead, in the Third Circuit’s view, a waiver occurs only if the
party asserting the privilege makes use of the privileged information, like when it “attempts to
prove [a] claim or defense by disclosing or describing an attorney client communication.” Id.
The court looked to patent law for an example. The Court of Appeals explained that an atissue waiver would not arise simply because there was an allegation that the infringer acted
willfully. Id. In that situation, “the advice of the infringer’s lawyer may be relevant to the question
of whether the infringer acted with a willful state of mind.” Id. But that would not be enough to
13

waive the privilege. Id. To do that, the infringer must attempt “to limit its liability by describing
that advice and by asserting that he relied on that advice.” Id.
So under Rhone, the court must look at whether Dudley’s Brady-related claim requires him
to make use of privileged information to prove it. Dudley bears the burden of establishing that
suppression occurred. See Owens, 767 F.3d at 396 (explaining that the plaintiff “must allege, and
ultimately prove,” the elements of a Brady-related withholding claim). And to do that he will
eventually need to show that neither he nor his attorney knew about the allegedly withheld
information. See Nayab v. Capital One Bank (USA), N.A., 942 F.3d 480 (9th Cir. 2019) (“It is a
general rule of evidence . . . that ‘where the subject-matter of a negative averment lies peculiarly
within the knowledge of the other party, the averment is taken as true unless disproved by that
party.’”); Allstate Fin. Corp. v. Zimmerman, 330 F.2d 740, 744 (5th Cir. 1964).
Since Dudley will need to rely on privileged information to prove his claim, Rhone suggests
that he has waived the attorney-client privilege by putting his attorney’s advice at issue.
d)

Conclusion on Existence of an At-Issue Waiver

Based on both Hearn and Rhone, the court finds that Dudley has placed attorney-client
communications about the allegedly withheld information at issue. As a result, he has waived the
attorney-client privilege for communications on that topic. This waiver extends to all
communications on those topics with all attorneys who have represented Dudley. Thus the Clinic
cannot withhold documents involving that subject matter based on the attorney-client privilege. 9

9

If appropriate, the Clinic may withhold all or parts of documents under the work-product doctrine.

14

B.

Work-Product Doctrine

Under the work-product doctrine, documents prepared “in anticipation of litigation . . . by
or for another party or its representative” are generally not discoverable. Fed. R. Civ. P.
26(b)(3)(A). Courts have distinguished between two types of attorney work product: fact work
product and opinion work product. In re Grand Jury Proceeding, 102 F.3d 748, 750 (4th Cir. 1996)
Fact work product “consists of documents prepared by an attorney that do not contain the
attorney’s mental impressions[.]” In re Grand Jury Proceedings, 401 F.3d 247, 250 (4th Cir.
2005). This type of work product is only entitled to qualified protection and “can be discovered
upon a showing of both a substantial need and an inability to secure the substantial equivalent of
the materials by alternate means without undue hardship.” Id.
Opinion work product, on the other hand, contains an attorney’s “mental impressions,
opinions, and legal theories[.]” Duplan Corp. v. Deering Milliken, Inc., 540 F.2d 1215, 1223 (4th
Cir. 1976). Work product falling into this category is “more scrupulously protected as it represents
the actual thoughts and impressions of the attorney.” In re Grand Jury Proceedings, 401 F.3d at
250. It is discoverable “only in very rare and extraordinary circumstances.” In re Doe, 662 F.2d
1073, 1080 (4th Cir. 1981).
As with the attorney-client privilege, the burden first rests on the party resisting discovery
to show that the work-product doctrine applies to a document. Republican Party of N.C. v. Martin,
136 F.R.D. 421, 430 (E.D.N.C. 1991). If it does, the burden then shifts to the requesting party “to
show, as to each document, substantial need and undue hardship.” Id. at 429.
1.

Documents Sought by Defendants

The court must first determine what documents the Defendants are asking it to make the
Clinic produce. Their brief is vague on this point. For example, they “assert that some of the items”
15

the Clinic is withholding “are not protected by the work-product doctrine.” Mem. in Supp. at 10.
But they do not state—or even hint at—which items they claim the doctrine does not apply to.
And the Defendants say that they “seek documents in the” Clinic’s “investigative files such
as its communications” with various people connected to Dudley’s case. Id. But they do not specify
the scope of documents they seek. Although they do suggest that certain witness statements may
be fact work-product that are discoverable under the substantial need exception. Id.
Since Defendants have the burden to establish that there is a substantial need for work
product, the court believes they also have the burden to clearly articulate the documents they seek
to withdraw from the doctrine’s protections. Given the discussion in their brief, the court finds that
Defendants are requesting the production of fact-work product involving communications with the
individuals named in their brief on whether Dudley or his trial counsel knew of the facts that
Dudley now alleges Greene withheld. Thus the court will assess whether they have established a
substantial need for such documents.
2.

Whether a Substantial Need Exists for Production of Fact Work
Product

The Defendants have a substantial need for these documents, they claim, because as with
the attorney-client privilege, the information known to Dudley and his trial attorney is relevant to
his Brady claim. And they claim they have been unable to “secure the substantial equivalent of the
materials by alternate means without undue hardship” since they have unsuccessfully tried to
subpoena this information from Dudley’s prior attorneys. 10 At the hearing on this motion, they
also claimed that deposition testimony has shown that various witnesses’ memories have faded.
The Clinic disagrees. In its brief, it argues that the Defendants have not provided the court
with anything more than a conclusory assertion that they have a substantial need for this

10

Although exactly what materials they are referring to is unclear.

16

information. And the Clinic also asserts that Defendants don’t need to riffle through its files
because they can depose most of the people they mentioned in their brief.
The Clinic candidly admits that the Defendants cannot take this tact with Porter, since he
died several years ago. But the Clinic has already given Defendants a recording of its interview
with Porter that occurred shortly before his death. So, in the Clinic’s view, that should be enough.
Finally, the Clinic says that it has no more relevant information than Dudley’s prior attorneys, so
there is no need to look at the Clinic’s work product.
So what exactly constitutes a need substantial enough that it justifies disclosing an
attorney’s fact work product? The Advisory Committee Notes to Rule 26 provide three factors
courts should consider when assessing whether special needs justify disclosure of fact work
product. First, the “importance of the materials to the party seeking them for case preparation[.]”
Fed. R. Civ. P. 26 advisory committee’s notes to 1970 amendments subdivision (b)(3). Second,
“the difficulty the party will have obtaining them by other means[.]” Id. And third, “the likelihood
that the party, even if he obtains the information by independent means, will not have the
substantial equivalent of the documents he seeks.” Id.
The Defendants claim that the work product might contain important information. The
Clinic does not argue otherwise. So the dispute here centers on the latter two factors.
On the remaining issues, the Clinic’s argument that in most cases the Defendants can just
depose the witnesses to get the information they want is a fair one. Courts prefer that a party try to
obtain information through a deposition before resorting to discovery of fact work product. Suggs
v. Whitaker, 152 F.R.D. 501, 507 (M.D.N.C. 1993).
But a deposition may not be a fruitful source of information if many years have passed
since the events in question. So courts also recognize that “if a party or witness has no recollection

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of the events” at issue “this loss of memory constitutes an inability to obtain the substantial
equivalent of the facts in the report by other means.” Id. (citing Phillips v. Dallas Carriers Corp.,
133 F.R.D. 475, 481 (M.D. N.C. 1990). The Advisory Committee Notes also recognize that “a
lapse of memory” may justify a finding of substantial need. Fed. R. Civ. P. 26 advisory
committee’s notes to 1970 amendments subdivision (b)(3).
The Defendants have argued and presented evidence that some people mentioned in their
brief no longer remember the events at issue. So the court will look to whether, based on the
evidence, Defendants are entitled to the requested documents.
a)

Insufficient Showing of Substantial Need

For several individuals, Defendants presented no evidence supporting their claim of a
substantial need for fact-work product. Because of that shortcoming, the court will not require the
Clinic to produce any of its fact work product for Amy Moore, Joretta Durant, the North Carolina
Center on Actual Innocence, and Judge Paul Jones.
b)

Dal Wooten

Dal Wooten, one of Dudley’s post-conviction attorneys, testified that he does not
remember if James Perry, another one of Dudley’s attorneys, explained why Porter would not
allow an interview of Moore to take place. Wooten Dep. at 66:17–20. This lapse in memory does
not relate to evidence Greene allegedly withheld. And, in any event, none of the Wooten-related
documents on the privilege log relate to that issue. 11 So the court finds that Defendants have not
established a substantial need for the Clinic’s fact work product related to Wooten.

11

Defendants’ brief mentions an interview between the Wooten and the Clinic, but the privileged documents submitted
to the court do not appear to contain any documents related to that event.

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c)

James Perry

The transcript from Perry’s deposition reflects that he remembers almost nothing about his
representation of Dudley. Perry Dep. passim. Several Perry-related documents on the privilege log
are opinion work-product, and thus not discoverable even if Defendants have a substantial need
for them. See Docs. 402–404 12, Duke_003125, Duke_003129, Duke_003155, Duke_003161.
None of the remaining Perry-related documents relate to the allegedly concealed issues. See Docs.
405, 408, 413, 414, 415, 416, 643. So the court finds that Defendants have not established a
substantial need for the Clinic’s fact work product related to Perry.
d)

Paul Porter

The Clinic spoke with Paul Porter more than once before his death. One document in the
Clinic’s file memorializes a conversation its staff had with him in November 2012. Doc. 429. The
Clinic provided Defendants with a recording of that interview, so there is no substantial need to
produce that document. And the remaining two documents (Docs. 509 and 895) provide no insight
into whether Dudley or his attorney knew of Porter’s concerns before trial. So the court finds that
Defendants have not established a substantial need for the Clinic’s fact work product related to
Porter.
e)

Nicholas Harvey

Harvey was able to answer many questions posed during his deposition. He said he was
unaware of Porter’s concerns about Moore’s allegations ahead of Dudley’s trial. Harvey Dep. at
10:12–11:9. He was also sure that he had not received a report prepared by Waller before or during

12

Most of the document identification numbers on the privilege log begin with DUKE-PRIV-. For ease of reference,
the court will omit this prefatory language. If a document begins with another prefix, the court will note it.

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Dudley’s trial. Id. 10:9–11. But he could not recall whether Dudley had told him about
conversations Dudley had with Porter. Id. 31:21–32:8, 32:23–33:13, 33:19–25, 34:6–10. Thus, he
has a lapse of memory on these issues.
A November 2011 memo recounts a conversation a member of the Clinic staff had with
Harvey. See Doc. 634. The memo does not address whether Dudley told Harvey about his
conversations with Porter. So the court finds that Defendants have not established a substantial
need for the Clinic’s fact work product about Harvey.
f)

Johnnye Waller

According to her deposition testimony, Waller also had no independent recollection about
her investigation into Amy Moore’s claims. Waller Dep. at 59:19–60:16. She says she also does
not remember Amy Moore, Dudley, or Greene. D.E. 62:13–25. She also has no recollection of
conversations with Greene or the Kinston Police Department. Id. 102:2–138:16.
There are two copies of a memo in the Clinic’s files that recount an interview with Waller
by Clinic staff. Doc. 397, 940. There is no information in this memorandum about Waller speaking
with Greene about Porter’s concerns or any other information Greene allegedly withheld. So the
court finds that Defendants have not established a substantial need for the Clinic’s fact work
product related to Waller.
III.

Conclusion
For the reasons stated above, Defendants’ motion to enforce their subpoenas to the Clinic

is granted in part and denied in part. The court orders the following:

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1.

Within 10 days from the date of entry of this order, the Clinic must produce
documents previously withheld based on the attorney-client privilege that contain
communications about knowledge Dudley or his attorneys had about
a. Exculpatory or impeachment evidence the Complaint alleges Greene
withheld; and
b. Exculpatory or impeachment evidence identified during the discovery
process that Dudley claims Greene withheld.

2.

To the extent that this order requires production of only a portion of a document,
the Clinic should produce that portion and may redact the rest.

3.

When the clinic produces these documents, it must also provide Defendants with
an updated privilege log to reflect documents still withheld and any redactions in
produced documents.

4.

Within one week after the Clinic produces these documents Defendants and the
Clinic must meet and confer about any disputes over whether the Clinic has
produced all documents required by this order.

5.

If disputes still exist after the meet and confer process, the parties should notify
the court and it will schedule a hearing to resolve the disputes.

6.

Each party will bear their own costs.

Dated: March 31, 2021
Dated:
______________________________________
ROBERT T.Numbers, IIII
Robert T. NUMBERS,
UNITEDStates Magistrate JudgeUDGE
United STATES MAGISTRATE J

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