Swinney v. City of Charlotte, NC

Filing 19

ORDER granting in part and denying in part 17 Motion to Compel Defendant to Respond to Discovery Requests. Defendant shall produce copies on or before 3/10/2010. Defendant's Amended Motion for Summary Judgment deadline 3/10/2010. Plaintiff's Response deadline 4/7/2010. Signed by Magistrate Judge David S. Cayer on 3/2/2010. (tmg)

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION Civil Action No: 3:09-CV-144-FDW-DSC

ROBERT L. SWINNEY, II, Plaintiff, ORDER v. CITY OF CHARLOTTE, Defendant.

THIS MATTER is before the Court on the pro se Plaintiff's "Request to Court to Order Defendant to Respond to Interrogatories and Requests for Documents" (document #17) filed February 25, 2010, and Defendant's "Response ..." (document #18) filed March 1, 2010. The parties' present discovery dispute involves Defendant's objection to producing three categories of information and/or documents that are otherwise responsive to Plaintiff's Interrogatories and Requests to Produce. First, Defendant objects to producing information and documents that it contends are subject to the attorney-client1 and attorney work product privileges,2 that is, defense counsel's
The attorney-client privilege is intended to encourage those who find themselves in actual or potential le g a l disputes to be candid with lawyers who advise them, and is one of the oldest recognized privileges for c o n fid e ntia l communications. See Upjohn Co. v. United States, 449 U.S. 383, 389 (1981); Hunt v. Blackburn, 128 U .S . 464, 470 (1888). The attorney-client privilege is intended to encourage "full and frank communication between a t to r n e ys and their clients and thereby promote broader public interests in the observance of law and the a d m in is tr a tio n of justice." Upjohn, 449 U.S. at 389. Accord Swidler & Berlin v. U.S., 524 U.S. 399, 404 (1998). W h e n the privilege applies, it affords confidential communications between lawyer and client complete p r o te c tio n from disclosure. See Trammel v. United States, 445 U.S. 40, 50 (1980); In re Grand Jury Subpoena, 204 F . 3 d 516, 519-20 (4th Cir. 2000); Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998). This protection applies to c o m m u n i c a t i o n s between a corporate party and its in-house counsel, as well as to communications with a privatelyr e ta in e d attorney. See Upjohn, 449 U.S. at 389-90. I t is well established that the attorney-client privilege extends not only to documents authored by an a t to r n e y, but also to information and queries submitted to him by his client. Upjohn, 449 U.S. at 390 (explaining th a t the attorney-client privilege "exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice"); and In re A lle n , 106 F.3d 582, 601 (4th Cir. 1997) (applying Upjohn). T h e attorney work product privilege is intended to prevent a litigant from taking a free ride on the research a n d thinking of his opponent's lawyer and to avoid the resulting deterrent to a lawyer's committing his thoughts to p a p e r . See, e.g., United States v. Nobles, 422 U.S. 225, 236-39 (1975); U.S. v. Bornstein, 977 F.2d 112, 117 (4th C ir . 1992), citing United States v. Powell, 379 U.S. 48, 58 (1964). In order to qualify for the work product doctrine, th e document must be prepared "because of the prospect of litigation when the preparer faces an actual claim or a
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"notes, drafts, thought processes, and communication with clients on matters related to this litigation." Defendant next objects to responding to any Interrogatories propounded by Plaintiff in excess of the 25 Interrogatories permitted by Paragraph 1c of the Case Management Order and Rule 33(a)(1) of the Federal Rules of Civil Procedure. See Document #6 at 2; Fed. R. Civ P. 33(a)(1) ("[u]nless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts"). As Defendant

correctly points out in its Response, including subparts, Plaintiff has propounded more than 100 Interrogatories. Defense counsel indicates that Defendant has responded to the first 25

Interrogatories, that is, through and including Interrogatory 11(d). Finally, Defendant initially objected to producing copies of its city-wide policies and procedures which are available to the public on Defendant's Internet website. In its discovery responses, Defendant directed Plaintiff to obtain this information from the website. In its present Response, however, Defendant offers that "if it pleases the Court, Defendant will attempt to print out as much of the on-line material as possible." Document #18 at 2. Having carefully considered the record, arguments and applicable authority, and having conferred with the chambers of the District Judge to whom this case is assigned (the Honorable Frank D. Whitney), the Court will sustain Defendant's first two objections and overrule its third objection. The Court will also extend Defendant's deadline for amending its Motion for

Summary Judgment and Plaintiff's deadline for responding to that Motion.

potential claim following an actual event or series of events that reasonably could result in litigation." National U n i o n Fire Ins. Co. of Pittsburgh, Pa. v. Murray Sheet Metal Co., Inc., 967 F.2d 980, 984 (4th Cir. 1992).

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NOW THEREFORE IT IS HEREBY ORDERED that: 1. Plaintiff's "Request to Court to Order Defendant to Respond to Interrogatories and Requests for Documents" (document #17) is GRANTED IN PART and DENIED IN PART, that is, on or before March 10, 2010, Defendant shall produce copies of all otherwise responsive, unprivileged information which Defendant initially did not produce on the grounds that the information was available through the Internet. Plaintiff's Motion is DENIED in all other respects. 2. Defendant shall have until March 10, 2010 to amend its Motion for Summary

Judgment and Memorandum in Support. 3. Plaintiff shall file his response to Defendant's Motion for Summary Judgment

no later than April 7, 2010. 4. The Clerk is directed to send copies of this Order to the pro se Plaintiff; to defense counsel; and to the Honorable Frank D. Whitney. SO ORDERED. Signed: March 2, 2010

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