Hill v. City of Oklahoma City et al

Filing 68

ORDER granting in part and denying in part 54 Defendant's MOTION to Strike Portions of Plaintiff's Rule 30(b)(6) Notice of Deposition. Signed by Honorable Robin J. Cauthron on 5/23/17. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ANTHONY HILL,
Plaintiff,
v.
CITY OF OKLAHOMA CITY, et al.,
Defendants.

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Case No. CIV-15-881-C

MEMORANDUM OPINION AND ORDER
Now before the Court is Defendant City of Oklahoma City’s Motion for Order
Striking Portions of Plaintiff’s Rule 30(b)(6) Notice of Deposition (Dkt. No. 54). Plaintiff
has responded and the Motion is now at issue. A Rule 30(b)(6) Notice of Deposition “must
describe with reasonable particularity the matters for examination.” Fed. R. Civ. P.
30(b)(6). Defendant essentially requests that the Court issue a Protective Order to prevent
the discovery of information listed in certain paragraphs of the Notice because the matters
for examination are not relevant, violate the attorney-client privilege, or seek attorney work
product.
Materials protected by the work product doctrine must “’(1) be a document or
tangible thing, (2) that was prepared in anticipation of litigation, and (3) was prepared by
or for a party, or by or for his representative.’” Wells Fargo Bank, N.A. v. LaSalle Bank
Nat’l Ass’n, No. CIV-08-1125-C, 2010 WL 2594828, at *5 (W.D. Okla. June 22, 2010)
(quoting Retail Brand Alliance, Inc. v. Factory Mut. Ins. Co., No. 05 Civ. 1031 (RJH)
(HBP), 2008 WL 622810, at *3 (S.D.N.Y. Mar. 7, 2008)). First, the party resisting

discovery “has the burden of establishing that the information sought . . . is protected by
Rule 26(b)(3).” Feldman v. Pioneer Petroleum, Inc., 87 F.R.D. 86, 88 (W.D. Okla. 1980)
(citations omitted). If the court finds the material is protected, the party seeking the
information must “show[] that it has substantial need for the materials to prepare its case
and cannot, without undue hardship, obtain their substantial equivalent by other means.”
Fed. R. Civ. P. 26(b)(3)(A)(ii); see also Barclaysamerican Corp. v. Kane, 746 F.2d 653,
656 (10th Cir. 1984).
Defendant raised the attorney-client privilege without providing support for its
necessity. When a party raises the attorney-client privilege in a federal question case, the
federal common law applies. See 8 Wright & A. Miller Fed. Prac. & Proc. § 2016 (3d ed.).
The Court reviewed the presented information and finds none of the information sought
qualifies for attorney-client privilege protections.
Defendant argues paragraphs 1(a)-(m) should be included in a Protective Order
because the information is barred by the work product doctrine. The information sought is
related to “[t]he investigation conducted by the City of Oklahoma City pursuant to the
Notice of Claim filed by Plaintiff . . . and the manner in which Claims made against the
City are investigated and resolved.” (Pl.’s Dep. Notice, Dkt. No. 54-1, p. 4.) After the
initial police investigation, Plaintiff filed a Notice of Tort Claim and the matter was
“assigned to the Litigation Division of the Municipal Counselor’s Office” where an
attorney conducted an investigation. (Def.’s Mot. to Strike, Dkt. No. 54, p. 9.) Because
paragraphs 1(a)-(j) request information resulting from an attorney’s investigation

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conducted in anticipation of litigation and Plaintiff has not met the requirements imposed
by Rule 26(b)(3)(A)(i)-(ii), Defendant’s request regarding paragraphs 1(a)-(j) is granted.
Paragraphs

1(k)-(m)

request

information

regarding

Defendant’s

internal

investigative procedures and decision-making authority. These policies and procedures
were not prepared in anticipation of litigation and are relevant to Plaintiff’s § 1983 claim.
Because Defendant failed to show the information qualified as attorney work product the
request regarding this information is denied.
Defendant argues for a Protective Order regarding paragraphs 3(a)-(m) because this
information is barred by the work product doctrine. This request includes information
related to “[t]he process employed by the City of Oklahoma City regarding the decision to
charge Anthony Hill with Municipal Ordinance violations arising from the incident, the
decision to continue the criminal prosecution, and the decision to dismiss the criminal
prosecution.” (Pl.’s Dep. Notice, Dkt. No. 54-1, p. 6.) Plaintiff argues the materials are
not attorney work product, and if they were, Defendant has waived the privilege through
its defenses.
The process by which the City of Oklahoma City decided to charge Plaintiff with
municipal ordinance violations and subsequent decisions regarding the criminal
prosecution is attorney work product. Plaintiff failed to bear the burden of showing
substantial need and the inability to obtain the materials by other means without undue
hardship. See Fed. R. Civ. P. 26(b)(3)(A)(i)-(ii). The Court finds Plaintiff’s waiver
argument unpersuasive. Therefore, Defendant’s request regarding paragraphs 3(a)-(m) is
granted.
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Defendant argues the scope of paragraphs 4(a)-(e) should be temporally limited.
The items request information related to “[t]he employment and disciplinary records of the
Officers involved in the incident.” (Pl.’s Dep. Notice, Dkt. No. 54-1, p. 7.) The Court
agrees that employment records from an indefinite period are not relevant. Paragraphs
4(a)-(e) shall be limited to five (5) years before the date of the incident in question, or
March 2, 2012, and any time thereafter. Defendant also argues paragraphs 4(f)-(i) and 4(k)
should be included in the Protective Order because they relate to incidents that occurred
after March 2, 2012. Considering the claims and the proportional needs of the case, the
Court finds these paragraphs will be discoverable and Defendant’s request is denied.
However, the Court is not expressing an opinion on whether this information will be
admissible at trial. Because Plaintiff provided no argument in response to Defendant’s
relevance objection regarding paragraph 4(j), Defendant’s request is granted.
CONCLUSION
For the reasons stated, Defendant’s Motion for Order Striking Portions of Plaintiff’s
Rule 30(b)(6) Notice of Deposition (Dkt. No. 54) is GRANTED in part and DENIED in
part. Paragraphs 1(a)-(j), 3(a)-(m), and 4(j) are protected from discovery and 4(a)-(e) shall
be limited in scope to five (5) years before the date of the incident and any date thereafter.
IT IS SO ORDERED this 23rd day of May, 2017.

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