WILSON v. CITY OF PHILADELPHIA et al

Filing 191

ORDER THAT PLFF'S MOTION TO COMPEL IS GRANTED; THE DISTRICT ATTORNEY SHALL HAVE THE OPPORTUNITY TO AMEND BY 3/31/14, ETC; IF HE ELECTS HE SHALL PRODUCE THE JURY SELECTION NOTES THAT PLFF HAS REQUESTED BY 4/18/14 AND PLFF SHALL BE ENTITLED TO DEPOSE THE NEW WITNESSES BY 5/2/14. IF THE DISTRICT ATTORNEY WISHES TO RAISE OBJECTIONS HE SHALL FILE AN APPROPRIATE MOTION BY 4/11/14. SIGNED BY HONORABLE L. FELIPE RESTREPO ON 3/25/14. 3/26/14 ENTERED AND COPIES E-MAILED TO COUNSEL.(lvj, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

HAROLD WILSON,
Plaintiff,
v.
CITY OF PHILADELPHIA, et al.,
Defendants.

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CIVIL ACTION

NO. 04-5396

MEMORANDUM / ORDER
AND NOW, this 25th day of March, 2014, the Court having considered Plaintiff’s
Motion to Compel (Doc. 183), Defendant District Attorney R. Seth Williams’ Response (Doc.
184) and Plaintiff’s Supplement to his Motion to Compel (Doc. 185), and having held oral
argument by telephone conference, it is HEREBY ORDERED that the Motion (Doc. 183) is
GRANTED, for the reasons that follow and subject to the conditions stated.
1.

Plaintiff Harold Wilson has indicated that he intends to rely on three statistical

studies, authored by Professors David Baldus and George Woodworth, in support of his Batson /
Monell claim against Defendant R. Seth Williams (collectively “the Baldus & Woodworth
studies”). 1 See Doc. 168 ¶¶ 7-21. On November 8, 2013, Professor George Woodworth
supplied a list of 317 cases on which the studies relied. See Docs. 170, 171, 171-1, 175 p. 2. In
light of the belated disclosure, I granted the District Attorney’s motion to reopen discovery until

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The studies are: (1) David C. Baldus et. al., Racial Discrimination and the Death Penalty in the PostFurman Era: An Empirical and Legal Overview, with Recent Findings from Philadelphia, 83 Cornell L.
Rev. 1638 (1998); (2) David C. Baldus et. al., The Use of Peremptory Challenges in Capital Murder
Trials: A Legal and Empirical Analysis, 3 U. Pa. J. Const. L. 3, 6 (2001); and (3) David C. Baldus et. al.,
Statistical Proof of Racial Discrimination in the Use of Peremptory Challenges: The Impact and Promise
of the Miller-El Line of Cases As Reflected in the Experience of One Philadelphia Capital Case, 97 Iowa
L. Rev. 1425, 1428 (2012).

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March 7, 2014, limited to matters related to the Baldus & Woodworth studies and underlying
facts. See Doc. 180.
2.

On March 7, 2014, the District Attorney identified twelve additional witnesses

pursuant to Rule 26(a)(1) of the Federal Rules of Civil Procedure. See Doc. 185 p. 1, Ex. A.
They include nine current and former Assistant District Attorneys (“ADAs”) who prosecuted
cases on the Baldus & Woodworth case list. As the District Attorney clarified during the
telephone conference held with the parties on March 19, 2014, these witnesses will testify – if
they do testify – that they did not engage in intentional discrimination during jury selection in the
cases that they prosecuted.
3.

Plaintiff Harold Wilson now moves the Court to compel the production of any notes

made by these prosecutors during jury selection in the approximately 160 cases listed on the
attached document, entitled “List of Cases Prosecuted by Rule 26(A)(1) Witnesses and Included
in the Baldus and Woodworth Studies.” The basis for the request is two-fold: First, Plaintiff
argues that the notes are essential to show instances of intentional discrimination in jury
selection, which the Plaintiff must do in order to prove a custom sufficient to make out his
Monell claim. Cf. Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011) (“Plaintiffs who seek to
impose liability on local governments under § 1983 must prove that ‘action pursuant to official
municipal policy’ caused their injury.”) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691
(1978)); id. (“Official municipal policy includes . . . practices so persistent and widespread as to
practically have the force of law.”). Second, Plaintiff argues that the notes are essential to
effectively cross-examine the ADA witnesses. If the witnesses testify that they did not select
jurors on the basis of race, as the District Attorney has represented that they would, Plaintiff

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contends that he is entitled to challenge their credibility on the basis of their own
contemporaneous notes.
4.

The District Attorney objects to the discovery request on two grounds. The District

Attorney asserts, first, that the Court must make a “threshold determination” as to whether
Plaintiff is entitled to present evidence of discrimination in jury selection in cases other than his
own. Resp. at 5. The District Attorney contends that he is not, invoking estoppel, res judicata,
and practicality concerns.
5.

To clarify the arguments, I note that for purposes of federal law “[t]he preclusive

effect of a judgment is defined by claim preclusion and issue preclusion, which are collectively
referred to as ‘res judicata.’” Taylor v. Sturgell, 553 U.S. 880, 892 (2008). “These terms have
replaced a more confusing lexicon. Claim preclusion describes the rules formerly known as
‘merger’ and ‘bar,’ while issue preclusion encompasses the doctrines once known as ‘collateral
estoppel’ and ‘direct estoppel.’” Id. n.5.
6.

Neither claim preclusion nor issue preclusion applies here. Claim preclusion applies

when there has been “(1) a final judgment on the merits in a prior suit involving (2) the same
parties or their privies and (3) a subsequent suit based on the same cause of action.” Lubrizol
Corp. v. Exxon Corp., 929 F.2d 960, 963 (3d Cir. 1991). Most obviously, plaintiff Harold
Wilson was not a party in any of the prior proceedings to which the notes relate. Issue
preclusion is inapplicable for similar reasons. Issue preclusion bars “successive litigation of an
issue of fact or law actually litigated and resolved in a valid court determination essential to the
prior judgment,” so long as the party against whom it is asserted had a “full and fair opportunity
to litigate” the issue in the prior proceeding. Taylor, 553 U.S. at 892 (citing New Hampshire v.
Maine, 532 U.S. 742, 748 (2001)). Wilson had no opportunity to litigate the question of racial

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discrimination in the prior proceedings listed. The District Attorney has not argued that any of
the narrow exceptions to “the general rule against nonparty preclusion” apply. In re
Montgomery Ward, LLC, 634 F.3d 732, 737 (3d Cir. 2011) (citing Taylor, 553 U.S. at 892). 2
7.

As to the District Attorney’s contention that “it would be an incredible drain on the

resources of the Court (as well as the parties)” to litigate the facts of many old proceedings
during the trial of this case, I am sensitive to the concern but find the objection premature. The
case is still in discovery, and the District Attorney has not argued that producing the requested
notes would cause him inordinate hardship.
8.

The District Attorney also objects to Plaintiff’s discovery request “on its merits,” on

the ground that the jury selection notes are privileged attorney work product. Resp. at 5.
9.

Rule 23(b)(iii) of the Federal Rules of Civil Procedure, which governs the discovery

of attorney work product, provides that “[o]rdinarily, a party may not discover documents and
tangible things that are prepared in anticipation of litigation or for trial by or for another party or
its representative.” Fed. R. Civ. P. 23(b)(iii)(A); see also In re Cendant Corp. Sec. Litig., 343
F.3d 658, 661 (3d Cir. 2003) (explaining work-product doctrine).
10.

As an initial matter, it is not entirely clear that that the work-product privilege applies

in a proceeding unrelated to the litigation for which the work was prepared. See, e.g., In re
Grand Jury Proceedings, 604 F.2d 798, 803 (3d Cir. 1979) (“We therefore need not decide
whether the work product privilege applies to all litigation, related or not.”).
11.

Assuming arguendo that it does, the privilege is waived when the party invoking it

places the subject matter of the privileged material at issue. See United States v. Nobles, 422

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Rather, the District Attorney cites Rider v. Commonwealth of Pennsylvania, 850 F.2d 982 (3d Cir.
1988), for the proposition that issue preclusion may apply against a non-party to the prior proceeding. I
do not read Rider to have that import. If it did, it would have been clearly overruled by subsequent
Supreme Court and Third Circuit caselaw. E.g. Taylor, 553 U.S. at 892-99.

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U.S. 225, 239 (1975); United States v. Purcell, 667 F. Supp. 2d 498, 521 (E.D. Pa. 2009), aff'd,
517 F. App'x 79 (3d Cir. 2013); cf. Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851,
863 (3d Cir. 1994) (elaborating this waiver doctrine in the context of attorney-client
communications). In Nobles, “defense counsel sought to impeach the credibility of key
prosecution witnesses by testimony of a defense investigator” about his earlier conversation with
the witness. 422 U.S. at 227. When the prosecution requested the investigator’s notes from the
conversation, however, the defense lawyer invoked the work-product privilege. Id. at 236. The
Supreme Court held that
by electing to present the investigator as a witness, [defense counsel] waived the
privilege with respect to matters covered in his testimony. Respondent can no
more advance the work-product doctrine to sustain a unilateral testimonial use of
work-product materials than he could elect to testify in his own behalf and
thereafter assert his Fifth Amendment privilege to resist cross-examination on
matters reasonably related to those brought out in direct examination.
Id. at 239-40.
12.

If, in this case, the District Attorney calls individual ADAs to testify about their own

jury selection practices, he will be placing their thought processes during jury selection at issue.
Intentional discrimination hinges, obviously, on subjective intent. An ADA who testifies that he
did not discriminate is testifying to his subjective mental processes, and Plaintiff is entitled to
cross-examine him about those processes with the benefit of his contemporaneous notes. So
long as the District Attorney reserves the right to call ADAs for this purpose, he must produce
the jury selection notes that Plaintiff requests.
13.

The District Attorney objects that he need not disclose the notes because the

proceedings to which they relate “have been captured in a transcript,” and the notes “plainly are
not the sole memorialization of the proceeding.” Resp. at 7. The fact in dispute, however, is not

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what happened in the proceeding of record, but what happened off the record – the prosecutors’
subjective intent.
14.

The District Attorney further states that he “presently does not intend to question” the

ADA witnesses about their jury selection practice “in any particular case,” and has only noticed
the potential witnesses in response to the disclosure of the case list underlying the Baldus &
Woodworth studies. Resp. at 7-8. The nature of these objections is unclear. To the extent that
the District Attorney implies that he has been forced to notice these witnesses, and so cannot be
deemed to have taken an “affirmative step” to put their thought processes at issue, RhonePoulenc Rorer Inc., 32 F.3d at 863, the argument is not persuasive. The Baldus & Woodworth
studies are statistical analyses of public data. The only way to challenge statistical conclusions is
by contesting the analytical methodology. Testimony by ADAs about their own practices has no
possible bearing on the integrity of a statistical analysis. It appears, rather, that the District
Attorney intends to challenge the probative value of the studies’ results. In other words, the
studies may suggest a statistical likelihood of discrimination – but the ADAs can testify that, as a
matter of fact, they did not intentionally strike jurors on the basis of race. The District Attorney
is entitled to present this evidence. But if he chooses to offer testimony based on participation in
individual cases, that testimony puts the witnesses’ intent during jury selection in those cases at
issue. This is true whether a witness testifies about specific cases or about his practice in
general, since either form of testimony will necessarily be premised on the cases he prosecuted.
15.

Because Plaintiff’s request is limited to the jury selection notes of the District

Attorney’s potential witnesses (in cases included in the Baldus & Woodworth studies), it does

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not require me to decide whether Plaintiff would be entitled to such notes if the work-product
privilege were not waived. I will not address that question at present. 3
WHEREFORE, it is hereby ORDERED that Plaintiff’s Motion to Compel (Docs.
183 & 185) is GRANTED, subject to the following conditions.
The District Attorney shall have the opportunity to amend his Rule 26(a)(1) witness
list, by March 31, 2014, to exclude the ADA witnesses added after the reopening of discovery.
If he elects not to do so, he shall produce the jury selection notes that Plaintiff has requested by
April 18, 2014, and Plaintiff shall be entitled to depose the new witnesses by May 2, 2014. If
the District Attorney wishes to raise objections to the disclosure of specific notes once he has
reviewed them, he shall file an appropriate motion by April 11, 2014.

BY THE COURT:

/s/ L. Felipe Restrepo_________
L. FELIPE RESTREPO
UNITED STATES DISTRICT JUDGE

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It appears complex. Rule 26 permits a court to order disclosure of attorney work product if the party
seeking discovery demonstrates a “substantial need” and the inability to obtain the information otherwise,
see Fed. R. Civ. P. 26(b)(3)(A), but “core or opinion work product” – including an attorney’s “mental
impressions” – “receives greater protection than ordinary work product and is discoverable only upon a
showing of rare and exceptional circumstances.” In re Cendant Corp. Sec. Litig., 343 F.3d 658, 663 (3d
Cir. 2003); see also Fed. R. Civ. P. 26(b)(3)(B). Caselaw discussing the scope of discovery for purposes
of Batson claims in criminal post-conviction proceedings is sparse, to say nothing of § 1983 suits. Cf. In
re Horn, 185 F. App'x 199, 202 (3d Cir. 2006) (declining the Commonwealth’s invitation to “issue an
advisory opinion on the scope of discovery for Batson claims” where the discovery dispute that formed
the basis for appeal in a habeas proceeding was moot); United States v. Barnette, 644 F.3d 192, 214 (4th
Cir. 2011) (endorsing the District Court’s decision to review jury selection notes in camera for purposes
of a Batson challenge in capital trial proceedings, given the specific circumstances of the case).

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