Bailey et al v. Livingston et al

Filing 1568

MEMORANDUM AND ORDER granting in part denying in part 1546 MOTION to Compel Responses to Requests for Production and Interrogatories, granting in part denying in part 1560 MOTION for Protective Order (Signed by Judge Keith P Ellison) Parties notified.(arrivera, 4)

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United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
KEITH COLE, et al,
Plaintiffs,
VS.
BRYAN COLLIER, et al,
Defendants.

May 29, 2020
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 4:14-CV-1698
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MEMORANDUM AND ORDER

Pending before the Court are Plaintiffs’ Motion to Compel Responses to Requests for
Production and Interrogatories (Doc. No. 1546) and Defendants’ Motion for Protective Order (Doc.
No. 1560). After considering the Motions and all applicable law, the Court determines that both
Motions must be GRANTED in part and DENIED in part.
I.

BACKGROUND
In 2018, the Court approved a final class settlement agreement in this case (Doc. No. 989-

4). Under the terms of the agreement, Defendants must keep all class members in housing areas
where the heat index does not exceed 88 degrees Fahrenheit during the summer months, between
April 15 and October 15. Id. at 9. In the event that the air conditioning equipment malfunctions
such that it cannot maintain cool enough temperatures for longer than twenty-four hours, TDCJ
must notify Class Counsel on the next business day. Id. Additionally, subclass members must be
transported in air-conditioned vehicles whenever they leave Pack Unit. Id. at 12.
In the summer of 2019, Class Counsel discovered that Defendants were violating the terms
of the agreement. As discussed in more detail in the Court’s December 11, 2019 Order (Doc. No.
1504), Defendants had failed to maintain cool enough temperatures in housing areas that housed

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class members in both the Stiles and LeBlanc Units in the summer of 2019. Id. at 2. Defendants
also transported subclass members on non-air-conditioned buses on at least one occasion that
summer. Id. at 4. Defendants failed to notify Class Counsel about any of these violations, despite
their duty to do so under the agreement. Id. In fact, Defendants, through their counsel, made
multiple misrepresentations about their compliance with the agreement and their reasons for
attempting to delay Class Counsel’s inspection to both Class Counsel and this Court. Id. at 2–3.
None of these facts are contested; Defendants have conceded these facts on the record. Id.
On November 6, 2019, at a hearing, the Court granted Plaintiffs’ Motion to Compel
Responses (Doc. No. 1489) from the bench. (Minute Entry 11/6/2019). Plaintiffs sought responses
from Defendants’ witnesses about the misrepresentations and cover-ups at LeBlanc Unit and
before this Court. Defendants had argued that these responses were protected by attorney-client
privilege. The Court rejected Defendants’ arguments about attorney-client privilege.
On December 11, 2019, the Court issued a Memorandum and Order, granting Plaintiffs’
requests for attorneys’ fees, discovery, and a show cause hearing. (Doc. No. 1504). The Court
granted Class Counsel “up to five depositions of TDCJ officials of their choosing,” and “written
discovery requests relating to Defendants’ violations of the settlement agreement that took place
during July and August 2019, and the ensuing misrepresentations made to Class Counsel and this
Court.” Id. at 7.
On December 20, 2019, Plaintiffs sent written requests for production to Defendants. (Doc.
No. 1546, at 7). On December 31, 2019, Plaintiffs sent additional requests for production and
interrogatories. Id. In response, Defendants disclosed over 18,000 pages of responsive material.
(Doc. No. 1559, at 6). Defendants withheld 382 documents and redacted 7 documents as privileged.

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Id. Defendants supplemented their production and provided a complete privilege log on May 1,
2020. (Doc. No. 1562, at 2).
Plaintiffs filed their Motion to Compel on April 10, 2020, seeking complete responses from
Defendants. (Doc. No. 1546). Defendants filed a Motion for Protective Order with their Response
brief. (Doc. No. 1560). In their Motion for Protective Order, Defendants seek protection from
discovery of personnel files, and of matters that happened before the relevant time period and
outside the scope of the Court’s order.
II.

ANALYSIS
Plaintiffs seek to compel discovery of documents that Defendants claim fall within two

categories: (1) documents that are privileged, and (2) documents that fall outside the scope of
discovery ordered by the Court. The Court will discuss each of these categories in turn. Because
Defendants’ Motion for Protective Order does not raise arguments distinct from those raised in
briefing for Plaintiffs’ Motion to Compel, the Court will discuss both motions together.
A. Privileged Material
Plaintiffs argue that Defendants are withholding responsive documents based on improper
assertions of privilege. Plaintiffs seek to compel either production or, at minimum, in camera
review of the withheld documents.
1. Attorney-Client Privilege
Defendants have argued that a certain portion of documents responsive to Plaintiffs’
requests are protected from discovery by attorney-client privilege. In order to assert attorney-client
privilege, a party must establish “(1) that he made a confidential communication; (2) to a lawyer
or his subordinate; (3) for the primary purpose of securing either a legal opinion or legal services,
or assistance in some legal proceeding.” EEOC v. BDO USA, L.L.P., 876 F.3d 690, 695 (5th Cir.

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2017) (quoting United States v. Robinson, 121 F.3d 971, 974 (5th Cir. 1997)). The question of
whether privilege applies is a “‘highly fact-specific’ inquiry, and the party asserting the privilege
bears the burden of proof.” Id. (quoting Stoffels v. SBC Commc’ns, Inc., 263 F.R.D. 406, 411 (W.D.
Tex. 2009)). Once the privilege is established, then “the burden shifts to the other party to prove
any applicable exceptions.” Id. (quoting Perkins v. Gregg Cty., 891 F. Supp. 361, 363 (E.D. Tex.
1995)). Because the attorney-client privilege withholds relevant information, it is “interpreted
narrowly.” Id. Courts do not presume that communications with counsel are privileged and parties
asserting the privilege must describe the interaction as more than just “legal” or “legal advice” to
properly establish the application of the privilege. See id. at 696.
Defendants have provided a privilege log for documents they have withheld as privileged.
(Doc. No. 1559-1). For those documents withheld as privileged attorney-client communications,
each entry contains the same boilerplate description: “Communication made for the purpose of
obtaining and providing legal advice and assistance in Cole v. Collier litigation.” Most entries also
contain a general description; for example, that an email was about “the Pack Unit,” “inspection
of the LeBlanc Unit,” or “temperatures logs.” Some entries also note that the withheld email
included discussions about “legal advice and litigation strategy.”
The Court finds that there is not enough information in Defendants’ privilege log
descriptions to determine whether Defendants are correctly applying the attorney-client privilege.
“[A] privilege log’s description of each document and its contents must provide sufficient
information to permit courts and other parties to ‘test[] the merits of’ the privilege claim.” BDO
USA, 876 F.3d at 697 (quoting United States v. El Paso Co., 682 F.2d 530, 541 (5th Cir. 1982)).
Defendants’ descriptions are vague. Given that Defendants have conceded that their attorneys were
involved in the misdirection and misrepresentations of the past summer, the Court notes that the

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line between privileged and nonprivileged information is finer than in the average case. For
example, the Court previously found that privilege did not protect witnesses from testifying about
who misrepresented to Class Counsel and the Court that LeBlanc’s warden had a family medical
emergency that necessitated postponement of the August 8, 2019 inspection. (Doc. No. 1546-10,
at 6, 16). While such a mispresentation was made during a conversation with counsel about this
litigation, the Court found that a conversation between TDCJ officials and counsel about the
scheduling of the inspection was not privileged—such a conversation is neither legal advice, nor
is it intended to be confidential. Id. at 6. However, Defendants’ privilege log, which would describe
such conversations as about “inspection of the LeBlanc Unit,” does not provide enough detail for
the Court to determine whether withheld documents are actually privileged, or were merely
conversations with counsel about the litigation.
Defendants’ counsel argued at the hearing that they could not provide any more detail in
their privilege log without revealing potentially privileged information. This may very well be true.
However, this favors in camera review of the documents at issue. If Defendants are unable to
express through their privilege log whether documents are privileged or not, then this Court finds
in camera review to be the best method to adjudicate privilege without inadvertently revealing
privileged information to Plaintiffs. See United States v. Zolin, 491 U.S. 554, 568–69 (1989)
(“[T]his Court has approved the practice of requiring parties who seek to avoid disclosure of
documents to make the documents available for in camera inspection and the practice is well
established in the federal courts.”). Therefore, this Court ORDERS in camera review of
documents that Defendants have withheld as privileged under the attorney-client privilege.

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2. Work Product
Defendants have also withheld documents as attorney work product. The work product
doctrine protects the interest of clients and attorneys “by shielding the lawyer’s mental processes
from his adversary.” In re Grand Jury Subpoena, 419 F.3d 329, 339 (5th Cir. 2005) (quoting In re
Grand Jury Subpoena, 220 F.3d 406, 408 (5th Cir. 2000)). The doctrine extends to “documents
prepared in anticipation of litigation.” In re EEOC, 207 F. App’x 426, 432 (5th Cir. 2006) (citing
In re Kaiser Aluminum & Chem. Co., 214 F.3d 586, 593 (5th Cir. 2000)); Fed. R. Civ. P. 26(b)(3).
While Defendants’ privilege log is not much more detailed in describing documents withheld as
work product as it was for documents withheld as attorney-client communications, the Court finds
that there is enough information to determine that these documents are protected as work product.
Because these documents were created for this litigation, and many are drafts or otherwise contain
mental impressions of Defendants’ attorneys, they are protected by the work product doctrine.
At the hearing, Plaintiffs argued that the withheld attorneys’ notes could contain notes from
one of the discussions relating to the misrepresentations made by TDCJ about LeBlanc Unit.
However, given that the misrepresentations in question were based in communications between
attorneys and their clients, not attorney work product, the Court finds Plaintiffs’ inference too
attenuated to use as a basis for interfering with Defendants’ attorney work product. Without a
stronger basis for asserting that the documents that Defendants’ attorneys created contain notes
from such conversations, the Court is unwilling to assume such notes exist. The Court thus
DENIES Plaintiffs’ Motion as to Defendants’ documents withheld as attorney work product. The
Court does not foreclose reconsideration in the future if Plaintiffs were to discover new
information that suggest that the notes that Defendants’ attorneys took should not be protected by
the work product doctrine.

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3. Crime-Fraud Exception
Plaintiffs argue that, even if there are communications that are properly protected by
privilege, many of those documents fall within the crime-fraud exception. Attorney-client privilege
can be overcome “where communication or work product is intended to further continuing or
future criminal or fraudulent activity.” In re Grand Jury Subpoena, 419 F.3d 329, 335 (5th Cir.
2005) (quoting United States v. Edwards, 303 F.3d 606, 618 (5th Cir. 2002)). Where privilege has
already been established, Plaintiffs bear “the burden of establishing a prima facie case that the
attorney-client relationship was intended to further criminal or fraudulent activity.” Id. The crimefraud exception also applies to the work product doctrine. Id. (citing In re Burlington N., Inc., 822
F.2d 518, 524–25 (5th Cir. 1987)).
The Court has already determined it needs to review documents withheld by Defendants
under the attorney-client privilege in camera to determine if they are in fact privileged. In order to
conduct in camera review of privileged documents to determine the applicability of the crimefraud exception, the party opposing privilege “must present evidence sufficient to support a
reasonable belief that in camera review may yield evidence that establishes the exception’s
applicability.” Zolin, 491 U.S. at 574–75. The Court finds that Plaintiffs have presented sufficient
evidence to meet the standard for in camera review of documents deemed privileged attorneyclient communications. Defendants have already conceded in prior hearings that TDCJ employees
and/or their attorneys knowingly made misrepresentations to Class Counsel and this Court relating
to their noncompliance with the settlement agreement and Class Counsel’s subsequent inspection.
After initial discovery, Plaintiffs provide additional proof that, prior to the inspection, maintenance
staff at LeBlanc Unit knew that the air conditioning system needed maintenance, and that certain
components were visibly damaged. (Doc. No. 1546, at 17). Given Defendants’ concessions and

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the timing of its many misrepresentations prior to Class Counsel’s inspection, the Court finds there
is sufficient evidence to support a reasonable belief that emails discussing LeBlanc Unit and Class
Counsel’s inspection may yield evidence that would establish the crime-fraud exception to
privilege. Thus, the Court ORDERS in camera review of documents about LeBlanc Unit and
Class Counsel’s inspection that are found to be privileged attorney-client communications for
applicability of the crime-fraud exception.
While the crime-fraud exception also applies to documents withheld under the work
product privilege, Plaintiffs have not provided sufficient evidence that the work product documents
contain evidence that establishes the crime-fraud exception’s applicability. The Court thus
DENIES in camera review of documents withheld by Defendants under the work product doctrine.
Again, the Court does not foreclose reconsideration if Plaintiffs later discover evidence that would
meet the standard to allow in camera review of these documents.
4. Waiver
Plaintiffs also argue that Defendants have waived their attorney-client privilege in a few
instances because they made “factual assertions the truth of which can only be assessed by
examination of the privileged communication.” (Doc. No. 1546, at 19 (quoting Adam Friedman
Assocs. LLC v. Media G3, Inc., No. 10 Civ. 5350, 2012 WL 1563942, at *4 (S.D.N.Y. May 1,
2012)). Attorney-client privilege “is waived when a litigant place[s] information protected by it in
issue through some affirmative act for his own benefit, and to allow the privilege to protect against
disclosure of such information would be manifestly unfair to the opposing party.” Conkling v.
Turner, 883 F.2d 431, 434 (5th Cir. 1989) (quotation omitted). “The attorney-client privilege was
intended as a shield, not a sword.” Id. (quotation omitted).

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Plaintiffs argue that Defendants put their own privileged communications at issue on two
occasions. First, after Executive Director Bryan Collier testified that the warden accurately
reported his daughter’s medical appointment as such, Defendants’ counsel noted that she “may
have been the one to characterize [the medical appointment] as an emergency.” (Doc. No. 1546,
at 20). Second, Director Collier testified that there was no policy that required the inspection to be
moved because executive officials were out of town. Rather, he noted that “the person in the
general counsel’s office communicating with the Attorney General’s office was making
assumptions that the warden and/or Ms. Davis need to be [present for the inspection. . . . [W]hen
our general counsel came to me and told me about the attempt to postpone, I said, ‘Why? Stop.
Let them come. Let’s go.’” (Doc. No. 1546-8, at 93:6–15). Because Defendants assert that their
attorneys are the ones making the misrepresentations, they have placed these communications at
issue. The only way to discover what actually happened is to see the communications that
Defendants point to in their testimony; there is no other source for this information. Cf. Conkling,
883 F.2d at 435 (concluding that party seeking to overcome privilege can obtain all relevant
information through other sources). Thus, the Court hereby ORDERS in camera review of
withheld documents that contain communications between (1) the LeBlanc warden, Director
Collier, and the Attorney General’s office about the warden’s daughter’s medical appointment or
family emergency, and (2) Director Collier, TDCJ’s office of general counsel, and the Attorney
General’s office about whether the warden and/or TDCJ executive officials could be or needed to
be present for the August 8, 2019 inspection to occur, to determine whether they fall within
Defendants’ waiver of the attorney-client privilege.

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B. Improper Scope
In its December 11, 2019 Order, the Court granted Plaintiffs discovery “relating to
Defendants’ violations of the settlement agreement that took place during July and August 2019,
and the ensuing misrepresentations made to Class Counsel and this Court.” (Doc. No. 1504, at 7).
Parties now disagree on the scope of discovery allowed. The Court therefore clarifies that
discovery is limited to potential violations at the Stiles, LeBlanc, and Duncan Units, as well as
during transportation of subclass members in non-air-conditioned vehicles. Discovery is also
limited to dates between May 15, 2019 and December 31, 2019. These limitations on the scope of
time and content of discovery will allow for Plaintiffs to gather information on the violations for
which Class Counsel received complaints during the summer of 2019, including information on
Defendants’ actions preceding and following the violations, while limiting discovery to documents
related to those violations specifically.
With this clarification of scope of discovery in mind, the Court addresses the specific
complaints Plaintiffs have raised with Defendants’ discovery responses.
1. Personnel Files for TDCJ Employees
Plaintiffs requested the complete personnel files of ten current and former TDCJ employees,
as well as anyone else identified by Defendants in response to Interrogatories 1, 2, 3, and 6. (Doc.
No. 1559, at 17–18). The Court finds this request to be unnecessarily broad, and may require
Defendants to divulge unnecessarily private information. At the hearing, Plaintiffs agreed to limit
their request to only disciplinary files relating to air conditioning. Thus, the Court ORDERS
Defendants to supplement their response to the extent that they have not produced documents
within the relevant employees’ personnel files that concern disciplinary files or proceedings
relating to air conditioning.

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2. Unspecified Disciplinary Case Files Related to the Settlement and Class
Counsel’s Allegations of Violations
Plaintiffs seek “all documents concerning discipline, or the decision not to discipline” the
same group of individuals for matters related to the settlement agreement. (Doc. No. 1559, at 19).
Defendants objected to the scope of this request and only produced documents that fell within their
interpretation of the scope of discovery allowed by the Court’s order. The Court ORDERS
Defendants to supplement their response with any responsive documents not previously produced
that fall within the scope of discovery, as clarified by the Court in this Order.
3. Communications Prior to July 1, 2019 Concerning Compliance with the
Settlement by Those Involved in 2019 Violations
Plaintiffs seek communications concerning compliance with the settlement agreement
from June 8, 2018 to present. (Doc. No. 1559, at 20). This scope is too broad, but Plaintiffs may
seek additional documents pursuant to the Court’s clarification of the scope of discovery. The
Court ORDERS Defendants to supplement their response with any responsive documents not
previously produced that fall within the scope of discovery, as clarified by the Court in this Order.
4. Records About Air Conditioning or Heat Complaints by Non-Class Members
Housed at LeBlanc, Stiles, and Duncan During July and August 2019, but Not
Housed with Class Members
Plaintiffs seek records of complaints by non-class members who were living in LeBlanc,
Stiles, and Duncan, but were not housed in the same areas as class members. Plaintiffs argue that,
where a malfunctioning air conditioner affects one housing area, it probably affects other housing
areas in the same unit. (Doc. No. 1546, at 25). They also argue that Defendants withheld
complaints by non-class members who were living with class members, but were then moved
before they filed a grievance. Id. Defendants argue that they already produced many documents
relevant to this category of documents, including complaints by non-class members who were

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housed in the same areas as class members. (Doc. No. 1559, at 21–22). Defendants argue this
would create a huge burden for them, while producing very little additional relevant information.
Id. at 22. Given that Defendants have already produced complaints by non-class members who
were housed in the same areas as class members, the Court finds that these additional documents
are likely cumulative information, and thus, the burden on Defendants outweighs the benefits of
the additional documents. The Court therefore DENIES Plaintiffs’ Motion as to this category of
documents.
5. Unspecified Investigation Records Concerning Subclass Members Being
Transported Without Air Conditioning
Plaintiffs seek investigation records regarding allegations that subclass members were
transported on buses without air conditioning. Defendants only produced documents within July
and August 2019. The Court ORDERS Defendants to supplement their response with any
responsive documents not previously produced that fall within the scope of discovery, as clarified
by the Court in this Order.
6. Unspecified Documents Relating to Class Counsel’s Allegations that TDCJ
Violated the Settlement Agreement
Plaintiffs seek “all communications regarding Class Counsel’s allegations that TDCJ was
not complying with any terms of the settlement agreement.” (Doc. No. 1559, at 23). The Court
finds this request to lack clarity. At the hearing, Plaintiffs pointed to actions stemming from Class
Counsel’s July letter to Defendants’ counsel alleging violations of the agreement at LeBlanc Unit.
If Plaintiffs are seeking communications discussing this letter and its allegations, it may amend its
request to clarify. However, as written, the Court finds that this request is too vague and thus
DENIES Plaintiffs’ Motion as to this request for discovery.

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7. Maintenance and Investigation Records Concerning Bus Rides to Estelle that
Allegedly Violated the Settlement
Plaintiffs requested “the owner’s manual, all maintenance records, and documents relating
to the trip from the Pack Unit to the Estelle Unit on June 27, 2019.” (Doc. No. 1559, at 24).
Defendants argue this does not relate to violations of the agreement in July and August 2019. Id.
The Court ORDERS Defendants to supplement their response with any responsive documents not
previously produced that fall within the scope of discovery, as clarified by the Court in this Order.
8. Documents Obtained by TDCJ’s Settlement Compliance Monitor
Plaintiffs requested “all documents . . . provided to Oscar Mendoza in his role as . . .
settlement compliance monitor.” (Doc. No. 1559, at 25). Defendants argue that, because Mendoza
did not assume his position as compliance monitor until after August 2019, there are no responsive
documents in this category. Id. Defendants also argue that there needs to be an end date; otherwise,
Mendoza would be forced to continually produce documents as he receives more. Id. Because the
Court ordered that Plaintiffs may seek documents relating to the violations of July and August
2019, it does not matter that Mendoza did not become settlement compliance monitor until after
August 2019. The Court has also now set an end date to the scope of discovery. Thus, the Court
ORDERS Defendants to supplement their response with any responsive documents not previously
produced that fall within the scope of discovery, as clarified by the Court in this Order.
9. Interrogatory 1
In Interrogatory 1, Plaintiffs requested that Defendants list all investigations into alleged
violations of the settlement agreement. For each investigation, Plaintiffs requested information
about the investigation—when it was conducted, who performed it, who was interviewed, what
documents were examined, whether temperature measurements were taken, and what corrective
action was recommended, if any. Plaintiffs argue that Defendants failed to substantively respond.

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(Doc. No. 1546, at 9). Defendants did respond, albeit only with regards to LeBlanc Unit. (Doc. No.
1546-22, at 5–6).
The Court therefore ORDERS Defendants to supplement their response to Interrogatory 1
to the extent that they omitted relevant information that falls the scope of discovery, as clarified
by the Court in this Order. To the extent that Plaintiffs challenge Defendants’ invocation of
privilege, the Court finds that Defendants have not explicitly withheld information from its answer
because of privilege. If Plaintiffs find Defendants’ supplemented answer improperly withholds
information on the basis of privilege, they may raise that concern with the Court at that time.
C. Rule 34(b)(2)(C)
Rule 34(b)(2)(C) requires that objections to discovery requests “must state whether any
responsive materials are being withheld on the basis of that objection.” Fed. R. Civ. P. 34(b)(2)(C).
Plaintiffs argue that Defendants have not stated whether they are withholding documents based on
each objection, and yet, many documents appear to be missing. (Doc. No. 1546, at 27–29). To the
extent that Defendants have not stated that they are withholding documents based on objections
when they were withholding documents, the Court hereby ORDERS Defendants to supplement
their responses to clarify.
III.

CONCLUSION
For the reasons stated above, and as detailed above, the Court hereby GRANTS in part

and DENIES in part Plaintiffs’ Motion to Compel. The Court ORDERS Defendants to produce
the privileged documents discussed in this Order to the Court for in camera review. The Court also
ORDERS Defendants to supplement their responses and productions as required by this Order.
The Court GRANTS in part Defendants’ Motion for Protective Order, as to personnel
files (except documents contained therein that relate to disciplinary files or proceedings concerning

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air conditions) and as to discovery from before May 15, 2019 and after December 31, 2019. The
Court DENIES in part Defendants’ Motion as to all other parts.
IT IS SO ORDERED.
SIGNED at Houston, Texas on this the 28th day of May, 2020.

KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE

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