United States District Court, E.D. Louisiana
ORDER AND REASONS
JOSEPH C. WILKINSON, Jr., Magistrate Judge.
Plaintiff, Norvel Lassere, filed a Motion for Protective Order, Record Doc. No. 48, seeking to prevent disclosure to defendants of the recorded statements of Lynchell Denis and her mother, Adaline Denis Turner. Denis and Turner were the only non-party eyewitnesses to the shooting death of Lassere's mother, Barbara Lassere ("Mrs. Lassere") by St. John the Baptist Parish Sheriff's deputies in the early morning hours of January 24, 2013, which is the subject of this civil rights action by plaintiff against the Sheriff and the deputies involved in the shooting. Plaintiff's counsel recorded the statements of Denis and Turner at his office on January 26, 2013, only two days after the shooting incident. Plaintiff's co-counsel was present and both attorneys asked questions of the witnesses. Denis and Turner never gave statements to the Sheriff's office or the Louisiana State Police, which investigated the shooting. Thus, the existence and identities of these two eyewitnesses were clearly known to plaintiff's counsel and unknown to defendants until five days before the final pretrial conference held on September 29, 2014.
The instant case was filed on August 14, 2013. A pretrial order was entered by the presiding district judge on October 3, 2013, with a discovery deadline of April 10, 2014, and trial scheduled for May 27, 2014. Record Doc. No. 14. After the parties consented to proceed before a magistrate judge, the trial was continued to October 14, 2014, with a final pretrial conference set for September 29, 2014. Record Doc. No. 34.
Despite plaintiff's knowledge within two days of the shooting that Denis and Turner had witnessed it, he did not disclose their existence and identities to defendants until September 24, 2014, five days before the final pretrial conference, when he complied with the court's order granting defendants' motion to compel him to respond to discovery requests that had been served on July 3, 2014. Plaintiff's counsel admitted to the court during the pretrial conference that they knew the identities of these witnesses long before the July 29, 2014 deadline to file their witness list, Record Doc. No. 34, but they did not provide the names to defendants until the court ordered Lassere to provide his written discovery responses, which was almost one month after the August 29, 2014 discovery deadline had expired.
Because of the importance of the eyewitness testimony to both sides in this case and to cure the prejudice to defendants caused by plaintiff's untimely disclosure of their existence, the court continued the trial date and the discovery deadline solely to give defendants time to depose Denis and Turner and conduct any followup discovery that defendants might need after their depositions. Record Doc. No. 47.
Both witnesses testified at their depositions that plaintiff's counsel had recorded their statements soon after the incident. Following a status conference, because plaintiff's counsel asserted that the statements were protected by the work product doctrine, I ordered plaintiff to file a motion for protective order regarding the witness statements and submit the recordings to me for in camera review. I also ordered defendants to file an opposition memorandum, which must include the complete transcripts of the two depositions, and in which defendants could seek sanctions for plaintiff's discovery misconduct, if they wished. Record Doc. No. 47.
Lassere has submitted the recordings to the court. Record Doc. No. 49. He argues in his motion that the statements were taken in anticipation of litigation and are attorney work product protected from disclosure by Fed.R.Civ.P. 26(b)(3). He contends that defendants cannot establish that they have substantial need for the materials to prepare their case and that they cannot, without undue hardship, obtain their substantial equivalent by other means. Lassere argues that defendants have deposed both witnesses and that there is no evidence that the witnesses' current recollections are so poor that their depositions are not the substantial equivalent of their prior statements.
Defendants filed a timely memorandum in opposition that includes the complete transcripts of the two depositions. Record Doc. No. 50. Defendants argue that the factual portions of the recorded statements are not attorney work product and should be produced with the attorneys' questions redacted, if necessary. They also contend that, even if the witness statements are work product, defendants have substantial need of the materials to prepare their case. They argue that the depositions are not the substantial equivalent of the statements because the statements were taken soon after the incident, while the depositions were taken almost 21 months later, when the witnesses' memories may have faded and their deposition testimony may be inconsistent with their statements. Defendants do not seek any sanctions.
Fed. R. Civ. P. 26(c)(1) governs motions for protective orders. The Rule provides in pertinent part: "A party or any person from whom discovery is sought may move for a protective order... The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including... specifying terms, ... for the... discovery." The requirement "of a showing of good cause to support the issuance of a protective order indicates that [t]he burden is upon the movant to show the necessity of its issuance, which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements.'" In re Terra Int'l, Inc., 134 F.3d 302, 306 (5th Cir. 1998) (quoting United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978)); see also United States v. Talco Contractors, Inc., 153 F.R.D. 501, 513 (W.D.N.Y. 1994) ("Good cause must be established and not merely alleged.").
Fed. R. Civ. P. 26(b)(3) codifies the work product doctrine.
(A) Documents and Tangible Things. Ordinarily, 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 (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
(B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's ...