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Johnson v. Holliday

United States District Court, M.D. Louisiana

February 6, 2017

TONY JOHNSON (#295222)
v.
TYLER HOLLIDAY, ET AL.

          ORDER

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.

         Before the Court is Defendants' Motion to Compel (R. Doc. 108) filed on December 15, 2016. The deadline to file an opposition has expired. LR 7(f). Accordingly, the Motion is unopposed.

         I. Background

         Defendants seek an order requiring supplemental responses to Defendant's Second Set of Requests for Production of Documents Numbers 7 and 10 served on April 7, 2016.[1] Request for Production Number 7 requests any documents produced by Plaintiff or on his behalf from January of 2013 through June of 2015 pertaining to the alleged sexual assaults. (R. Doc. 108-2 at 5). On May 17, 2016, Plaintiff provided certain documents in response, but withheld other documents subject to the attorney-client privilege and work product doctrine. (R. Doc. 108-3).

         Request for Production Number 10 similarly requests the production of all documents, including any audio or video recordings, provided to or received by any third party to the action that relates to the allegations or claims in the action. (R. Doc. 108-2 at 6). On May 17, 2016, Plaintiff provided certain documents that he provided to third party experts, further stating that he “has received no items from any third party beyond those already produced in discovery.” (R. Doc. 108-3 at 4).

         Defendants then reviewed recorded conservations between Plaintiff and a third party, Evonne Macera. (R. Doc. 108-1 at 2). Defendants represent that Plaintiff stated in these recorded conversations that Ms. Macera should receive a copy of all documents from Plaintiff's counsel as requested by Plaintiff to his counsel. (R. Doc. 108-1 at 2).

         On September 23, 2016, Defendants requested production of all documents, including video or audio recordings, produced to Ms. Macera by Plaintiff or Plaintiff's counsel, as well as the substance of any conversation between Ms. Macera and Plaintiff or Plaintiff's counsel related to the lawsuit. (R. Doc. 108-5).

         On October 7, 2016, Plaintiff's counsel provided “all letters sent to Ms. Macera from Mr. Long's office” and further stated that Plaintiff's counsel would “ensure that he has disclosed all responsive communications.” (R. Doc. 108-6 at 1).[2]

         On October 17, 2016, Plaintiff supplemented his response to Request for Production No. 10 by providing recordings obtained from the West Feliciana Parish Office and again identifying the documents sent to Ms. Macera from Mr. Long's office. (R. Doc. 108-4 at 4). Plaintiff's counsel also sent an e-mail verifying that based on the records at Mr. Long's office, the extent of items sent to Ms. Macera has been produced regardless of whether Plaintiff “wished for Ms. Macera to receive a copy of all documents set to [Plaintiff].” (R. Doc. 108-11 at 2). The email also verifies that no additional documents had been sent to Ms. Macera from any of Plaintiff's counsel other than Mr. Long. (R. Doc. 108-11 at 2).

         On December 2, 2016, defense counsel requested, in addition to reasserting the foregoing request for supplementation, “the document or correspondence from Plaintiff to Mr. Long that Plaintiff references in the phone call to Ms. Macera on June 20, 2014 wherein Plaintiff states that he sent a letter to Mr. Long specifically requesting for Mr. Long to send Ms. Macera copies of everything that is sent to Plaintiff.” (R. Doc. 108-12 at 2). Plaintiff's counsel responded that the “fact that Mr. Johnson may have wanted Mr. Long to break privilege by sharing certain letters does not mean Mr. Long did so” and “[a]bsent actual evidence of an actual disclosure of privileged communication, this is a fishing expedition.” (R. Doc. 108-12 at 1).

         At some point, Defendants issued a Rule 45 subpoena to Ms. Macera. Defendants do not submit a copy of the subpoena with their motion, but indicate that it requested “any documents sent to her by plaintiff or plaintiff's counsel.” (R. Doc. 108-1 at 3). Defendants further represent that Ms. Macera “produced several documents that she had received from plaintiff or plaintiff's counsel to defendants which were not previously identified or produced by plaintiff as having been sent to Ms. Macera.” (R. Doc. 108-1 at 3; see R. Docs. 108-13, 108-14, and 108-15). Defendants also submit a copy of Plaintiff's privilege log, which indicates that various correspondence sent from Mr. Long to Plaintiff while he was incarcerated were withheld on the basis of attorney-client privilege and the work product doctrine. (R. Doc. 108-16).

         II. Law and Analysis

         “Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.” Fed.R.Civ.P. 26(b)(1).

         There is no dispute that some information covered by Defendants' Request for Production Numbers 7 and 10 would fall within the scope of discovery. The only objection made by Plaintiff was lodged with regard to Request for Production Number 7 to the extent it seeks ...


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