United States District Court, E.D. Louisiana
E. KNOWLES, III UNITED STATES MAGISTRATE JUDGE.
the Court are three motions: (1) Motion to Quash Deposition
of Subpoena for Michal Magner, Adams's Attorney of
Record, or for a Protective Order [Doc. #194]; (2) Motion for
Leave to File a Third Amended Complaint [Doc. #196]; and (3)
Plaintiff's Motion to Compel Defendants to Provide
Good-Faith Responses to Plaintiff's Court-Ordered
Proposed Stipulations [Doc. #209]. The Court heard oral
argument on all three motions and took the motions under
advisement. Having reviewed the motions, the oppositions, and
the case law, the Court rules as follows.
factual background of this lawsuit has been outlined numerous
times and need not be repeated here. Adams v. City of New
Orleans, Civ. A. No. 15- 1543, 2016 WL 4275246 (E.D. La.
Aug. 12, 2016).
The Motion to Quash
Magner is lead counsel for Adams in this lawsuit and also
represented Adams in his post-conviction proceedings.
Defendants informed Adams that they intended to question
Magner as to his comments to the press and his participation
and interaction with the attorney general's office and
the Court. On March 8, 2017, the parties deposed Colin Clark,
the assistant Attorney General (“AG”) who signed
the consent judgment stating that Adams is innocent. Adams
contends that defendants could have asked Clark whatever they
intend to seek from Magner.
argues that defendants had ample opportunity to obtain the
information that they seek through less burdensome means and
maintains that defendants could have asked Magner about his
press statements - which already speak for themselves -
through an interrogatory or request for admission. He also
contends that defendants have not explained how the AG's
investigation into the case is relevant or crucial to their
case law, Adams argues that defendants must carry the burden
here because they seek to depose his counsel. Adams contends
that defendants have not met that burden.
note that Magner made comments to the press and to others
that the Assistant District Attorneys (“ADAs”) in
Adams' case were rogue and intentionally hid evidence
from Adams' attorneys. Defendants note that they do not
intend to depose Magner as to his representation of Adams in
this civil case. Defendants argue that they have no
obligation to show Magner the press statements about which
they intend to depose him.
contend that Magner was acting as a member of the Innocence
Project (“IPNO”). They argue that there can be no
claim of work-product or attorney-client privileges given
that they seek to depose Magner as to statements made in
public. Defendants maintain that no other means exist to
obtain the information because any questions directed to
third parties would be hearsay. The information is also
relevant and non-privileged and crucial to the preparation of
defendants' case. They maintain that if - as Magner
alleged - the ADAs were rogue, then Cannizarro can not be
held responsible, and Adams case against him fails.
first notes that the deadline for fact depositions was March
10, 2017, and defendants failed to serve the subpoena on him
until March 13, 2017. [Doc. #171].
also contends that defendants fail to identify with
specificity what they intend to ask Magner. While counsel
originally stated that he wanted to question Magner in his
capacity as Adams' counsel during post-conviction
proceedings, he now maintains that he seeks to question him
as a member of IPNO.
the factors outlined in the case law, Adams argues that
deposing counsel is a last resort to obtaining relevant,
non-privileged information. Defendants have failed to
demonstrate that they have sought the information through
other, less intrusive means. Adams also maintains that courts
are reticent to order the deposition of opposing counsel when
it may reveal the thought processes of the attorney. And, he
notes, while public statements may not be privileged, their
underlying preparation and related advice are protected.
Adams maintains that defendants are in the best position to
determine whether the conduct of their own counsel violated
Adams' rights, not Magner: Whether counsel went rogue and
failed to follow instructions would best be known by those on
Adams asks for his fees and costs incurred in this discovery
dispute as he gave defendants ample case law and arguments to
save the Court and the parties from this dispute.
the oral hearing, the Court took the motion under advisement
and allowed the parties to submit letter correspondence to
the Court in which they discuss in more detail the proposed
topics on which to depose Magner. The parties did so, and the
Court has reviewed the correspondence.
opposing party's counsel is not “absolutely immune
from being deposed.” Shelton v. Am. Motors
Corp., 805 F.2d 1323, 1327 (8th Cir. 1986); see also
Hall v. Louisiana, No. Civ. A. 12-657-BAJ, 2014 WL
1652791, at *4 (M.D. La. Apr. 23, 2014) (same). However,
courts should only allow an opponent's counsel to be
deposed in limited circumstances - i.e., when the
party seeking the deposition has shown that: (1) “no
other means exist to obtain the information than to depose
opposing counsel;” (2) “the information sought is
relevant and nonprivileged”; and (3) “the
information is crucial ...