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Adams v. City of New Orleans

United States District Court, E.D. Louisiana

May 17, 2017

REGINALD ADAMS
v.
CITY OF NEW ORLEANS, ET. AL.

         SECTION "E" (3)

          ORDER

          DANIEL E. KNOWLES, III UNITED STATES MAGISTRATE JUDGE.

         Before 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.

         I. Background

         The 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).

         II. The Motion to Quash

         Michael 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.

         Adams 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 defenses.

         Citing 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.

         Defendants 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.

         Defendants 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.

         Adams 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].

         Adams 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.

         Under 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 the inside.

         Lastly, 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.

         After 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.

         An 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 ...


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