United States District Court, E.D. Louisiana
ORDER AND REASONS ON MOTION
C. WILKINSON, JR UNITED STATES MAGISTRATE JUDGE.
a civil rights action in which Robert Jones
("plaintiff") alleges that the office of the
Orleans Parish District Attorney (defendant Leon Cannizzaro
in his official capacity), engaged in a practice of
suppressing information and evidence in violation of
Brady v. Maryland, 373 U.S. 83 (1963) for more than
twenty (20) years. Complaint, Record Doc. No. 1. Plaintiff
alleges that this practice resulted in the violation of his
rights during his lengthy criminal proceedings dating back to
the 1990s. Id. Plaintiff seeks compensatory damages,
costs and attorneys' fees. Id. at p. 47.
served a notice of deposition and subpoena on defendant,
specifically to depose defense counsel of record Donna
Andrieu, an Assistant Orleans Parish District Attorney.
Record Doc. No. 83-2, at pp. 1-6. Plaintiff also attached
requests for production of documents to the subpoena. Record
Doc. No. 83-2, at pp. 8-19. Defendant filed a motion for
protective order and to quash the deposition and subpoena.
Record Doc. No. 83. Plaintiff filed a timely opposition
memorandum. Record Doc. No. 91.
considered the parties' written submissions, the record
and the applicable law, IT IS ORDERED that defendant's
motion is GRANTED and the deposition notice and subpoena are
quashed at this time for the following reasons.
Civ. P. 26(c)(1) provides that "[a] party or any person
from whom discovery is sought may move for a protective order
in the court where the action is pending. 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 . . . forbidding inquiry into certain
matters, or limiting the scope of disclosure or discovery to
federal courts have disfavored the practice of taking the
deposition of a party's attorney; instead, the practice
should be employed only in limited circumstances.”
Theriot v. Parish of Jefferson, 185 F.3d 477, 491
(5th Cir. 1999) (citing Shelton v. Am. Motors Corp.,
805 F.2d 1323, 1327 (8th Cir. 1986)).
As Magistrate Judge Bourgeois of the Middle District of
Louisiana has noted,
article 508 and the federal common law essentially employ the
same substantive analysis in considering whether to allow the
deposition of opposing counsel. Compare La. C. Evid.
art. 508 (considering whether the information sought is (a)
essential to the case, (b) not intended to harm or harass,
(c) narrowly tailored and (d) not available from any other
source), with Fed.R.Civ.P. 26(b), (g) (discovery
requests may not be overly broad or intended to harass),
and Shelton, 805 F.2d at 1327 (considering, among
other things, whether the information is
“crucial” and may be obtained by any other
Hall v. Louisiana, 2014 WL 1652791, at *4 n.4 (M.D.
La. Apr. 23, 2014) (citing Shelton, 805 F.2d at
months after issuing its decision in Theriot, the
Fifth Circuit further addressed the issue in Nguyen v.
Excel Corp., 197 F.3d 200 (5th Cir. 1999), explaining
that, “[b]ecause depositions of opposing counsel are
disfavored generally and should be permitted in only limited
circumstances, one would suspect that a request to depose
opposing counsel generally would provide a district court
with good cause to issue a protective order.” 197 F.3d
at 209 (footnotes omitted). The court noted the analysis
adopted by the United States Court of Appeals for the Eighth
Circuit in Shelton, 805 F.2d at 1327, forbidding a
party from deposing opposing counsel unless (1) no other
means exist to obtain the information, (2) the information
sought is relevant and non-privileged, and (3) the
information is crucial to the preparation of the case.
See id. at 208. The Fifth Circuit in Nguyen
held that the district court “did not abuse its
discretion in authorizing the depositions of defense counsel,
even assuming the applicability of the Shelton
inquiry.” Id. at 209 (footnote omitted);
cf. Murphy v. Adelphia Recovery Trust, 2009 WL
4755368, at *2 (N.D. Tex. Nov. 3, 2009) (“While the
Fifth Circuit has not explicitly adopted Shelton, it
has indicated that the same three factors inform a district
court's discretion in determining whether to authorize
the deposition of opposing counsel.” (citing
Nguyen, 197 F.3d at 209)). "Regardless of the
movant, . . . the party asking to depose its opponent's
counsel bears the burden of proof." Hall v.
Louisiana, 2014 WL 1652791, at *4.
the foregoing precedent in this case militates in favor of
granting defendant's motion and quashing the deposition
and subpoena, at least at this time. Generally, the
scope of discovery permits the discovery of "any
nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the case .
. . ." Fed.R.Civ.P. 26(b)(1). Plaintiff argues that the
information sought is discoverable because he must prove a
policy, practice or custom of Brady violations, and
as the Orleans Parish District Attorney's Chief of
Appeals, Andrieu has knowledge of this policy, practice or
custom, as well as knowledge of the Assistant District
Attorneys she supervised and her investigation of the
“Menner memo, ” a key piece of evidence. Record
Doc. No. 91 at p. 5. Defendant argues that the information
sought cannot be relevant because "Andrieu . . . did not
begin working at [the D.A.'s office] until 2001, years
after [plaintiff's] convictions . . . was not involved in
the prosecution of [plaintiff] and would not have first-hand
knowledge of any alleged Brady violation that may
have occurred during the prosecution. . . . [and since] the
handling of [plaintiff's] post-conviction applications
cannot give rise to a Brady violation, it is not
relevant to his Brady claim in this case . . .
." Record Doc. No. 83-1 at p. 3. As plaintiff notes, I
have previously found that "policies and procedures
relevant to [plaintiff's] Monell claims . . . at
least through the 2017 dismissal of the charges against him
are relevant to plaintiff's claims that defendant's
conduct was improper for decades following his
conviction." Record Doc. No. 60 at pp. 1-2. Similarly,
whatever knowledge Andrieu may have about the subject
policies and procedures of her office is relevant.
information sought likewise does not appear to be privileged.
Plaintiff stated in its opposition memorandum that he only
wishes to depose Andrieu about "factual
information that pre-dates this litigation." Record Doc.
No. 91 at p. 6 (emphasis added). The attorney-client
privilege “only protects disclosure of confidential
communications between the client and attorney; it
does not protect disclosure of underlying facts.”
United States v. Edwards, 39 F.Supp.2d 716, 723
(M.D. La. 1999) (citing Upjohn Co. v. United States,
449 U.S. 383, 395-96 (1981) (emphasis added); In re Six
Grand Jury Witnesses, 979 F.2d 939 (2d Cir. 1992);
United States v. Freeman, 619 F.2d 1112 (5th Cir.
1980); Computer Network Corp. v. Spohler, 95 F.R.D.
500 (D.D.C. 1982)). “‘Pre-existing facts that
underlie the client's confidential communications,
whether oral or written, are not privileged simply because
the client disclosed them to an attorney for the purpose of
obtaining legal services.'” Id. at 736
(quoting Weinstein's Federal Evidence, §
503.14[a] (2d ed. 1998), citing Upjohn, 449 U.S.
at 395). Additionally, even if some information sought in the
deposition is privileged, a deponent need not answer a
question in a deposition when necessary to "preserve a
privilege." Fed.R.Civ.P. 30(c)(2).
while the information sought may be relevant and
non-privileged, in the disfavored circumstances of an attempt
to depose opposing counsel of record, plaintiff has failed to
show that this discovery is proportional, that no other means
exist to obtain the information that he seeks from
Andrieu's deposition testimony or that the information is
"crucial" to preparation of the case. Plaintiff has
not shown that he tried and failed to obtain the information
from other sources such as (1) defendant's Rule 30(b)(6)
deposition; (2) the individual deposition of Harry Connick,
Sr., one of the current District Attorney's predecessors
who is alleged to have been largely responsible for the
challenged practices and procedures, Record Doc. No. 1,
Complaint at pp. 31-32; ¶¶109-118; Record Doc. No.
61 (order concerning deposition schedule for Harry Connick,
Sr.); or (3) the deposition of Fred Menner, the author of the
"Menner memo." These other depositions should be an
adequate substitute under these particular circumstances for
Andrieu's individual testimony. While plaintiff argues
that Andrieu is "uniquely positioned" and can
provide "a comprehensive view" of the information
sought, Record Doc. No. 91 at p. 4, plaintiff admits that
other individuals employed by the District Attorney's
office should have ...