UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA JESSIE HOFFMAN CIVIL ACTION VERSUS NUMBER 12-796-JJB-SCR BURL CAIN, WARDEN, ET AL RULING ON PLAINTIFF’S FIRST MOTION TO COMPEL Before the court is the Plaintiff’s First Motion to Compel filed by plaintiff Jesse Hoffman. Record document number 76. The motion is opposed.1 At issue in this motion are the defendants’ responses to Interrogatory Nos. 1 - 4, 6, and 8 - 13, and Request for Production Nos. 13, 14(k) and 17, and the defendants’ assertion of a deliberative process privilege in their responses to Request for Production Nos. 2, 3, 5 and 12.2 All of the parties arguments have been considered. None of the defendants’ arguments are persuasive, for the reasons stated by the plaintiff, and as further explained below. First, the plaintiff satisfied Rule 37(a)(1), Fed.R.Civ.P. Although commonly done and usually helpful, the rule does not require the requesting party to provide a written statement of 1 Record document number 79. Plaintiff a reply memorandum. Record document number 83. Defendants filed a sur-reply memorandum. Record document number 87. 2 Record document number 76-1, supporting memorandum, p. 4. Case 3:12-cv-00796-JJB-SCR Document 102 01/13/14 Page 1 of 6 deficiencies to the producing party in advance of or following a discovery conference. The parties’ contentious discovery history, and the very low likelihood of a them agreeing to a compromise or other resolution of the issues involved in this motion, make the brevity of a discovery conference entirely predictable. Also, the defendants have not identified a single issue on which their position might have changed had the plaintiff provided advance notice of the deficiencies or had the conference been longer. And from a review of their memoranda, none of the defendants’ positions have changed. Second, as to the defendants’ general assertion of the attorney-client privilege and work product protection, they did not identify in their responses to the specific interrogatories any particular information or document withheld on the basis of either the privilege argument,3 Rule or protection. 26(b)(5), Contrary Fed.R.Civ.P., to the clearly defendants’ applies to “information” withheld on the basis of a privilege, not just documents.4 3 Defendants’ failure to specifically identify any Record document number 79, opposition memorandum, p. 7. 4 Rule 26(a)(5)(A) provides, in relevant part, as follows (emphasis added): Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must: (I) expressly make the claim; (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself (continued...) Case 3:12-cv-00796-JJB-SCR Document 102 01/13/14 Page 2 of 6 withheld information, whether responsive to an interrogatory or a document request, in the manner required by Rule 26(b)(5)(A) makes it impossible for the plaintiff to meaningfully assess the validity of the asserted privilege/protection claim, and impossible for the court to applies. determine whether Defendants’ blanket the claimed privilege/protection assertion of the attorney-client privilege and work product protection is unsupported. In the circumstances of this case, that failure constitutes a waiver of the privilege and protection. This determination is supported by the fact that the defendants made no effort at all to support their assertion of privilege/protection in the manner required by Rule 26(a)(5)(A), and even asserted that the rule does not apply to information responsive to an interrogatory when the language of the rule makes it abundantly clear that it does, and there is no obvious alternative source for the information/documents. Third, while the plaintiff’s discovery requests are broad, in the context of this case they are not overly broad. Defendants’ did not argue, and have not shown, that producing the requested information, including documents, would be unduly burdensome. Defendants have not shown that the creation, modification and implementation the state’s execution protocol has generated a large volume of information and documents. In fact, the defendants did not even estimate of the volume of information and documents that 4 (...continued) privileged or protected, will enable the other parties to assess the claim. Case 3:12-cv-00796-JJB-SCR Document 102 01/13/14 Page 3 of 6 would be responsive to any particular discovery request. Fourth, for the reasons on argued LSA-R.S. by the 15:570(F) plaintiff, and/or (G) the defendants’ reliance is unavailing. This state law does not determine what information is discoverable in a federal court case brought under 42 U.S.C. § 1983. Defendants have not cited a decision from any Louisiana federal court holding that the statute bars discovery of the requested information in a § 1983 case in federal court. Defendants’ unpersuasive. confidentiality For identities of the example, argument the is defendants unsupported argued that and the persons involved in the creation, modification and implementation of the state’s lethal injection protocol must be kept secret, because if they were identified they would not be willing to participate in the process.5 factual support for this argument.6 Defendants provided no Furthermore, the district 5 Plaintiff noted that the defendants previously proposed protective order was rejected. Record document number 76-1, supporting memorandum, p. 3, citing record document number 62, Ruling on Motion for Protective Order. That ruling was not appealed to the district judge. Nor did the defendants subsequently mover for entry of a less restrictive protective order. Consequently, dissemination of information and documents produced in discovery in this case is not restricted under Rule 26(c), Fed.R.Civ.P. 6 Defendants argued that “the individuals who play a part in Louisiana’s lethal injection executions do so only because of assurances of confidentiality provided by Section 570(G).” Record document number 79, opposition memorandum, p. 10 (emphasis in original). Defendants cited no instance of interference in a Louisiana execution resulting from revealing the identity of a person involved. Defendants cited a single incident in Texas when the supplier of the execution drug was revealed, but the defendant (continued...) Case 3:12-cv-00796-JJB-SCR Document 102 01/13/14 Page 4 of 6 judge has determined that the plaintiffs have alleged sufficient facts for their Eighth Amendment, Equal Protection and Access to the Courts claims constitutional to claims go forward.7 collectively Plaintiffs’ challenge the federal creation, modification and implementation of the state’s lethal injection protocol. These functions are performed by people. If the people performing these functions are not reasonably qualified and trained to perform them, their willingness to participate in the process, albeit under a cover of secrecy, cannot overcome their inability or failure to perform their roles competently. Such failure, and especially a future failure, lies at the heart of the plaintiffs’ remaining claims.8 Dismiss, the Given the discovery sought Ruling on Defendants’ Motion to is relevant or is reasonably calculated to lead to the discovery of admissible evidence relevant to the remaining claims. Neither have the defendants cited a decision from any Louisiana federal court holding that statute created a deliberative process privilege. Defendants’ arguments for creating the delayed the 6 (...continued) did not assert that execution. the revelation stopped or 7 Record document number 99, Ruling on Defendants’ Motion to Dismiss. The ruling dismissed the plaintiffs’ Due Process claims. The district judge again declined to address the defendants’ qualified immunity defense, without prejudice to the defendants reurging it after the plaintiffs file a amended complaint clarifying the basis of their claims for damages. 8 A future failure is likely more problematic for plaintiff Christopher Sepulvado, whose execution is now set for February 5, 2014. Record document number 98. Case 3:12-cv-00796-JJB-SCR Document 102 01/13/14 Page 5 of 6 privilege - especially in this case – are not persuasive. But even assuming recognition of a federal deliberative process privilege is warranted in this case based on Louisiana law, the same considerations stated in the above paragraph would apply and the plaintiff’s need for the requested information and documents would overcome the privilege. The information sought by the plaintiff is relevant to significant and disputed issues, including whether the state’s execution protocol lacks adequate safeguards to ensure that their respective executions are performed without incident, why the state’s previous execution protocols were changed on the eve of an execution and the likelihood of another change occurring before the plaintiff’s execution, and whether the execution will be carried out in a uniform fashion.9 Accordingly, the Plaintiff’s First Motion to Compel is granted. Defendants shall serve supplemental, substantive answers to Interrogatory Nos. 1 - 4, 6, and 8 - 13, and produce documents responsive to Request for Production Nos. 2, 3, 5, 12, 13, 14(k) and 17, by January 24, 2014. The parties shall bear their respective expenses incurred in connection with this motion.10 Baton Rouge, Louisiana, January 12, 2014. STEPHEN C. RIEDLINGER UNITED STATES MAGISTRATE JUDGE 9 See record document number 99, Ruling on Defendants’ Motion to Dismiss, pp. 7-10. 10 Plaintiff deliberately chose to not seek recovery of expenses under Rule 37. Record document number 83, reply memorandum, p. 3. Case 3:12-cv-00796-JJB-SCR Document 102 01/13/14 Page 6 of 6