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Ortiz v. City of Worcester

United States District Court, D. Massachusetts

May 10, 2017

JOSE L. ORTIZ, Plaintiff,
v.
THE CITY OF WORCESTER, et al., Defendants.

          MEMORANDUM AND ORDER ON JOINT MOTION BY PLAINTIFF AND HIS PRIVATE INVESTIGATOR TO QUASH SUBPOENA FOR THE INVESTIGATOR'S TESTIMONY AND FOR PROTECTIVE ORDER (Dkt. No. 64)

          KATHERINE A. ROBERTSON United States Magistrate Judge

         I. Relevant Background

         In this case, plaintiff Jose L. Ortiz (“Plaintiff”) has sued the City of Worcester, its City Manager, its Chief of Police, and four detectives assigned to the city's Gang and Vice Squad. In a seven-count complaint, he asserts violations of his constitutional rights under the Fourth and Fourteenth Amendments to the United State Constitution pursuant to 42 U.S.C. § 1983, and associated state law claims (Dkt. No. 1). According to the complaint, Plaintiff's claims are based on events that occurred on March 8, 2014 when Worcester detectives executed a search warrant at 1069 West Boylston Street. Plaintiff, who was working as a livery driver on the day in question, was directed by his employer to drive one Luis Garcia-Tobar to 1069 West Boylston Street. Plaintiff and his passenger arrived at the address as the search warrant was being executed. Mr. Garcia-Tobar was arrested. Plaintiff was allegedly assaulted by police officers, handcuffed, and dragged into the house at 1069 West Boylston Street before the officers on the scene were ordered to release him for transportation by ambulance to the hospital (id. at 3-7, ¶¶ 17-29, 51-76). Jeremiah Coffey was also arrested at 1069 West Boylston Street on March 8, 2014, and was subsequently convicted and incarcerated (Dkt. No. 82-6 at 3).

         II. The Discovery Dispute

         Mr. Coffey was a percipient witness of some of the interactions between Plaintiff and the defendant detectives on March 8, 2014 (Dkt. No. 65-2). On October 19, 2016, Richard P. Rand, a private investigator employed by Plaintiff's counsel, met with Mr. Coffey at MCI-Concord and obtained a handwritten statement from Mr. Coffey detailing what he had observed on March 8th. Mr. Coffey did not know the names of the police detectives who executed the search warrant at his residence. On photographs provided to Mr. Coffey, he identified by descriptive nicknames some of the police officers who executed the warrant at 1069 West Boylston Street (id. at 4-7). Mr. Rand signed his name to Mr. Coffey's statement as a witness (id. at 1-3). Plaintiff's counsel proceeded to produce a copy of Mr. Coffey's statement, with the attached annotated photographs, to the defendants.

         On or about November 21, 2016, counsel for the defendants issued a deposition subpoena to Mr. Rand, commanding him to appear at a stated address in Worcester on December 19, 2016 at 10:00 a.m. to give deposition testimony on the topic of “[his] investigation in connection with [the case of Jose L. Ortiz v. City of Worcester, et al.] and Jeremiah Coffey, Jr.” (Dkt. No. 65-3 at 1). Plaintiff's counsel sought to dissuade defense counsel from proceeding with Mr. Rand's deposition on the grounds that there was little to nothing that could be asked of Mr. Rand that would not be protected by the work product doctrine or the attorney-client privilege. Defendants declined to withdraw the subpoena (Dkt. No. 65-4). Presently before the court is an ensuing motion, filed jointly by Plaintiff and Mr. Rand, to quash the deposition subpoena directed to Mr. Rand and for a protective order precluding the defendants from seeking his testimony on grounds of attorney-client privilege and work product protection (Dkt. No. 64) (“the Motion”). The defendants oppose the Motion (Dkt. No. 66). The court heard argument from the parties on April 4, 2017 and the Motion is ripe for decision (Dkt. No. 92). For the reasons set forth below, the court grants the Motion in part and denies it in part.

         III. Analysis

         The Motion raises the following two issues: (1) whether the defendants are entitled to discover facts learned by Mr. Rand during the course of his investigation; and (2) whether plaintiff's production of Mr. Coffey's statement is a waiver of work product protection, and, if so, the scope of any such waiver. These issues were identified and ably addressed by Magistrate Judge Robert Collings in his opinion in Bear Republic Brewing Co. v. Central City Brewing Co., 275 F.R.D. 43 (D. Mass. 2011), in which he ruled on a discovery dispute that arose in circumstances very similar to those in the instant case. The Bear Republic opinion is a substantial basis for the following rulings.

         1. Discovery of Facts Learned by Mr. Rand During his Investigation

         The deposition subpoena directed to Mr. Rand, as previously noted, seeks testimony from him about his investigation in connection with Plaintiff's lawsuit. The subpoena does not attempt to command the production of documents, such as notes made by Mr. Rand related to his investigation or emails to or from Plaintiff's counsel (Dkt. No. 65-3). To the extent the defendants seek testimony from Mr. Rand about facts related to Plaintiff's case that he has learned through his investigation, there is a substantial body of case law holding that the defendants are entitled to discover this information. See Bear Republic, 275 F.R.D. at 45 (the answer to the question of whether a party can require an opponent's investigator to testify to facts learned during the course of an investigation “is manifestly in the affirmative”). See also U.S. v. Dentsply Int'l, 187 F.R.D. 152, 155-57 (D. Del. 1999) (directing government to answer an interrogatory requesting that the Department of Justice (“DOJ”) reveal all facts relevant to the DOJ's case against the defendant that were known to 184 individuals and entities interviewed by the DOJ; collecting additional cases); Laxalt v. McClatchy, 116 F.R.D. 438, 442 (D. Nev. 1987) (the “deponents must answer questions which seek to discover . . . relevant facts in the case, regardless of whether those facts were discovered in their roles as defendants' investigators”) (citing Eoppolo v. Nat'l R.R. Passenger Corp., 108 F.R.D. 292 (E.D. Pa. 1985)). Plaintiff and Mr. Rand have not pointed to any contrary authority. Accordingly, the court rules that the defendants are entitled to question Mr. Rand about facts he learned during his investigation into Plaintiff's allegations.

         Courts that have ruled that an investigator employed by a party's attorney must disclose facts learned during an investigation have also, however, noted the risk that “a[n investigator's] discussion of factual matters may reveal counsel's tactical or strategic thoughts.” Laxalt, 116 F.R.D. at 443 (citing Powell v. U.S. Dept. of Justice, 584 F.Supp. 1508, 1520 (N.D. Cal. 1984)). See Bear Republic, 275 F.R.D. at 45. “The caselaw dealing with attorneys' investigators shows that they should generally be afforded the same protection as the attorney for whom they work.” Alexander v. F.B.I., 192 F.R.D. 12, 18 (D.D.C. 2000). The work product doctrine protects tangible work product, see Fed. R. Civ. P. 26(b)(3)(A), and intangible work product, such as an investigator's oral communications with a party's counsel about, for example, the structure of the investigation and impressions gleaned from interviews conducted by the investigator, disclosure of which would tend to reveal counsel's tactical or strategic thoughts or evaluation of the case. See Bear Republic, 275 F.R.D. at 45; Nesse v. Pittman, 202 F.R.D. 344, 356 (D.D.C. 2001); Alexander, 192 F.R. at 18. “As a result, at a deposition of an investigator, counsel must ‘. . . carefully tailor his [or her] questions in the deposition so as to elicit specific factual material and avoid broad based inquiries, . . . which could lead to the disclosure of trial strategies.'” Bear Republic, 275 F.R.D. at 45 (quoting Laxalt, 116 F.R.D. at 443).

         Borrowing from Magistrate Judge Collings' opinion in Bear Republic:

[W]hat is discoverable are the facts Mr. [Rand] learned during the course of his investigation. Unless there has been a waiver of the work product protection, . . . Rule 26(b)(3)(A), Fed.R.Civ.P. protects from disclosure “. . . documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party. . .”. And it is clear that Mr. [Rand's] work was for a “party”, [Plaintiff], and was done “in anticipation of litigation or for trial.” Thus, any reports Mr. [Rand] prepared for [Plaintiff's] counsel would not be discoverable (absent waiver), but the facts recited in the reports would be. For these reasons, the [c]ourt will not ...

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