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Diaz v. Devlin

United States District Court, D. Massachusetts

August 28, 2018

MARIANNE DIAZ, individually and as mother and next friend of two minor children Jane Doe and Jane Roe, BRYANT ALEQUIN, and JOSHUA MATOS, Plaintiffs,
v.
SGT. JAMES P. DEVLIN, DET. NICHOLAS E. NASON, DET. JEFFREY CARLSON, LT. DET. JOSEPH SCAMPINI, SGT. RICHARD CIPRO, DET. JAMES CARMODY, OFF. ANTHONY LORENTE, DET. TERRENCE GAFFNEY, DET.JOHN MORRISEY, DET.SHAWN BARBALE, DET.RONALD REMILLARD, OFF. REBECCA AGUILAR, OFF. ELIAS BAEZ, CITY OF WORCESTER, CHIEF GARY J. GEMME, CAPT. PAUL SAUCIER, CITY MANAGER EDWARD M. AUGUSTUS, POLICE INFORMANT CR-1, and OFFS. JOHN DOE 1-4, Defendants.

          MEMORANDUM AND ORDER

          TIMOTHY S. HILLMAN U.S. DISTRICT COURT JUDGE.

         Background

         On April 3, 2018, Magistrate Judge Hennessy issued an Order (Docket No. 137)(“Order”) granting Defendants' Motion To Compel The Affidavit of Non-Party Witness Robert Sykes (Docket No. 125). Before the Court is Plaintiffs' Objection (Docket No. 139) to that Order. For the reasons stated below, Plaintiffs' Objection is overruled.

         Facts

         As detailed in the Order, Plaintiffs allege the Massachusetts State Police used excessive force while executing a no-knock search warrant at their residence on August 19, 2015. One of the Plaintiffs was purportedly held at gunpoint, prevented from clothing herself, and frisked under her bathrobe. A second Plaintiff, who was asleep on the couch, was allegedly commanded to get on the ground, and, in an effort to comply, his hand was stepped on by an officer, causing it to fracture. Finally, a third Plaintiff was allegedly forced to the ground at gunpoint after officers kicked down a bathroom door.

         Robert Sykes, a tenant in the building, was a witness to the events described above. To memorialize his observations, Mr. Sykes signed an affidavit that was drafted by Plaintiffs' counsel on or about September 15, 2015 (the “Sykes Affidavit”). Plaintiffs disclosed the existence of the Sykes Affidavit to the Defendants in November 2017, however, Plaintiffs' counsel asserted it was attorney work-product, and thus, not discoverable. Defendants deposed Mr. Sykes on December 5, 2017, but when asked to describe the contents of his affidavit, he testified, “I can't because I don't remember . . . . It's been too long.”

         After reviewing the Sykes Affidavit in camera, Magistrate Judge Hennessy found it was “nothing more than statements of facts within the affiant's personal knowledge, ” and, as such, not protected by the attorney work-product doctrine. While noting an affidavit could, in certain circumstances, reveal attorney work-product, Magistrate Judge Hennessy determined Mr. Sykes's Affidavit did not disclose any protected material. Further, assuming arguendo that the affidavit was work-product, the Magistrate Judge held that Defendants' need for it outweighed Plaintiffs' interest in preventing disclosure. More specifically, because Mr. Sykes's deposition answers were “incomprehensible, ” the affidavit would provide “clarity concerning [Mr. Sykes's] account of the relevant events.”

         Standard Of Review

         The order of a magistrate judge may be reversed only if it is “clearly erroneous or contrary to the law.” Fed.R.Civ.P. 72(a). Consequently, the order must be accepted unless there is a “strong, unyielding belief that a mistake [was] made.” Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 4 (1st Cir. 1999) (quoting Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990)); see also United States v. Garcia, 983 F.2d 1160, 1166 (1st Cir. 1993) (a magistrate judge's discovery order may be set aside only where it is clearly erroneous or contrary to the law). An order is “clearly erroneous” if the magistrate judge made a mistake concerning a question of fact. See Concrete Pipe & Prods. v. Constru. Laborers Pension Tr., 508 U.S. 602, 622 (1993). Moreover, an order is “contrary to the law” if the magistrate judge made a mistake with respect to a legal determination. See PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 14-15 (1st Cir. 2010). “[T]here is no practical difference between . . . [the] ‘contrary to law' standard and review under . . . [the] de novo standard.” Id. at 15.

         Discussion

         Plaintiffs object to Magistrate Judge Hennessy's Order on the following grounds: (1) Plaintiffs contend there is no case law, other than trial court opinions, to support Magistrate Judge Hennessy's finding; (2) Plaintiffs claim Magistrate Judge Hennessy mistakenly relied on Stamps v. Town of Framingham, 38 F.Supp.3d 134 (D. Mass. 2014) to find the work-product doctrine does not protect purely factual statements; and (3) Plaintiffs assert Magistrate Judge Hennessy's decision would “introduce a glaring divergence of holdings” in light of this Court's decision in Ortiz v. City of Worcester, Civ. Act. No. 15-40037-TSH, 2017 WL 1948523 (D.Mass. May 10, 2017).

         Attorney Work-product Doctrine

         The work-product doctrine prevents certain attorney-prepared materials from becoming discoverable. Protected materials include an attorney's “files and mental impressions . . . reflected, of course, in the interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways.” Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 685 (1947). The doctrine protects “an attorney's ability to formulate legal theories and prepare cases, ” and prevents the parties from “freeloading” off each other's work. Stamps v. Town of Framingham, 38 F.Supp.3d 134, 145 (D. Mass. 2014) (citing Jean v. City of New York, 2010 WL 148420, at *2 (E.D.N.Y. Jan. 12, 2010)). “Whatever the outer boundaries ... are, the rule clearly applies to memoranda prepared by an attorney in contemplation of litigation which set forth the attorney's theory of the case and his litigation strategy.” N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 154-55, 95 S.Ct. 1504 (1975). Facts, on the other hand, are not protected from disclosure by the work-product doctrine. Mutual knowledge of relevant facts is essential to proper litigation, and therefore, “either party may compel the other to disgorge whatever facts he has in his possession ... .” Hickman, 329 U.S. at 507, 67 S.Ct. 685; see also Fed. R. Civ. P. 26(b)(3) Advisory Comm. Note (1970) (“No change is made in the existing doctrine, noted in the Hickman case, that one party may discover relevant facts known or available to the other party, even though such facts are contained in a document which is not itself discoverable.”). Further, “[a] party should not be allowed to conceal critical, non-privileged, discoverable information ... simply by ... attempting to hide behind the workproduct doctrine.” Xerox Corp. v. IBM, 64 F.R.D. 367, 381-82 (S.D.N.Y. 1974). As such, relevant, underlying facts contained in materials prepared by an attorney have generally been held to be discoverable. See EEOC v. Jamal & Kamal, Inc., Civ. Act. No. 06-2667, 2006 WL 2690226, at *2 (E.D.La. Sep. 18, 2006); see also Upjohn v. United States, 449 U.S. 383, 395-96, 101 S.Ct. 677 (1981) (finding the attorney-client privilege, for example, protects the disclosure of communications, but not the underlying facts in the communications); In re Murphy, 560 F.2d 326, 336 n.20 (8th Cir. 1977) (noting relevant facts contained in work-product are discoverable upon a proper showing).

         In this case, the document at issue is a signed witness affidavit prepared by the Plaintiffs' attorneys. There is disagreement among the courts concerning the applicability of the work-product doctrine to signed witness statements and affidavits. Compare Murphy v. Kmart Corp., 259 F.R.D. 421, 430 (D.S.D. 2009) (holding affidavits are merely statements of fact, and thus, not protected) and Tuttle v. Tyco Elecs. Installation Servs., Civ. Act. No. 2:06-cv-581, 2007 WL 561530, at *4 (S.D. Ohio Dec. 21, 2007) (determining the doctrine protects information relevant to the “evolution of an affidavit, ” but not the final version) with E.E.O.C. v. Rose Casual Dining, L.P., Civ. Act. No. 02-7485, 2004 WL 231287, at *2-3 (E.D. Pa. Jan. 23, 2004) (“Witness statements prepared at the direction of counsel in anticipation of litigation ... are classic examples of attorney work product ...”) and Kintera, Inc. v. Convio, Inc., 219 F.R.D. 503, 510 (S.D. Cal. 2003) (finding signed witness statements are fact work-product, regardless of whether they contain the mental impressions ...


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