Opinion
CIVIL ACTION NO: 03-2584, SECTION: "C" (4)
May 24, 2004
ORDER AND REASONS
On April 12, 2004, the defendant, Alvin C. Copeland ("Copeland") filed a Motion by Alvin C. Copeland to Quash Re-Notice of Records Deposition of Robert C. Lowe, Esq (doc. #62) seeking an order quashing the Re-Notice and accompanying subpoena duces tecum directed to Robert C. Lowe, at the plaintiffs cost. A hearing on the motion was held on May 19, 2004.
It is noted by the Court that although Lowe did not present himself before the Court in objecting to the subpoena, Copeland has standing to bring this motion as production of certain documents will affect Copeland as Lowe's client in the state custody proceedings. Westside-Marrero Jeep Eagle, Inc. v. Chrysler Corp., 1998 WL 186705, *4 (E.D. La. 1998) (finding that a party, not the person to whom the subpoena is directed and not in possession or control of the requested material, does have such standing if he has a personal right or privilege in respect to the subject matter of the subpoena or a sufficient interest in it; and citing Brown v. Braddick, 595 F.2d 961, 967 (5th Cir. 1979)).
The parties advanced several arguments in their position papers filed with the Court. Firstly, Copeland argued that the documents sought by the subpoena are protected by the attorney-client privilege and/or work-product doctrine. Copeland further argued that because Judge Liljeberg recently denied Hunter's attempt to depose Lowe, this subpoena is an attempt to make an end-run around Rule 508 of the Louisiana Code of Evidence. Finally, Copeland urged that this discovery appears to be specifically violative of Judge Liljeberg's gag order.
In opposition to the motion, Hunter asserted that because all defendants have identified Lowe as a fact witness, Hunter is entitled to seek discovery from Lowe in this action. Hunter further asserted that the state gag order is inapplicable to this proceeding, and that it is Copeland, not Hunter, who is misusing discovery. Additionally, Hunter asserted that the records requested in the subpoena relate to underlying facts, not attorney advice, precluding attorney-client and/or work product privilege application. Lastly, Hunter argued that the crime fraud exception applies where the defendants pled guilty and transactions relate to crime or fraud.
However, one issue that was not addressed in either party's position papers was the issue of relevancy. Therefore, the Court focused the hearing on the issue of relevancy because Hunter would have to demonstrate how the documents sought are relevant to the matter before the Court reaches the issues of privileges, gag orders and exceptions.
I. Background
This matter arises from and is related to an on-going custody proceeding in the 24th Judicial District Court for the Parish of Jefferson. A.C. Copeland v. Luan Hunter, No. 547-189, 24th J.D.C. Copeland and Hunter were married on October 17, 1990 in Las Vegas, Nevada, and were publicly married in New Orleans in 1991. The couple have a minor child, Alex Copeland.
In December of 1999, Copeland filed for divorce in the 24th Judicial District for the Parish of Jefferson. The judge originally assigned to the matter, Judge Ronald Bodenheimer, resigned. The case was then reassigned to Judge Hans Liljeberg. The divorce became final on April 17, 2000, and the parties share joint custody of Alex Copeland.
However, both Copeland and Hunter have pending motions to change the joint custody arrangement of their son. Robert C. Lowe ("Lowe") represents Copeland in the custody litigation that is pending before Judge Liljeberg.
Beginning in 2001, the federal government instituted a wire tap and video surveillance of several individuals which included Judge Bodenheimer. Numerous conversations were intercepted of Judge Bodenheimer, Bryan White (Copeland's corporate counsel), Phillip Demma, and George Hesni, a Jefferson Parish attorney appointed as guardian ad litem for the Alex Copeland.
Pursuant to the federal investigation, Bodenheimer, White and Demma were indicted and pled guilty to various charges relating to the Copeland v. Hunter matter. Subsequently, on September 15, 2003, Hunter filed this federal action against several individuals and/or entities pursuant to 42 U.S.C. § 1983 for alleged violations of her civil rights, coupled with state law claims for damages.
On March 25, 2004, Hunter noticed for April 1, 2004, a records only deposition of Lowe. The Court quashed the notice on the grounds that notice was unreasonable. Thereafter, Hunter re-noticed the records only deposition for April 26, 2004. Before Hunter noticed the records only deposition of Lowe in the federal action, she moved to depose Lowe in the state action. On April 6, 2004, Judge Liljeberg denied Hunter's request to depose Lowe.
The Subpoena Duces Tecum commands production of the following documents:
1) All statements or invoices issued in connection with the Alvin C. Copeland divorce proceeding.
2) Records of telephone conversations between you and members of your firm and Ronald D. Bodenheimer.
3) Records of telephone conversations between you and members of your firm and Philip M. Demma.
4) Records of telephone conversations between you and members of your firm and George S. Hesni, II.
5) Records of telephone conversations between you and members of your firm and Emerson Simmons.
6) Records of telephone conversations between you and members of your firm and Bryan M. White; and
7) Records of telephone conversations between you and members of your firm and Gil Copeland.II. Legal Analysis A. Protective Order
Rule 26 of the Federal Rules of Civil Procedure governs the issuance of protective orders. It provides in pertinent part:
Upon motion by a party or by the person from whom discovery is sought. . . . and for good cause shown, the court in which the action is pending . . . may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(1) that the disclosure or discovery not be had;
(2) that the disclosure or discovery may be had only on specified terms and conditions, including a designation of the time or place;
(3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;
(4) that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain matters;
(5) that discovery be conducted with no one present except persons designated by the court;
If the motion for a protective order is denied in whole or in part, the court, may, on such terms and conditions as are just, order that any party or other person provide or permit discovery. See Fed.R.Civ.P. 26(c).
The decision to enter a protective order is within the court's discretion. Thomas v. International Bus. Mach., 48 F.3d 478, 482 (10th Cir. 1995). Rule 26(c)'s requirement of a showing of good cause to support the issuance of a protective order indicates that "the burden is upon the movant to show the necessity of its issuance, which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements." See In re: Terra International Inc., 134 F.3d 202, 306 (5th Cir. 1998) (citing United States v. Garrett, 571 F.2d 1323, 1326 n. 3 (5th Cir. 1978)).
As an initial matter, the Court notes that Hunter clarified that with respect to all the subpoena requests, she is not seeking any information that would be protected by the attorney-client or work product privileges. In fact, with reference to the billing statements and invoices, Hunter is not seeking information on the services rendered, but the fact of billing. Further, with respect to the telephone records, Hunter only seeks a record of the time, date and name indicating telephone conversations between Lowe and the parties identified in the subpoena. The Court will now take up the issue of relevancy of the requests contained in the subpoena.
B. Relevancy
The Federal Rules of Civil Procedure govern discovery in all civil actions. Specifically, Rule 26(b)(1) provides that "parties may obtain discovery regarding any matter, not privileged that is relevant to the claim or defense of any party . . ." (emphasis added). Further, discovery may be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit . . ." Fed.R.Civ.P. 26(b)(2) (emphasis added).
The discovery rules are accorded a broad and liberal treatment to affect their purpose of adequately informing litigants in civil trials. Hebert v. Lando, 441 U.S. 153, 176 (1979). Nevertheless, discovery does have "ultimate and necessary boundaries," Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (quoting Hickman v. Taylor, 329 U.S. 495, 507 (1947)), and "it is well established that the scope of discovery is within the sound discretion of the trial court." Coleman v. American Red Cross, 23 F.3d 1091, 1096 (6th Cir. 1994).
Court's have recognized that while it is true that relevance in discovery is broader than that required for admissibility at trial, "the object of inquiry must have some evidentiary value before an order to compel disclosure of otherwise inadmissible material will issue." Zenith Electronics Corp. v. Exzec, Inc., 1998 WL 9181, *3 (N.D.Ill. 1998) (quoting Piacenti v. General Motors Corp., 173 F.R.D. 221, 223 (N.D.Ill. 1997)). Further, the information must be "reasonably calculated to lead to the discovery of admissible evidence." Id. Courts have also recognized that "the legal tenet that relevancy in the discovery context is broader than in the context of admissibility should not be misapplied so as to allow fishing expeditions in discovery." Id.
When questioned on the issue of relevancy regarding subpoena requests 2-7 (telephone records), Hunter provided the Court with and referred the Court to Federal Bureau of Investigation ("FBI") 302 disclosures, with respect to the criminal matters as to Boddenheimer, Demma, White, et al.
These documents were not attached to Hunter's Complaint in these proceedings, and are Federal Bureau of Investigation documents labeled as Exhibit D-2 Globo.
Hunter asserted that the subpoena was directed to Lowe because the records that are sought from Lowe are corroborative of the information that is reported in the FBI 302's. Hunter contended that the information is relevant because it gives her a time line or chronology that ties in to the assertions and/or representations made in the FBI 302's. Hunter urged that this connection is important because they need to corroborate the deposition testimony of certain individuals with the records obtained from the subpoena. Further, Hunter asserted that she has no reason to believe that Bryan White, during deposition, will admit that he was involved in a conspiracy. Because Hunter has sued the various defendants alleging, inter alia, conspiracy, she contends that the information sought will tend to prove the ultimate fact of conspiracy and allow Hunter to take an intelligent discovery deposition.
Upon further examination of the FBI 302's, the Court noted that it could see the point in Hunter trying to connect the dots of events reflected by the information contained in the 302's by obtaining message slips as to White. However, the Court further noted that there was only one reflection in the 302's that indicated that White may have attempted to communicate with Lowe, so that it would be relevant in regards to the requests sought. The one reference to Lowe in the 302's provided:
"The first meeting occurred sometime around the end of January 2002. The topic of discussion was the Al Copeland divorce case. White told Bodenheimer what Al Copeland wanted in the divorce case. White mostly discussed the custody of Alex Copeland with Bodenheimer. Bodenheimer told White he (White) would talk to Robert Lowe, (Al Copeland's divorce attorney) and tell Lowe what to do. Lowe knew what Al Copeland wanted regarding Alex Copeland."
Thereafter, Hunter argued that the one reference alone should allow Hunter to connect the dots as to the other individuals. The Court disagreed, but informed Hunter that she would be allowed to obtain documents sought in the subpoena requests with regard to the one reference to Lowe in January of 2002. The other information sought by Hunter is not relevant nor does it advance a claim or defense.
Copeland argued that Hunter has not made a showing of possible relevance to her first subpoena request of all statements or invoices relating to the divorce proceeding. The Court pointed out that Hunter is not seeking any entries for work performed, but entries reflecting a fact of communication between Lowe and one of the defendants, White. Copeland urged that he does not see the relevance of a document that reflects when Lowe sent a bill for payment to Copeland.
The Court pointed out that if Hunter is attempting to construct a time line, the fact of communication, may be reflected in a statement or invoice for payment if it is not reflected in a message slip. This request would be relevant to that extent. The Court further notes that the request was written broadly enough to include a request for a statement reflecting whether a meeting took place.
It has not gone unnoticed by the Court that the parties made several arguments in their position papers regarding the subpoena duces tecum at issue. However, because of the limited production of documents being ordered by the Court, it is unnecessary to explore most of the arguments, as they relate to the attorney-client and/or work product privileges, which are not impinged by the production.
The subpoena has not requested that Lowe divulge the content of the conversations between these parties, but only documents that reveal the fact of when the conversation took place and with whom. See In re Grand Jury Proceedings (Twist), 689 F.2d 1351 (11th Cir. 1982) (holding that a government subpoena asking an attorney to produce documents that would reflect date, place, and time of meetings with the client are not encompassed within the privilege). Further, with respect to the statements and invoices in connection with the divorce proceedings, fee arrangements are also outside the protection of the attorney-client privilege. See Clark v. American Commerce Nat `I Bank, 974 F.2d 127 (9th Cir. 1992) (attorney's billing statements identifying the client, the case name for which payment had been made, fee amounts, and the general nature of the services, are not protected). It follows that billing statements and hourly records also fall short of attorney-client privilege protection. See Leach v. Quality Health Serv., 162 F.R.D. 499 (E.D. Pa. 1995) (billing records can be redacted to the extent they reveal a client confidence, but otherwise produced). See also United States v. Keystone Sanitation Co., 885 F. Supp. 672, 675 (M.D. Pa. 1994) (attorney billing statements and time records are protected by the privilege only to the extent they reveal litigation strategy and/or the nature of the services performed).
Further, with respect to the records of telephone conversations, the work product doctrine does not protect the fact that the conversations did or did not take place. The doctrine does not extend to the underlying facts relevant to the litigation. See generally Upjohn Co. v. U.S., 449 U.S. 383, 395-96.
C. Application of the Rooker-Feidman Doctrine
With respect to Copeland's argument that the subpoena is violative of the state gag order, the Court will now address the argument below.
On February 14, 2003, Judge Liljeberg imposed a gag order on the parties and their counsel in the custody litigation. Copeland submits that Lowe, against whom the subpoena is directed, appears to be specifically prohibited by the gag order from responding to Hunter's attempt to depose Lowe. Hunter argues that the state gag order is inapplicable to the federal proceeding, because state courts do not generally have the power to enjoin federal proceedings.
The Rooker-Feldman Doctrine provides "that inferior federal courts do not have the power to modify or reverse state court judgments." Reitnauer v. Texas Exotic Feline Foundation, Inc., 152 F.3d 341, 343 (5th Cir. 1998) (citing Rooker v. Fidelity Trust Cos., 263 U.S. 413, 415) (1923); and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983)). The Reitnauer Court commented that "in this case the plaintiffs do not ask this court to modify or reverse any state court judgment. The Plaintiffs merely claim inter alia that the Defendant's conduct in a state court proceeding violated the FDCPA [Federal Debt Collection Practices Act]. Therefore, the Rooker-Feldman Doctrine fails to bar this action . . ." Id.
Hunter essentially argues that she does not request this Court to modify any state court orders, and just as in Reitnauer, her federal case is based on conduct in the state proceedings, but is a separate cause of action. Therefore, the state has no jurisdiction to bar discovery in federal proceedings.
Further, in reviewing the Rooker-Feldman doctrine, there has been no indication that it applies to an interlocutory order such as that ordered by Judge Liljeberg, but only to state court judgments. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476, 482, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983) (holding that federal district courts do not have the authority to review final state court judgments) (Emphasis added)). Therefore, this Court, by ordering the limited production, is not impinging upon Judge Liljeberg's gag order.
Accordingly,
IT IS ORDERED that the Motion by Alvin C. Copeland to Quash Re-Notice of Records Deposition of Robert C. Lowe, Esq (doc. #62) is DENIED IN PART and GRANTED IN PART as follows:
1) DENIED as to Subpoena Request Numbers 1 and 6 in conformance with the limitations that follow: Lowe is to produce records of telephone conversations between White and Lowe only during the time period of the last week in January through the first two weeks of February 2002. The only information that should be contained in the documents are name, date and time of the call. All other information shall be redacted. To the extent the contact or communication was in the form of a meeting and is reflected on a billing statement, the document reflecting the fact of the meeting should be produced. The documents shall be produced no later than 15 days from the date of this order.
2) GRANTED as to all other Subpoena Requests.
To obtain a transcript of the proceedings for the Court's findings, the parties should contact Gaynell Banta, Court Recorder Supervisor, at 589-7720.