Opinion
CIVIL ACTION No. 01-3337, SECTION `T' (1)
January 15, 2003
ORDER
Before the Court is a Motion to Review the Order of the Magistrate filed by the plaintiff, Regina Woodland. After reviewing the original order of the Magistrate Judge, the supporting and opposing memoranda, the record and the applicable law, this Court is now ready to rule.
BACKGROUND AND ARGUMENTS
The Plaintiff, Regina Woodland, filed this action on November 5, 2002, seeking damages from the Defendant, Nalco Chemical Corporation, pursuant to Title VII ( 42 U.S.C. § 2000e), the Americans with Disabilities Act of 1990 ( 42 U.S.C. § 12101), and the Family and Medical Leave Act of 1993 ( 29 U.S.C. § 2601). A jury was requested.
On November 15, 2002, Magistrate Judge Shushan issued an Order, Doc. #34, outlining specific steps by which the Plaintiff and Defendant were to engage in the exchange, transcription, and culling of various audio tapes made surreptitiously by the Plaintiff at her workplace as well as other places. Magistrate Shushan examined three areas regarding the disclosure of the tapes: (1) conversations that are unrelated to this action and may be highly personal; (2) conversations that might be protected from disclosure as work-product pursuant to Fed.R.Civ.P. 26(b)(3); and (3) conversations that might be protected from disclosure by the attorney-client privilege. Both the Plaintiff and the Defendant have agreed that the Plaintiff surreptitiously recorded telephone conversations with persons who may be witnesses in this action, including her supervisors. Pursuant to Robertson v. National Railroad Passenger Corporation, 1999 WL 199093, (E.D.La.), (Africk, M.J.), Magistrate Shushan found that the surreptitious recording of the tapes directly resolved the issues of work-product and privacy against the Plaintiff. This Court agrees with her reasoning. Subsequently, Magistrate Shushan ordered that within specific time limitations, (1) the Plaintiff was to turn over all audio tapes in her possession, each with an appropriate label; (2) the Defendant was then to return to the Plaintiff all `church' audio tapes along with a log indicating the number for each tape; (3) the Defendant was then to complete the duplication and preparation of transcripts of all tapes that it contended were relevant to the claims and defenses of the parties, and return to the Plaintiff the original tapes as well as copies of all transcripts which Defendant claims were both relevant and not relevant to any claims and defenses; (4) the Plaintiff was then to file a motion for the return of all transcripts which it contends are protected from disclosure by the attorney-client privilege, along with copies of such relevant conversations, such motion then acted upon by the Court and the appropriate action taken; (5) at the conclusion of litigation, Defendant must return all duplicate tapes and all transcripts of the conversations; and (6) the cost of transcription to be taxed as a cost of litigation.
Plaintiff filed a Motion and Memorandum of Objections to the Magistrate's Order wherein she objects to the disclosure of certain tapes in which she unilaterally recorded conversations of co-workers and possible witnesses in this matter. At the heart of the matter, Plaintiff states, is the difference between two sets of tapes which she refers to as the `NALCO tapes' and the `church tapes.' Plaintiff objects altogether to the production of the `church tapes' and the `NALCO tapes' insofar as they contain attorney-client privileged matter and irrelevant private matter. She does not object to the disclosure of relevant private information or work-product information. Continuing, the Plaintiff provides several methods of disclosure whereby the tapes could be disclosed, transcribed and delivered in one way or another.
Defendant filed a Memorandum in Opposition to the review of the Magistrate's order. They maintain that pursuant to the Magistrate's ruling, the tapes should be revealed in their entirety, and that they would be prejudiced without the production of the relevant audio tapes
COURT'S ANALYSIS
The standard by which a district court reviews discovery rulings by a magistrate judge is established by Title 28 U.S.C. § 636, which states that "[a] judge of the court may reconsider any pretrial matter . . . where it has been shown that the magistrate's order is clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A). The Fifth Circuit Court of Appeals has stated that the statute specifically requires the district court to apply a "clearly erroneous" standard when reviewing a magistrate judge's ruling on a non-dispositive, pretrial motion such as a discovery motion. See Castillo v. Frank, 70 F.3d 382, 385-86 (5th Cir. 1995).
Having reviewed the arguments of counsel as well as the rulings of Magistrate Judge Shushan, it is the finding of this Court that the reasoning and ruling of Magistrate Judge Shushan be adopted as the ruling of this Court in its entirety. The burden of `clearly erroneous or contrary to law' is an especially high burden; one that the plaintiff has failed to meet in its arguments.
Accordingly,
IT IS ORDERED that the Plaintiff's Motion and Memorandum of Objections to Magistrate's Order be and hereby is DENIED.