Opinion
No. CIV-05-0996 RB/LAM.
March 20, 2006
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR PROTECTIVE ORDER ( Doc. 69 )
THIS MATTER comes before the Court on the Motion for Protective Order ( Doc. 69) (hereinafter, "Motion") filed on January 25, 2006, by Defendant William Richardson and former Defendants Patricia Madrid and Susana Martinez. The Court has reviewed the Motion, the brief in support of the Motion ( Doc. 70), Plaintiffs' response to the Motion and supporting brief ( Doc. 88), the pleadings on file in this case and relevant law. The Court FINDS that the Motion should be GRANTED IN PART and DENIED IN PART, as set forth below.
William Richardson, Governor of the State of New Mexico, is a defendant in this case. Patricia Madrid, Attorney General of the State of New Mexico, and Susana Martinez, District Attorney of the Third Judicial District of the State of New Mexico, were previously named defendants but were dismissed from this case on December 12, 2005, on grounds of absolute prosecutorial immunity. The Motion concerns Plaintiffs' First Set of Requests for Production of Documents From Defendants Richardson, Madrid, and Martinez propounded by Plaintiff Paul Weinbaum. A copy of the requests for production is attached to the Motion as Exhibit 1.
See Memorandum Opinion and Order ( Doc.51), filed on December 12, 2005.
It is unclear from the requests for production whether they were propounded by Plaintiffs other than Mr. Weinbaum. The title and text on page one of the requests for production seem to indicate that they were propounded by all Plaintiffs; however, the last page of the requests for production states that they were submitted by Mr. Weinbaum and he was the only signatory to the requests for production. See Motion for Protective Order ( Doc. 69), Exhibit 1 at 1,7. Based on the foregoing, the Court assumes, for purposes of the Motion and this Order, that only Mr. Weinbaum propounded the requests for production that are at issue.
The Motion seeks a protective order on multiple grounds. Former defendants Madrid and Martinez argue that they are not subject to discovery in this case by requests for production, interrogatories or requests for admission because they are no longer parties to the case. Madrid and Martinez also contend that they are protected by prosecutorial immunity from having to respond to discovery requests in this case. Defendant Richardson argues that he should not be required to respond to Mr. Weinbaum's requests for production because: (1) Requests for Production Nos. 5 and 7 through 15 appear to be directed solely to Attorney General Madrid and District Attorney Martinez who are no longer parties to this case; (2) Requests for Production Nos. 5, 9, 11 and 12 seek the production of materials protected by the attorney-client privilege; (3) Request for Production No. 1 seeks to have Defendant Richardson perform legal research for Mr. Weinbaum and provide legal research materials protected by the work-product doctrine; (4) Request for Production No. 2 seeks the production of a document that does not exist; (5) Requests for Production Nos. 3 and 4 seek the production of documents and materials that have already been provided to Mr. Weinbaum; and (6) Request for Production No. 6 seeks information outside the permitted scope of discovery that is irrelevant to the claims and defenses in this case and not reasonably calculated to lead to the discovery of admissible evidence. The Motion asks the Court to enter an order which (1) provides that the discovery sought in Mr. Weinbaum's requests for production not be had, (2) restrains Mr. Weinbaum from serving any further requests for production, interrogatories or requests for admission on Madrid, Martinez or any other non-party, and (3) awards Madrid, Martinez and Richardson their attorneys' fees and costs incurred in connection with the Motion.
Former Defendants Patricia Madrid and Susana Martinez
Pursuant to Fed.R.Civ.P. 34, requests for production are limited to parties to an action. The Rule provides, in relevant part, that:
Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor's behalf, to inspect and copy, any designated documents . . ., or to inspect and copy, test, or sample any tangible things which constitute or contain any matters within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served; or (2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b).
Fed.R.Civ.P. 34(a) (emphasis added). Thus, only the parties to a case are required to respond to requests for production under Rule 34. See In re Greenwood Air Crash, 161 F.R.D. 387, 394 (S.D. Ind. 1995) ("Requests for production under Fed.R.Civ.P. 34 may be served only on other parties, not non-parties."). The same is true of interrogatories and requests for admission which may only be served on parties. See Fed.R.Civ.P. 33(a) ("Without leave of court or written stipulation, any party may serve upon any other party written interrogatories. . . .") and Fed.R.Civ.P. 36(a) ("A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Rule 26(b)(1). . . .") (emphasis added). Documents and things may be obtained from non-parties in a lawsuit by subpoena pursuant to Fed.R.Civ.P. 45. See Fed.R.Civ.P. 34(c) ("A person not a party to the action may be compelled to produce documents and things or to submit to an inspection as provided in Rule 45.") (emphasis added).
Because Patricia Madrid and Susana Martinez are no longer parties to this case, they are not subject to discovery by requests for production pursuant to Fed.R.Civ.P. 34. Therefore, the Court will not require them to respond to Plaintiff Weinbaum's requests for production. The Court will also protect them from further discovery in this case by requests for production or inspection pursuant to Fed.R.Civ.P. 34, interrogatories pursuant to Fed.R.Civ.P. 33 and requests for admission pursuant to Fed.R.Civ.P. 36, because they are not parties. Since the foregoing issues can be decided under the Federal Rules of Civil Procedure, the Court declines to decide the issue of whether prosecutorial immunity from liability also protects Madrid and Martinez from having to respond to any discovery in this case, including any discovery propounded under Fed.R.Civ.P. 45. Additionally, the Court declines to issue an advisory opinion on the question of whether Mr. Weinbaum can serve interrogatories, requests for production and requests for admission on any other non-parties to this case.
Defendant William Richardson
The Court addresses, in the order in which they are presented in his motion, Defendant Richardson's various arguments in connection with the request or requests for production to which they relate.
Requests for Production Nos. 5, and 7 through 15
Request for Production No. 5 requests the production of "copies of all documents and inquiries between the Governor of New Mexico, his staff, and the New Mexico Attorney General relating to the legitimacy of the three Latin crosses installed on public property by the City of Las Cruces and State of New Mexico agencies." Request for Production No. 7 asks for "a copy of the federal, state, and legislative laws that preclude the State of New Mexico Attorney General from investigating claims from citizens that their First Amendment rights are being violated." Request for Production No. 8 asks for "a copy of the federal, state, and legislative laws that preclude the District Attorneys of State of New Mexico Judicial Districts from investigating claims from citizens that their First Amendment rights are being violated." Request for Production No. 9 asks for "copies of all documents, inquiries, and responses from the District Attorney, Third Judicial District, to the Attorney General of New Mexico for information, aid, or assistance, with the alleged violations of the First Amendment by the City of Las Cruces." Request for Production No. 10 requests "copies of all documents, inquiries, and responses from the Attorney General of New Mexico to the United States Justice Department for information, aid, or assistance, with the alleged violations of the First Amendment by the City of Law Cruces." Request for Production No. 11 requests "copies of all inquiries, documents, and responses between the Governor of New Mexico and the Attorney General of New Mexico concerning the legitimacy of the Governor's order to override the decision of the then New Mexico State Highway and Transportation Department to remove the Latin crosses symbols in Las Cruces." Request for Production No. 12 requests "any documents indicating that the Attorney General of New Mexico had asked, and received replies from the State Auditor, or any federal agency, to investigate the possible misuse of state and federal public funds by the then New Mexico State Highway and Transportation Department in the authorizing and installation of the three Latin crosses on the roadways in Las Cruces." Request for Production No. 13 asks for "copies of all correspondence between the Attorney General of New Mexico and the City Attorneys' Office of the [C]ity of Las Cruces pertaining to the expenditure of public funds, and the use, display and installation of the Latin crosses by the City of Las Cruces on public property." Request for Production No. 14 asks for "a complete list and explanation of all the official duties of the Attorney General of New Mexico and of the District Attorney, Third Judicial District." Request for Production No. 15 asks for "copies of all federal, state, and local laws, rules, regulations, and statutes that allow the Attorney General of New Mexico and the District Attorney, Third Judicial District, in the role of state actors to selectively deny citizens their civil rights afforded them in the First, Fifth, and Fourteen Amendments of the United States Constitution and the 1964 Civil Rights Act." Defendant Richardson argues that he should not be required to respond to these requests for production because they appear to be directed solely to Attorney General Madrid and District Attorney Martinez. The Court agrees with this argument with respect to Requests for Production Nos. 7, 8, 9, 10, 12, 13, 14 and 15, which appear to be directed only to Madrid and Martinez; however, the Court does not agree with this argument with respect to Requests for Production Nos. 5 and 11, since these requests specifically mention the Governor and/or his staff. Therefore, the Court will not require Defendant Richardson to respond to Requests for Production Nos. 7, 8, 9, 10, 12, 13, 14 and 15, but it will require him respond to Requests for Production Nos. 5 and 11. Notwithstanding the foregoing, any materials responsive to Requests for Production Nos. 5 and 11 as to which Richardson claims attorney-client privilege shall be identified in his responses and in the privilege log discussed below; however, Richardson need not produce such materials to Mr. Weinbaum before the Court rules on whether or not they are privileged.Requests for Production Nos. 5, 9, 11 and 12
These requests for production are described above. Richardson contends that he should not be required to respond to these requests for production because they seek the production of materials protected by the attorney-client privilege. In the alternative, Richardson asks for a reasonable amount of time to prepare a privilege log describing the materials for which attorney-client privilege is claimed. Richardson has not provided any information about the allegedly privileged materials and has not provided a privilege log. He argues that these requests for production seek materials that are, by their very nature, protected from disclosure by the attorney-client privilege.
A party who withholds materials based on a claim of privilege must describe the nature of the materials withheld in a manner that will enable the other parties and, in this case the Court, to assess the claim of privilege. See Fed.R.Civ.P. 26(b)(5) (party asserting privilege "shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.") Richardson has not provided sufficient information to the Court to enable it to assess his claim of privilege, and it is not apparent to the Court that all of the materials sought by Requests for Production Nos. 5, 9, 11 and 12 are necessarily privileged. Therefore, the Court will require Richardson to provide a privilege log for any and all materials in his possession, custody and control responsive to Requests for Production Nos. 5 and 11 that he seeks to withhold on grounds of attorney-client privilege. The Court will not require a privilege log for Requests for Production Nos. 9 and 12 because these requests appear to be directed only to former Defendants Madrid and Martinez, and the Court, for the reasons set forth above, will not require Richardson to respond to these requests for production. The privilege log should be served on Plaintiff Weinbaum, and filed with the Court, no later than twenty days after entry of this Order. Richardson must provide enough helpful information to enable the Court to make a determination about whether the item being withheld or redacted is privileged. See Horton v. United States, 204 F.R.D. 670, 673 (D. Colo. 2002) ("The information provided in the privilege log must be sufficient to enable the court to determine whether each element of the asserted privilege is satisfied." (internal citation omitted)). In other words, Richardson's log should include the place, approximate date and manner of preparing the item, the name of the person at whose request the item was prepared, the name of each person participating in the preparation of the item, the name and position of each person to whom the item was communicated, the names of the persons presently in custody of the original or any duplicates of the item, and a precise statement of the grounds for the protection of each item.
Request for Production No. 1
This request for production asks Defendant Richardson to provide "a copy of any federal, state, and legislative law, rule, or statute that allowed the Governor . . . to issue the Executive Order, as indicated as such, not to remove the Latin crosses from public property as reported in New Mexico State Highway and Transportation Department press release dated 4 March 2003." Richardson argues that this request for production impermissibly seeks to have him perform legal research for Mr. Weinbaum and, to the extent that any legal research has been performed responsive to the request, to provide Mr. Weinbaum with materials that are protected from disclosure by the work-product doctrine. Richardson also argues that this request is unduly burdensome. The Court agrees with Richardson that this request for production seeks to have him provide copies of legal materials related to this case that are equally available to Mr. Weinbaum and, in that respect, the request is unduly burdensome. Additionally, to the extent that this request seeks the production of legal research prepared by Richardson's attorneys in anticipation of litigation or for trial, such documents are attorney work product and subject to discovery by Mr. Weinbaum only after an appropriate showing of substantial need and his inability without undue hardship to obtain the substantial equivalent of the materials by other means. See Fed.R.Civ.P. 26(b)(3) (materials prepared in anticipation of litigation or for trial by or for another party or his attorney are discoverable only upon a showing that the party seeking the discovery has substantial need for the materials and is unable to obtain the substantial equivalent of the materials by other means without undue hardship); see also Natta v. Zletz, 418 F.2d 633, 638-639 (7th Cir. 1969) (documents prepared by attorneys in anticipation of litigation containing legal research constituted work product that was discoverable only upon an appropriate showing of good cause). Therefore, the Court will not require Richardson to respond to this request for production.
Request for Production No. 2
This request for production asks for "a copy of the Executive Order, as indicated as such, in the press release listed in RFP NO. 1. . . ." Richardson argues that this request for production seeks the production of a document that does not exist. A party cannot be compelled to produce a document that does not exist; however, the fact that a document does not exist does not excuse a party from having to respond to a request for production. Richardson must respond to this request for production but he may elect to respond that no such document exists, if that is the case.
Requests for Production Nos. 3 and 4
Request for Production No. 3 references a press release regarding the City of Las Cruces logo and Governor Richardson and asks for "all the documents and references that would support the Governor of New Mexico's informed basis of the `historical significance event' [i]nclud[ing] all the documents and references used to indicate' . . . the point of pride and honor for the people of Las Cruces.'" It also requests "all the documents and references used to substantiate the claim of how the continued display of the Latin crosses on public property supports `the unique history of New Mexico.'" Request for Production No. 4 references a display of crosses at a highway interchange in Las Cruces with a brass plaque, and another display of crosses on a highway underpass in Las Cruces, and asks for "all the documents including the instructions provided by the then New Mexico State Highway and Transportation Department to the design firm, Parsons, Brinckerhoff, Quade, and Douglas, Inc., so that the three Latin crosses would be included in the design of the aforementioned overpass and the interchange." Request for Production No. 4 also asks for "all the documents provided to the construction firms, A.S. Horner, Inc. and SEMA Construction, Inc., for the installation of the Latin crosses," and for "a copy of the signed request for the installation and wording on the aforementioned plaque."Richardson argues that these requests for production seek the production of documents that have already been provided to Plaintiffs. The fact that the requested documents have already been provided to Plaintiffs does not excuse Richardson from having to respond to these requests for production; however, Richardson may state in his response to these requests that the documents they seek, which he identifies in his response, have already been provided to Mr. Weinbaum, if that is the case, in lieu of producing the documents again.
Request for Production No. 6
This request for production seeks "copies of all State of New Mexico rules, regulations, statutes, and court rulings pertaining to apparent religious highway roadside monuments and memorials installed on public property by families at sites of fatal accidents." Richardson contends that this request for production seeks information outside the permitted scope of discovery that is irrelevant to any claim or defense in this case and not reasonably calculated to lead to the discovery of admissible evidence. The Court agrees that this request for production seeks materials outside the permitted scope of discovery. Discovery in civil cases is limited to "any matter, not privileged, that is relevant to the claim or defense of any party. . . ." Fed.R.Civ.P. 26(b)(1) (emphasis added). For good cause shown, "the court may order discovery of any matter relevant to the subject matter involved in the action." Id. (emphasis added). A review of Plaintiffs' complaint and Defendants' answers shows that religious highway roadside monuments and memorials installed on public property by families in New Mexico at the site of fatal accidents are not at issue in this case. Thus, the materials sought in this request for production are not relevant to the claims or defenses of any party to this case. Nor has Mr. Weinbaum made any showing that such materials are relevant to the subject matter of this action or that good cause exists for ordering their discovery. Accordingly, Defendant Richardson will not be required to respond to this request for production because it is outside the permitted scope of discovery under Fed.R.Civ.P. 26(b)(1).Finally, the Court does not find that an award of attorney's fees and costs is appropriate in connection with the Motion. IT IS THEREFORE ORDERED that the Motion for Protective Order ( Doc. 69) filed by Defendant William Richardson and former defendants Patricia Madrid and Susana Martinez is GRANTED IN PART and DENIED IN PART, for the reasons set forth above, and that:
1. Former Defendants Patricia Madrid and Susana Martinez are not required to respond to Plaintiffs' First Set of Requests for Production of Documents From Defendants Richardson, Madrid, and Martinez propounded by Plaintiff Paul Weinbaum, and they are not required to answer, or respond to, any further discovery in this case propounded to them by requests for production or inspection pursuant to Fed.R.Civ.P. 34, written interrogatories pursuant to Fed.R.Civ.P. 33, or requests for admission pursuant to Fed.R.Civ.P. 36;
2. Defendant William Richardson is not required to respond to Requests for Production Nos. 1, 6, 7, 8, 9, 310, 12, 13, 14 and 15 contained in Plaintiffs' First Set of Requests for Production of Documents From Defendants Richardson, Madrid, and Martinez propounded by Plaintiff Paul Weinbaum;
3. Within twenty (20) days after entry of this order, Defendant William Richardson shall file and serve responses to Requests for Production Nos. 2, 3 and 4 contained in Plaintiffs' First Set of Requests for Production of Documents From Defendants Richardson, Madrid, and Martinez propounded by Plaintiff Paul Weinbaum; and
4. Within twenty (20) days after entry of this order, Defendant William Richardson shall file and serve responses to Requests for Production Nos. 5 and 11 contained in Plaintiffs' First Set of Requests for Production of Documents From Defendants Richardson, Madrid, and Martinez propounded by Plaintiff Paul Weinbaum, and Richardson shall also file and serve a privilege log for any and all materials in his possession, custody and control responsive to Requests for Production Nos. 5 and 11 that he seeks to withhold on grounds of attorney-client privilege. In his responses to Requests for Production Nos. 5 and 11, Richardson shall identify any materials as to which he claims attorney-client privilege, but he need not produce such materials to Mr. Weinbaum before the Court rules on whether or not they are privileged.
IT IS FURTHER ORDERED that each party shall bear his or her own attorney's fees and costs incurred in connection with the Motion.
IT IS SO ORDERED.