United States District Court, W.D. Oklahoma
MEMORANDUM OPINION AND ORDER
J. CAUTHRON United States District Judge
before the Court is Defendant City of Oklahoma City's
Motion for Order Striking Portions of Plaintiff's Rule
30(b)(6) Notice of Deposition (Dkt. No. 54). Plaintiff has
responded and the Motion is now at issue. A Rule 30(b)(6)
Notice of Deposition “must describe with reasonable
particularity the matters for examination.”
Fed.R.Civ.P. 30(b)(6). Defendant essentially requests that
the Court issue a Protective Order to prevent the discovery
of information listed in certain paragraphs of the Notice
because the matters for examination are not relevant, violate
the attorney-client privilege, or seek attorney work product.
protected by the work product doctrine must “'(1)
be a document or tangible thing, (2) that was prepared in
anticipation of litigation, and (3) was prepared by or for a
party, or by or for his representative.'” Wells
Fargo Bank, N.A. v. LaSalle Bank Nat'l Ass'n,
No. CIV-08-1125-C, 2010 WL 2594828, at *5 (W.D. Okla. June
22, 2010) (quoting Retail Brand Alliance, Inc. v. Factory
Mut. Ins. Co., No. 05 Civ. 1031 (RJH) (HBP), 2008 WL
622810, at *3 (S.D.N.Y. Mar. 7, 2008)). First, the party
resisting discovery “has the burden of establishing
that the information sought . . . is protected by Rule
26(b)(3).” Feldman v. Pioneer Petroleum, Inc.,
87 F.R.D. 86, 88 (W.D. Okla. 1980) (citations omitted). If
the court finds the material is protected, the party seeking
the information must “show that it has substantial
need for the materials to prepare its case and cannot,
without undue hardship, obtain their substantial equivalent
by other means.” Fed.R.Civ.P. 26(b)(3)(A)(ii); see
also Barclaysamerican Corp. v. Kane, 746 F.2d 653, 656
(10th Cir. 1984).
raised the attorney-client privilege without providing
support for its necessity. When a party raises the
attorney-client privilege in a federal question case, the
federal common law applies. See 8 Wright & A.
Miller Fed. Prac. & Proc. § 2016 (3d ed.).
The Court reviewed the presented information and finds none
of the information sought qualifies for attorney-client
argues paragraphs 1(a)-(m) should be included in a Protective
Order because the information is barred by the work product
doctrine. The information sought is related to “[t]he
investigation conducted by the City of Oklahoma City pursuant
to the Notice of Claim filed by Plaintiff . . . and the
manner in which Claims made against the City are investigated
and resolved.” (Pl.'s Dep. Notice, Dkt. No. 54-1,
p. 4.) After the initial police investigation, Plaintiff
filed a Notice of Tort Claim and the matter was
“assigned to the Litigation Division of the Municipal
Counselor's Office” where an attorney conducted an
investigation. (Def.'s Mot. to Strike, Dkt. No. 54, p.
9.) Because paragraphs 1(a)-(j) request information resulting
from an attorney's investigation conducted in
anticipation of litigation and Plaintiff has not met the
requirements imposed by Rule 26(b)(3)(A)(i)-(ii),
Defendant's request regarding paragraphs 1(a)-(j) is
1(k)-(m) request information regarding Defendant's
internal investigative procedures and decision-making
authority. These policies and procedures were not prepared in
anticipation of litigation and are relevant to
Plaintiff's § 1983 claim. Because Defendant failed
to show the information qualified as attorney work product
the request regarding this information is denied.
argues for a Protective Order regarding paragraphs 3(a)-(m)
because this information is barred by the work product
doctrine. This request includes information related to
“[t]he process employed by the City of Oklahoma City
regarding the decision to charge Anthony Hill with Municipal
Ordinance violations arising from the incident, the decision
to continue the criminal prosecution, and the decision to
dismiss the criminal prosecution.” (Pl.'s Dep.
Notice, Dkt. No. 54-1, p. 6.) Plaintiff argues the materials
are not attorney work product, and if they were, Defendant
has waived the privilege through its defenses.
process by which the City of Oklahoma City decided to charge
Plaintiff with municipal ordinance violations and subsequent
decisions regarding the criminal prosecution is attorney work
product. Plaintiff failed to bear the burden of showing
substantial need and the inability to obtain the materials by
other means without undue hardship. See Fed.R.Civ.P.
26(b)(3)(A)(i)-(ii). The Court finds Plaintiff's waiver
argument unpersuasive. Therefore, Defendant's request
regarding paragraphs 3(a)-(m) is granted.
argues the scope of paragraphs 4(a)-(e) should be temporally
limited. The items request information related to
“[t]he employment and disciplinary records of the
Officers involved in the incident.” (Pl.'s Dep.
Notice, Dkt. No. 54-1, p. 7.) The Court agrees that
employment records from an indefinite period are not
relevant. Paragraphs 4(a)-(e) shall be limited to five (5)
years before the date of the incident in question, or March
2, 2012, and any time thereafter. Defendant also argues
paragraphs 4(f)-(i) and 4(k) should be included in the
Protective Order because they relate to incidents that
occurred after March 2, 2012. Considering the claims and the
proportional needs of the case, the Court finds these
paragraphs will be discoverable and Defendant's request
is denied. However, the Court is not expressing an opinion on
whether this information will be admissible at trial. Because
Plaintiff provided no argument in response to Defendant's
relevance objection regarding paragraph 4(j), Defendant's
request is granted.
reasons stated, Defendant's Motion for Order Striking
Portions of Plaintiffs Rule 30(b)(6) Notice of Deposition
(Dkt. No. 54) is GRANTED in part and DENIED in part.
Paragraphs 1(a)-(j), 3(a)-(m), and 4(j) are protected from
discovery and 4(a)-(e) shall be limited in ...