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Nadeau v. Shipman

United States District Court, D. North Dakota

January 14, 2019

Diana Nadeau, individually and on behalf of the next-of-kin of John Nadeau, Plaintiff,
v.
David Shipman, et. al., Defendants.

          ORDER GRANTING MOTION TO COMPEL

          Charles S. Miller, Jr., United States District Court Magistrate Judge

         Before the court is plaintiff s motion to compel production of notes prepared by defendant Shipman following decedent's act of suicide that resulted in his death two days later. (Doc. No. 55). For the reasons set forth below, the motion is granted.

         I. BACKGROUND

         On the late evening hours of October 25, 2013, around midnight, John Nadeau was found laying on the floor in his cell at the Morton County Correctional Center with a piece of sheet around his neck. Nadeau was transported to the hospital where he was placed on a ventilator and determined to be brain dead. Later, he was removed from life support and expired on October 28, 2013.

         Defendant Shipman was the Morton County Sheriff at the time and responsible for the Correctional Center. When Nadeau was found unresponsive in hi s cell, Shipman was called just after midnight on the early morning hours of October 26, 2018. He took charge of the activities that followed, including ordering what evidence would be preserved and arranging for the Bureau of Criminal Investigation, which is part of the North Dakota Office of Attorney General, to conduct an investigation.

         In this action plaintiffis suing defendant Shipman along with other defendants for alleged violations of decedent's constitutional rights in connection with what authorities concluded was a j ailhouse suicide. Shipman has been sued in both his individual and official capacities.

         Before the court now is plaintiff s motion to compel production of five pages of notes taken by defendant Shipman (herein the "notes" or "Shipman notes") that have been withheld from discovery and identified as MC-0630 through MC-0634. The initial privilege log prepared by defense counsel dated January 8, 2018, stated that the notes were for October 26, 2013. (Doc. No. 57-5). After plaintiff s counsel deposed Shipman and filed the motion to compel, defense counsel amended the privilege log to reflect that the five pages of notes were for the dates of October 26, 28, and 29, 2013. (Doc. No. 61-1). The late disclosure of the fact the notes covered additional days prejudiced plaintiffs counsel when examining defendant Shipman about the factual basis for his claim of work product privilege. This is because, quite understandably, he limited questioning about the notes to October 26 based upon the representation in the initial privilege log that the notes were limited to that day. However, the fact plaintiff s counsel was prej udiced does not make a difference in terms of the outcome of the present motion for the reasons that follow. Hence, the court need not address whether defendant forfeited any claim of work-product privilege for the additional days of notes solely on account of this prejudice if the court determined the privilege did not apply on October 26.

         The Shipman notes have been provided to the court for in camera review. Upon review of the notes, it does appear that the notes do cover the dates of October 26, 28, and 29 based on their content. There are also dates in the margins that segregate the notes by date, but the court was not able to determine whether the notations of the dates were contemporaneous with the making of the notes or were added later.

         For purposes of this motion, it does not make a difference.

         II. DISCUSSION

         A. Governing law

         Shipman's claim of work product is governed by Fed.R.Civ.P. 26(b)(3). To qualify for work-product protection, the material must have been prepared in anticipation of litigation. Fed.R.Civ.P. 26(b)(3)(A). The test, at least in the Eighth Circuit, was expressed in Simony. G.D. Searle& Co., 816 F.2d 397 (8th Cir. 1987) where the court stated:

         Our determination of whether the documents were prepared in anticipation of litigation is clearly a factual determination:

[T]he test should be whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation. But the converse of this is that even though litigation is already in prospect, there is no work product immunity for documents prepared in the regular course of business rather than for purposes of litigation.
8 C. Wright & A. Miller, Federal Practice and Procedure § 2024, at 198-99 (1970) (footnotes omitted); see Diversified Indus.. Inc. v. Meredith. 572 F.2d 596, 604 (8th Cir. 1977), on rehearing. 572 F.2d 596, 606 (8th Cir. 1978) (en banc); The Work Product Doctrine, 68 Cornell L.Rev. 760, 844-48 (1983). The advisory committee's notes to Rule 26(b)(3) affirm the validity of the Wright and Miller test: "Materials assembled in the ordinary course of business * * * * or for other nonlitigation purposes are not under the qualified immunity provided by this subdivision." Fed.R.Civ.P. 26(b)(3) advisory committee notes.

Id. at 401. Finally, and particularly relevant in terms of the outcome of this motion, the party asserting the work-product privilege has the burden of demonstrating its applicability. See, e.g., PepsiCo, Inc. v. Baird, Kurtz & Dob son, LLP, 305 F.3d 813, 817 (8th Cir .2002) ("In order to protect work product, the party seeking protection must show the materials were prepared in anticipation of litigation, i.e., because of the prospect of litigation.").

         B. Analysis

         Shipman's claim that the notes in question are protected work product is grounded upon two points. The first is the following testimony Shipman gave during his deposition:

Q. Allright. Didyou--didyouthinkyou were goingtogetsued on October - - as of October 26, 2013, after the event, did you figure you were going to get sued?
A. Sure.
Q. Okay, ...

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