United States District Court, D. North Dakota
Diana Nadeau, individually and on behalf of the next-of-kin of John Nadeau, Plaintiff,
David Shipman, et. al., Defendants.
ORDER GRANTING MOTION TO COMPEL
Charles S. Miller, Jr., United States District Court
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.
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.
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.
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.
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.
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
purposes of this motion, it does not make a difference.
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
determination of whether the documents were prepared in
anticipation of litigation is clearly a factual
[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.").
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?
Q. Okay, ...