Verret v. Acadiana Criminalistics Lab. Comm'n

Verret v. Acadiana Criminalistics Lab. Comm'n

Opinion

MEMORANDUM RULING

Plaintiff previously filed a Motion to Compel (Rec. Doc. 15). Following a telephone hearing on July 21, 2021, the Court granted the Motion and ordered Acadiana Criminalistics Laboratory ("ACL") to produce a supplemental privilege log. (Rec. Doc. 28). In accordance with the Order, the parties filed supplemental briefs addressing whether ACL's internal investigation documents were privileged. (Rec. Doc. 29 and 30).

In its revised privilege log, ACL identified seven documents prepared in June and October 2020. (Rec. Doc. 29-5). ACL objects to producing the documents on the grounds of attorney-client privilege, work-product doctrine, and the "self-evaluative" privilege.

I. The Attorney Client Privilege

The Fifth Circuit [*2]  summarized the law applicable to claims of attorney-client privilege as follows:

The attorney-client privilege limits the normally broad disclosure requirements of Federal Rule of Civil Procedure 26. For a communication to be protected under the privilege, the proponent must prove: (1) that he made a confidential communication; (2) to a lawyer or his subordinate; (3) for the primary purpose of securing either a legal opinion or legal services, or assistance in some legal proceeding. Determining the applicability of the privilege is a "highly fact-specific" inquiry, and the party asserting the privilege bears the burden of proof. Once the privilege has been established, the burden shifts to the other party to prove any applicable exceptions. Ambiguities as to whether the elements of a privilege claim have been met are construed against the proponent.

Equal Emp. Opportunity Comm'n v. BDO USA, L.L.P., 876 F.3d 690, 695 (5th Cir. 2017) (cleaned up).

The first item on the privilege log, the June 9, 2020 Summary of Interview of Winnie Kurowski, is the only item protected by the attorney-client privilege. ACL contends that its director, Kevin Ardoin, prepared this document for use by its counsel following the motion to suppress hearing in the underlying criminal proceedings. (Rec. Doc. 30, p. 4-5). Mr. Ardoin [*3]  sent the document directly to its counsel. Thus, ACL has met its burden to show the summary is protected from disclosure.

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