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McKay v. City of St. Louis

United States District Court, E.D. Missouri, Eastern Division

May 15, 2018

CITY OF ST. LOUIS, MISSOURI, et al., Defendants.



         This matter is before the Court on a Motion to Quash Subpoena filed by non-party Movant Office of the St. Louis County Prosecuting Attorney. (Doc. 148.) Plaintiff Cornell McKay filed a memorandum in opposition (Doc. 168), and Movant replied (Doc. 169).


         Plaintiff alleges in his second amended complaint that detectives of the St. Louis Metropolitan Police Department's 9th District knowingly ignored exculpatory evidence, obvious alternative suspects, and the advice of St. Louis homicide detectives when they arrested Plaintiff for the 2012 robbery of Jane Doe in the city's Central West End neighborhood. (See Doc. 78.) In addition, Plaintiff alleges that the St. Louis Circuit Attorney's Office pursued a conviction against him in spite of the substantial evidence that another man had committed the robbery.[1](Id.)

         Plaintiff has served Movant with a subpoena seeking "[a]ll records, data, activity logs, communications, recordings, and reports related to Jonathan Perkins (a/k/a Johnathan Perkins) and Keith Esters. Case Numbers 12SL-CR09506-01 and 12SL-CR09507-01 respectively." (Doc. 148-1.) Perkins and Esters were ultimately convicted of the Doe robbery. Movant moved to quash the subpoena, raising numerous objections as to the scope of the subpoena, the relevance of the materials sought, and the discoverability of the documents subject to it. (Doc. 148.)


         Under Fed.R.Civ.P. 45(d)(3)(A), a court must quash or modify a subpoena that "(i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden." Movant argues that the subpoena seeks privileged attorney work-product and that because the unprivileged material is available through other means, compelling non-party Movant to produce them is unduly burdensome. (Doc. 148.) Movant also asserts that the information sought is protected by Missouri law and not relevant to Plaintiffs suit. (Id.)

         a. The materials sought under the subpoena are not protected by the attorney work-product doctrine or Missouri's Sunshine Laws.

         In December 2016, Plaintiffs former attorney filed with Movant a so-called "Sunshine Request" for documents in the custody of a government agency, seeking all records pertaining to the prosecution of Esters. (Doc. 169.) In response, Movant provided dozens of pages of documents and stated in a cover letter that "the only records not released are those documents that are attorney work product." (Doc. 169-1.) In addition, the letter informed Plaintiff that "items of physical evidence" had been returned to the St. Louis Metropolitan Police Department according to the office's policy. (Id.)

         More than nine months passed before Plaintiff served his subpoena on Movant, asking again for all records and data relating to Esters's prosecution and adding a parallel request for records relating to Perkins. (Doc. 148-1.) Movant responded with a letter stating that it had withheld from its response to Plaintiffs Sunshine Request only fourteen pages, each of which contained either an attorney's handwritten notes or electronic summaries of the case prepared by attorneys. (Doc. 169-2.) It argues that those pages are clearly protected by attorney work-product privilege. (Doc. 169 at 2-3.) Movant further asserts that the contents of Perkins's file are "substantially similar" to Esters's file because they were co-defendants. (Id. at 2 n.2.) Movant argues that compelling it to produce such a redundant file would pose an undue burden and that Plaintiffs attempt to obtain anything more than he already has amounts to a fishing expedition for privileged attorney work-product. (Id. at 3-6.)

         Federal Rule of Civil Procedure 13(b)(3) protects from discovery work-product an attorney "prepared in anticipation of litigation." Materials such as photographs or informational documents are discoverable "only upon a showing of substantial need and an inability to secure the substantial equivalent of the items through alternate means without undue hardship" while records of an attorney's mental processes, legal conclusions, or strategic designs are discoverable "only in rare and extraordinary circumstances." Pittman v. Frazer, 129 F.3d 983, 988 (8th Cir. 1997) (internal quotation marks and citations omitted).

         Plaintiff asserts that the work-product doctrine does not extend to non-parties. (Doc. 168 at 2-3.) He cites Schultz v. Talley, 152 F.R.D. 181, 184 (W.D. Mo. 1993), for the proposition that "[d]ocuments prepared for one who is not a party to the present suit are wholly unprotected even though the person may be a party to a closely related lawsuit in which he will be disadvantaged if he must disclose in the present suit." (quoting 8 C. Wright & Miller, Federal Practice and Procedure § 2024 at 202 (1970)) (collecting cases); see also In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 924 (8th Cir. 1997) (noting the 9th Circuit's holding in In re California Public Utils. Comm'n, 892 F.2d 778, 781 (9th Cir. 1989), that a non-party to litigation may not assert work-product doctrine)).

         The Court recognizes that "[t]he purpose of the work-product doctrine is to promote the adversary system ... by ensuring that an adversary cannot obtain materials that his opponent has prepared in anticipation of litigation." Id. (citing Westinghouse Elec. Corp. v. Republic of the Philippines, 951 F.2d 1414, 1428 (3rd Cir. 1991)). To that end, the Court acknowledges that revealing the work-product prepared by attorneys who do not represent a party to the litigation does not offend the doctrine's purpose. Thus, Movant cannot avoid disclosure simply on the basis of the work-product doctrine.

         Movant additionally argues that its work-product is protected under Missouri law. Under the Missouri ...

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