De Los Santos v. City of Roswell

• Decision Date: 21 May 2013
• Docket Number: Civ. No. 12-375 WPL/GBW
• Parties: JEREMY DE LOS SANTOS and JOSHUA DE LOS SANTOS, Plaintiffs, v. CITY OF ROSWELL, JEFFREY PRINCE, SCOTT OLDANI, LANDON STEPHENSON, SCOTT STEVENSON, JON GOKEY, CRUZ ZAVILA, RON SMITH, B. BAILEY, HELEN CHEROMIAH, KEITH RIGHTSELL, and BARBARA ANN PATTERSON, Defendants.
• Court: U.S. District Court — District of New Mexico

JEREMY DE LOS SANTOS and JOSHUA DE LOS SANTOS, Plaintiffs,

v.CITY OF ROSWELL, JEFFREY PRINCE, SCOTT OLDANI, LANDON STEPHENSON,SCOTT STEVENSON, JON GOKEY, CRUZ ZAVILA, RON SMITH, B. BAILEY,HELEN CHEROMIAH, KEITH RIGHTSELL,and BARBARA ANN PATTERSON, Defendants.

Civ. No. 12-375 WPL/GBW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

Filed: May 21, 2013

ORDER DENYING PLAINTIFFS' MOTION TO COMPEL

This matter is before me on Plaintiffs' First Motion to Compel Defendant Barbara Ann Patterson to submit amended discovery responses. Doc. 78. Plaintiffs request that the Court compel Defendant Patterson to respond to three interrogatories, which she originally refused to answer on the basis of attorney-client privilege. Id. Having held two hearings on the motion and reviewed the briefing, I find that although the privilege has been waived for certain statements contained in a lease and police department memorandum, that waiver does not extend to related undisclosed materials. Defendant Patterson originally raised a causation argument in her motion for absolute and qualified immunity that also potentially implicated attorney-client privilegedinformation. See doc. 88 at 17-19. Because Defendant Patterson has agreed to withdraw that defense, I decline to consider at-issue waiver at this time.¹

I. BACKGROUND

Plaintiffs Jeremy and Joshua De Los Santos are brothers and members of the Old Paths Baptist Church in Roswell, New Mexico. Doc. 46 ¶ 45. They "believe that it is their mandatory duty to boldly preach the Gospel in public." Id. ¶ 49. They were arrested by Roswell police officers on seven different occasions:

1. On August 16, 2010, Jeremy was arrested while preaching on a sidewalk outside of Billy Ray's Lounge, a nightclub in Roswell, and charged with disorderly conduct. Id. ¶¶ 58-59.

2. On September 24, 2010, Jeremy was arrested while preaching outside of the Old Paths Baptist Church in Roswell and charged with disorderly conduct. Id. ¶¶ 70-71.

3. On November 28, 2010, Jeremy was arrested while preaching on a sidewalk outside of Church on the Move in Roswell and charged with party to a crime and disturbing lawful assembly. Id. ¶ 88.

4. On May 28, 2011, Jeremy was arrested at a public event at the Cielo Grande Park in Roswell and charged with obstructing a police officer. Id. ¶¶ 100-101.

5. On May 28, 2011, Joshua was arrested while preaching on a sidewalk outside of the Roswell Convention Center and charged with criminal trespass. Id. ¶¶ 111, 114.

6. On July 1, 2011, Jeremy and Joshua were arrested while at a public event at the UFO Museum in Roswell. Id. ¶ 125. Both were charged with criminal trespass, obstructing an officer, and wrongful use of public property. Id. ¶¶ 130, 133.

7. On August 28, 2011, Jeremy was arrested for preaching outside of the Roswell police station two days earlier, on August 26, and charged with disorderly conduct. Id. ¶¶ 150, 162-64.

The charges associated with the first arrest on April 16, 2010, were dismissed by the state court after a trial. Id. ¶ 61. Those associated with the six other arrests were dismissed by the Roswell City Attorney prior to trial. Id. ¶¶ 73, 90, 104, 116, 132, 135, 166.

Plaintiffs bring eight counts arising out of those seven arrests: (1) false arrest, false imprisonment, illegal detention, and malicious prosecution in violation of the Fourth and Fourteenth Amendments; (2) retaliation against the lawful exercise of the right to free speech in violation of the First Amendment; (3) violation of the First Amendment right to free exercise of religion; (4) violation of the right to free exercise of religion guaranteed by the New Mexico Constitution; (5) excessive force in violation of the Fourth and Eighth Amendments; (6) municipal liability; (7) a variety of tort claimsunder the New Mexico Tort Claims Act; and (8) misconduct by the Roswell City Attorney. Id. ¶¶ 171-198.

II. THE CURRENT DISCOVERY DISPUTE

The instant motion concerns a discovery dispute between Plaintiffs and Defendant Barbara Ann Patterson, the City Attorney for the City of Roswell. Defendant Patterson asserted attorney-client privilege in response to three of Plaintiffs' interrogatories. Those interrogatories sought information related to the legal advice provided by Defendant Patterson to Roswell Police Officer Eric Brackeen, Roswell employee Lanie Mitchell, and Roswell Police Sgt. Ron Smith, among others.² Doc. 78 at 24-26. Plaintiffs argue that the City has waived the attorney-client privilege³ as to these three interrogatories by revealing Defendant Patterson's legal advice in the following three documents:

1. A Roswell Police Department Supplemental Report by Sgt. Ron Smith dated July 6, 2011 ("police report"). Doc. 78, Ex. A. The relevant statements are:

a. "I contacted Commander Brown and the City Attorney the City Attorney [sic] advised me the permit was valid and the Old Paths Baptist Church members could be charged with criminal trespass." Id. at 4.

b. "Commander Brown advised me the City Attorney advised the charges to be filed on the three members of the church group arrested during this contact should be: (1) Criminal trespass[;] (2) Obstructing, resisting, or evading an officer[;] (3) Wrongful use of public property." Id. at 6.

2. A handwritten note on a Roswell Convention and Visitors Bureau Lease Agreement ("lease"). Doc. 78, Ex. B. The note reads:

a. "Per Barbara Patterson when leasing the facility parking lots included."

3. A memorandum from Commander Eric Brackeen of the Roswell Police Department to all officers ("memorandum"). Doc. 78, Ex. C. The relevant portion reads:

a. "I have spoken with City Attorney Barbara Patterson and she advised that if someone, not just Mr. DeLosSantos [sic] and his group, is preaching what is a generalization of God[']s beliefs for example 'God hates whores', then this is considered freedom of speech. However, if someone states for example 'God hates you whores, or God hates you because you are a whore' then this is a specific verbal attack on a person or group and isNOT a generalization. If this happens in our presence the person can be arrested for Disorderly Conduct."

Plaintiffs contend that these statements constitute waiver of attorney-client privilege because they were disclosed voluntarily—the police report via a response to a New Mexico Inspection of Public Records Act (IPRA) request and the lease and memorandum during discovery in this case. They argue that this waiver extends not only to the statements themselves but also to all related, undisclosed materials via subject matter waiver. See generally doc. 78. Plaintiffs also argue that the attorney-client privilege has been waived for the information sought in their interrogatories because Defendant Patterson put her own legal advice at issue in her Motion for Summary Judgment Based on Absolute Immunity and/or Qualified Immunity. See doc. 78 at 17-19.

I held a hearing on Plaintiff's motion on February 5, 2013. See doc. 81. After the hearing I ordered the parties to provide supplemental briefing on two issues: (1) whether the statements in the police report and the note on the lease constitute confidential legal advice protected by the attorney client privilege, and (2) whether the City's disclosure of the police report and the lease pursuant to an IPRA request constitutes subject matter waiver of the privilege. Doc. 82.

In their supplemental brief, Plaintiffs argue that the statements in the police report and lease do not constitute confidential legal advice and are therefore notprotected by the attorney-client privilege. Doc. 105 at 2-5. They then argue that even if the statements are privileged, the City has waived the privilege as to both the statements themselves and associated subject matter by allowing their release in IPRA responses. Id. at 5-13. Defendants contend that the statements in the police report and lease are protected by the attorney client privilege. Doc. 92 at 4-5; Doc. 95 at 2-3. Defendant City of Roswell goes on to argue that it has not waived the privilege because the City's public records custodian does not have authority to waive the privilege. Doc. 95 at 4-8. The City contends that even if the privilege was waived, extending that waiver to related subject matter would be unfair. Id. at 6-8.

III. ANALYSIS

I find that the statements in all three documents constitute confidential legal advice protected by the attorney-client privilege. The City has not waived that privilege as to the statements in the police report, but it has waived the privilege as to the statements in the lease and the memorandum. However, that waiver does not extend to related, undisclosed materials. Defendant Patterson's withdrawal of her causation argument from her pending motion for summary judgment renders Plaintiffs' at-issue waiver argument moot at this time.

A. The Court will analyze the issue under the federal law of attorney-client privilege

When a case involves both federal and pendant state law claims, courts should look to federal law to resolve privilege issues regarding federal claims and state law forissues involving state claims. Fed. R. Evid. 501; Motley v. Marathon Oil Co., 71 F.3d 1547, 1551 (10th Cir. 1995). Ordinarily, however, when the asserted privilege relates to evidence that is relevant to both federal and state law claims, federal privilege law applies to all claims. Vondrak v. City of Las Cruces, 760 F. Supp. 2d 1170, 1175 (D.N.M. 2009); Foley v. N.M. Dep't of Health, No. 07-604, Mem. Op. & Order, at 5 (D.N.M. Aug. 20, 2009) (doc. 306). Here, the statements at issue relate to the City Attorney's legal advice to city police officers concerning arrest and charging decisions and to city employees regarding the inclusion of city parking lots in a lease to private individuals. They are therefore potentially relevant to both Plaintiffs' federal and state law claims alleging, inter alia, malicious prosecution, illegal detention, and violations of their First Amendment and New Mexico...