Dudley v. City of Kinston

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

EASTERN DIVISION

No. 4:18-CV-00072-D

Howard Dudley,

Plaintiff,

v.

Order

City of Kinston & A.N. Greene, in his

individual capacity,

Defendants.

Plaintiff Howard Dudley spent over two decades in prison until the Wrongful Convictions

Clinic at the Duke University School of Law persuaded authorities to vacate his conviction and

dismiss the charges against him. He has now sued A.N. Greene and the City of Kinston claiming,

among other things, that Greene failed to turn over exculpatory and impeachment evidence to the

district attorney who prosecuted Dudley.

As part of discovery, Defendants subpoenaed the Clinic’s files on Dudley. The Clinic

resisted producing some responsive documents because, it claims, the attorney-client privilege, the

work-product doctrine, or both insulate the documents from discovery.

Defendants have asked the court to compel the Clinic to produce the requested records.

They argue that Dudley has waived the attorney-client privilege through public statements and the

claims in his complaint. And they claim that they are entitled to the Clinic’s fact work product

because they have a substantial need for it.

After considering the parties’ filings and holding a hearing, the court will grant the motion

in part and deny it in part. Dudley has waived the attorney-client privilege for certain

communications in two ways. First, he has publicly discussed otherwise-confidential attorney-

client communications in public and during a deposition. And second, because of the nature of the

claims he brought, he has put certain communications he may have had with his attorneys at issue.

So the Clinic will need to produce the relevant portions of responsive documents.

But the Clinic need not produce any of its fact work product. After reviewing the evidence

submitted by Defendants and conducting an in-camera review of the withheld documents, the court

has determined that Defendants have not shown a substantial need for the Clinic’s work product.

The Clinic must supplement its production as required by this order within 10 days from

its date of entry. And if any disputes arise after this order, the court will address them directly with

the Clinic and the parties.

I. Background

For six years, the Clinic worked to overturn Dudley’s conviction for a crime he claimed he

did not commit: molesting his then-nine-year-old daughter, Amy Moore. Resp. in Opp. at 1, D.E.

111. Its efforts were ultimately successful as Dudley gained his freedom and had the charge

dismissed in 2016.

In April 2018, Dudley filed a lawsuit alleging that his conviction resulted from

constitutional violations by the City of Kinston and one of its police officers, A.N. Greene. Compl.

passim, D.E. 1. Among Dudley’s claims was an allegation that Greene failed to “disclose

exculpatory and impeachment evidence” to the district attorney ahead of Dudley’s trial (the Brady-

related1 claim). See, e.g., Compl. ¶ 131. The evidence Greene supposedly withheld related to

1 In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court held that “suppression by the prosecution of

evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the prosecution.” Law enforcement officers can also violate

a defendant’s due process rights if they suppress evidence that is favorable to a defendant and material to the charges

against him. See Barbee v. Warden, Md. Penitentiary, 331 F.2d 842, 846–47 (4th Cir. 1964).

information from Paul Porter, Moore’s guardian ad litem, and Johnnye Waller, a Lenoir County

Social Worker, calling Moore’s allegations into question. Id. ¶ 9.

The Complaint alleges that in December 1991, months before Dudley’s trial, Porter told

Greene about an interview he conducted with Moore. Id. ¶ 72. During this conversation, Porter

allegedly said that he doubted her “reliability and the truthfulness of her allegations.” Id. ¶ 73.

Porter also allegedly shared with Greene his belief that that Moore made up her story and that the

molestation never occurred. Id. According to the Complaint, Greene never told the District

Attorney about Porter’s statements. Id. ¶ 74.

Dudley also claims that Porter shared his concerns with Waller. Id. ¶ 90. According to the

Complaint, Waller passed this information along to Greene. Id. ¶ 91. Yet Greene supposedly never

told the district attorney about his conversation with Waller. Id. ¶ 93.

Once discovery began, Defendants subpoenaed the Clinic’s records on Dudley. Mot. to

Compel Ex. A, D.E. 98–2. One subpoena asked for the “defense file” of Nicholas Harvey,

Dudley’s trial attorney. D.E. 98–2 at 4. Another sought the Clinic’s “investigative file” about

Dudley’s case. Id. at 9. And yet another subpoena sought the files of an attorney who represented

Dudley in connection with juvenile matters involving Moore. Id. at 14.

Although the Clinic produced many documents, it maintained that the attorney-client

privilege and work-product doctrine allowed it to withhold some documents. Defendants disagree.

Instead, Defendants claim Dudley has waived the attorney-client privilege for

communications about Porter’s concerns in two ways. The first waiver is said to have occurred

when Dudley gave a speech at Duke Law School and discussed a conversation he had with his trial

attorney about Porter. During the speech, Dudley mentioned that he believed Porter could provide

testimony that would help exonerate him. Duke University, Howard Dudley Embraces His

Freedom, YouTube (April 22, 2016), https://www.youtube.com/watch?v=GX4Lq1qqqyM (last

visited Mar. 31, 2021) at 32:55–33:08. So it bothered Dudley when he did not see Porter in the

courtroom on the first day of his trial. Dudley said, “I began to ask my lawyer concerning him.

And I never really got an answer to why he wasn’t there to testify on my behalf.” Id. 33:12–23.

Later in his speech, Dudley said,

At some point in time during the trial Mr. Harvey looked at me and said, “This is

not going well for you.” I said, “Well, what do they have on me?” I wanted to know

what am I doing here? What do they have on me? I said, “I don’t have a criminal

record. There’s no evidence.” I said, ‘Everything that they have, from what I can

see, is that Amy made a statement which was false and the only person that could

have spoke [sic] on my behalf to prove to this that this it was false, he is nowhere

to be seen.”

Id. 34:24–35:02.

Dudley also recounted a conversation he had with Porter about Porter’s interview of

Moore. Dudley Dep. Tr. at 57:5–24, D.E. 98–4. According to Dudley, Porter said that he concluded

that Moore’s mother had coerced her into making allegations against Dudley. Id. at 57:16–22.

Dudley said that he learned this information and passed it along to his attorney before his criminal

trial. Id. at 57:1–3, 57:25–8:1, 58:4–5.

The Defendants’ second waiver argument focuses on the Complaint’s Brady-related claim.

According to Defendants, whether Dudley or his attorney knew about the allegedly withheld

information is a key issue in the case. So, they argue, by bringing the Brady-related claim, Dudley

has put communications he may have had with his attorney about this topic at issue. Mem in Supp.

at 7.

There is also an argument advanced by the Defendants that they are entitled to various

notes of interviews the Clinic did with potential witnesses. Even if these documents are work

product, the Defendants believe they are entitled to them because they have a substantial need for

them. They once again rely on the importance of any knowledge Dudley and his attorney had about

the allegedly withheld evidence. And they claim that they have made other attempts to obtain this

information through depositions, but witnesses’ memories have faded over time.

The court held an evidentiary hearing on this matter in December 2020. After the hearing,

the court asked the Clinic to submit an updated privilege log, which it did.

II. Analysis

Resolving this motion requires determining when documents lose the protections of the

attorney-client privilege or work-product doctrine. The court will summarize each doctrine and the

circumstances that lead to loss of their protections. After laying that groundwork, the court will

address the issues raised in the parties’ briefs2 as to why the protections should or should not apply

in this case. Ultimately, the law allows Defendants to obtain only some documents they seek from

the Clinic.

A. Attorney-Client Privilege

The attorney-client privilege is the oldest of the common-law privileges and serves to

encourage free communications between attorneys and their clients. Upjohn Co. v. United States,

449 U.S. 383, 389 (1981). It “affords confidential communications between lawyer and client

complete protection from disclosure.” Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998).

2 Defendants’ motion seeks a production of all documents responsive to their subpoenas. D.E. 98. But their supporting

brief contains narrower arguments that focus on specific types of documents. D.E. 98-1. As courts across the nation

have done, the court will find that Defendants have waived arguments that they did not raise in their brief. See Ohr

Somaych/Joseph Tanenbaum Educ. Ctr. v. Farleigh Int’l Ltd., 483 F. Supp. 3d 195, 206 n.6 (S.D.N.Y 2020); Magee

v. Life Ins. Co. of N. Am., 261 F. Supp. 2d 738, 748 n.10 (S.D. Tex. 2003); Front Range Nesting Bald Eagle Studies

v. U.S. Fish & Wildlife Svc., 353 F. Supp. 3d 1115, 1130 n.9 (D. Colo. 2018); Mesa Grande Band of Mission Indians

v. Salazar, 657 F. Supp. 2d 1169, 1173 (S.D. Cal. 2009).

The Clinic, as the party invoking the privilege, bears the burden of showing that the

privilege applies and that Dudley has not waived it. United States v. Jones, 696 F.2d 1069, 1072

(4th Cir. 1982). To make this showing, it must establish four things. First that the holder of the

privilege either was or was seeking to become a client. NLRB v. Interbake Foods, LLC, 637 F.3d

492, 501–02 (4th Cir. 2011).3 Second that the person receiving the communication is an attorney

(or an attorney’s subordinate) and acted as an attorney when they received it. Id. Third that the

communication relates to facts conveyed by a client outside the presence of strangers and to

receiving legal services. Id. And fourth that the party has claimed the privilege and not waived it.

Id.

When assessing whether the privilege applies, the court should not just take the proponent

at their word. Instead, “[i]t is incumbent upon the proponent to specifically and factually support

his claim of privilege, usually by affidavit . . . and an improperly asserted privilege is the

equivalent of no privilege at all.” Byrnes v. Jetnet Corp., 111 F.R.D. 68, 71 (M.D.N.C. 1986).

Conclusory allegations are not enough. See N. River Ins. Co. v. Stefanou, 831 F.2d 484, 487 (4th

Cir. 1987).

Defendants claim that the Clinic cannot meet its burden to show that its communications

with Dudley are privileged. They argue that since the privilege does not prevent discovery of facts,

they are entitled to any facts in the Clinic’s communications with Dudley. They also claim that

Dudley has waived the privilege through his public statements and by bringing a Brady-related

claim that put communications with his attorney at issue.

3 Given that federal law supplies the rules of decision here, federal law applies to privilege issues. Fed. R. Evid. 501.

1. Applicability of the Privilege to Documents Containing Facts Alleged

in the Complaint.

According to Defendants, “a significant portion” of the subpoenaed materials are not

eligible for protection under the attorney-client privilege.4 Mem. in Supp. at 8. They argue that the

attorney-client privilege does not prevent “the disclosure of underlying facts.” Id. And that the

privilege does not apply to information that the defendant has or intends to make public. Id. So,

according to Defendants, “the privilege does not protect any of the facts alleged in the Complaint,

and accordingly” the Clinic should produce “any documents mentioning such facts[.]” Id. at 9.

The Clinic largely ignores the Defendants’ arguments on this issue. Resp. in Opp. at 8–9,

D.E. 111. Instead, it maintains that Dudley has not placed its advice at issue. Id. And even though

the Defendants did not raise this argument in their brief, the Clinic argues that the Defendants’

affirmative defense based on Dudley’s actual guilt does not result in a waiver of the privilege.5 Id.

Defendants are correct that not all attorney-client communications are created equal when

it comes to their privileged status. Communicating factual information to an attorney does not

render that information immune from discovery. Upjohn, 449 U.S. at 395–96. Similarly,

unprivileged documents do not suddenly gain privileged status because they ended up in an

attorney’s hands. In re Allen, 106 F.3d 582, 604 (4th Cir. 1997). And the privilege does not apply

if a client understands or intends that the attorney will share the communicated information with

others outside the privileged relationship. In re Grand Jury Proceedings, 33 F.3d 342, 354–55 (4th

Cir. 1994).

4 Interspersed in this section of Defendants’ brief are claims that mimic their other arguments about the waiver

occasioned by bringing the Brady-related claim. Since the court address those issues elsewhere, it will not address

them here.

5 As noted above, because Defendants did not discuss a waiver caused by their “actual innocence” defense in their

initial brief, the court is not addressing it. See supra at n.1.

But these exceptions do not extend as far as the Defendants would like them to. For

example, while a fact conveyed to an attorney is discoverable, the attorney-client communication

that conveyed that fact is not. So the privilege does not allow a client to “refuse to disclose any

relevant fact . . . merely because he incorporated a statement of such fact into his communication

to his attorney.’” Upjohn, 449 U.S. at 395–96 (quoting City of Philadelphia v. Westinghouse Elec.

Corp., 205 F. Supp. 830, 831 (E.D. Pa. 1962)). But a client cannot “be compelled to answer the

question, ‘What did you say or write to the attorney?’” Id.

So while Dudley could not refuse to respond to discovery requests or deposition questions

that involve facts that he communicated to his attorneys, he can refuse to produce the

communications themselves. Thus, so long as it is otherwise appropriate, the Clinic can withhold

its communications with Dudley even if they contain factual information.

Nor can the court agree that, in general, the privilege offers no protection for

communications related to facts in a complaint. Courts have repeatedly rejected the position that

the privilege no longer applies simply because a communication involved facts that ended up in a

pleading. See, e.g., United States v. Grace, 455 F. Supp. 2d 1140, 1146 (D. Mont. 2006); Uniroyal

Chem. Co. v. Syngenta Crop Prot., 224 F.R.D. 53, 56 (D. Conn. 2004); Burlington Indus. v. Exxon

Corp., 65 F.R.D. 26, 35 (D. Md. 1974). Such a rule would hollow out the privilege’s core because

there would no longer be any protection for communications about facts at issue in a civil case. So

any waiver here would have to stem from Dudley’s statements or conduct.

2. Waiver of the Attorney-Client privilege

Defendants next assert that the Clinic cannot rely on the attorney-client privilege to

withhold documents that relate to “the allegedly exculpatory and impeachment evidence” Dudley

and his trial counsel learned from Porter. Mem. in Supp. at 4–5. They argue that Dudley has waived

the privilege on that topic by publicly discussing the conversations he had with his trial counsel

about Porter. They also claim Dudley impliedly waived the privilege since what he and his attorney

knew about Porter’s concerns at the time of his trial is relevant to his Brady-related claim.

The client, as the holder of the attorney-client privilege, can waive its protections. This

wavier can occur either expressly or impliedly. Hawkins v. Stables, 148 F.3d 379, 384 n.4 (4th

Cir. 1998). A party can waive the privilege by sharing the confidential information with others

outside the privileged relationship. Id. Waiver can also occur if a client puts privileged matters at

issue. Small v. Hunt, 152 F.R.D. 509, 512 (E.D.N.C. 1994). Regardless of the type of waiver

alleged, the party asserting the privilege “must establish . . . that the privilege was not waived.”

Jones, 696 F.2d at 1072; Zeus Enters. v. Alphin Aircraft, Inc., 190 F.3d 238, 244 (4th Cir. 1999).

a) Waiver by Public Disclosure

Dudley discussed conversations he had with his trial attorney about Paul Porter both in a

public speech and his deposition. And Dudley did not just make passing reference to a

conversation. Instead, he revealed the substance of those conversations. This type of disclosure

constitutes a waiver of the attorney-client privilege. See ePlus Inc. v. Lawson Software, Inc., 280

F.R.D. 247, 256 (E.D. Va. 2012) (“Waiver can occur by public revelation.”). The Clinic does not

argue otherwise.

But determining that Dudley waived the privilege is not the end of the inquiry. The court

must determine the waiver’s scope. Within the Fourth Circuit, voluntary disclosure “not only

waives the privilege as to the specific information revealed, but also waives the privilege as to the

subject matter of the disclosure.” Hawkins, 148 F.3d at 384 n.4. As a result, the privilege will no

longer apply to “other communications relating to the same subject matter.” Id. (quoting Jones,

696 F.2d at 1072).

When deciding the bounds of a subject-matter waiver courts should consider “the substance

of the protected information that has been publicly disclosed.” E.I. Dupont de Nemours & Co. v.

Kolon Indus., Inc., 269 F.R.D. 600, 607 (E.D. Va. 2010). The statements that led to the wavier of

the privilege involve the knowledge that he and his trial counsel had about Porter’s concerns about

Moore’s truthfulness before and during his trial. So Dudley can no longer claim the privilege for

communications relating to that subject-matter.

There is also a question over whether the waiver only includes Dudley’s communications

with his trial counsel or with subsequent attorneys too. Dudley made his public comments about

his conversations with his trial counsel after his release in 2016. By making those comments, he

lifted the veil of confidentiality that applied to all previous conversations on that topic. So the

waiver applies to any attorney-client communications with any attorneys on that subject matter

until then.6 And, again, the Clinic does not argue otherwise. So the Clinic cannot assert the

attorney-client privilege over any documents dealing with the subject-matter of the waiver,

regardless of the attorney involved in the communication.

3. At-Issue Waiver of the Attorney-Client Privilege

Defendants also argue that Dudley waived the privilege by placing what he and his attorney

knew about the allegedly withheld information at issue. They maintain that if Dudley or his trial

counsel knew that information, then he cannot prevail on his Brady-related claim. So, the argument

goes, Dudley cannot use the attorney-client privilege to shield this information from discovery.

Defendants specifically focus on “allegedly exculpatory information from Amy Moore’s guardian

ad litem Paul Porter” that was known by Dudley or his trial counsel.7 Mem. in Supp. at 7 n.4 & 8,

6 Given the temporal scope of the documents at issue, the court need not address whether the waiver applies

prospectively.

7 In a footnote, Defendants also claim that knowledge of his post-conviction counsel is at issue. If a party relegates

an argument to a footnote, courts may choose to not address it. Gregorio v. Hoover, 238 F. Supp. 3d 37, 43 n.7

98–1.

Federal courts recognize that a client can waive the attorney-client privilege by placing the

otherwise confidential communication at issue in litigation. Small v. Hunt, 152 F.R.D. 509, 512

(E.D.N.C. 1994). And Defendants claim that two cases that federal courts regularly look to when

assessing if an at-issue waiver occurred—Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975), and

Rhone-Poulenc Rorer Inc., v. Home Indem. Co., 32 F.3d 851 (3rd Cir. 1994)—weigh in their

favor.8

The Clinic’s brief does not mention either of these tests. Instead, it relies on a blanket

assertion that the Clinic’s advice is not at issue and argues about the unraised issue of an actual

guilt defense. Resp. in Opp. at 8–9.

The analysis of this issue will proceed in two parts. To begin with the court will review the

elements of Dudley’s Brady-based claim to determine what facts are at issue. Then the court will

consider whether either Hearn or Rhone-Poulenc support finding an at issue waiver.

a) Elements of Dudley’s Brady-Related Claim

Determining whether counsel’s advice is at issue requires looking at what Dudley needs to

prove to prevail on his Brady-based claim. A due process claim based on the allegation that an

officer suppressed evidence favorable to a defendant has three elements. First, that “the evidence

at issue was favorable to him[.]” Owens v. Baltimore City State’s Attorneys Off., 767 F.3d 379,

396 (4th Cir. 2014). Second, that the officer “suppressed the evidence in bad faith[.]” Id. And third,

that “prejudice ensued.” Id. at 396-97.

(D.D.C. 2017); Weslowski v. Zugibe, 96 F. Supp. 3d 308, 314 (S.D.N.Y. 2015). Given importance of the attorney-

client privilege, the court declines to address this argument without it being fully developed in Defendants’ brief.

8 While the Fourth Circuit has cited Rhone-Poulenc with approval, it has not formally adopted one of these tests.

United States ex rel. Drakeford v. Tuomey, 792 F.3d 364, 377 n.8 (4th Cir. 2015).

The second factor is particularly relevant to this motion. Courts have noted that even when

an officer does not turn evidence over to the prosecutor “suppression does not occur when a

criminal defendant is already aware of the exculpatory information. Burgess v. Baltimore Police

Dep’t, 300 F. Supp. 3d 696, 704 (D. Md. 2018) (citing Barnes v. Thompson, 58 F.3d 971, 975–76

(4th Cir. 1995); Stockton v. Murray, 41 F.3d 920, 927 (4th Cir. 1994)). Accord United States v.

Parker, 790 F.3d 550, 562 (4th Cir. 2015) (“[A] Brady violation has not occurred if the defense is

aware, or should have been aware, of impeachment evidence in time to use it in a reasonable and

effective manner at trial.”); United States v. Catone, 769 F.3d 866, 872 (4th Cir. 2014) (“[T]o

establish a Brady violation, the exculpatory material must be known to the government but not to

the defendant.”). So if Dudley or his attorney knew of the allegedly withheld evidence, Dudley’s

Brady-related claim will fail.

b) The Hearn Test

The Hearn test focuses on three issues. To begin with, a court should consider whether the

“assertion of the privilege was a result of some affirmative act, such as filing suit, by the asserting

party[.]” Hearn, 68 F.R.D. at 581. The next question is whether “through this affirmative act, the

asserting party put the protected information at issue by making it relevant to the case[.]” Id. And

finally, the court looks to whether “application of the privilege would have denied the opposing

party access to information vital to his defense.” Id.

All three Hearn factors are satisfied here. Dudley’s claim of privilege has arisen because

of the suit he filed. And, as noted above, there is no Brady violation if the defendant or his attorney

knew of the allegedly withheld evidence. So this information is relevant to Dudley’s claim.

Moreover, given the importance of awareness by Dudley or his attorney of the allegedly withheld

information, denying Defendants access to this information would deprive them of information

vital to their defense.

The Clinic responds that the court should not find a waiver because “Dudley has not

injected the Clinic’s privileged communications into the present lawsuit.” Resp. in Opp. at 8. It

also argues that Dudley’s “claims are not based on the Clinic’s legal advice.” Id.

But Hearn doesn’t ask if claims are based on an attorney’s legal advice. Instead, it focuses

on whether Dudley has put “protected information at issue” in this case. Hearn, 68 F.R.D. at 581.

And as discussed above, his knowledge and the knowledge of his trial counsel are directly at issue.

So, under Hearn, an at-issue waiver has occurred.

c) The Rhone-Poulenc Test

Like Hearn, Rhone recognized that a client could waive the attorney-client privilege by

putting privileged matters at issue. Rhone-Poulenc, 32 F.3d at 863. But Rhone parts company with

Hearn over when that waiver occurs. While Hearn makes the privileged information’s relevance

the determinative factor in the analysis, Rhone does not. Id. (“Advice is not in issue merely because

it is relevant, and does not necessarily become in issue merely because the attorney’s advice might

affect the client’s state of mind in a relevant manner.”). The Third Circuit objected to the use of

Hearn to get at privileged communications simply because the “the client’s state of mind may be

in issue in the litigation[.]” Id. Instead, in the Third Circuit’s view, a waiver occurs only if the

party asserting the privilege makes use of the privileged information, like when it “attempts to

prove [a] claim or defense by disclosing or describing an attorney client communication.” Id.

The court looked to patent law for an example. The Court of Appeals explained that an at-

issue waiver would not arise simply because there was an allegation that the infringer acted

willfully. Id. In that situation, “the advice of the infringer’s lawyer may be relevant to the question

of whether the infringer acted with a willful state of mind.” Id. But that would not be enough to

waive the privilege. Id. To do that, the infringer must attempt “to limit its liability by describing

that advice and by asserting that he relied on that advice.” Id.

So under Rhone, the court must look at whether Dudley’s Brady-related claim requires him

to make use of privileged information to prove it. Dudley bears the burden of establishing that

suppression occurred. See Owens, 767 F.3d at 396 (explaining that the plaintiff “must allege, and

ultimately prove,” the elements of a Brady-related withholding claim). And to do that he will

eventually need to show that neither he nor his attorney knew about the allegedly withheld

information. See Nayab v. Capital One Bank (USA), N.A., 942 F.3d 480 (9th Cir. 2019) (“It is a

general rule of evidence . . . that ‘where the subject-matter of a negative averment lies peculiarly

within the knowledge of the other party, the averment is taken as true unless disproved by that

party.’”); Allstate Fin. Corp. v. Zimmerman, 330 F.2d 740, 744 (5th Cir. 1964).

Since Dudley will need to rely on privileged information to prove his claim, Rhone suggests

that he has waived the attorney-client privilege by putting his attorney’s advice at issue.

d) Conclusion on Existence of an At-Issue Waiver

Based on both Hearn and Rhone, the court finds that Dudley has placed attorney-client

communications about the allegedly withheld information at issue. As a result, he has waived the

attorney-client privilege for communications on that topic. This waiver extends to all

communications on those topics with all attorneys who have represented Dudley. Thus the Clinic

cannot withhold documents involving that subject matter based on the attorney-client privilege.9

9 If appropriate, the Clinic may withhold all or parts of documents under the work-product doctrine.

B. Work-Product Doctrine

Under the work-product doctrine, documents prepared “in anticipation of litigation . . . by

or for another party or its representative” are generally not discoverable. Fed. R. Civ. P.

26(b)(3)(A). Courts have distinguished between two types of attorney work product: fact work

product and opinion work product. In re Grand Jury Proceeding, 102 F.3d 748, 750 (4th Cir. 1996)

Fact work product “consists of documents prepared by an attorney that do not contain the

attorney’s mental impressions[.]” In re Grand Jury Proceedings, 401 F.3d 247, 250 (4th Cir.

2005). This type of work product is only entitled to qualified protection and “can be discovered

upon a showing of both a substantial need and an inability to secure the substantial equivalent of

the materials by alternate means without undue hardship.” Id.

Opinion work product, on the other hand, contains an attorney’s “mental impressions,

opinions, and legal theories[.]” Duplan Corp. v. Deering Milliken, Inc., 540 F.2d 1215, 1223 (4th

Cir. 1976). Work product falling into this category is “more scrupulously protected as it represents

the actual thoughts and impressions of the attorney.” In re Grand Jury Proceedings, 401 F.3d at

250. It is discoverable “only in very rare and extraordinary circumstances.” In re Doe, 662 F.2d

1073, 1080 (4th Cir. 1981).

As with the attorney-client privilege, the burden first rests on the party resisting discovery

to show that the work-product doctrine applies to a document. Republican Party of N.C. v. Martin,

136 F.R.D. 421, 430 (E.D.N.C. 1991). If it does, the burden then shifts to the requesting party “to

show, as to each document, substantial need and undue hardship.” Id. at 429.

1. Documents Sought by Defendants

The court must first determine what documents the Defendants are asking it to make the

Clinic produce. Their brief is vague on this point. For example, they “assert that some of the items”

the Clinic is withholding “are not protected by the work-product doctrine.” Mem. in Supp. at 10.

But they do not state—or even hint at—which items they claim the doctrine does not apply to.

And the Defendants say that they “seek documents in the” Clinic’s “investigative files such

as its communications” with various people connected to Dudley’s case. Id. But they do not specify

the scope of documents they seek. Although they do suggest that certain witness statements may

be fact work-product that are discoverable under the substantial need exception. Id.

Since Defendants have the burden to establish that there is a substantial need for work

product, the court believes they also have the burden to clearly articulate the documents they seek

to withdraw from the doctrine’s protections. Given the discussion in their brief, the court finds that

Defendants are requesting the production of fact-work product involving communications with the

individuals named in their brief on whether Dudley or his trial counsel knew of the facts that

Dudley now alleges Greene withheld. Thus the court will assess whether they have established a

substantial need for such documents.

2. Whether a Substantial Need Exists for Production of Fact Work

Product

The Defendants have a substantial need for these documents, they claim, because as with

the attorney-client privilege, the information known to Dudley and his trial attorney is relevant to

his Brady claim. And they claim they have been unable to “secure the substantial equivalent of the

materials by alternate means without undue hardship” since they have unsuccessfully tried to

subpoena this information from Dudley’s prior attorneys.10 At the hearing on this motion, they

also claimed that deposition testimony has shown that various witnesses’ memories have faded.

The Clinic disagrees. In its brief, it argues that the Defendants have not provided the court

with anything more than a conclusory assertion that they have a substantial need for this

10 Although exactly what materials they are referring to is unclear.

information. And the Clinic also asserts that Defendants don’t need to riffle through its files

because they can depose most of the people they mentioned in their brief.

The Clinic candidly admits that the Defendants cannot take this tact with Porter, since he

died several years ago. But the Clinic has already given Defendants a recording of its interview

with Porter that occurred shortly before his death. So, in the Clinic’s view, that should be enough.

Finally, the Clinic says that it has no more relevant information than Dudley’s prior attorneys, so

there is no need to look at the Clinic’s work product.

So what exactly constitutes a need substantial enough that it justifies disclosing an

attorney’s fact work product? The Advisory Committee Notes to Rule 26 provide three factors

courts should consider when assessing whether special needs justify disclosure of fact work

product. First, the “importance of the materials to the party seeking them for case preparation[.]”

Fed. R. Civ. P. 26 advisory committee’s notes to 1970 amendments subdivision (b)(3). Second,

“the difficulty the party will have obtaining them by other means[.]” Id. And third, “the likelihood

that the party, even if he obtains the information by independent means, will not have the

substantial equivalent of the documents he seeks.” Id.

The Defendants claim that the work product might contain important information. The

Clinic does not argue otherwise. So the dispute here centers on the latter two factors.

On the remaining issues, the Clinic’s argument that in most cases the Defendants can just

depose the witnesses to get the information they want is a fair one. Courts prefer that a party try to

obtain information through a deposition before resorting to discovery of fact work product. Suggs

v. Whitaker, 152 F.R.D. 501, 507 (M.D.N.C. 1993).

But a deposition may not be a fruitful source of information if many years have passed

since the events in question. So courts also recognize that “if a party or witness has no recollection

of the events” at issue “this loss of memory constitutes an inability to obtain the substantial

equivalent of the facts in the report by other means.” Id. (citing Phillips v. Dallas Carriers Corp.,

133 F.R.D. 475, 481 (M.D. N.C. 1990). The Advisory Committee Notes also recognize that “a

lapse of memory” may justify a finding of substantial need. Fed. R. Civ. P. 26 advisory

committee’s notes to 1970 amendments subdivision (b)(3).

The Defendants have argued and presented evidence that some people mentioned in their

brief no longer remember the events at issue. So the court will look to whether, based on the

evidence, Defendants are entitled to the requested documents.

a) Insufficient Showing of Substantial Need

For several individuals, Defendants presented no evidence supporting their claim of a

substantial need for fact-work product. Because of that shortcoming, the court will not require the

Clinic to produce any of its fact work product for Amy Moore, Joretta Durant, the North Carolina

Center on Actual Innocence, and Judge Paul Jones.

b) Dal Wooten

Dal Wooten, one of Dudley’s post-conviction attorneys, testified that he does not

remember if James Perry, another one of Dudley’s attorneys, explained why Porter would not

allow an interview of Moore to take place. Wooten Dep. at 66:17–20. This lapse in memory does

not relate to evidence Greene allegedly withheld. And, in any event, none of the Wooten-related

documents on the privilege log relate to that issue.11 So the court finds that Defendants have not

established a substantial need for the Clinic’s fact work product related to Wooten.

11 Defendants’ brief mentions an interview between the Wooten and the Clinic, but the privileged documents submitted

to the court do not appear to contain any documents related to that event.

c) James Perry

The transcript from Perry’s deposition reflects that he remembers almost nothing about his

representation of Dudley. Perry Dep. passim. Several Perry-related documents on the privilege log

are opinion work-product, and thus not discoverable even if Defendants have a substantial need

for them. See Docs. 402–40412, Duke_003125, Duke_003129, Duke_003155, Duke_003161.

None of the remaining Perry-related documents relate to the allegedly concealed issues. See Docs.

405, 408, 413, 414, 415, 416, 643. So the court finds that Defendants have not established a

substantial need for the Clinic’s fact work product related to Perry.

d) Paul Porter

The Clinic spoke with Paul Porter more than once before his death. One document in the

Clinic’s file memorializes a conversation its staff had with him in November 2012. Doc. 429. The

Clinic provided Defendants with a recording of that interview, so there is no substantial need to

produce that document. And the remaining two documents (Docs. 509 and 895) provide no insight

into whether Dudley or his attorney knew of Porter’s concerns before trial. So the court finds that

Defendants have not established a substantial need for the Clinic’s fact work product related to

Porter.

e) Nicholas Harvey

Harvey was able to answer many questions posed during his deposition. He said he was

unaware of Porter’s concerns about Moore’s allegations ahead of Dudley’s trial. Harvey Dep. at

10:12–11:9. He was also sure that he had not received a report prepared by Waller before or during

12 Most of the document identification numbers on the privilege log begin with DUKE-PRIV-. For ease of reference,

the court will omit this prefatory language. If a document begins with another prefix, the court will note it.

Dudley’s trial. Id. 10:9–11. But he could not recall whether Dudley had told him about

conversations Dudley had with Porter. Id. 31:21–32:8, 32:23–33:13, 33:19–25, 34:6–10. Thus, he

has a lapse of memory on these issues.

A November 2011 memo recounts a conversation a member of the Clinic staff had with

Harvey. See Doc. 634. The memo does not address whether Dudley told Harvey about his

conversations with Porter. So the court finds that Defendants have not established a substantial

need for the Clinic’s fact work product about Harvey.

f) Johnnye Waller

According to her deposition testimony, Waller also had no independent recollection about

her investigation into Amy Moore’s claims. Waller Dep. at 59:19–60:16. She says she also does

not remember Amy Moore, Dudley, or Greene. D.E. 62:13–25. She also has no recollection of

conversations with Greene or the Kinston Police Department. Id. 102:2–138:16.

There are two copies of a memo in the Clinic’s files that recount an interview with Waller

by Clinic staff. Doc. 397, 940. There is no information in this memorandum about Waller speaking

with Greene about Porter’s concerns or any other information Greene allegedly withheld. So the

court finds that Defendants have not established a substantial need for the Clinic’s fact work

product related to Waller.

III. Conclusion

For the reasons stated above, Defendants’ motion to enforce their subpoenas to the Clinic

is granted in part and denied in part. The court orders the following:

1. Within 10 days from the date of entry of this order, the Clinic must produce

documents previously withheld based on the attorney-client privilege that contain

communications about knowledge Dudley or his attorneys had about

a. Exculpatory or impeachment evidence the Complaint alleges Greene

withheld; and

b. Exculpatory or impeachment evidence identified during the discovery

process that Dudley claims Greene withheld.

2. To the extent that this order requires production of only a portion of a document,

the Clinic should produce that portion and may redact the rest.

3. When the clinic produces these documents, it must also provide Defendants with

an updated privilege log to reflect documents still withheld and any redactions in

produced documents.

4. Within one week after the Clinic produces these documents Defendants and the

Clinic must meet and confer about any disputes over whether the Clinic has

produced all documents required by this order.

5. If disputes still exist after the meet and confer process, the parties should notify

the court and it will schedule a hearing to resolve the disputes.

6. Each party will bear their own costs.

Dated: March 31, 2021 xr.

Kobe 7 Alemben

Robert T. Numbers, II

United States Magistrate Judge

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