Atchison v. City of Tulsa, Oklahoma

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

COREY ATCHISON, )

)

Plaintiff, )

)

v. )

)

CITY OF TULSA, OKLAHOMA; ROBERT )

JACKSON; GARY MEEK; KEN ) Case No. 21-cv-00286-TCK-SH

MAKINSON; FRED PARKE; JACK )

PUTNAM; SCOTT ROGERS; MICHAEL )

EUBANKS; S.M. IRWIN; HAROLD )

“BEAR” WILSON; and UNKNOWN )

OFFICERS, )

)

Defendants. )

OPINION AND ORDER

Before the Court is Plaintiff’s motion to compel documents that non-party Tulsa

County District Attorney’s Office (“TCDA”) claims are privileged attorney work product

or otherwise protected. The Court finds that a non-party may assert work product

protection and that such protection applies to the majority of the attorney work product

withheld by TCDA in this case. The remaining documents sought by Plaintiff are not

relevant. However, as the Court finds that a determination of the scope and applicability

of the work product privilege as to certain documents is required, the undersigned orders

TCDA to produce documents labeled TCDA PL 0061 through 0072 for in camera

inspection.

Background

Plaintiff Corey Atchison (“Atchison”) brought the current lawsuit seeking redress

for his alleged wrongful conviction in 1991 for murder. (ECF No. 57.) Plaintiff’s

conviction was set aside in 2019. (Id. at ¶ 9.) Plaintiff alleges he spent 28 years

imprisoned based on false reports and other misconduct by City of Tulsa police officers.

(See generally ECF No. 57.) Plaintiff has sued the City of Tulsa (the “City”) and certain

individual police officers. (Id. ¶¶ 15-16.) As summarized by Plaintiff, he is alleging the

City and the police officers “(a) coerced numerous teenagers into identifying Plaintiff as

the shooter and (b) suppressed accurate and true reports of witness interviews . . . .” (ECF

No. 112 at 8.)

TCDA is not a party to the litigation, and Plaintiff does not assert that TCDA

engaged in any wrongful conduct in its prosecution of him based on the allegedly wrongful

information provided by the City and the officers. (See ECF No. 57.)

In July 2022, Plaintiff subpoenaed TCDA for “[a]ny and all records, files, and

documents relating to the investigation, criminal prosecution, trial, appeals, post-

conviction investigation and proceedings” of Atchison’s 1991 criminal case. (ECF No. 116-

1 at 6.) While TCDA initially objected to producing responsive documents, in compliance

with this Court’s previous ruling (ECF No. 106), it eventually turned over a portion of the

file (ECF No. 112 at 2). It also provided a privilege log detailing the withheld documents.

(ECF No. 116-2.)

In the privilege log, TCDA primarily contends that production would be improper

because the withheld documents constitute protected attorney work product. (Id.) It also

argues that one of the documents withheld is further protected under the deliberative

process privilege (id. at 4-5) and that various others are protected under state statutes

and federal regulations (id. at 3-4). TCDA maintains that it is not withholding witness

statements or factual work product; instead, TCDA indicates that it has limited its

withholding to core attorney, or opinion, work product. (ECF No. 116 at 6.)

Plaintiff moves the Court to compel a blanket production of the remainder of

TCDA’s prosecution file, arguing that the withheld documents are relevant to his claims

and that TCDA’s privilege assertions are improper. (ECF No. 112.) Specifically, Plaintiff

argues that work product protections are not available to non-parties and that the other

privileges TCDA asserts are inapplicable. (Id. at 4-7.) Plaintiff also argues that he has

shown a substantial need that would overcome any privilege. (Id. at 7-9.) TCDA stands

on its objections, arguing that the work product protection of Hickman v. Taylor, 329

U.S. 495 (1947), is broader than Rule 26 and, therefore, applies to non-parties, and

arguing that the deliberative process privilege also applies. (ECF No. 116 at 2-8.) TCDA

further argues that Plaintiff has not shown a substantial need to overcome TCDA’s

privilege and that the documents sought are not relevant. (Id. at 8-13.) As such, TCDA

asks the Court to deny Plaintiff’s motion or, alternatively, to review the documents in

camera. (Id. at 14.)

Analysis

I. The Work Product Doctrine

The parties’ primary dispute revolves around whether a non-party can claim work

product protections. After reviewing Hickman, the subsequent federal rules, and

applicable case law, the undersigned finds that it can.

A. Hickman

Any discussion of work product must start with Hickman. See In re Qwest

Commc’ns Int’l Inc., 450 F.3d 1179, 1185 (10th Cir. 2006) (Hickman is “the source of the

work-product doctrine”). The Supreme Court decided Hickman during a time when

numerous courts and the Advisory Committee on the Rules for Civil Procedure were

grappling with the issue of what we now call work product. See 8 Richard L. Marcus,

Federal Practice & Procedure (Wright & Miller) § 2021 (3d ed.). In June 1946, the

Advisory Committee issued its report of proposed amendments, which included a

proposal to add work product protections to Fed. R. Civ. P. 30. See Report of Proposed

Ams. to R. of Civ. P. for the Dist. Cts. of the U.S., 5 F.R.D. 433, 456-57 (1946). The

Supreme Court, however, had already granted certiorari in Hickman and did not adopt

this particular amendment, instead apparently preferring to address the issue through

development of the common law. 8 Fed. Prac. & Proc. § 2021.

In Hickman, the Court sought to determine “the extent to which a party may

inquire into oral and written statements of witnesses, or other information, secured by an

adverse party’s counsel in the course of preparation for possible litigation after a claim

has arisen.” 329 U.S. at 497. As the Hickman court famously noted,

In performing his various duties, however, it is essential that a lawyer work

with a certain degree of privacy, free from unnecessary intrusion by

opposing parties and their counsel. Proper preparation of a client’s case

demands that he assemble information, sift what he considers to be the

relevant from the irrelevant facts, prepare his legal theories and plan his

strategy without undue and needless interference. . . . Were such materials

open to opposing counsel on mere demand, much of what is now put down

in writing would remain unwritten. An attorney’s thoughts, heretofore

inviolate, would not be his own. Inefficiency, unfairness and sharp practices

would inevitably develop in the giving of legal advice and in the preparation

of cases for trial. The effect on the legal profession would be demoralizing.

And the interests of the clients and the cause of justice would be poorly

served.

Id. at 510-11. The Supreme Court thus determined that this “Work product of the lawyer”

was protected from discovery under ordinary conditions and in the case before it. Id. at

511-12.

B. Rule 26

Work product remained solely a creature of the common law for many years.

However, in 1970, the Advisory Committee found that “[s]ufficient experience has

accumulated . . . with lower court applications of the Hickman decision to warrant a

reappraisal” of whether the issue should be determined “by judicial decision rather than

by rule.” Fed. R. Civ. P. 26, advisory ctte.’s note, 1970 am., subdiv. (b)(3). As a result of

this reappraisal, that year a protection for trial preparation materials was added to Rule

26 in a form very similar to that now in effect.1

As then and currently phrased, Rule 26 provides protection in civil cases only to

the trial preparation materials of “another party” or its representative. See supra n.1; Fed.

R. Civ. P. 26(b)(3). It is undisputed in this case that TCDA is neither a party nor a

representative of the City of Tulsa or its police officers. Plaintiff and TCDA agree that

Rule 26 does not provide protection in this instance.

C. Hickman Beyond Rule 26

The adoption of Rule 26(b)(3), however, did not end the application of Hickman.

Courts have repeatedly held Rule 26 did not completely codify the work product

protection—the most obvious example of this being in its treatment of tangible versus

intangible work product. By its terms, Rule 26 protects only “documents and tangible

things.” Fed. R. Civ. P. 26(b)(3)(A).

Nonetheless, Hickman v. Taylor continues to furnish protection for work

product within its definition that is not embodied in tangible form, such as

the attorney’s recollection, in Hickman v. Taylor, of what the witnesses told

him. As the Third Circuit has put it, “[i]t is clear from Hickman that work

product protection extends to both tangible and intangible work product.”

Indeed, since intangible work product includes thoughts and recollections

1 “[A] party may obtain discovery of documents and tangible things otherwise

discoverable under subdivision (b)(1) of [Fed. R. Civ. P. 26] . . . and prepared in

anticipation of litigation or for trial by or for another party or by or for that other party’s

representative (including his attorney, consultant, surety, indemnitor, insurer, or agent)

only upon a showing that the party seeking discovery has substantial need of the materials

in the preparation of his case and that he is unable without undue hardship to obtain the

substantial equivalent of the materials by other means. In ordering discovery of such

materials when the required showing has been made, the court shall protect against

disclosure of the mental impressions, conclusions, opinions, or legal theories of an

attorney or other representative of a party concerning the litigation.” Proposed

Amendments to the Fed. R. of Civ. P. Relating to Discovery, 48 F.R.D. 487, 494 (1970).

of counsel, it is often eligible for the special protection accorded opinion

work product.

8 Fed. Prac. & Proc. § 2024 (quoting In re Cendant Corp. Sec. Litig., 343 F.3d 658, 662

(3d Cir. 2003)) (footnotes omitted); see also Oklahoma v. Tyson Foods, Inc., 262 F.R.D.

617, 625-26 (N.D. Okla. 2009) (“The Restatement (Third) of the Law Governing Lawyers

more explicitly defines work product; including the ‘intangible equivalent’ of ‘tangible

material’ from Hickman that is absent in Rule 26(b)(3) . . . .” (footnotes omitted)).

In the same way, Courts have also looked at work product in situations not

explicitly addressed by Hickman. For example, in 1975, the Supreme Court applied

Hickman’s work product protection to criminal cases.

Although the work-product doctrine most frequently is asserted as a bar to

discovery in civil litigation, its role in assuring the proper functioning of the

criminal justice system is even more vital. The interests of society and the

accused in obtaining a fair and accurate resolution of the question of guilt

or innocence demand that adequate safeguards assure the thorough

preparation and presentation of each side of the case.

United States v. Nobles, 422 U.S. 225, 238 (1975) (footnote omitted).2

In another example, in 1998, the Tenth Circuit looked at Rule 26(b)(3) and

whether its protections extended to material prepared for another litigation (albeit when

the privilege was claimed by a party to the current litigation). Frontier Refin, Inc. v.

Gorman-Rupp Co., 136 F.3d 695 (10th Cir. 1998). After reviewing Supreme Court dicta

and the decisions of other circuits, the Tenth Circuit concluded “that the work product

doctrine extends to subsequent litigation.” Id. at 703. Notably, in basing this decision on

“the reasoning set out in the circuit court opinions” it cited, the Tenth Circuit relied, in

part, on a pre-Rule 26 case—Republic Gear Co. v. Borg-Warner Corp., 381 F.2d 551, 557

2 Finding, however, that the defense had waived the protection. Id. at 239.

(2d Cir. 1967). Id. In Republic Gear, Republic sought documents from a non-party

attorney that were covered by “‘work product’ or by the attorney-client privilege arising

out of the professional relationship between [the attorney] and his [non-party]

clients . . . .” Id. at 553-54. On appeal, Republic argued that “the ‘work product’ shelter

is presently unavailable because the documents concerned were not prepared for this

litigation . . . .” Id. at 555. The Republic court disagreed, noting that

the broad purpose of the rule which is designed to encourage effective legal

representation by removing counsel’s fear that his thoughts and

information will be invaded by his adversary if he records them would be

defeated if Republic could gain access to [the attorney’s] files by proceeding

against a party [the attorney] did not professionally represent but

nevertheless a party involved in the same transaction in which [the

attorney’s] former clients were involved.

Id. at 557 & n.4 (citing Hickman, 329 U.S. at 511) (also noting, “[a]nd here, of course, [the

attorney’s] former clients remain suable”).

D. Rule 45

Meanwhile, in 1991, the Advisory Committee amended Rule 453 to, among other

things, “clarify and enlarge the protections afforded persons who are required to assist

the court by giving information and evidence” in response to a subpoena. See Fed. R. Civ.

P. 45, advisory ctte.’s note, 1991 am., Purposes of Revision. This included adding a new

subsection to Rule 45 to “track[] the provisions of [then] Rule 26(c).” Fed. R. Civ. P. 45,

advisory ctte.’s note, 1991 am., subdiv. (c).4 Now, Rule 45 would require the court to

3 Relevant to this motion, “Federal Rule of Civil Procedure 45 governs subpoenas issued

to nonparties.” Garrity v. Governance Bd. of Carinos Charter Sch., No. CV 20-340

MV/KK, 2021 WL 3033278, at *2 (D.N.M. July 19, 2021).

4 Over the years, Rule 45 has consistently been amended in tandem with Rule 26 on

matters of privilege, see id., 2006 am. (adding procedure to assert privilege or protection

after production), or to otherwise match Rule 26’s language, see id. 2007 am. (amending

the language on the manner of asserting privilege).

“quash or modify the subpoena if it . . . requires disclosure of privileged or other protected

matter and no exception or waiver applies . . . .” Amendments to Fed. R. of Civ. P., 134

F.R.D. 525, 542 (1991).5 This provision remains largely unchanged in the current Rule

45(d)(3). See Fed. R. Civ. P. 45 (d)(2)(B), (d)(3)(A)(iii) (requiring the court quash or

modify a subpoena for privileged information when a “person commanded to produce

documents . . . serve[s] on the party or attorney designated in the subpoena a written

objection”).

E. The Application of Hickman to Non-Party Work Product

None of the history or cases cited above definitively require this Court find that

work product protection may be claimed by a non-party. For example, by its terms, Rule

45 can apply, in certain circumstances, to both parties and non-parties. See, e.g., Fed. R.

5 In 1991, the Advisory Committee also proposed adding a privilege log requirement to

both Rule 26 and Rule 45. While the proposed new provisions were substantively

identical, there was an important distinction between the Advisory Committee’s notes.

Compare proposed Rule 26(b)(5), 134 F.R.D. at 641, with proposed Rule 45(d)(2), id. at

667. The notes for both rules explained that the purpose of the rule was to provide the

requesting party “information sufficient to evaluate” the claim of privilege. Compare 134

F.R.D. at 643 (proposed Rule 26) with Fed. R. Civ. P. 45, advisory ctte.’s note, 1991 am.,

subdiv. (d). The notes, however, diverged from there. For Rule 26, the Committee noted

“[t]he party claiming a privilege or protection cannot decide the limits of that party’s own

entitlement.” 134 F.R.D. at 643 (emphasis added). But, for Rule 45, the Committee noted

that “[t]he person claiming a privilege or protection cannot decide the limits of that

party’s own entitlement.” Fed. R. Civ. P. 45, advisory ctte.’s note, 1991 am., subdiv. (d)

(emphasis added). In the end, the Rule 26 amendments were not submitted for approval

by the Supreme Court. 134 F.R.D. at 526. Instead, the privilege log requirement was

added to Rule 26 in 1993, with similar notes that, for the most part, referred to the

individual or entity claiming privilege as the “party.” See Fed. R. Civ. P. 26, advisory ctte.’s

note, 1993 am., subdiv. (b) (“The party must also provide sufficient information to enable

other parties to evaluate the applicability of the claimed privilege or protection. Although

the person from whom discovery is sought decides whether to claim a privilege or

protection, the court ultimately decides whether . . . the privilege or protection

applies . . . . The rule does not attempt to define for each case what information must be

provided when a party asserts a claim of privilege or work product protection.” (emphasis

added)).

Civ. P. 45(c)(1)(B). Therefore, the reference to “persons” in the rule cannot be read as

referring only to non-parties and thus meaning that non-parties can assert work product

protections. Similarly, many of the cases finding work product protection extending to

subsequent litigation do so by interpreting the literal language of Rule 26, see, e.g.,

Frontier Refin., 136 F.3d at 703, and that literal language also limits Rule 26’s protections

to parties.

However, the cases also indicate that the protections of Hickman are not entirely

codified in Rule 26, and that—instead—where Hickman would warrant a finding of

protection, that protection applies despite the rule’s literal language. Cendant Corp., 343

F.3d at 662; cf. Qwest, 430 F.3d at 1186 (noting the work product doctrine “is interpreted

under both the rule and Hickman”). Moreover, while Rule 45(d) does not explicitly

dictate a reading of “persons” who may assert privilege to include only non-parties, given

its history, its general language,6 and the numerous cases finding it to have extended work

product protection to non-parties, the Court finds Rule 45 broad enough to encompass

such protection.

The undersigned is, therefore, persuaded by the reasoning of other courts who

have addressed this issue and have found work product protection for non-parties where

6 While the use of “persons” in Rule 45(d) does not necessitate work product protection

apply to non-parties, the undersigned declines to go so far as to declare it utterly

meaningless when compared to Rule 26’s restriction of the privilege to “parties.” Cf.

Russello v. United States, 464 U.S. 16, 23 (1983) (“Where Congress includes particular

language in one section of a statute but omits it in another section of the same Act, it is

generally presumed that Congress acts intentionally and purposely in the disparate

inclusion or exclusion”) (cleaned up) (citation omitted); S.E.C. v. McCarthy, 322 F.3d

650, 656 (9th Cir. 2003) (“It is a well-established canon of statutory interpretation that

the use of different words or terms within a statute demonstrates that Congress intended

to convey a different meaning for those words.”).

warranted under Hickman.7 See, e.g., Stanziale v. Career Path Training Corp. (In re

Student Fin. Corp.), No. 02-11620 JBR, 2006 WL 3484387, *4-12 (E.D. Pa. Nov. 29,

2006); Abdell v. New York, No. 05 CIV. 8453 KMK JCF, 2006 WL 2664313, at *3-7

(S.D.N.Y. Sept. 14, 2006). Moreover, while not explicitly adopting their reasoning, the

undersigned recognizes other courts who have reached similar conclusions. See, e.g., In

re: Motor Fuel Temperature Sales Pracs. Litig., No. 07-MD-1840-KHV, 2010 WL

11431875, at *4 n.27 (D. Kan. July 7, 2010) (“Although Rule 26(b)(3), by its terms, applies

to ‘parties,’ Rule 45(c)(3), (d)(2) extends the same work-product protection to non-parties

served with a subpoena.”); Friedland v. TIC—The Indus. Co., No. 04-cv-01263-PSF-

MEH, 2006 WL 2583113, at *4 (D. Colo. Sept. 5, 2006) (“the work-product doctrine

established in Hickman . . . does extend beyond the scope of Rule 26(b)(3) . . . and, in fact,

provides protection similar to that provided under Rule 45(c)(3)(B)(ii)”); Fed. Election

Comm’n v. Christian Coal., 179 F.R.D. 22, 24 (D.D.C. 1998) (“The more considered view

appears to be that work product protection applies (1) to materials prepared for any

litigation; and that (2) because the rule applies equally to one-time litigants and repeat

players, the protection survives the termination of the litigation for which it was prepared;

and that under the rationale of Hickman, non-parties should be able to assert work

product privilege claims even though Rule 26(b)(3) is phrased only in terms of the

parties.” (citations omitted)).

7 The Court rejects the reasoning of cases that appear to find an absolute bar on work

product protection for non-parties. See, e.g., Seabolt v. City of Muskogee, No. CIV-07-

255-JHP, 2008 WL 2977865, at *2 (E.D. Okla. July 30, 2008); United States v. Melot,

No. CV 09-0752 JCH/WPL, 2012 WL 12898791, at *4 (D.N.M. Aug. 6, 2012); Hawkins v.

S. Plains Int’l Trucks, Inc., 139 F.R.D. 682, 683-84 (D. Colo. 1991).

This finding avoids the “intolerable” result caused by a narrow confinement of

work product protection to the parties in a litigation. 8 Fed. Prac. & Proc. § 2024. And,

it is in line with well-reasoned secondary sources. Jeff A. Anderson et. al., The Work

Product Doctrine, 68 Cornell L. Rev. 760, 862 (1983) (“The more realistic position is to

view rule 26(b)(3) as a partial codification of Hickman, and to continue to apply the

Hickman policies to resolve questions which the rule does not address, such as the

applicability of the immunity to nonparty work product.” (footnote omitted)); see also 8

Fed. Prac. & Proc. § 2024 (“it must be remembered that protection may exist under

Hickman v. Taylor itself, even if it is not provided also under [Rule 26], so long as the

materials in question were prepared in anticipation of litigation by an attorney”).

II. Application of Hickman’s Work Product Protections to TCDA’s

Documents

The purposes of the work product doctrine set forth in Hickman have generally

been recognized to include (1) protecting an attorney’s ability to formulate legal theories

and prepare cases; (2) preventing opponents from “free-loading” off their adversaries’

work; and (3) preventing interference with ongoing litigation. See Clark v. Louisville

Jefferson Cnty. Metro Gov’t, No. 3:17-CV-419-GNS-CHL, 2022 WL 4389549, at *13

(W.D. Ky. Sept. 22, 2022); see also Student Fin. Corp, 2006 WL 3484387, at *9 (outlining

similar purposes).

In this case, the first purpose is implicated, and the Court finds that is enough to

trigger application of the privilege. As noted above, TCDA is attempting to withhold its

attorney’s opinion work product. This is the sort of information highlighted in Hickman,

329 U.S. at 511 (“Were such materials open to opposing counsel on mere demand, much

of what is now put down in writing would remain unwritten”), and it is the sort of work

product entitled to the most protection, see Qwest, 450 F.3d at 1186 (“Work product can

be opinion work product, which some courts have held to be absolutely privileged, or non-

opinion work product, i.e., fact work product, which may be discoverable under

appropriate circumstances.”). The role of work product “in assuring the proper

functioning of the criminal justice system is . . . vital.” Nobles, 422 U.S. at 238. TCDA is

the quintessential “repeat player” whose most basic practices would be affected by the

threat of its attorneys’ trial preparation strategies being subject to discovery in a

subsequent action.

On the face of its privilege log, TCDA is claiming this sort of core opinion work

product, including such things as outlines of opening statements and closing arguments,

notes on jurors during voir dire, witness interview notes, timelines, and research from the

original trial—all written by attorneys. (ECF No. 116-2 at 1-5.) It also includes notes by

the attorneys during the post-conviction relief stage, again relating to their thoughts on

witnesses from the original preliminary hearing and trial, legal arguments for appeal, and

handwritten notes on an appeal brief. (Id. at 1, 3-4.) Plaintiff does not argue that any

specific document on the privilege log is not fully described or that any of the documents

would not qualify as work product in the ordinary case.8 Instead, Plaintiff hangs his hat

on a global argument that TCDA can never assert work product as a non-party, regardless

of what the documents contain.

In these circumstances, the Court accepts TCDA’s characterization of the majority

of the documents at issue with one limited exception. As to TCDA PL 0061 through 0072,

it is unclear to the undersigned whether the withheld documents are “opinion” or

“ordinary” work product. As ordinary work product includes “materials generated by

8 Plaintiff did not even attach a copy of the privilege log to his motion to compel.

attorneys that are not opinion work product” such as “witness statements,” the “notes

from interview of Stephanie Jacob,” “Notes regarding Ben King,” and “interview notes”

potentially fall outside the scope of core work product. Nevada v. J-M Mfg. Co., 555 F.

App’x 782, 784-85 (10th Cir. 2014)9 (unpublished) (quoting Tyson Foods, 262 F.R.D. at

626); see also S.E.C. v. Goldstone, 301 F.R.D. 593, 661 (D.N.M. 2014) (finding, as to an

attorney’s notes on an interview that “would not constitute verbatim transcripts, but

rather, impression from the interview,” that “the interview notes and memoranda reflect,

at least to some extent, opinion work product as well as fact work product, because they

record the witnesses’ statements through the filter of an SEC” staff attorney (emphasis

added)). As will be discussed below, these are the only documents whose protection

Plaintiff may possibly overcome through a showing of substantial need. While TCDA has

given the Court no reason to doubt it’s statement that it “is not seeking to shield witness

statements or factual work product” (ECF No. 116 at 6), given the potential importance of

such statements to Plaintiff’s case, the undersigned is inclined to proceed cautiously.

Thus, the Court orders in camera review of TCDA PL 0061 through 0072 to determine

the applicability and scope of any work product protection.

However, the Court sees no reason to review the other documents in camera. It

rejects Plaintiff’s blanket assertion of non-privilege and finds no basis in the privilege log

to doubt TCDA’s remaining assertions of opinion work product.

III. Plaintiff’s Need for the Documents

Again making sweeping, global arguments, Plaintiff asserts that his need

overcomes any work product protection claimed by TCDA.

9 Unpublished decisions are not precedential, but they may be cited for their persuasive

value. 10th Cir. R. 32.1(A).

Once the existence of work product is found, the burden shifts to the opposing

party to establish a sufficiently strong need.

A party seeking ordinary work product must establish a “substantial need

for the material in order to prepare for trial” and an inability “without undue

hardship to obtain the substantial equivalent of the material by other

means.” However, a party may overcome “opinion work product”

protection only when “extraordinary circumstances justify disclosure.”

Tyson Foods, 262 F.R.D. at 626-27 (quoting Restatement (Third) of the Law Governing

Lawyers §§ 88-89 (2000)); cf. Frontier Refin., 136 F.3d at 704 n.12 (“The circuits are

divided on whether there is absolute protection for opinion work product. Some courts

have held that opinion work product is absolutely protected; others have concluded it may

be discovered under compelling circumstances.”).

Here, Plaintiff arguably has established a substantial need for documents labeled

TCDA PL 0061 through 0072. As alleged in his motion, Plaintiff’s claims hinge on

complaints that Defendants “coerced numerous teenagers into identifying Plaintiff as the

shooter” and “suppressed accurate and true reports of witness interviews . . . .” (ECF No.

112 at 8 (maintaining that this renders “the prosecutor’s record . . . probative [to] police

fabrication and suppression of evidence”)). The Court agrees that, to the extent these

documents contain non-opinion witness statements/information—specifically regarding

Stephanie Jacob and Ben King, two parties whose statements Plaintiff alleges were

suppressed, fabricated, or coerced (ECF No. 2 at 7-8, 11-12)—they are substantially

necessary for Plaintiff to prepare for trial. Plaintiff alleges that “no other entity has these

documents . . . .” (ECF No. 112 at 8.) As such, if upon in camera inspection the Court

finds that these documents are non-core work product and discoverable upon a

determination of substantial need, the Court will determine whether such need has been

established.

That said, Plaintiff has established neither a substantial need nor extraordinary

circumstances for the rest of the documents listed in TCDA’s privilege log. This case

relates to statements of witnesses and whether those witnesses were pressured to change

their story by Tulsa police, or whether the statements were suppressed by Tulsa police.

TCDA is not a party and is not accused of vindictive or malicious prosecution. Plaintiff’s

citation, then, to United States v. Jarrett, 2010 WL 1577670, *4 (N.D. Ind. Apr. 20, 2010),

misses the point. Similarly, there was no decision by the TCDA to dismiss the charges, so

there is no evidence “created contemporaneously at the time the decision was made to

dismiss the charges.” Cf. Bahena v. City of Chicago, No. 17 C 8532, 2018 WL 2905747,

at *4 (N.D. Ill. June 11, 2018). Reviewing the district attorney’s voir dire or closing

argument notes is not the “sole way” for Plaintiff to prove his allegations. Instead, his

case turns on events before his criminal trial—when the witnesses’ statements were

allegedly obtained, coerced, or suppressed—and the testimony of those witnesses at trial.

Other than potentially for those documents described above, Plaintiff has not shown a

substantial need for the TCDA work product, much less the extraordinary circumstances

required by those courts that would even allow discovery into opinion work product.10

IV. The Other Documents

Finally, Plaintiff objects to TCDA’s attempt to invoke the confidentiality of

National Crime Information Center (“NCIC”) records and the educational records of

Doane Thomas.11 (ECF No. 116-2 at 3-4.) TCDA argues these documents are plainly not

10 As noted above, some courts would find absolute protection for such work product.

11 Plaintiff also complains of TCDA’s assertion of deliberative process privilege as to one

individual document. (ECF No. 112 at 6-7.) As that document was also withheld as work

product, the Court need not address whether it is also protected by the deliberative

process privilege.

relevant to Plaintiffs claims, and the Court agrees. These documents are a far cry from

the sort of information highlighted at the hearing on Plaintiffs original motion to compel,

and the mere fact that they are contained in the prosecution file does not make them per

se relevant. Again, Plaintiff offers no arguments relating to these specific documents,

instead relying on the ruling from the prior hearing that was focused on TCDA’s

arguments of undue burden and privilege.’ (See ECF No. 112.) Plaintiff has provided no

basis on which this Court would compel these discrete documents.

IT IS THEREFORE ORDERED that Plaintiffs Motion to Compel the Tulsa County

District Attorney’s Office to Produce Withheld Documents (ECF No. 112) is DENIED in

part and HELD IN ABEYANCE in part, pending in camera review of documents labeled

TCDA PL 0061 through 0072.

IT IS FURTHER ORDERED that TCDA shall produce said documents for in

camera inspection by May 4, 2023, so this Court may determine the applicability and

scope of the work product privilege and whether Plaintiff has overcome such privilege.

ORDERED this 27th day of April, 2023.

lL, SS

UNITED STATES DISTRICT COURT

Tn his reply, Plaintiff briefly argues that “the NCIC records were generated as part of the

investigation of Plaintiffs criminal case so they are relevant to Plaintiffs” claims. (ECF

No. 117 at 3.) But, Plaintiff makes no effort to tie these records to the actual claims he is

asserting in this case.

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