Alfred

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE DIVISION

TAYJHA ALFRED CASE NO. 6:24-CV-00274

VERSUS JUDGE DAVID C. JOSEPH

BO DUHE ET AL MAGISTRATE JUDGE CAROL B.

WHITEHURST

MEMORANDUM RULING

The parties present another discovery quagmire. Currently before the Court

are Plaintiff’s Second and Third Motions to Compel (Rec. Doc. 136 and 148), which

Defendant Bo Duhe, in his official capacity, opposed (Rec. Doc. 147 and 156).

Plaintiff filed a reply to Defendant’s opposition to her Third Motion to Compel (Rec.

Doc. 171). Plaintiff moves to compel Defendant to supplement certain discovery

responses and to fully produce documents which Defendant produced with

redactions or withheld as privileged. Plaintiff also moves to compel the Attorney

General, which intervened to defend the constitutionality of Louisiana’s material

witness statute, to produce documents withheld as privileged. (AG’s Response at

Rec. Doc. 155).

The Court upheld the undersigned’s previous discovery ruling, overruling

Defendant’s relevancy objections and, regarding Defendant’s invocation of the

federal law enforcement privilege, instructed:

Defendant shall produce to opposing counsel and this Court a privilege

log specifically identifying the documents withheld on the basis of

privilege on or before November 14, 2025. With respect to each

document withheld, Defendant shall identify: (1) the date the document

was created; (2) the author of the document; (3) all recipients of the

document, along with their capacities; (4) the document’s subject

matter; (5) the purpose for the production of the document; and (6) a

specific explanation of why the document is privileged or immune from

discovery. It is expected that the Magistrate Judge will conduct an in-

camera inspection of any documents produced for inspection and make

particularized rulings with respect to the application of the privilege.

(Rec. Doc. 132, p. 9).

One day before the foregoing production was due, Plaintiff filed her Second

Motion to Compel, challenging Defendant’s purported practice of producing partial

documents with non-privileged redactions. The Second Motion also challenges

Defendant’s responses to Request of Admission No. 6 and Interrogatories No. 10

and 12 (propounded on May 14 and 23, 2025). Since then, in accordance with the

Court’s instruction, Defendant provided several privilege logs and thousands of

pages of documents to the Court for in-camera review.1 Plaintiff’s Third Motion

challenges certain withheld documents.

The parties appeared for a lengthy hearing on these discovery issues on

December 18, 2025. Having reviewed the parties’ voluminous pleadings, five (5)

1 The bulk of the documents (approximately 7,600 pages) were from the Louisiana Attorney

General. As discussed below, the AG has since significantly reduced the number of

documents subject to court review to less than 1,000 pages.

different privilege logs, and over 1,200 pages of documents, the Court provides this

comprehensive ruling to address current disputes and to guide the parties in resolving

ongoing issues without further burdening the Court with resource-intensive

discovery issues.

I. Second Motion to Compel: Responses to Req. for Adm. No. 6 and

Interrogatories No. 10 and 12

A. Req. for Admission No. 6

Req. No. 6 asks Defendant to admit that the District Attorney for the 16th

Judicial District Attorney’s Office has final decision-making authority with regard

to the use of, decision to seek, application for, or issuance of Material Witness

Warrants in cases prosecuted by the 16th Judicial District Attorney’s Office. (136-

10, p. 9). Defendant’s response consists of boilerplate general objections and

otherwise provides no response on the grounds that the request is a compound

question. Objections to written discovery must be specific and with stated reasons.

F.R.C.P. Rule 33(b)(4); Rule 34(b)(2)(B). Boilerplate objections are unacceptable.

Enron Corp. Sav. Plan v. Hewitt Assocs., L.L.C., 258 F.R.D. 149, 159 (S.D. Tex.

2009); see also McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482,

1485 (5th Cir.1990). Likewise, objections based on the compound nature of a request

are inappropriate where the requests are capable of separation upon answering.

VeroBlue Farms USA Inc. v. Wulf, 345 F.R.D. 406, 426 (N.D. Tex. 2021); People's

Capital & Leasing Corp., v. McClung, 5:17-CV-484-OLG, 2017 WL 8181529, at

*2 (W.D. Tex. Sept. 22, 2017)).

Defendant did not object on the grounds that the request calls for a legal

conclusion. Whether an official has final decision-making authority is a legal

determination for the judge. Gros v. City of Grand Prairie, Tex., 181 F.3d 613, 617

(5th Cir. 1999), citing Jett v. Dallas Independent School District, 491 U.S. 701, 109

S.Ct. 2702 (1989). Rule 36(a)(1) limits the scope of requests for admission to facts,

application of law to fact, or opinions about either. See discussion in Thompson v.

Beasley, 309 F.R.D. 236, 241 (N.D. Miss. 2015), quoting Benson Tower Condo.

Owners Ass'n v. Victaulic Co., 105 F.Supp.3d 1184, 2015 WL 2208444, at *4 (D.Or.

May 11, 2015) (“While the rule allows a party to request an admission of “the

application of law to fact,” “[r]equests for purely legal conclusions ... are generally

not permitted.”)

Request No. 6 seeks a legal conclusion and requires no further answer,

especially considering that Defendant apparently responded to Interrogatory No. 11

and identified himself as the final policy making authority for the 16th Judicial

District. Plaintiff’s motion to compel a further response to Request No. 6 is denied.

B. Interrogatory No. 10

Int. No. 10 asks Defendant to describe Bo Duhé’s role in overseeing the use

of, decision to seek, application for, or issuance of Material Witness Warrants in the

16th Judicial District, including in the JohnLewis Trial and the Layne Trial. (Rec.

Doc. 136-8). Disregarding Defendant’s previously rejected objections based on

relevance, objections based on privilege (further discussed below), and other issues

addressed in the Court’s prior ruling, Defendant’s substantive response is: “[I]t is

averred that experienced felony prosecutors were assigned to handle felony

prosecutions. The prosecutor in charge of handling the case had the discretion to

prepare for and present the case, including any motions. District Attorney Duhe was

available to consult should the prosecutor solicit his advice.” (Rec. Doc. 136-8, p.

8). Notwithstanding improper objections previously addressed, the Court finds this

properly responds to the interrogatory but that specific details should be provided

relative to DA Duhe’s role via securing material witnesses.

C. Interrogatory No. 12

Int. No. 12 asks Defendant to identify all members of his office and their

communications (including dates, times, and method of communication) with

certain individuals (“Identified Persons”). (Rec. Doc. 136-9). Beyond the litany of

objections, Defendant responded with reference to certain produced documents

which appear to document communications. (p. 8-9). Plaintiff contends the response

omits many communications over the relevant time period. Defendant agreed to

supplement this response.

II. Third Motion to Compel: Privilege Logs and In-camera Review of

Withheld Documents

Plaintiff challenges Defendant’s and the Attorney General’s privilege logs as

incomplete, improperly redacted, and otherwise insufficient for withholding non-

privileged documents. Defendant provided approximately 337 pages of documents,

and the AG provided approximately 920 pages to the Court for in-camera inspection.

A. Defendant’s and AG’s Privilege Logs

F.R.C.P. Rule 26(b)(5) provides that when a party withholds information

otherwise discoverable by claiming that the information is privileged or subject to

protection as trial-preparation material, the party must: (i) expressly make the claim;

and (ii) describe the nature of the documents, communications, or tangible things

not produced or disclosed—and do so in a manner that, without revealing

information itself privileged or protected, will enable other parties to assess the

claim.

Defendant has provided four privilege logs: Defendant’s Fourth Amended

Privilege Log (Nov. 14, 2025) (Rec. Doc. 149-1); Supplemental Privilege Log (Nov.

18, 2025) (Rec. Doc. 149-2); and Second Supplemental Privilege Log (Nov. 25,

2025) (Rec. Doc. 149-3); and, on the night of December 17, 2025 (twelve hours

before the December 18 hearing), Defendant provided a Third Supplemental

Privilege Log by email to the Court.2 The Court finds Defendant’s privilege logs

comply with Rule 26(b)(5). In response to Plaintiff’s specific challenges, the Court

has reviewed the approximately 337 documents Defendant submitted for review,

which documents primarily include file notes, emails, and text messages.

Plaintiff served a subpoena duces tecum on the AG in July 2025. On

November 26, 2025, either Defendant or the AG provided a 377-page privilege log.3

(Rec. Doc. 149-4). Initially, according to Plaintiff, the AG produced only 74 pages,

withholding over 7,600 documents, referenced in its initial log. In response to

Plaintiff’s detailed objections, counsel for AG agreed that its log was overly broad

and that it improperly withheld non-privileged documents. (Rec. Doc. 155).4 On

December 15, 2025, the AG provided two thirteen-page privilege logs and produced

a significant number of documents to Plaintiff. The AG withheld approximately 920

pages of documents, which the Court has reviewed. The Court finds that the AG’s

revised privilege logs comply with Rule 26(b)(5); however, as discussed below, the

2 Due to its late receipt, the Third Supplemental Privilege Log is not in the record.

3 At the December 18 hearing, counsel explained that the 377-privilege log was Defense

counsel’s modification of an original privilege log from the AG. The circumstances

surrounding the improper privilege log remain unclear to the Court.

4 AG counsel later explained that initial log was computer generated and otherwise the

product of sloppy work. Rec. Doc. 167. AG counsel also later clarified by email that the

volume of documents was due to substantial duplicates, which were removed from the

supplemental production and revised logs.

Court agrees with Plaintiff that the initial 377-page privilege log warrants

recompense for Plaintiff’s counsel’s time.

B. Waiver of Privileges

Plaintiff urges the Court to find that Defendant and the AG waived their

privileges, prompting full disclosure of all documents. “Continual failure to adhere

to Rule 26’s prescription may result in waiver of the privilege where a court finds

that the failure results from unjustified delay, inexcusable conduct, or bad faith.”

Equal Emp. Opportunity Comm'n v. BDO USA, L.L.P., 876 F.3d 690, 697 (5th Cir.

2017). The Court does not find that Defendant or the AG are guilty of unjustified

delay, inexcusable conduct, or bad faith sufficient to warrant a waiver of their

asserted privileges. Contrarily, the Court finds that Defendant had a good faith basis

for the privileges asserted on all documents. Although the AG’s initial 377-page

privilege log warrants some sanction (further discussed below), the Court declines

to impose the harsh penalty of waiver. Counsel for AG readily admitted that the

initial log, which was computer generated, was improper, apologized for what he

described as sloppy work, and corrected the deficiencies prior to the Court’s review.

C. Privileges Asserted

“A party asserting a privilege exemption from discovery bears the burden of

demonstrating its applicability.” In re Santa Fe Int'l Corp., 272 F.3d 705, 710 (5th

Cir. 2001). Defendant and the AG assert several privileges in support of their

positions withholding the reviewed documents.

1. Federal Law Enforcement

The Fifth Circuit recognizes a law enforcement privilege which protects, in

addition to information pertaining to confidential informants, information pertaining

to ongoing criminal investigations. The Fifth Circuit instructed:

The oft-cited Frankenhauser test consists of weighing the

following ten factors: (1) the extent to which disclosure will thwart

governmental processes by discouraging citizens from giving the

government information; (2) the impact upon persons who have given

information of having their identities disclosed; (3) the degree to which

governmental self-evaluation and consequent program improvement

will be chilled by disclosure; (4) whether the information sought is

factual data or evaluative summary; (5) whether the party seeking

discovery is an actual or potential defendant in any criminal proceeding

either pending or reasonably likely to follow from the incident in

question; (6) whether the police investigation has been completed; (7)

whether any interdepartmental disciplinary proceedings have arisen or

may arise from the investigation; (8) whether the plaintiff's suit is non-

frivolous and brought in good faith; (9) whether the information sought

is available through other discovery or from other sources; (10) the

importance of the information sought to the plaintiff's case. …

Additionally, the law enforcement privilege is bounded by

relevance and time constraints. … Several types of information

probably would not be protected, including documents pertaining to:

(1) people who have been investigated in the past but are no longer

under investigation, (2) people who merely are suspected of a violation

without being part of an ongoing criminal investigation, and (3) people

who may have violated only civil provisions. Furthermore, the privilege

lapses after a reasonable period of time. Therefore, the privilege lapses

either at the close of an investigation or at a reasonable time thereafter

based on a particularized assessment of the document.

In re U.S. Dep't of Homeland Sec., 459 F.3d 565, 570–71 (5th Cir. 2006) (citations

omitted).

Regarding Defendant’s prior invocation of the federal law enforcement

privilege, this Court stated:

Defendant submits that the JohnLewis criminal proceedings

remain pending in the appellate court and that the Layne trial is set for

September 29, 2025. Although these state criminal proceedings remain

pending (and thus are arguably protected by the state public records

privilege), the question for purposes of the federal law enforcement

privilege is whether a criminal investigation is pending. Defendant

states that the court “recognizes a ‘law enforcement privilege’ where

there is an ongoing investigation or ongoing prosecution.” (Rec. Doc.

81-2, p. 9, citing In Re U.S. Dept. of Homeland Security, supra, Brown

v. Thompson, 430 F.2d 1214, 1215 (5th Cir. 1970), and Coughlin v. Lee,

946 F.2d 1152, 1160 (5th Cir. 1991)). Contrary to Defendant’s

assertion, none of the cited cases concerns documents pertaining to

ongoing prosecutions—only investigations.

In applying the Frankenhauser factors, the Court finds that the

documents pertaining to the JohnLewis and Layne trials are

discoverable, subject to the protective order already in place. Those

cases are well beyond the investigation stage, with trial having already

occurred or scheduled to occur in less than two months. Defendant did

not present any argument addressing any particular factor and has not

shown how disclosure of documents to Plaintiff (subject to previously

stipulated confidentiality provisions) would discourage citizens from

providing information, place any confidential informant at risk, or

otherwise compromise the criminal process.

The Court finds that the information requested from non-parties

and in Plaintiff’s discovery is not subject to the law enforcement

privilege on the showing made. To the extent requested information

pertains to any criminal matter that is currently under investigation, the

parties may seek the Court’s guidance if necessary after reasonable

efforts to resolve. The Court emphasizes Counsel shall consider the

terms and effectiveness of their mutually established Protective Order

(Rec. Doc. 77) prior to seeking Court guidance.

(Rec. Doc. 101, p. 11-12; affirmed at Rec. Doc. 132).

Since the foregoing ruling, Defendant nonetheless withheld documents

pertaining to the JohnLewis and Layne criminal trials and other closed criminal

matters.5 Additionally, Defendant has provided no argument addressing the

Frankenhauser factors to justify withholding. Hence, none of the withheld

documents are protected by the law enforcement privilege, but that is not to say the

documents are automatically subject to production, as Plaintiff urges. Defendant and

the AG assert other privileges in support of withholding each document.

2. Attorney Client and Joint Defense/Common Interest

The Fifth Circuit 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

5 A representative from the 16th Judicial District Attorney’s office confirmed at the

December 18, 2025 hearing that all other criminal matters identified on discovery

documents are closed.

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 AG withheld certain documents based on a common interest and/or joint

defense privilege. The Fifth Circuit recognizes a “common legal interest privilege”

(also known as a joint defense privilege) as an extension of the attorney-client

privilege, which protects communications made among persons “who consult an

attorney together as a group with common interests seeking common

representation.” In re Santa Fe Int'l Corp., 272 F.3d 705, 711 (5th Cir. 2001), citing

In re Auclair, 961 F.2d 65, 69 (5th Cir.1992). “[T]he two types of communications

protected under the CLI privilege are: (1) communications between co-defendants

in actual litigation and their counsel; and (2) communications between potential co-

defendants and their counsel.” Id. at 710. Regarding communications between

potential co-defendants, the privilege applies only if there appears “a palpable threat

of litigation at the time of the communication, rather than a mere awareness that

one’s questionable conduct might some day result in litigation, before

communications between one possible future co-defendant and another…could

qualify for protection.” Id. at 711. “[B]ecause the privilege is ‘an obstacle to

truthseeking,’ it must ‘be construed narrowly to effectuate necessary consultation

between legal advisers and clients.’” Id., at 710, quoting In re LTV Sec. Litig., 89

F.R.D. 595, 606 (N.D.Tex.1981).

Adair v. EQT Prod. Co., No. 1:10CV00037, 2012 WL 4458231, at *4 (W.D.

Va. June 28, 2012) is a factually similar case in which the court found a common

interest privilege did not protect communications between defense counsel and

counsel for the attorney general, which had intervened solely for defending the

constitutionality of the challenged act. The court reasoned that the communications

withheld did not concern constitutionality and did not involve the attorneys enrolled

in the case. Id. Contrarily, in this case, the AG’s documents withheld on the common

interest privilege (AG5741.26 and 5747.1) concern counsels’ litigation strategy in

this case and are clearly protected opinion work product (further discussed below).

3. Work Product

Rule 26 (b)(3)(A) provides the framework for application of the work-product

doctrine:

Ordinarily, a party may not discover documents and tangible things that

are prepared in anticipation of litigation or for trial by or for another

party or its representative (including the other party’s attorney,

consultant, surety, indemnitor, insurer, or agent). But, subject to Rule

26(b)(4), those materials may be discovered if:

(i) they are otherwise discoverable under Rule 26(b)(1); and

6 The bates number for this document is 5747.2, but is mislabeled as 5741.2 on the log

(ii) the party shows that it has substantial need for the materials to prepare

its case and cannot, without undue hardship, obtain their substantial

equivalent by other means.

“The burden of establishing that a document is work product is on the party

who asserts the claim, but the burden of showing that the materials that constitute

work product should nonetheless be disclosed is on the party who seeks their

production.” Hodges, Grant & Kaufmann v. U.S. Gov't, Dep't of the Treasury, I.R.S.,

768 F.2d 719, 721 (5th Cir. 1985). Thus, Plaintiff bears the burden of showing

Defendant’s withheld documents should be disclosed.

Plaintiff first urges the Court to classify the DA’s case files as business records

kept in the ordinary business of prosecuting crimes. Although business records are

typically exempt from work product protection (United States v. El Paso Co., 682

F.2d 530, 542 (5th Cir.1982)), the Court is mindful that the documents sought were

the product of criminal proceedings and should be afforded special consideration.

Otherwise, essentially all criminal documents could potentially be discoverable. The

business records exemption does not resolve the issues here.

Plaintiff next argues that the work product doctrine does not protect

documents prepared in anticipation of other litigation. The Fifth Circuit has held

otherwise, holding that documents prepared in anticipation of at least related

litigation (and at most, any litigation) is protectable. In re Grand Jury Proc., 43 F.3d

966, 971 (5th Cir. 1994). However, courts have held “that the privilege is unavailable

when a prosecutor in a prior criminal investigation later objects to discovery of her

work product by a litigant in a related civil lawsuit.” Klein v. Jefferson Par. Sch. Bd.,

No. CIV.A. 00-3401, 2003 WL 1873909, at *3 (E.D. La. Apr. 10, 2003), citing cases.

See also Stamps v. Town of Framingham, 38 F. Supp. 3d 134, 143–44 (D. Mass.

2014), citing cases.

In Klein, the Eastern District held that the work product privilege did not apply

to a prosecutor’s notes in a prior, closed criminal proceeding when sought in

subsequent related civil litigation. The Court reasoned:

[T]he underlying criminal case here has been closed, thus, there

are no concerns with interfering with an ongoing criminal investigation.

See Ostrowski, 2002 WL 31956039, at *4; Hernandez, 1997 WL

754041, at *2 (finding because the underlying criminal case has been

closed there are no concerns with jeopardizing an ongoing criminal

investigation); see also Carter, 2000 WL 632988, at *2. Moreover,

even though it is true that the defendants may seek to establish their

innocence as a defense to the present civil rights charges, it does not

follow that all documents created by the JPDA in the criminal

proceeding and the decision not to prosecute the defendants remain

protected by the work product privilege. See id. (citing Barnes v.

Borough of Pottstown, 1994 WL 114359, at *3 (E.D.Pa.1994)).

Thus, the work product privilege is inapplicable in the instant

case. This conclusion is supported by a consideration of the policies

which underlie the doctrine. Though the general rule against a nonparty

asserting the privilege is certainly susceptible to the discomforting

situation of a “less diligent attorney raiding the file of a previously

diligent attorney,” this danger is not present “where the prior case was

criminal and the subsequent civil.” Schultz v. Talley, 152 F.R.D. 181,

185 (W.D.Mo.1993) (citing Doubleday, 149 F.R.D. at 607).

Id., at *3–4.

Although the district attorney’s office was not a party to the civil suit in Klein,

the court’s reasoning is instructive in this case. Plaintiff does not seek disclosure for

any reason relevant to the underlying criminal prosecutions (which have, or will

soon be resolved), and such disclosure in this case does not undermine the criminal

process or the policy underlying the privilege. Indeed, “[t]he work product

privilege…does not exist to protect a confidential relationship but to promote the

adversary system by safeguarding the fruits of an attorney’s trial preparations from

the discovery attempts of an opponent.” Shields v. Sturm, Ruger & Co., 864 F.2d

379, 382 (5th Cir. 1989).

Finally, in applying Rule 26(b)(3), the Court is careful to distinguish between

ordinary work product and opinion work product (an attorney’s mental impressions,

conclusions, and opinions). Ordinary work product is subject to disclosure upon a

showing of substantial need and the inability to obtain the material without undue

hardship. Hunkin v. Cooper/T. Smith Stevedoring Co., No. CIVA 08-456, 2010 WL

93856, at *2 (W.D. La. Jan. 7, 2010); Thomas v. Gen. Motors Corp., 174 F.R.D.

386, 388 (E.D. Tex. 1997). See also Goldberg v. United States, 425 U.S. 94, 102-

106, 96 S. Ct. 1338, 1344 (1976), finding that a government lawyer’s written notes

following oral statements in a criminal proceeding were not work product.

Opinion work product is afforded almost absolute protection.

“Opinion” work product, that which conveys the “mental

impressions, conclusions, opinions, or legal theories of an attorney or

other representative,” has been accorded almost absolute protection

from discovery by some courts. See Thomas, 174 F.R.D. at 388; Sporck,

759 F.2d at 316; In Re International Systems, 693 F.2d 1235, 1240 (5th

Cir.1982). Nevertheless, opinion work product becomes subject to

disclosure when (1) “mental impressions are at issue in a case and the

need for the material is compelling.” Holmgren v. State Farm Mutual

Auto. Ins. Co., 976 F.2d 573, 577 (9th Cir.1992); Biggers v. State Farm

Insurance Co., 1993 WL 408375 (E.D.La.1993); Bird v. Penn Central

Co., 61 F.R.D. 43 (E.D.Pa.1973).

Conoco Inc. v. Boh Bros. Const. Co., 191 F.R.D. 107, 118 (W.D. La. 1998).

See also Ramirez v. Abreo, No. 5:09-CV-189-C, 2010 WL 11470102, at *5

(N.D. Tex. Nov. 24, 2010), in which the plaintiff alleged prosecutors used

unconstitutional methods and the court ordered production of the prosecutors’

underlying criminal files, including opinion work product.7 Similarly, in this case,

the Court agrees that opinion work product regarding the procurement and

procedural treatment of material witnesses in underlying criminal cases is at issue

and that Plaintiff has shown a compelling need for disclosure of such information.

In order to prove her Monell claim, Plaintiff must show that she suffered a

constitutional violation as a result of Defendant’s use of the material witness statute

to detain her in the JohnLewis and Layne trials and that Defendant had a custom or

policy of improper use, application, etc. of the material witness statute in other cases.

Communications among attorneys responsible for material witness proceedings are

7 Ramirez is also similar to this case for its “continued morass of discovery battles.” Id. at

*1.

essential to Plaintiff’s Monell claim and would not be available from any other

source.

Nevertheless, the Court is sensitive to Defendant’s position that disclosure of

work product in the Layne proceedings (and the related JohnLewis proceedings)

could potentially affect the prosecution, with trial set for April 2026. Further, the

Court is not inclined to apply a blanket order for disclosure as Klein authorizes,

because the underlying criminal cases are not factually related to the instant civil

case. (In Klein, the criminal case and subsequent civil case arose from the same

incident. Klein, supra.) Balancing Plaintiff’s need for the material, the District

Attorney’s need to protect its work product (especially in the Layne proceedings),

and the parties’ mutually agreed upon protective order, the Court will order

production of 1) all ordinary work product in closed criminal cases; 2) opinion work

product regarding material witness procedure and procurement in closed criminal

cases; 3) ordinary and opinion work product regarding Plaintiff and other material

witnesses in the JohnLewis and Layne trials. Because both the JohnLewis and Layne

cases involve the same murder, and prosecutors have not yet tried Layne, the Court

will not order production of work product unrelated to material witness procedure

and procurement. For instance, the Court will not order production of information

pertaining to a material witness’s statement or testimony in a trial unrelated to his

procurement as such.

4. Deliberative Process and Executive Privilege

Defendant broadly relies on an executive/deliberative process privilege to

withhold communications between assistant district attorneys and the Louisiana

Attorney General’s office.

The Supreme Court explained the deliberative process privilege as follows:

The deliberative process privilege is a form of executive

privilege. To protect agencies from being “forced to operate in a

fishbowl,” the deliberative process privilege shields from disclosure

documents reflecting advisory opinions, recommendations and

deliberations comprising part of a process by which governmental

decisions and policies are formulated. The privilege is rooted in the

obvious realization that officials will not communicate candidly among

themselves if each remark is a potential item of discovery and front

page news. To encourage candor, which improves agency

decisionmaking, the privilege blunts the chilling effect that

accompanies the prospect of disclosure.

United States Fish & Wildlife Serv. v. Sierra Club, Inc., 592 U.S. 261, 267–69, 141

S. Ct. 777, 785–86, (2021) (cleaned up).

In discussing the related legislative privilege, the Fifth Circuit recognized that

executive privileges can, in certain cases, be waived:

[The] legislative privilege as to certain documents is waived

when the Legislator publicly reveals those documents. But that is not

what happened here. The privilege log shows that the legislators did not

send privileged documents to third parties outside the legislative

process; instead they brought third parties into the process. That

decision did not waive the privilege. The very fact that Plaintiffs need

discovery to access these documents shows that they have not been

shared publicly. On the other hand, if the legislators had shared the

documents publicly, then they could not rely on the privilege to prevent

Plaintiffs from introducing those documents as evidence. But here,

where the documents have been shared with some third parties—but

haven’t been shared publicly—the waiver argument fails.

La Union Del Pueblo Entero v. Abbott, 68 F.4th 228, 236–37 (5th Cir. 2023)

(cleaned up; emphasis in original).

The legislative privilege, however, arguably extends further than the ordinary

deliberative process privilege. See detailed discussion in League of United Latin Am.

Citizens v. Abbott, 708 F. Supp. 3d 870, 878 (W.D. Tex. 2023), appeal dismissed,

No. 24-50128, 2025 WL 1467462 (5th Cir. May 22, 2025). Thus, disclosure to a

third party could arguably waive a general deliberative process privilege, but not a

legislative privilege. The task, then, is to determine which privilege applies—a task

complicated by Defendant’s failure to offer any meaningful argument.

The Louisiana Attorney General and its District Attorneys are in the judicial

branch. State v. Lee, 2022-01827 (La. 9/1/23), 370 So. 3d 408, 412, reh'g denied,

2022-01827 (La. 10/19/23), 412 So. 3d 960, citing La. Const. art. V, § 26; La.

C.Cr.P. art. 61. To the extent any executive privilege would apply, Defendant would

seemingly rely on a judicial deliberative process privilege, which protects judicial

mental processes in official adjudicative duties. See discussion in Cain v. City of

New Orleans, No. CV 15-4479, 2016 WL 7156071, at *3 (E.D. La. Dec. 8, 2016).

But Defendant’s withheld documents do not pertain to any adjudicative duties.

Further, neither the AG nor Defendant has standing to assert a legislative privilege.

See discussion in Arnold v. Barbers Hill Indep. Sch. Dist., 157 F.4th 749, 756 (5th

Cir. 2025). Thus, Defendant’s position is best interpreted as asserting a general

deliberative process privilege, which may arguably be waived by communication to

an outsider. See Gilby v. Hughs, 471 F. Supp. 3d 763, 767 (W.D. Tex. 2020)

(Because “[d]eliberative-process privilege protects candid discussions within the

executive branch needed for optimum administrative decision making,” the privilege

does not protect “communications where the agency is not the decision maker and

the separation of powers veil has been pierced.”).

Even in the absence of waiver, the deliberative process privilege does not

automatically warrant withholding documents:

The deliberative process privilege is a qualified one. Thus, courts

have found that a litigant may obtain such deliberative materials if his

or her need for accurate fact finding override the government's interest

in nondisclosure. Courts have identified various factors which are

relevant to a determination of whether or not production is proper

despite the existence of the deliberative process privilege. These factors

include: (1) the importance of the documents to the defense and their

relevance; (2) the availability of information on the same issue from a

different source; (3) the importance of the litigation and the issues

involved; (4) the government’s role, if any, in the litigation; and (5) the

potential chilling of governmental employees’ expression of candid

opinion.

Klein, 2003 WL 1873909, at *4 (citations omitted).

Defendant withheld emails among the executive director of the Louisiana

District Attorneys Association (LDAA) and certain district attorney members.

According to its website, LDAA is a non-profit organization, which Defendant states

is comprised of elected Louisiana District Attorneys. The withheld email chains

begin with a request from the Louisiana Legislative Auditor to the LDAA to provide

a response to a draft report on domestic violence. The LDAA then requests its

members’ input, two of whom (unrelated to this suit) respond with an opinion about

the perception of material witness warrants in domestic abuse cases. (DA Supp.

1072-73; 1343-44). Assuming without deciding that no waiver occurred, applying

the Klein factors, the Court finds these emails have little, if any relevance, other than

to show unrelated district attorneys’ opinions on the use of material witness warrants

in the context of domestic abuse cases. These emails need not be produced.

Defendant also withheld a September 16, 2023 email from Claire Howington,

which copies DA Duhe, to LDAA advising of Plaintiff’s material witness situation

in this case (DA Supp. 1414) and a June 2021 email chain among DA Duhe and

LDAA regarding a draft response to a reporter’s story regarding L.R.S. 15:625

(pertaining to material witness data reporting). (DA Supp. 1598-99). The Court finds

the deliberative process privilege does not protect these emails, which are not

“documents reflecting advisory opinions, recommendations and deliberations

comprising part of a process by which governmental decisions and policies are

formulated.” These emails are simply informal discussion among LDAA and district

attorneys regarding the existence of Plaintiff’s situation and a reporter’s story on a

material witness data reporting statute. See also League of United Latin Am. Citizens

v. Abbott, 708 F. Supp. 3d 870, 1237 (W.D. Tex. 2023), appeal dismissed, No. 24-

50128, 2025 WL 1467462 (5th Cir. May 22, 2025), citing Waters v. U.S. Capitol

Police Bd., 218 F.R.D. 323, 324 (D.D.C. 2003) (opining that the deliberative process

privilege should not “thwart discovery of information in a case in which a plaintiff

challenges governmental action as discriminatory”).

5. Grand Jury

The “General Rule of Secrecy” set forth in Federal Rule of Criminal

Procedure 6(e) provides that certain person, including attorneys for the Government,

“shall not disclose matters occurring before the grand jury, except as otherwise

provided for in these rules.” United States v. John Doe, Inc. I, 481 U.S. 102, 107,

107 S. Ct. 1656, 1659–60 (1987). “Parties seeking grand jury transcripts under Rule

6(e) must show that the material they seek is needed to avoid a possible injustice in

another judicial proceeding, that the need for disclosure is greater than the need for

continued secrecy, and that their request is structured to cover only material so

needed.” Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222 99 S.Ct.

1667, 1674 (1979).

Having reviewed the documents, the Court will not order disclosure of

documents identifying any grand juror. Otherwise, limited notes only vaguely

referencing grand jury proceedings without details protected by the grand jury

proceedings and shall be produced.

III. Summary

Considering the foregoing privileges, and having reviewed all documents

submitted for inspection, the Court orders the following documents to be produced,

subject to the protective order in place (Rec. Doc. 77) and redacted of all personal

identifiers (birthdates, social security numbers, addresses, and phone numbers),

except that documents shall not be redacted of any material witness’s contact

information (address, phone number, and email address):

• Documents on 4th Amended Privilege Log: Log ID No. 2; 3; 4; 6; 7; 8;

9; 15; 16; 17; 20; 21; 29; 30; 31; 32; 33; 34; 358; 37; 38; 39; 40; 41; 50;

52; 55; 60.

• Defendant’s Supplemental Privilege Log: Log ID No. 1; 2; 3; 4; 5; 6;

7; 10; 11; 12; 13; 14; 15; 16; 17; 18; 199; 20; 21; 22; 23; 24; 25; 26; 27;

28.

• Defendant’s Second Supplemental Privilege Log: Log ID No. 1; 2; 3;

4.

• Defendant’s Third Supplemental Privilege Log: Log ID No. 3; 4; 5; 6;

7; 8; 9; 10; 11; 12; 13; 14; 15; 16; 17; 19; 20; 21; 22.

• AG’s First Privilege Log: DOJ Doc. No. 1334.1; 1334.2; 3186.1-.16;

3186.17-.21; 4424.110; 7001.1; 7001.2-.3; 7002.1-.3; 7004.1-.4;

7007.1-.2; 7008.1-.2; 7011.1-.4; 7012.1-.4; 7021.1-.2; 7022.1-.5;

8 Counsel may redact the underlined portion as unrelated opinion work product.

9 DA Supp. 002801 was not included with the documents for Court review; however,

because the description indicates opinion work product related to material witness status,

it should be produced.

10 The bates number for this document is 4524.1, but is mislabeled as 4424.1 on the log.

7029.1; 7077.1; 7080.1-7083.4; 7092.1-7133.2; 7235.1; 7302.1-.2;

7327.1-.2; 7328.1; 7329.1; 7331.1-.2; 7342.1-.2; 7357.1; 7374.1-

7406.3.

• AG’s Second Privilege Log: DOJ Doc. No. 8000.1-.8; 8001.1-.3;

8002.1-.17; 8003.1-.44; 8004.1-.11; 8005.1-.25; 8007.1-.25; 8008.1-

.143; 8009.1-.12; 8010.1-.26; 8011.1-.3; 8012.1-.3; 8013.1-.12;

8015.1-.3; 8016; 8026; 8027; 8028; 8029; 8032.1-.43; 8033.1-.4; 8035;

8036; 8037.1-.7; 8038.1-.2; 8039.1-.8; 8041; 8042; 8043; 8044; 8045;

8047; 8048.1-.2; 8049.1-.14; 8050; 8051.1-.14; 8052.1-.14; 8053;

8054.1-.811

All witness interviews and statements from JohnLewis or Layne proceedings

ordered to be produced may be redacted of 1) any statement or testimony which does

not reference or directly relate to Plaintiff or any other material witness’s

procurement as such; 2) attorney handwritten notes which do not reference or

directly relate to Plaintiff or any other material witness’s procurement as such; 3)

any grand jury testimony. Any statement, testimony (other than grand jury), or notes

directly referencing Plaintiff for any purpose shall be produced.

IV. Plaintiff’s Request for Costs and Attorney’s Fees

Under Rule 37(a)(5), the Court may award costs and attorney’s fees to the

prevailing party on a motion to compel unless the opposing party’s nondisclosure,

response or objection was substantially justified or other circumstances make an

11 The AG identified DOJ No. 8057 as “New Iberia Police Dept. – Trevonce Bernard – Case

File submittal,” but did not provide same for the Court’s review. The Court is confident

counsel for Defendant and the AG can determine whether the document should be

produced based on this ruling. If necessary, the AG may provide No. 8057 for review.

award of expenses unjust. F.R.C.P. Rule 37(a)(5)(A) and (B). If the motion is

granted in part and denied in part, the court may apportion the reasonable expenses

for the motion. (Rule 37(a)(5)(A) and (B).

The Court finds that both parties were justified in their positions, leading to a

partial grant/denial of the motions. However, the Court finds that an award of

attorneys’ fees is warranted for the AG’s initial 377-page privilege log. Defense and

the AG’s counsel explained at the hearing that the AG provided an initial, computer-

generated log to Defense counsel, and Defense counsel expanded the log to provide

details regarding privileges asserted, resulting in the 377-page document. Plaintiff's

counsel spent considerable time and resources reviewing and challenging the

improper log via the Third Motion to Compel, before the AG admitted the log was

overly broad and improperly withheld documents. (Rec. Doc. 155). Accordingly, the

Court finds that Plaintiffs counsel should be compensated for the unnecessary time

spent reviewing the initial AG log. Plaintiff shall submit an affidavit identifying

counsel’s time spent reviewing the improper log.

Signed at Lafayette, Louisiana on this 30" day of December, 2025.

CAROL B.WHITEHURST

UNITED STATES MAGISTRATE JUDGE