Memorandum in Support of Motion for Protective Order; Notice of Deposition

    IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF LOUISIANA 

BARBARA MAJOR, ET AL 

Plaintiffs CIVIL ACTION 

versus NO. 82-1192 

DAVID C. TREEN, ETC., ET AL SECTION. C 

Defendants 

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MEMORANDUM IN SUPPORT 

OF MOTION FOR PROTECTIVE ORDER 
  

  

The attached notice of deposition indicates that plain- 

tiffs wish to depose undersigned counsel? to determine defendants’ 

objections and contentions to plaintiffs' motion for fees particu- 

larly as to Johnson v. Georgia Highway Express, 488 F.2d 714 
  

{5th Cir. 1974). 

Defendants strenuously object to the deposition of 

their counsel under the rationale of Hickman v. Taylor, 329 1.8. 
  

495, 67 S.Ct. 385 (1947), which protects: the work product, mental 

  

The deposition notice itself calls only for "defendants or 
their agents, servants or employees who are most knowledgeable 
with regard to ..." However, plaintiffs' counsel has suggested 
on the telephone, and undersigned counsel agrees, that if 

the deposition is to be taken at all, undersigned counsel 
is the most appropriate person to be deposed.  



impressions, conclusions, opinions, or legal theories of an attor- 

ney concerning litigation in which he is active. ? 

Plaintiffs have indicated in their deposition notice 

that they wish to find out which Johnson factors defendants will 

use as a basis of attack against plaintiffs' motion for fees. 

Plaintiffs' counsel, Mr. Menefee, has further indicated in tele- 

phone conversations that he wishes to have this information so 

that he will not be unprepared at the hearing on this matter 

and will know what kind of case to present. 

Mr. Menefee has further indicated that he would consider 

any questions asked to be continuing so that undersigned counsel 

would be obliged to notify him as her thoughts on the defendants’ 

position change from the November 26, 1984 deposition until the 

March 28, 1985 hearing date. 

With all due respect to Mr. Menefee, he is not entitled 

50 such information either initially or on a continuing basis. 

It is up to plaintiffs to put on a prima facie case as to their 
  

  

Rule 26(b) (3) provides a ‘similar protection, but only as 
to tangible objects such as writings. However, 

"The Supreme Court in Higkman v. Taylor made it plain 
that the 'work product' doctrine protects a party 
against discovery of information within its purview 
regardless of the discovery method employed. Thus, 
requisite justification must be shown whether material 
is sought by interrogatory, deposition, document produc- 
tion, or a subpoena duces tecum pursuant to Rule 45. 
But since Rule 26 (b) (3) by its terms applies only 
to discovery of documents and other tangible things, 
when discovery of 'work product' is sought through 
interrogatories or through questions propounded at 
the taking of depositions one must revert to the prin- 
ciples enunciated in Hickman." 

4 Moore's Federal Practice, 26-349 (426.64([1]). 

  

 



fees. How undersigned counsel will choose to attack that case 

is privileged. A request for such a deposition goes against 

the whole nature of the adversary system. As the Supreme Court 

said in Hickman v. Taylor:   

"Historically a lawyer is an officer of the 
court and is bound to work for the advancement 
of justice while faithfully protecting the 
rightful interests of his clients. In perform- 
ing his various duties, however, it is essen- 

tial 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 consid- 
ers to be the relevant from the irrelevant 
facts, prepare his legal theories and plan 
his strategy without undue and needless inter- 
ference. That is the historical and necessary 
way in which lawyers act within the framework 
of our system of jurisprudence to promote 
and protect their.client'’s dnterest. This 
work is reflected, of course, in interviews, 
statements, memoranda, correspondence, briefs, 

mental impressions, personal beliefs, and 
countless other tangible and intangible ways - 
aptly though roughly termed by the Circuit 
Court of Appeals in this case as the 'work 
product of the lawyer." 

Hickman, supra, 329 U.8. at 510-11, 67 5.Ct, 

at . 
  

Defendants urge this Court to grant a protective order 

quashing the deposition and forestalling all such future inquiries. 

Respectfully submitted, 

WILLIAM J. GUSTE, JR. 

ATTORNEY GENERAL 

KENDALL L. VICK 

ASSISTANT ATTORNEY GENERAL 

PATRICIA NALLEY BOWE 
ASSISTANT ATTORNEY GENE 
LOUISIANA DEPARTMENT OF JUSTICE 
234 LOYOLA AVENUE, 7TH FLOOR 
NEW ORLEANS, LOUISIANA 70112 
PHONE: (504) 568-5575  



  

IN THE UNITED STATES DISTRICT COURT FOR THE 

FOR THE EASTERN DISTRICT OF LOUISIANA 

BARBARA MAJOR, et al., 

Plajntiffe, 

VS. Civil Action No.82-1192 
Section C 

DAVID C. TREEN, etc., et’'al. 

Defendants. 

NOTICE OF DEPOSITION 
  

Patricia Bowers, Esq. 
Assistant Attorney General 
234 Loyola Avenue 
New Orleans, Louisiana 70112 

You are hereby notified that on the 26th day of November, 

1984, the plaintiff in the above-styled cause will take the 

deposition or depositions of the defendants or their agents, 

servants or employees who are most knowledgeable with regard to: 

1. The expenses, attorneys' fees, hill for professional 

services and charges of the defense attorneys retained by the 

defendants in connection with this litigation and any other 

representation by the same defense counsel of the defendants in 

other matters; and,   
 



  

2. The objections and contentions of the defendants relating to plaintiffs’ motion for an award of attorneys' fees and 
expenses Previously filed in this action, particularly relating to those factors enumerated in Johnson vy. Georgia Hj hway ——2=" Y. Lueorgia Highway Express, 48g F.2d 714 (5¢n Cir. 1974). 

The deposition Will be taken ijn accordance with ang pursuant to Rule 30, the Federal Rules of Civi} Procedure, in the law offices of Quigley §& Scheckman, 63] St. Charles Avenue, New Orleans, Louisiana 79130, commencing at 1:ygy p.m. before an officer duly authorized to take depositions ang Will continge from day to day until completed. 

Under Rule 3U(b) (6) of the Federal Rules of Civil Procedure, the defendant is reminded of jts duty to designate the person or Persons who wil] testify to such matters and the subject matter to which said Pérson or persons will testify. 
Respectfully submitted this oh day of November, 1954, 

BLACKSHER, MENEFEE ¢& STEIN, P.A. 405 Van Antwerp Bldg. Pe 0. Box 1usy 
Mobile, Alabama 36633 
(205) 433-2000