Correspondence from Menefee to Whyte (Clerk); Plaintiffs' Memorandum in Opposition to Defendants' Motion to Compel Pursuant to FRCP 37

    BLACKSHER, MENEFEE & STEIN, P.A. 

ATTORNEYS AT LAw 

405 VAN ANTWERP BUILDING 

P. O. BOX 1051 

MOBILE, ALABAMA 36633 

JAMES U. BLACKSHER TELEPHONE 

LARRY T. MENEFEE February 15 1985 (205) 433-2000 
GREGORY B. STEIN 

WANDA J. COCHRAN 

Ms, loretta GG, Whyte 
Clerk 
United States Courthouse 
for the Eastern District of louisiana 

Chambers C-151 
500 Camp: Street 
New Orleans, Louisiana 70130 

Re; Barbara Major, et al. v. David C. Treen, et al. 
C.A. No. 82-1192 Section C(35) 
  

Dear Ms. Whyte: 

Under cover of this letter please find enclosed an original 
to be filed with the Court and a copy to be distributed to 
the Magistrate of Plaintiffs' Memorandum in Opposition to 
Defendants' Motion to Compel Pursuant to FRCP 37 in the 
above-referenced case. 

Thank you and best regards. 

Sincerely, 

BLACKSHER, MENEFEE & STEIN, P.A. 

/ - ’ // / 

AI & bo /) MA LX / Lida. 
f [i] 

Larry T. Menefee 

LTM:pfm 

Encls. 

cc: All Counsel (w/encl.)  



IN THE UNITED STATES DISTRILY COURY FOR THE 

FOR THE EASTERN DISTRICT OF LOUISIANA 

BARBARA MAJOR, et al., 

Plaintiffs, 

Civil Action No.82-1192 

Section £(5) 

DAVID C. TREEN, etc., et al. 

Defendants. 

PLAINTIFFS' MEMORANDUM IN OPPOSITION TO DEFENDANTS 
MOTION TO COMPEL PURSUANT TO FRCP 37 

The defendants' motion raises a fundamental question 

concerning the scope of litigation and discovery that the Court 

will indulge on claims for attorneys' fees and expenses. The 

courts have expressed concern that such claims “not result in 

second major litigation." Hensley v. Lckerhart, 461 4.5.424, 

103 $.t.1933, 1941, 76 L.E4.2d 40-(1983). See also Blum v. 

Stenson, i. S. 104 S.Ct.1541, 1550, 79 L.Ed.2d 831 (1984); 
  

Johnson v. Georgia Highway Express, 488 F.2d 714, 720. {(5%tnh 

Cir.1974). 

The leading commentator in the field has summarized the 

discovery in This area as follows:  



Several considerations affect the scope of the 
discovery. First, issues of relevance will foreshadow 
the decision of what factors will be considered in 
setting the fee. Second, the discovery may often be 
limited because of increasing judicial dissatisfaction 
with extensive discovery on fee questions -- discovery 
that may dwarf the proceedings on the merits. Finally, 
discovery is also affected by the tendency of courts to 
allow general mutuality of discovery. Thus, a litigant 
who inquires into a certain area -- whether in 
interrogatories or depositions -- is likely to find 

himself on the receiving end of discovery into the same 
area. 

Derfner and Wolf, Court Awarded Attorneys’ Fees, Yol.l111, 

paragraph 25.02, p.25-4. Thus, the Court needs to make an 

initial decision of how far ranging discovery should be 

permitted. 

Ample Discovery Has Been Provided 

Plaintiffs have already provided over 100 pages of detailed 

records in support of their claims for attorneys’ fees and 

expenses. Affidavits from each of the attorneys involved, along 

with copies of their time logs and detailed expense statements 

were provided when plaintiffs’ motion was filed. Additionally, 

defendants have deposed every one of plaintiffs' attorneys. The 

defendants had an opportunity to inquire about each attorney's 

experience, time logs, record keeping, expenses claimed, 

experience in other cases, and other court awarded fees.  



Plaintiffs' attorneys are, for the most part, members of the 

local bar and well known to the defendants. There are no 

allegations of any fraud, misrepresentation or similar 

allegations which would indicate that this full discovery that 

has already been permitted was anything other than complete, 

honest and candid. 

Attorney-Client and Work Product Privileges 

The scope of the discovery request is so broad plaintiffs 

must interpose objections based upon attorney-client privilege 

and work product privilege. Obviously, time records, logs and 

notes may contain references to other clients, work performed for 

other clients, "mental impressions,” and "trial strategy” of the 

attorney. Confidential interviews of witnesses, a necessary part 

in preparing a case for trial, could be violated. Botn 

privileges have serious implications in a discovery request that 

has the breadth of that formulated by the defendants. 

Yhe request is so broad, plaintiffs also seek protection 

from the considerable time and expense involved in responding. 

The request is oppressive and burdensome far beyond what this 

Court should allow in an attorney fee litigation. If this Court 

determines that such discovery should be allowed, then at least 

the defendants should be directed to pay the reasonable charges  



for searching, copying and mailing. 

This is especially appropriate in this litigation where the 

defendants protract these issues because of their own political 

agenda and where there is such an economic inequality between the 

Jitigants. Plaintiffs urge that for the foregoing reasons, the 

Court should not allow such far-ranging discovery, but that if it 

is permitted, the defendants should bear the expense. 

Paragraphs 1 through 5 are principally objected to for the 

foregoing reasons. 

Paragraph 6 is excessive, part of the public domain and 

equally available to the defendants. lt requests copies of 

attorney fee documentation "in all cases in which your firm has 

petitioned for attorneys' fees in the past 24 months." 

Defendants, by deposition, had the opportunity to ask each 

attorney to identify each case where a fee petition had been 

filed. The defendants can obtain their copies from the Court 

files. 

Finally in paragraph 8 the defendants request copies of 

"unpublished opinions on voting litigation attorneys' fees." 

First, an attorney's legal research is not discoverable. Moore's 

Federal Practice, paragraph 26.56[3] at footnote 2. Second, the 

request 1s so broad it is truly burdensome. 1% does not restrict 

the request to opinions involving the attorneys in this case or 

opinions from the Eastern District of Louisiana, or even to ihe  



Fifth Circuit Court of Appeals. Third, the information is equally 

available to defendants. Any opinions are in the public domain 

and equally accessible to the defendants. Presumably the 

plaintiffs have obtained whatever unpublished opinions they have 

by calling a clerk's office and asking that a copy of an opinion 

be reproduced and mailed. The opinions are all available to the 

defendants on an exactly equal basis. The defendants can do the 

legal research to determine the latest voting rignts litigation 

and determine what, if any fees, were awarded in those cases. 

The NAACP Legal Defense Fund has been involved in voting rights 

litigation for many years. Many opinions would be in closed 

files and in storage. 
A 

Respectfully submitted this 23 day. of February, 1985. 

BLACKSHER, MENEFEE & STEIN, P.A. 
405 Van Antwerp Bldg. 
Pp. 0. Box 1051 

Mobile, Alabama 36633 
(205) 433-2000 

BY: yo ) oes rhs 

TARRY 17 ne ? 

WILLIAM P. QUIGLEY 
STEVEN SCHECKMAN 

R. JAMES KELLOGG 
QUIGLEY & SCHECKMAN 
631 St. Charles Avenue 
New Orleans, Louisiana 70130 
{504) 524- 0016  



HALPIN 

St.Mary 
Lafayette, Louisiana 70506 
{313) 367-2207 

LANI GUINIER 
LEGAL DEFENSE FUND 
99 Hudson Street 
i6th Floor 
New York, New York 10013 
(212) 219-1900 

ARMAND DERFNER 
5520 33rd Sireet, N.U. 
Washington, D.C. 20015 
(202) 244-3151 

Attorneys for Plaintiffs 

SERVICE 

Th 
1 hereby certify that on tnis [5 day of February, 1985, 

a copy of the foregoing PLAINTIFFS' MEMORANDUM IN OPPOSITION 

TO DEFENDANTS MOTION TO COMPEL PURSUANT TO FRCP 37 was served 

upon the following counsel of record: 

Patricia Bowers, sq. 
Assistant Attorney General 
State of Louisiana 
Department of Justice 
7th Floor, 234 Loyola Bldg. 
New Orleans, Louisiana 70112-2096 

and was properly addressed and deposited in the United States 

Mail, postage prepaid. 

“A 7 [ 
OX Lh 0 Ans re ...... 

ATTORNEY on [PLAINTEFFS