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Littlepage v. Dukes

United States District Court, W.D. Kentucky, Owensboro Division

April 24, 2019

JEFFERY W. LITTLEPAGE PLAINTIFF
v.
WILLIAM DUKES, Jr, Individual capacity and CITY OF PROVIDENCE, KENTUCKY DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          H. BRENT BRENNENSTUHL, UNITED STATES MAGISTRATE JUDGE

         Background

         Defendant City of Providence, Kentucky, has filed a motion for protective order pursuant to Fed.R.Civ.P. 26(c) and 37(a)(5) (DN 40, 41). Plaintiff Jeffery Littlepage has filed a response (DN 43), and Providence has filed a reply (DN 44).

         Nature of the Case

         Defendant Dukes was employed as a police officer by the City of Providence (DN 1). Littlepage alleges that Dukes assaulted him and otherwise used excessive force under color of law in violation of Littlepage's constitutional rights (Id.). He has also asserted claims under state law for assault and malicious prosecution (Id.). In addition to suing Dukes in his individual capacity, Littlepage has asserted an official-capacity claim against Providence (Id.). The incidents that give rise to Littlepage's complaint occurred on May 25-26, 2016 (Id.).

         Littlepage filed this action on March 24, 2017, (DN 1). On June 26, 2018, Littlepage served a request for production of documents on Providence (DN 46-2 Exhibit C).

         Providence's Motion

         Providence seeks a protective order regarding documents prepared by Toni Ahl in her investigation of the facts and circumstances giving rise to this lawsuit as those documents are protected by the work-product doctrine and, therefore, not discoverable (DN 40, Motion).[1] The documents are identified in a privilege log that Providence served on Littlepage (DN 41 PageID # 183 n. 12; DN 46-3 PageID # 298-301 Exhibit D).

         In support of its motion, Providence has submitted the affidavit of its former Mayor, Eddie Gooch (DN 41-2 PageID # 197-98 Affidavit). Gooch indicates that on June 9, 2016, Littlepage's attorney sent a letter of representation to the City Attorney for Providence (DN 41-2 PageID # 197-98[2]; see DN 43-1, Exhibit 1 Letter). The letter includes a formal complaint, pursuant to KRS 15.520(3), against Dukes (DN 43-1, Exhibit 1 Letter). Gooch advises that Providence immediately retained outside legal counsel in anticipation of Littlepage litigating his claims (DN 41-2 PageID # 197-98).

         Gooch indicates that on June 10, 2016, Providence suspended Dukes pending an investigation into Littlepage's complaints (DN 41-2 PageID # 198). He also reports that on June 17, 2016, Officer Dukes' attorney sent a letter of representation to the City Attorney for Providence (Id.). The letter challenged the legitimacy of Officer Dukes' suspension (Id.).

         Gooch indicates that on the advice of outside legal counsel (retained to defend Providence against Littlepage's claims) and the City Attorney (handling Dukes' claims), Providence hired an outside third-party investigator named Toni Ahl (DN 41-2 PageID # 198). Gooch explains that Providence employed Ahl to perform an investigation “from an employer perspective regarding the factual circumstances surrounding Littlepage's asserted claims and Dukes' asserted employment claims (as threatened by his lawyer)” (Id. internal quotations omitted). According to Gooch, this was an investigation into Littlepage's complaints against Dukes which served as the basis for Providence suspending Dukes (Id.).

         Gooch indicates that the investigation into Littlepage's complaints concluded on January 13, 2017 (DN 41-2 PageID # 198). The same day, Providence filed a statement of charges against Dukes (DN 46-1 Exhibit 3). Gooch advises that the hearing on those charges was scheduled for February 15, 2017 (DN 41-2 PageID # 198). Two days before the hearing, February 13, 2017, Dukes wrote a letter to Providence claiming his statutory rights to a hearing prior to his termination had been violated and he was voluntarily resigning his position (Id.). Littlepage filed this action on March 24, 2017 (DN 1).

         Providence argues that it hired Ahl, an outside third-party investigator, to conduct the investigation pursuant to the advice of the City Attorney and retained outside legal counsel (DN 41 PageID # 186-87). Providence explains this advice came after attorneys representing both Dukes and Littlepage put Providence on notice of their clients' intent to make claims against Providence and potentially pursue their legal options (Id.). Providence asserts that Dukes' position and Littlepage's positions were necessarily in direct conflict with each other and the underlying facts and circumstances regarding Dukes' suspension/potential termination and Littlepage's formal complaint and threatened lawsuit were one in the same (Id. PageID # 187). Providence contends when it directed Ahl to prepare her report it had a subjective anticipation of litigation (both from Dukes and Littlepage) that was objectively reasonable given the threatened legal action by both parties (Id.). Furthermore, Providence argues it did not hire Ahl to conduct the investigation for a business purpose (Id. PageID # 187-90). Providence also argues that Littlepage has no substantial need for the statements Ahl collected in her investigation because she obtained them weeks after the incidents giving rise to this lawsuit and Littlepage had the opportunity to depose all the witnesses (Id. PageID # 190).

         Littlepage's ...


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