UNITED STATES DISTRICT COURT TOM SCHEDLER in...

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

ROY FERRAND, LUTHER SCOTT, JR., andLOUISIANA STATE CONFERENCE OFTHE NAACP, for themselves and all otherpersons similarly situated,

v.

TOM SCHEDLER in his official capacity asthe Louisiana Secretary of State, RUTHJOHNSON, in her official capacity asSecretary of the Louisiana Department ofChildren & Family Services, and BRUCE D.GREENSTEIN, in his official capacity asSecretary of the Louisiana Department ofHealth & Hospitals,

CIVIL ACTION NO. 2:11-00926 JTM - JCW

DEFENDANT SCHEDLER’S MOTION TOCOMPEL FURTHER DEPOSITION OFPLAINTIFF, LUTHER SCOTT, JR. ANDLOUISIANA STATE CONFERENCE OFTHE NAACP AND TO GRANTSANCTIONS AGAINST THE PLAINTIFFS

THIS MOTION is made by defendant Tom Schedler, in his official capacity of Secretary of

State of the State of Louisiana (“Schedler”) pursuant to Rules 30 and 37 of the Federal Rules of Civil

Procedure, which empower the Court to issue an order compelling a response where a deponent fails

to answer a question during deposition and to impose an appropriate sanction on a party who

impedes, delays or frustrates fair examination of the deponent.

1.

Good cause exists to grant this Motion because counsel for the plaintiffs improperly

instructed Luther Scott, Jr. not to answer a number of questions in the deposition taken on May 10,

2012 (the “Scott Deposition”), Exhibit A, in at least one instance on the grounds of relevance and

on other occasions on the grounds of privilege and/or work product under circumstances indicating

that privilege and/or work product did not apply, and further because counsel’s constant objections

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Case 2:11-cv-00926-JTM-JCW Document 248 Filed 07/07/12 of 4

obstructed the fair examination of the deponent, all as more fully detailed in the supporting

memorandum filed herein.

2.

During at least three recesses in the Scott Deposition, plaintiffs’ counsel conferred with Scott

at some length “about issues that are the subject of this litigation”, and at the conclusion of each such

session, Scott emerged to give further testimony but refused to reveal the subject or content of the

conferences.

3.

On one occasion during the Scott deposition, his counsel interrupted the deponent’s answer,

rather than the examiner’s question, by interposing an objection in order to stop the deponent from

completing his answer.

4.

Counsel similarly obstructed the 30(b)(6) deposition of plaintiff Louisiana State Conference

of the NAACP taken on June 6 and 7, 2012 (the “Louisiana State Conference Deposition”), Exhibit

B, and improperly instructed the designated representatives of the Louisiana State Conference not

to answer numerous questions on the grounds of privilege and/or work product under circumstances

indicating that the invocation of privilege and/or work product was illegitimate. Counsel’s constant

objections also obstructed the fair examination of the deponent, all as more fully detailed in the

supporting memorandum filed herein.

5.

A “Catalog of Objections” made throughout the depositions is attached, Exhibit C.

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6.

Prior to bringing this Motion, counsel for Schedler conferred with the plaintiffs’ counsel in

good faith. Despite those efforts, counsel have been unable to resolve the matter without court

action.

SCHEDLER PRAYS that this motion be granted and that an order issue allowing Schedler

to complete a fair examination of the plaintiffs unobstructed by obstructive objections and for

sanctions to be determined by the Court.

Respectfully Submitted:

s/Celia R. Cangelosi CELIA R. CANGELOSIBar Roll No. 12140918 Government Street, Suite 101P.O. Box 3036Baton Rouge, LA 70821Telephone: (225) 387-0511Facsimile: (225) 387-3198Email: [email protected]

s/Carey T. Jones CAREY T. JONES Bar Roll No. 074748115 Vincent RoadP.O. Box 700Denham Springs, LA 70727Telephone: (225) 664-0077Facsimile: (225) [email protected]

Attorneys for Defendant, Tom Schedler in his officialcapacity as Louisiana Secretary of State

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mailto:[email protected]

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the above and foregoing “Defendant Schedler’s Motionto Compel Further Deposition of Plaintiff, Luther Scott, Jr. and Louisiana State Conference of theNAACP and to Grant Sanctions Against the Plaintiffs” was sent electronically or via U.S. First ClassMail, postage prepaid, to the following:

Ronald L. Wilson ([email protected])710 Poydras Street, Suite 4100New Orleans, LA 70139

Dale Ho ([email protected])Natasha Korgaonkar([email protected])Ryan P. Haygood ([email protected])99 Hudson Street, Suite 1600New York, NY 10013

Niyati Shah ([email protected])Michelle Rupp ([email protected]) Sarah Brannon ([email protected]) 737 ½ 8 Street SEth

Washington, DC 20003

Stephen R. Russo ([email protected])David McCay ([email protected]) Douglas L. Cade ([email protected])Kimberly L. Humbles ([email protected])Rebecca Claire Clement([email protected]) Department of Health & HospitalsBureau of Legal ServicesBienville Blvd.628 N. 4 Streetth

Baton Rouge, LA 70802

Amy Colby ([email protected]) Celia Alexander ([email protected])Eboni Townsend ([email protected]) Bureau of General CounselLouisiana Department of Children and FamilyServicesP.O. Box 1887Baton Rouge, LA 70821

Baton Rouge, Louisiana, this 7 of July, 2012.th

s/Celia R. CangelosiCELIA R. CANGELOSI

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EXHIBIT A

Case 2:11-cv-00926-JTM-JCW Document 248-1 Filed 07/07/12 Page 1 of 21

EXHIBIT B


EXHIBIT C


CATALOG OF OBJECTIONS

All of the objections made in the subject depositions are too numerous to list. Below is adescription of the most egregious and obstructive of the objections. The objections that are not asegregious and fall more into the category of clamorous are reflected in the deposition transcripts. Most were objections based upon relevance, which is a questionable discovery objection since thediscovery standard is whether the inquiry is likely to lead to relevant evident, but the relevancyobjections were not well founded in any event.

1. Deposition of Luther Scott, Jr. taken May 10, 2012

In a 78 page transcript, seven of which consisted of a read-back by the court reporter, 37objections were made. The witness was instructed not to answer a question seven times, one timeon relevance grounds.

Referencing the transcript pages at which the witness was told not to answer and refused toanswer:

At pages 6 - 7:Asked how he became involved in this litigation, the witness refused to answer on the

grounds of attorney client privilege. (This question was asked three times in the deposition, thesecond time at page 46 in order to obtain ruling from the magistrate judge, though the magistratejudge was unavailable at that time. The questions was posed a third time following a lengthy recesswhen the deponent conferred with his attorneys “about issues that are the subject of this litigation”at pages 54-55). After having conferred, the deponent responded to a limited extent and was theninstructed not to answer further.

At pages 37 - 38Asked if he would like to complete a voter registration form, the witness was advised not to

answer on relevance grounds, and he refused to answer. The instruction was not only improperunder FRCP 30(c)(2) but the questions goes to the heart of the deponent’s statutory standing to bringsuit as a person aggrieved under 42 U.S.C. §1973-gg(9).

At page 45Asked again if he would like to register to vote, the witness as again advised not to answer

on relevance grounds and refused to answer.

At page 46Asked again how he became involved in the litigation in order to seek a ruling from the

Magistrate Judge, the witness was, again, advised not to answer based on attorney/client privilegeand again refuse to answer.

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At pages 54 - 55Asked whether he conferred with his attorneys in the course of the deposition, the witness

was advised not to answer based on attorney/client privilege and refused to answer. (The witness’counsel admitted that counsel had conferred with the witness “about issues that are the subject of thislitigation” in the course of the deposition.

At pages 56 - 61 After the witness conferred with counsel during a lengthy recess, the witness and his counsel

apparently decided that the deponent been sufficiently woodsheded “about issues that are the subjectof this litigation” that the deponent was prepared to answer questions that he had previously beeninstructed not to answer. But even then, the constant stream of objections and instructions not toanswer did not allow meaningful inquiry into how the deponent came to be a plaintiff in thelitigation.

At page 60The witness’ attorney objected to the witness’ answer, not to answer the question posed to

the witness. The privilege, if any applied, belongs to the witness, and the attorney cannot stop thewitness from answering by objecting and instructing to answer no further when the question is notobjectionable and does not seek protected information.

The deposition was further obstructed by continuous objections, many on relevance grounds,some talking objections, some direct instructions on how the witness should answer, so that thedeposition questioning was constantly interrupted, lacked continuity and represents answers guidedby the witness’s counsel.

Schedler is entitled to inquire into how the witness became involved in the litigation andwhat steps he took to become a plaintiff. Additionally, the defendants are entitled to ask questionsconcerning the parameters of attorney client privilege and/or work product if an objection is to bemaintained on those grounds. Certainly, inquiry into whether the witness wants to register to voteis not only relevant but at the very heart of the case. Many of the questions that the witness declinedto answer requested facts, not communications with his attorneys, all questions that are notobjectionable and that do not in any respect implicate attorney client privilege or work product. Tothe extent that inquiry into the indicated areas may lead to further discoverable information,defendants are entitled to explore and question the witness fully on those matters.

2. 30(b)(6) Deposition of Louisiana State Conference of the NAACP taken June 6 - 7, 2012

a. Ernest Johnson:

Ernest Johnson was designated to testify on designated areas on behalf of the Louisiana StateConference. Although this segment of the 30(b)(6) deposition was not as obstructed by frivolousobjections as were some of the others, some objections and refusal to answer so limited legitimateinquiry that the deposition cannot be considered as complete.

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At pages 48 - 50, the witness was asked if he conferred with his counsel during a recess inthe deposition and was instructed not to answer whether he had conferred or not on the grounds ofprivilege and/or work product.

At pages 56 - 57, the witnesses testified that he had no knowledge about budgets for theLouisiana Conference. He was designated as the 30(b)(6) representative to testify about budgets. This goes to the heart of the issue of standing on the Louisiana State Conference claim that theorganization was required to expend funds as a result of the defendants conduct.1

At pages 83 - 84, when asked about how the Louisiana Conference became involved in thelitigation, he refused to answer on the grounds of attorney work product and attorney client privilege.

At page 89 the witness was unable to answer questions about budgets although he wasdesignated to testify about organizational budgets.

Throughout the deposition, objections obstructed and interfered with the defendants’ abilityto obtain needed discovery.

b. Reverend Edward W. “Chipps” Taylor, Jr.

At pages 9 - 10, the attorney indicates that they want to “correct” Mr. Taylors’ declarationfiled with the court when the declaration is supposedly that of Mr. Taylor.

At pages 13 - 14, the witnesses refused to answer questions about his employment withoutexplanation.

At pages 19 - 21, the witness is instructed not to answer and refuses to answer questions

At page 80, the witness was asked a fact question as to when he discovered that thedeclaration that he purportedly prepared and filed with the court contained errors. He was instructednot to answer on the grounds of attorney client communications.

At pages 81 - 85, similar objections and refusals to answer questions about the declarationthat the witness supposedly wrote obstructed questioning on a critical issue and prevented thedefendants from inquiring into the validity and veracity of the declaration. The witness wasinstructed not to answer whether he wrote or composed the statements in his declaration on groundsof attorney client communication and work product.

At pages 125 - 126, the witness refuses to answer what documents he reviewed when making

Plaintiffs counsel have responded to this objection and agreed to designate and make1

available for deposition a representative of the Louisiana State Conference on July 12, 2012 totestify about budgetary matters.

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his declaration on the grounds of attorney client privilege and work product. Again, this denies thedefendants the opportunity to test the declaration and/or its sources.

On two occasions, at pages 13 and 14, the witnesses refused to answer questions with noobjection and provided no basis for his refusal.

The witness was instructed not to answer and refused to answer 13 times (pp. 21, 24, 25, 42,43-44, 80, 81, 81-82, 82, 83, 84, 87-88, and 126, principally on the ground of work product andattorney client privilege.

The areas in which inquiry were blocked by objections and refusals to answer are critical tothe defense of the case and to the legitimacy of the objections themselves.

c. Alice Harris Lewis

There were 39 objections in a 40 page transcript.

At page 18, counsel for defendant Department of Children and Family Services was impelledto object to the constant interference and interruption of the deposition by meaningless objections.

At page 19, the witness was instructed not to answer as to whether she met or knows one ofthe other witnesses, Alvin Louis.

At page 21, the witness was instructed to answer the question only with a yes or no clearlyinterfering with the content of the witnesses testimony.

At page 28, the witness was instructed not to answer as to whether she was contacted by theNAACP Legal Defense Fund.

d. Alvin LouisThere were 29 objections in 23 pages of testimony.

At page 71 the witness was by his attorney to limit his answer to yes or no.

e. Jerome Boykin

There were 35 objections in 25 pages of testimony.

At page 88, the witness was stopped by from testifying as to who provided information tothe Louisiana Conference that state agencies were not giving public assistance and disability servicesapplicants the opportunity to register to vote. Even if the lawyer conveyed this factual informationit is not protected by privilege.

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At page 99, the witness was instructed not to answer as to who gave out the forms that wereused to conduct interviews on the grounds of attorney client privilege.

At page 101, the witness was again instructed not to answer on the same grounds.

At pages 105 - 106, the witness was instructed not to answer a series of questions about whoprovided information to the Terrebonne branch of the NAACP concerning state agencies notproviding the opportunity to register to vote.

3. Suggested Resolution

The only resolution is to re-take the depositions to make inquiry into those areas obstructedin the original depositions and to make further inquiry where the responses may lead.

Obviously, since the plaintiffs will not agree to retake the depositions and to pay the expense,an expeditious decision is required in view of deadlines pending for submissions of summaryjudgment evidence and the imminence of the trial.

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ROY FERRAND, LUTHER SCOTT, JR.,and LOUISIANA STATE CONFERENCEOF THE NAACP, for themselves and allother persons similarly situated,

v.

TOM SCHEDLER in his official capacityas the Louisiana Secretary of State, RUTHJOHNSON, in her official capacity asSecretary of the Louisiana Department ofChildren & Family Services, and BRUCED. GREENSTEIN, in his official capacityas Secretary of the Louisiana Departmentof Health & Hospitals,


CERTIFICATION OF GOOD FAITH ATTEMPT TO RESOLVE DISPUTE

I HEREBY CERTIFY that Defendant, Tom Schedler, in his official capacity as

Louisiana Secretary of State, through counsel, has made a good faith attempt to confer with

Plaintiff in an effort to resolve the dispute referred to in “Defendant Schedler’s Motion to

Compel Further Deposition of Plaintiff, Luther Scott, Jr. and Louisiana State Conference of

the NAACP and to Grant Sanctions Against the Plaintiffs” without court action by sending

the email/letter dated June 25, 2012, to plaintiff’s counsel, Exhibit 1. Plaintiff responded by

email/letter of June 28, 2012, Exhibit 2.


s/Celia R. Cangelosi CELIA R. CANGELOSIBar Roll No. 12140918 Government Street, Suite 101


P.O. Box 3036Baton Rouge, LA 70821Telephone: (225) 387-0511Facsimile: (225) 387-3198Email: [email protected]


Attorneys for Defendant, Tom Schedler in hisofficial capacity as Louisiana Secretary of State






v.



MEMORANDUM IN SUPPORT OFDEFENDANT SCHEDLER’S MOTIONTO COMPEL FURTHER DEPOSITIONOF PLAINTIFFS LUTHER SCOTT, JR.A N D L O U I S I A N A S T A T ECONFERENCE OF THE NAACP ANDTO GRANT SANCTIONS AGAINSTTHE PLAINTIFFS

MAY IT PLEASE THE COURT:

Defendant Tom Schedler, in his official capacity as Secretary of State of the State of

Louisiana (“Schedler”), moves the Court to compel the continuation and completion of the

individual deposition of plaintiff Luther Scott, Jr. taken May 10, 2012 and the 30(b)(6)

deposition of plaintiff Louisiana State Conference of the NAACP taken June 6 and 7, 2012

because the depositions were so obstructed by unwarranted objections and instructions not

to answer that Schedler could not conduct a fair examination of the plaintiffs.

Because the objections were so many, Schedler is unable to detail them in the text of

this memorandum. The most egregious objections are cataloged with reference to the pages

of the deposition transcripts on which they appear in the section of this memorandum headed

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“Catalog of Objections”.

ARGUMENT

The incessant flow of frivolous objections, instructions not to answer, talking

objections, and woodshedding deponents in the course of testifying so impeded the fair

examination of the plaintiffs that Schedler is entitled to an order under FRCP Rules 30, 37

requiring plaintiffs counsel to make the witnesses available for the completion of the

depositions and for sanctions.

1. Grounds for Refusing to Answer a Question

A deponent may be instructed not to answer a question or may refuse to answer only

when necessary to (1) to preserve a privilege, (2) to enforce a limitation ordered by the court,

and (3) to present a motion under Rule 30(d)(3). FRCP 30(c)(2) Relevance cannot form the

basis of an instruction not to answer.

2. Instructions Not to Answer Based On Attorney Client Privilege

The privilege protecting attorney-client communications is not absolute. The privilege

shields communications from the lawyer to the client only to the extent that the

communication is based on or may disclose confidential information provided by the client

or contain advice or opinion of the attorney. Wells v. Rushing, 755 F.2d 376, 379 n.2, (5 Cir

1985).

Not all communications between an attorney and client are privileged. Information

such as the identity of the client, the amount of the fee, the identification of the case file

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name, the general purpose of the work performed, and whether an attorney coached a

client in his testimony is not privileged. Brinko v. Rio Properties, Inc., 278 F.R.D. 576

(D.Nev. 2011), citing United States v. Carrillo, 16 F.3d 1046, 1050 (9 Cir. 1994). Similarly,

when an attorney is merely communicating information, the communications between the

attorney and the client are not privileged. Brincko, 583, citing United States v. Gray, 876

F.2d 1411 (9 Cir 1989).

A party claiming attorney-client privilege has the burden of proving it. United States

v. Kelly, 569 F.2d 928, 938 (5 Cir 1978).

The law is well established that facts and information within the witness’s own

personal knowledge are not privileged. Upjohn Co. v. United States, 449 U.S. 383, 395-396

(1981); (“The protection of the privilege extends only to communications and not to facts.

A fact is one thing and a communication concerning that fact is an entirely different thing.

The client cannot be compelled to answer the question, ‘What did you say or write to the

attorney?’ but may not refuse to disclose any relevant fact within his knowledge merely

because he incorporated a statement of such fact into his communication to his attorney.”)

A party cannot conceal a fact or refuse to disclose it merely by revealing it to his

attorney. Hawthorne Land Company v. Occidental Chemical Corporation, 2003 U.S. Dist.

LEXIS 11493, CA 01-0881 (E.D. La. 2003). Thus, a party may not refuse to disclose

relevant facts within his knowledge because those facts were communicated to an attorney.

Brincko v. Rio Properties, Inc., 278 F.R.D. 576 (D.Nev. 2011).

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3. Instructions Not to Answer Based On Work Product Protection

The work product doctrine protects against the disclosure of materials and data

developed by an attorney in litigation reflecting his thoughts, legal theories strategy and

mental impressions. Hickman v. Taylor, 329 U.S. 495 (1947). However, not every event

or document prepared in the course of the litigation become work product merely because

they may be consistent with some thought that the lawyer may have had about the case.

Moreover, work product protections are waived when the attorney requests the

witness to disclose information to the court voluntarily or when the attorney discloses the

information voluntarily. Shields v. Strum, Ruger & Co., 864 F.2d 379, 381-382 (5 Cir. 1989),

citing Fox v. Taylor Diving & Salvage Co., 694 F.2d 1349, 1356 (5 Cir. 1983). Work

product is waived when the disclosure of information has substantially increased the

opportunity for an adversary to obtain the information. Shields, 381-382.

4. Similar District Court Cases Decided Under Similar Circumstances

Two district courts recently considered motions to compel and for sanctions under

circumstances strikingly similar to the present and directed the offending parties to allow for

the requested discovery and to pay sanctions in the form of expenses and attorney’s fees for

the completion of the depositions that had been obstructed. See, Brincko v. Rio Properties,

Inc., 278 F.R.D. 576 (D. Nev. 2011) and LM Insurance Corp. v. ACEO, Inc., 275 F.R.D. 490

(N.D. Ill. 2011).

In Brincko, plaintiff’s expert was improperly instructed not to answer factual

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questions and further not to answer questions designed to explore the applicability of any

potential privilege. The court found that the deposition had been obstructed and ordered the

taking of the deposition a second time with the cost to be borne by the party whose counsel’s

conduct necessitated the retaking of the deposition.

The LM Insurance case dealt with improper coaching of a witness in the course of

giving deposition testimony. The court found counsel’s interruption of the deposition at a

critical point in questioning to be indefensible and ordered that the deposition be resumed

under judicial supervision and further found that counsel very well may have a conflict of

interest and ought not be allowed to act as counsel during the further discovery proceedings.

5. Catalog of Objections in the Present Case

All of the objections made in the subject depositions are too numerous to list. Below

is a description of the most egregious and obstructive of the objections. The objections that

are not as egregious and fall more into the category of clamorous are reflected in the

deposition transcripts. Most were objections based upon relevance, which is a questionable

discovery objection since the discovery standard is whether the inquiry is likely to lead to

relevant evidence, but the relevancy objections were not well founded in any event.

A. Deposition of Luther Scott, Jr. taken May 10, 2012

In a 78 page transcript, seven of which consisted of a read-back by the court reporter,

37 objections were made. The witness was instructed not to answer a question seven times,

one time on relevance grounds.

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Referencing the transcript pages at which the witness was told not to answer and

refused to answer:

At pages 6 - 7:

Asked how he became involved in this litigation, the witness refused to answer on the

grounds of attorney client privilege. (This question was asked three times in the deposition,

the second time at page 46 in order to obtain ruling from the magistrate judge, though the

magistrate judge was unavailable at that time. The questions was posed a third time

following a lengthy recess when the deponent conferred with his attorneys “about issues that

are the subject of this litigation” at pages 54-55). After having conferred, the deponent

responded to a limited extent and was then instructed not to answer further.

At pages 37 - 38

Asked if he would like to complete a voter registration form, the witness was advised

not to answer on relevance grounds, and he refused to answer. The instruction was not only

improper under FRCP 30(c)(2) but the questions goes to the heart of the deponent’s statutory

standing to bring suit as a person aggrieved under 42 U.S.C. §1973-gg(9).

At page 45

Asked again if he would like to register to vote, the witness as again advised not to

answer on relevance grounds and refused to answer.

At page 46

Asked again how he became involved in the litigation in order to seek a ruling from

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the Magistrate Judge, the witness was, again, advised not to answer based on attorney/client

privilege and again refused to answer.

At pages 54 - 55

Asked whether he conferred with his attorneys in the course of the deposition, the

witness was advised not to answer based on attorney/client privilege and refused to answer.

(The witness’ counsel admitted that counsel had conferred with the witness “about issues that

are the subject of this litigation” in the course of the deposition.)

At pages 56 - 61

After the witness conferred with counsel during a lengthy recess, the witness and his

counsel apparently decided that the deponent been sufficiently woodsheded “about issues

that are the subject of this litigation” that the deponent was prepared to answer questions that

he had previously been instructed not to answer. But even then, the constant stream of

objections and instructions not to answer did not allow meaningful inquiry into how the

deponent came to be a plaintiff in the litigation.

At page 60

The witness’ attorney objected to the witness’ answer, not to answer the question

posed to the witness. The privilege, if any applied, belongs to the witness, and the attorney

cannot stop the witness from answering by objecting and instructing to answer no further

when the question is not objectionable and does not seek protected information.

The deposition was further obstructed by continuous objections, many on relevance

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grounds, some talking objections, some direct instructions on how the witness should answer,

so that the deposition questioning was constantly interrupted, lacked continuity and

represents answers guided by the witness’s counsel.

Schedler is entitled to inquire into how the witness became involved in the litigation

and what steps he took to become a plaintiff. Additionally, the defendants are entitled to ask

questions concerning the parameters of attorney client privilege and/or work product if an

objection is to be maintained on those grounds. Certainly, inquiry into whether the witness

wants to register to vote is not only relevant but at the very heart of the case. Many of the

questions that the witness declined to answer requested facts, not communications with his

attorneys, all questions that are not objectionable and that do not in any respect implicate

attorney client privilege or work product. To the extent that inquiry into the indicated areas

may lead to further discoverable information, defendants are entitled to explore and question

the witness fully on those matters.

B. 30(b)(6) Deposition of Louisiana State Conference of the NAACP taken June6 - 7, 2012

a. Ernest Johnson:

Ernest Johnson was designated to testify on designated areas on behalf of the

Louisiana State Conference. Although this segment of the 30(b)(6) deposition was not as

obstructed by frivolous objections as were some of the others, some objections and refusal

to answer so limited legitimate inquiry that the deposition cannot be considered as complete.

At pages 48 - 50, the witness was asked if he conferred with his counsel during a

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recess in the deposition and was instructed not to answer whether he had conferred or not on

the grounds of privilege and/or work product.

At pages 56 - 57, the witnesses testified that he had no knowledge about budgets for

the Louisiana Conference. He was designated as the 30(b)(6) representative to testify about

budgets. This goes to the heart of the issue of standing on the Louisiana State Conference

claim that the organization was required to expend funds as a result of the defendants

conduct.1

At pages 83 - 84, when asked about how the Louisiana Conference became involved

in the litigation, he refused to answer on the grounds of attorney work product and attorney

client privilege. At page 89 the witness was unable to answer questions about budgets

although he was designated to testify about organizational budgets.

Throughout the deposition, objections obstructed and interfered with the defendants’

ability to obtain needed discovery.

b. Reverend Edward W. “Chipps” Taylor, Jr.

At pages 9 - 10, the attorney indicates that they want to “correct” Mr. Taylors’

declaration filed with the court when the declaration is supposedly that of Mr. Taylor.

At pages 13 - 14, the witnesses refused to answer questions about his employment

without explanation.

Plaintiffs counsel have responded to this objection and agreed to designate and make1

available for deposition a representative of the Louisiana State Conference on July 12, 2012 totestify about budgetary matters.

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At pages 19 - 21, the witness is instructed not to answer and refuses to answer

questions.

At page 80, the witness was asked a fact question as to when he discovered that the

declaration that he purportedly prepared and filed with the court contained errors. He was

instructed not to answer on the grounds of attorney client communications.

At pages 81 - 85, similar objections and refusals to answer questions about the

declaration that the witness supposedly wrote obstructed questioning on a critical issue and

prevented the defendants from inquiring into the validity and veracity of the declaration. The

witness was instructed not to answer whether he wrote or composed the statements in his

declaration on grounds of attorney client communication and work product.

At pages 125 - 126, the witness refuses to answer what documents he reviewed when

making his declaration on the grounds of attorney client privilege and work product. Again,

this denies the defendants the opportunity to test the declaration and/or its sources.

On two occasions, at pages 13 and 14, the witnesses refused to answer questions with

no objection and provided no basis for his refusal.

The witness was instructed not to answer and refused to answer 13 times (pp. 21, 24,

25, 42, 43-44, 80, 81, 81-82, 82, 83, 84, 87-88, and 126), principally on the ground of work

product and attorney client privilege.

The areas in which inquiry were blocked by objections and refusals to answer are

critical to the defense of the case and to the legitimacy of the objections themselves.

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c. Alice Harris Lewis

There were 39 objections in a 40 page transcript.

At page 18, counsel for defendant Department of Children and Family Services was

impelled to object to the constant interference and interruption of the deposition by

meaningless objections.

At page 19, the witness was instructed not to answer as to whether she met or knows

one of the other witnesses, Alvin Louis.

At page 21, the witness was instructed to answer the question only with a yes or no

clearly interfering with the content of the witnesses testimony

At page 28, the witness was instructed not to answer as to whether she was contacted

by the NAACP Legal Defense Fund.

d. Alvin Louis


At page 71 the witness was by his attorney to limit his answer to yes or no.

e. Jerome Boykin


At page 88, the witness was stopped by plaintiff counsel from testifying as to who

provided information to the Louisiana State Conference that state agencies were not giving

public assistance and disability services applicants the opportunity to register to vote. Even

if the lawyer conveyed this factual information it is not protected by privilege.

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At page 99, the witness was instructed not to answer as to who gave out the forms that

were used to conduct interviews on the grounds of attorney client privilege.

At page 101, the witness was again instructed not to answer on the same grounds.

At pages 105 - 106, the witness was instructed not to answer a series of questions

about who provided information to the Terrebonne branch of the NAACP concerning state

agencies not providing the opportunity to register to vote.

C. Suggested Resolution

The only resolution is to re-take the depositions to make inquiry into those areas

obstructed in the original depositions and to make further inquiry where the responses may

lead.

Obviously, since the plaintiffs will not agree to retake the depositions and to pay the

expense, an expeditious decision is required in view of deadlines pending for submissions

of summary judgment evidence (July 25, 2012) and the imminence of the trial (August 27,

2012).



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I HEREBY CERTIFY that a copy of the above and foregoing “Memorandum inSupport of Defendant Schedler’s Motion to Compel Further Deposition of Plaintiffs LutherScott, Jr. and Louisiana State Conference of the NAACP and to Grant Sanctions Against thePlaintiffs” was sent electronically or via U.S. First Class Mail, postage prepaid, to thefollowing:



Niyati Shah ([email protected])Michelle Rupp ([email protected]) Sarah Brannon ([email protected]) 1350 Eye Street NW, Suite 1250Washington, DC 20005



Amy Colby ([email protected]) Celia Alexander ([email protected])Eboni Townsend ([email protected])Bureau of General CounselLouisiana Department of Childrenren andFamily ServicesP.O. Box 1887Baton Rouge, LA 70821

Baton Rouge, Louisiana, this 7 day of July, 2012.th

s/Celia R. Cangelosi CELIA R. CANGELOSI

-14-















v.



NOTICE OF SUBMISSION

“Defendant Schedler’s Motion to Compel Further Deposition of Plaintiff, Luther

Scott, Jr. and Louisiana State Conference of the NAACP and to Grant Sanctions Against the

Plaintiffs” filed on July 7, 2012 is hereby noticed for submission on August 1, 2012, at 11:00

o’clock a.m.






I HEREBY CERTIFY that a copy of the above and foregoing “Notice of Submission”was sent electronically or via U.S. First Class Mail, postage prepaid, to the following:electronically or via U.S. First Class Mail, postage prepaid, to the following:



Niyati Shah ([email protected])Michelle Rupp ([email protected]) Sarah Brannon ([email protected]) 737 ½ 8 Street SEth

Washington, DC 20003



Amy Colby ([email protected]) Celia Alexander ([email protected])Eboni Townsend ([email protected]) Bureau of General CounselLouisiana Department of Children andFamily ServicesP.O. Box 1887Baton Rouge, LA 70821

Baton Rouge, Louisiana, this 7 of July, 2012.th

s/Celia R. CangelosiCELIA R. CANGELOSI
















ROY FERRAND, LUTHER SCOTT, JR., andLOUISIANA STATE CONFERENCE OFTHE NAACP, for themselves and all otherpersons similarly situated,

v.

TOM SCHEDLER in his official capacity asthe Louisiana Secretary of State, RUTHJOHNSON, in her official capacity asSecretary of the Louisiana Department ofChildren & Family Services, and BRUCE D.GREENSTEIN, in his official capacity asSecretary of the Louisiana Department ofHealth & Hospitals,


ORDER

Considering “Defendant Schedler’s Motion To Compel Further Deposition of

Plaintiff, Luther Scott, Jr. And Louisiana State Conference of the NAACP and To Grant

Sanctions Against The Plaintiffs”:

IT IS ORDERED that the depositions of Luther Scott, Jr. and the 30(b)(6) depositions

of the NAACP be retaken no later than the ____ day of __________________, 2012.

IT IS FURTHER ORDERED that the plaintiffs pay the expenses and attorney’s fees

associated therewith.

New Orleans, Louisiana, this ____ day of _________________________, 2012.

________________________________________JOSEPH C. WILKINSON, JR., Magistrate


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