Porter v. Baton Rouge Police Department

Citations: 218 So. 3d 150; 2016 La.App. 1 Cir. 0625; 2017 La. App. LEXIS 637Docket: 2016 CA 0625; 2016 CW 0850

Court: Louisiana Court of Appeal; April 12, 2017; Louisiana; State Appellate Court

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Joel G. Porter submitted a public records request on July 28, 2015, under La. R.S. 44:3(F) to the Baton Rouge Police Department (BRPD), seeking access to records and evidence related to the investigation of his wife, Denise Washington Porter's 1985 murder, for which he was a suspect. La. R.S. 44:3(F) allows immediate family members to request investigation-related materials ten years after an unnatural death, contingent on district court approval. The City/Parish responded, indicating that Porter had previously sought these documents in federal court, which had issued a protective order confirming his status as a suspect.

The district court ruled in favor of Porter, affirming his right to access all investigation records as the surviving spouse of the victim. The court ordered BRPD to provide copies and unlimited access to all related evidence and documentation by September 10, 2015. BRPD subsequently filed a supervisory writ application, which was denied by the appellate court, confirming the trial court's ruling on September 10, 2015.

After BRPD's partial compliance with the order, Porter filed a motion to enforce it. Following a hearing on October 15, 2015, the district court directed BRPD to comply fully with the original order and to compile a list of produced items. The Chief of Police was instructed to request information from other agencies, including the Attorney General's Office. On October 19, 2015, BRPD informed Porter's attorney that they had provided several documents and indicated that an evidence review would commence on October 22, 2015.

In compliance with the court’s order, on January 7, 2016, BRPD's attorney informed Mr. Porter’s attorney that an invoice for two Louisiana State Police crime lab reports was attached. Subsequently, Mr. Porter issued subpoenas for the deposition of Assistant Attorney General Matthew Derbes and for documents related to Ms. Porter’s death investigation. Derbes was served on January 28, 2016, for a deposition scheduled for January 29. The Attorney General’s Office filed a motion to quash the subpoenas, arguing that Derbes was a non-party and insufficient notice was provided, along with the absence of a required hearing to assess the information's protection. The district court stayed Derbes' deposition and scheduled a contradictory hearing for February 4, 2016. Following the hearing, the court requested post-hearing briefs regarding the Attorney General's possible involvement as a party and set another hearing for February 24, 2016. After this hearing, the court granted the motion to quash based on insufficient notice but denied it on other grounds, ordering Derbes' deposition within fifteen days to assess BRPD's compliance with a prior order regarding Mr. Porter’s entitlements under Louisiana law. A judgment was signed on March 8, 2016. The Attorney General’s Office sought a devolutive appeal, and subsequently an emergency application for supervisory review was filed, which led to a stay of proceedings pending appeal and a grant for a suspensive appeal on March 30, 2016. On June 27, 2016, Mr. Porter filed a writ application that was treated as an appellee brief, resulting in its denial. On June 6, 2016, the Attorney General's Office motioned the court to take judicial notice that it had voluntarily provided Mr. Porter with all relevant documentation on April 5, 2016, which Mr. Porter’s attorney acknowledged receipt of on his client’s behalf.

A judicially noticed fact must be indisputable, either generally known within the trial court's jurisdiction or verifiable through reliable sources. Courts can only take judicial notice of facts that are common knowledge among individuals of ordinary understanding. The Attorney General's Office requested judicial notice of the assertion that all relevant documents had been provided to Mr. Porter under La. R.S. 44:3(F). However, the letter from Mr. Porter’s attorney did not confirm that all public records had been provided, and the motion for judicial notice pertained to specific information rather than universally known facts. The determination of what constitutes sufficient compliance with La. R.S. 44:3 is a legal question beyond the public's general understanding. Consequently, the motion was denied. 

On appeal, the Attorney General raised two errors: the District Court's failure to require a hearing before issuing a subpoena to a lawyer in a representative capacity, and its denial of the motion to quash the subpoena for not meeting La. C.E. art. 508's requirements. La. R.S. 44:3, part of the Public Records Act, stipulates that after ten years from a non-natural death, law enforcement agencies must provide access to relevant records to the victim's immediate family, which includes the spouse, children, grandchildren, and siblings. This access encompasses examination, inspection, and use of such evidence in legal proceedings.

Louisiana Code of Evidence Article 507 governs the subpoena of lawyers in criminal cases. It establishes that a lawyer or their representative cannot be compelled to appear or testify about client information unless a court, after a contradictory hearing, finds that the information is not protected by privilege or work product rules, and that the following conditions are met: (1) the information is essential to an ongoing investigation or case; (2) the request is not intended to harass; (3) the subpoena specifies the information sought clearly and is limited in scope and timeframe; and (4) there are no alternative means to obtain the information. 

Additionally, failure to timely object to non-compliance results in a waiver of procedural protections but does not waive any privilege. A determination regarding the inapplicability of lawyer-client privilege does not bind the client unless they were notified and allowed to participate in the hearing. Exceptions to this rule apply in habitual offender cases for identity purposes and in post-conviction cases regarding ineffective assistance of counsel. The protections also extend to prosecutors at various governmental levels in Louisiana.

Article 508 outlines similar provisions for civil cases, specifying that a lawyer cannot be compelled to testify about client information unless the court determines, after a contradictory hearing, that the information is not privileged and essential to the case. The stipulations regarding harassment, specificity of subpoenas, and the lack of alternative means apply here as well. Failure to object to non-compliance also results in a waiver of procedural protections without waiving privilege.

A determination that lawyer-client privilege does not apply to testimony is not binding on the client unless they receive notice of the hearing's specifics and can participate fully. The provisions of Code of Civil Procedure Articles 863 and 1452(B) remain unaffected by this Article. The procedural protections outlined extend to state lawyers, including those employed by the Louisiana Legislature. The trial court has broad discretion in discovery matters. Mr. Porter has not requested public records from the Attorney General’s Office, which is not a party to his mandamus action against the BRPD. He seeks to subpoena a prosecutor to testify about an investigative file in a criminal case. Under Louisiana Code of Evidence article 508(A), a contradictory hearing is required to assess if the information sought is protected by privilege or work product rules. The terms 'shall' and 'may' indicate mandatory and permissive actions, respectively. The district court erred in denying the motion to quash the subpoena for Mr. Derbes’s deposition, as a hearing is necessary to confirm the information’s disclosure is not protected. The subpoena must be specific, limited in scope, timely, and lack alternative means of obtaining the information. Despite the mandatory hearing, little relevant information is expected from Mr. Derbes since the Attorney General’s Office is not involved in the suit. A prior order required the deposition to ascertain compliance by the BRPD with prior directives regarding Mr. Porter’s entitlements under Louisiana law. Only a single interrogatory directed at the Attorney General’s Office is suggested to fulfill this requirement.

The judgment denying Mr. Derbes's motion to quash the subpoena for his deposition is reversed, and the case is remanded to the district court for further proceedings. The court denies the Attorney General’s Office's motion for judicial notice regarding the documents provided to Mr. Porter under La. R.S. 44:3(F). Joel G. Porter's writ application is denied and treated as his appellee brief. Costs of the appeal are assessed against Mr. Porter. Additionally, a Senior Special Assistant Parish Attorney clarified that the Baton Rouge Police Department (BRPD) is not a legal entity, and the proper defendant is the City of Baton Rouge/Parish of East Baton Rouge.