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Martin v. City of Albuquerque

United States District Court, D. New Mexico

May 20, 2019



          JOHN F. ROBBENHAAR United States Magistrate Judge.

         THIS MATTER is before the Court on Plaintiffs' Motion to Compel the Production of Documents, filed February 25, 2019 (Doc. 68), and Defendant's Motion for Protective Order, filed March 1, 2019 (Doc. 70). Notices of Completion of Briefing were filed on April 4, 2019, and May 3, 2019. Docs. 84, 97. The Court, having reviewed the submissions of the parties and the relevant law, and being otherwise fully advised, FINDS that Plaintiffs' Motion to Compel is not well taken and is DENIED, and that Defendant's Motion for Protective Order is well taken and is GRANTED.


         On January 11, 2018, Plaintiffs brought their Complaint under 42 U.S.C. § 1983, the First and Fourteenth Amendments to the United States Constitution, and Article II, § 17 of the Constitution of the State of New Mexico, for declaratory and injunctive relief against the City of Albuquerque in response to the City's adoption of Council Bill O-17-51, codified at Albuquerque Code of Ordinances § 8-2-7-2 (the “Ordinance”). Doc. 1. Plaintiffs allege that the Ordinance, although framed as an effort to protect public safety, is part of an attempt to drive “panhandling” out of Albuquerque, and that it unnecessarily prohibits a significant amount of protected speech from taking place in long-used traditional public forums, is not narrowly tailored to the asserted safety concerns, and is overbroad and unconstitutional. Id.

         On January 30, 2019, Plaintiffs took the deposition of one of the City's Rule 30(b)(6) witnesses, Christopher Melendrez, a senior policy analyst for legal and land use matters for the City Council since approximately April of 2013. Docs. 68-1 at 2, 70 at 4. Mr. Melendrez is also an attorney with experience in, among other things, land use and city planning. Doc. 70 at 4. Mr. Melendrez had a central role in the drafting of the Ordinance at issue in this case. Id.

         During Mr. Melendrez's deposition, Mr. Melendrez explained that the development of the Ordinance followed an abandoned effort by Councilor Don Harris to introduce a bill that would impose limitations on “passive” panhandling. Doc. 70 at 4-5. When questioned about discussions Mr. Melendrez had with Councilor Trudy Jones about the abandoned bill and the Ordinance, Mr. Melendrez consulted with Attorney Tim Atler before answering. Id. at 5. After a short recess, the following exchange took place on the record:

Mr. Atler: So I would like to state for the record that the previous question called, in part, for disclosure of information that was sought for the purpose of obtaining legal advice, and we believe[] is privileged.
However, for the purposes of this case, we are willing to have a limited waiver of the privilege to discuss those conversations. But I just want to make it clear that that shouldn't be construed as a general waiver of any privileged communications Mr. Melendrez has had with any council member in any other matter.
Ms. Santos: Understood. Thank you.
Mr. Martin: And, Tim, just so I understand the scope of the waiver, this will be a subject matter waiver with respect to conversations concerning the ordinance that Mr. Melendrez had with the City Council?
Mr. Atler: Concerning both the ordinance that was being proposed by Councilor Harris and the ordinance that's the subject of this case.

Doc. 68-1 at 6, Doc. 70 at 5. Mr. Melendrez then proceeded to testify “for several hours.”[1]

         Plaintiffs' Motion to Compel

         In their Motion to Compel, Plaintiffs seek all privileged communications involving members of the City Attorney's office that relate to the Ordinance. Doc. 68 at 1. In support, Plaintiffs argue Defendant cannot selectively waive the privilege for some communications while asserting the privilege for others, and that the requirements for subject matter waiver set forth in Federal Rule of Evidence 502(a) are satisfied. Id. In particular, Plaintiffs contend that Mr. Melendrez voluntarily waived the attorney-client privilege as to his discussions with members of the City Council regarding the Ordinance; that they now seek only undisclosed privileged communications on the same subject matter involving all other members of the City Attorney's office; and that fairness requires the undisclosed communications be considered together with the communications over which the City has already waived privilege. Id. at 2, Doc. 82 at 12. Plaintiffs argue that Mr. Melendrez's testimony goes to the heart of Plaintiffs' claims regarding whether the Ordinance was proposed and adopted out of true safety concerns or because of content-based ...

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