United States District Court, D. New Mexico
JOHN MARTIN, RHONDA BREWER, DAVID McCOY, MARY O'GRADY, and MARISSA ELYSE SANCHEZ, Plaintiffs,
CITY OF ALBUQUERQUE, Defendant.
ORDER DENYING PLAINTIFFS' MOTION TO COMPEL AND
GRANTING DEFENDANT'S MOTION FOR PROTECTIVE ORDER
F. ROBBENHAAR United States Magistrate Judge.
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
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.
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.
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.”
Motion to Compel
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 ...