United States District Court, S.D. West Virginia, Huntington Division
A.E. and E.W., Plaintiffs,
JOSHUA NIELD, CITY OF HUNTINGTON, WEST VIRGINIA, and, JOHN DOES 1-7, INDIVIDUALS, Defendants.
J. ABOULHOSN UNITED STATES MAGISTRATE JUDGE
January 4, 2019, Plaintiff filed their Motion to
Compel Defendant City of Huntington
to Produce Grand Jury Materials.
[ECF No. 172] On January 7, 2019, the undersigned held an
informal telephone conference on the matter: participating on
behalf of Plaintiffs were Timothy L. Eves, Esq. and Omar D.
Ahmad, Esq. and on behalf of the City of Huntington,
Nathanial A. Kuratomi, Esq. Counsel for Defendant Nield did
not participate in the telephone conference.
request an order from this Court directing the City of
Huntington to produce those documents identified as Bates No.
COH001260-001288 or alternatively, for an in camera
review to determine the City of Huntington's asserted
privilege for not producing these documents. Plaintiffs assert
that the documents are not privileged, but were prepared by
Detective Backus in the normal course of an investigation of
an officer of the Huntington Police Department, and not at
the behest of Defendant Nield or his attorney. Plaintiffs
further assert that even if the City of Huntington's
claim of privilege was valid, it is not an absolute bar to
discovery of this information, pursuant to the exception
provided under Rule 26(b)(3)(A).
City of Huntington asserts that the documents are
“potentially' protected by a privilege, as they
contain the mental impressions of
“counsel”, therefore attorney work product, as they
are related to potential grand jury testimony with respect to
the criminal investigation of Defendant Nield.
initial matter, the undersigned scheduled the informal
conference very quickly after Plaintiffs filed their
Motion and that Defendant City of
Huntington has not yet filed a formal response to the
Motion, however, as the discovery
deadline is January 15, 2019, and this discovery issue only
recently arose during the holidays and on the eve of a
discovery deposition which had to be rescheduled to January
9, 2019, the undersigned was compelled to address Plaintiffs
Motion as soon as possible.
reviewed the documents in camera, the undersigned
notes that none of them were prepared by counsel but were
wholly prepared by the investigating officer into the alleged
criminal conduct of Defendant Nield, the subject of this
civil action. Indeed, despite not having filed a formal
response to Plaintiffs' Motion,
Defendant City of Huntington relies only upon the attorney
work product privilege with respect to these documents,
however, cites no additional legal authority in support of
the asserted privilege. The undersigned further notes that
the investigative officer that prepared the documents was not
represented by counsel, and that the Cabell County
Prosecuting Attorney did not and does not represent the
investigating officer in the criminal matter or in this civil
the undersigned FINDS the documents, Bates
numbered COH001260-001288, are relevant and proportional to the
needs of this case and that Plaintiffs have demonstrated a
substantial need for these materials - this need is
underscored by the Plaintiffs' continued pursuit of the
grand jury transcript in connection with this case which for
reasons unknown, has been allegedly rebuffed by the Cabell
County Prosecuting Attorney. In short, the materials requested
are the product of the Huntington Police Department's
investigation of Defendant Nield that is the basis of
Plaintiffs' Complaint, and the Plaintiffs have
demonstrated undue hardship despite their best efforts to
obtain these documents or their equivalent. Furthermore, the
Court FINDS that the City of Huntington has
failed to cite any legal authority that would preclude the
disclosure of the documents pursuant to a
Plaintiffs' Motion [ECF No.
172] to compel the production of the documents Bates Nos.
COH001260-001288 is therefore
Clerk is further requested to send a copy of this Order to
counsel of record. ENTER: January 8, 2019.
 Just prior to the telephone
conference, Defendant City of Huntington agreed to an in
camera review of the requested documents. During the
telephone conference, counsel for Defendant City of
Huntington emailed the documents ex parte to the
undersigned for in camera review.
 During the informal conference,
Counsel for the City of Huntington indicated that the
privilege log produced in this matter (see ECF No. 173-3)
contained “potential” privileges. It should be
noted that the privilege log does not cite any legal
authority (case law, statutory, or otherwise) for the Court
to evaluate any basis of privilege that would preclude
disclosure of the documents in question.
 During the informal conference, it was
clear to the undersigned that the “counsel”
referenced was the Prosecuting Attorney of Cabell County. It
is the undersigned's opinion that the Prosecuting
Attorney of Cabell County is not “counsel” for an
investigating officer in a criminal investigation. The role
of the Prosecuting Attorney of Cabell County and the role of
an investigating officer do not fall under the definition of
an attorney-client relationship. Each party has a distinct,
yet independent role to undertake in criminal investigations
and prosecutions. Important among those independent roles is
the fact that prosecutors must disclose incriminating and