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2/21/01

SUPREME COURT OF LOUISIANA

No. 00-C-1157

JOHN M. LANDIS Versus DOUG MOREAU, Individually, and in His Capacity as DISTRICT ATTORNEY FOR THE 19TH JUDICIAL DISTRICT, PARISH OF EAST BATON ROUGE ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE

JOHNSON, Justice We granted writ of certiorari to determine whether witness statements, recorded prior to trial, otherwise accessible under the Public Records Act, are immune from inspection under the attorney work product doctrine after final adjudication of the criminal proceedings. We hold: 1) the Public Records Act does not specifically exempt the audiotapes at issue; 2) audiotapes are "tangible things" and are not exempt from discovery pursuant to La. Code Civ. P. art. 1424; 3) mental impressions, conclusions, opinions, and theories of an investigator are not protected under the attorney work product rule. Accordingly, we reverse the lower courts' rulings that the audiotapes are not discoverable in toto. We order that the audiotapes be transcribed by an official court reporter while remaining under seal, and we remand this matter to the trial court for an in camera inspection of the transcriptions of the tapes to determine whether any portions of the tape recorded statements are discoverable in that they do not contain an attorney's or expert's mental impressions, conclusions, opinions, or theories. FACTS AND PROCEDURAL HISTORY

Plaintiff, John M. Landis, was appointed by this court to represent Dale Craig in connection with Craig's claims for post-conviction relief following his conviction for first-degree murder and a sentence of death.1 In connection with his representation of Craig, plaintiff served upon defendant, Doug Moreau, the District Attorney for East Baton Rouge Parish, a written request, seeking to inspect and copy the public records in his custody and control, regarding the investigation, arrest, and prosecution of Dale Craig and his co-defendants, pursuant to the Public Records Act, La. R.S. 44:1, et seq. In response to plaintiff's request, defendant made available for inspection and copying materials represented to be all items responsive to the request. Defendant withheld audiotapes containing statements of witnesses interviewed by the district attorney's office during the investigation of the case, contending that the recordings were not discoverable as they were privileged under the attorney work product rule.

Plaintiff filed a petition for writ of mandamus against defendant in his capacity as district attorney, seeking to compel defendant to produce the materials withheld from the response to plaintiff's request for discovery. Plaintiff contends that defendant improperly withheld certain materials, including tape recorded and written statements of potential and actual trial witnesses, and/or notes from interviews with such witnesses, on the grounds that these materials are protected under the attorney work product privilege. A formal hearing on the mandamus petition was never held. However, after three status conferences, the trial court ruled that the audio taped witness statements were not subject to disclosure under the Public Records doctrine. After performing
1

The criminal litigation in which Craig was convicted is final and unappealable. This court affirmed the conviction and sentence, (See State v. Craig, 95-2599 (La. 5/29/97), 699 So.2d 865), and the United States Supreme Court denied certiorari. 522 U.S. 935, 118 S.Ct. 343, 139 L.Ed.2d 266 (1997). 2

an in camera inspection of the remainder of the district attorney's files, the trial court ordered Moreau to produce the following items to plaintiff: 1. A March 9, 1993 letter to James LaVigne and Francis Rougeou, his attorney, regarding a proposed plea agreement. 2. Original and follow-up reports provided by the East Baton Rouge Parish Sheriff's Office, Office of State Fire Marshal, and State Police Crime Lab on Dale Dwayne Craig, James Conrad LaVigne, and Zebbie Wayne Berthelot. 3. The Juvenile Court summary dated March 15, 1991, in petition number 64,264 on Dale Dwayne Craig. The trial court then concluded that all other documents were not discoverable because they "were found to contain mental impressions of the District Attorney." Plaintiff appealed the trial court's ruling, and in an unpublished opinion, the court of appeal affirmed the trial court's decision. Landis v. Moreau, 99-298 (La.App. 1 Cir. 3/31/00). Plaintiff filed an application for writ of certiorari with this court, and by order dated September 22, 2000, this court granted the writ application. Landis v. Moreau, 00-1157 (La. 9/22/00), ___ So.2d ___. DISCUSSION Plaintiff contends that the tape recorded statements are not exempt from disclosure as an attorney work product under the Public Records Act, La. R.S. 44:1 et seq., which as a general rule, makes available for inspection and reproduction "any public record" not specifically exempted from the Act's broad scope. See La. R.S. 44:31. La. Const. art. XII

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