Directv, LLC v. Tor T. Bridges, Ernest F. Colbert, Jr. and State Farm Mutual Automobile Insurance Company Consolidated With Tor T. Bridges v. Ernest F. Colbert, Jr. and State Farm Mutual Automobile Insurance Company

DIRECTV, LLC NO. 21-C-646

VS. FIFTH CIRCUIT

TOR T. BRIDGES, ERNEST F. COLBERT, JR. COURT OF APPEAL
AND STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY STATE OF LOUISIANA

CONSOLIDATED WITH

TOR T. BRIDGES

VS.

ERNEST F. COLBERT, JR. AND STATE FARM
MUTUAL AUTOMOBILE INSURANCE
COMPANY

January 21, 2022

Nancy F. Vega
Chief Deputy Clerk

IN RE STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY AND ERNEST F. COLBERT, JR.,
DAVID W. AIKEN, JR., M.D.

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE E. ADRIAN ADAMS,
DIVISION "G", NUMBER 780-143 C/W 780-395

Panel composed of Judges Jude G. Gravois,
Stephen J. Windhorst, and Hans J. Liljeberg

WRIT GRANTED IN PART, DENIED IN PART, AND REMANDED
WITH INSTRUCTIONS

In this personal injury suit arising from an automobile accident, plaintiff, Tor
T. Bridges, filed a “Third Re-Notice of Deposition for Records Only” directed to
defendants, Ernest F. Colbert, Jr. and State Farm Mutual Automobile Insurance
Company, and a “Subpoena Duces Tecum For Deposition” directed to Dr. David
W. Aiken, M.D., an expert retained by defendants, State Farm and Mr. Colbert. In
response, defendants filed a “Motion to Quash Subpoena Duces Tecum to David
W. Aiken, M.D. and for Protective Order.” On September 22, 2021, following a
hearing on the matter, the trial court granted the motion to quash in part, denied it
in part, and ordered the production of ten requests for information. Relators,
defendants and Dr. Aiken, in proper person, filed this writ application seeking this
Court’s supervisory review of the trial court’s ruling. Relators specifically object
to producing the following items contained in the trial court’s judgment:

(1) A copy of your entire file pertaining to any and all work that you
have performed or been asked to perform in connection with the
instant litigation (780-143 Direct TV, LLC v. Tor T. Bridges, et al
consolidated with 780-395 Tor T. Bridges v. State Farm Mutual
Automobile Insurance Company and Ernest F. Colbert, Jr.);
including but not limited to the following:

a. All correspondence, faxes, emails, and any other written
communications received by you pertaining to the above-
referenced matter;

b. All correspondence, faxes, emails, and any other written
communication sent by you or on your behalf to the
attorneys or other representatives for the defendants, State
Farm Mutual Automobile Insurance Company and Ernest
F. Colbert, Jr., in connection with the above-referenced
matter; …
***

(7) For the years 2018-2021, with respect to matters that you have
been retained to provide expert testimony/opinion, please provide
the following information:

a. Case Caption
b. Whether the opinion was given via in court or deposition
testimony.

(8) A statement with supporting financial records indicating the
portion of your income derived from the medical examination of
the plaintiff in the instant litigation, Tor T. Bridges.

Item One
In their writ application, relators object to the production of the
information requested in Items (1)(a) and (1)(b), specifically the production
of correspondence and emails between defense counsel’s office and Dr.
Aiken, as well as Dr. Aiken’s notes and memos.1 Relators argue that this
information is protected by the attorney-client privilege standards set forth in
La. C.E. art. 506, the work-product privilege contained in La. C.C.P. art.
1424(A), and the “expert discovery rule” set forth in La. C.C.P. art. 1425(E).
In his opposition to the motion to quash, plaintiff argued that in a
previous case, Dr. Aiken examined plaintiff and rendered an expert opinion,
and thus that is good cause for the subject discovery because it bears upon
his potential bias against personal injury litigants and his credibility as an
expert at trial. Regarding the alleged privileged information, plaintiff argued
that relators have not made any showing to them or to the court to determine
whether any particular document would reveal defense counsel’s mental
impressions, conclusion, opinions, or legal theories. Plaintiff noted that as a
practical matter, they do not object to redaction of any portion(s) of the

1
Relators note that they are not objecting to the production of any of Dr. Aiken’s reports,
as those have already been shared.

requested documents that reveal those limited categories of protected
information.

La. C.C.P. art. 1425, regarding expert discovery, provides in pertinent
part:

B. Upon contradictory motion of any party or on the court’s own
motion, an order may be entered requiring that each party that has
retained or specially employed a person to provide expert
testimony in the case or whose duties as an employee of the party
regularly involve giving expert testimony provide a written report
prepared and signed by the witness. The report shall contain a
complete statement of all opinions to be expressed and the basis
and reasons therefor and the data or other information considered
by the witness in forming the opinions. The parties, upon
agreement, or if ordered by the court, shall include in the report
any or all of the following: exhibits to be used as a summary of or
support for the opinions; the qualifications of the witness,
including a list of all publications authored by the witness within
the preceding ten years; the compensation to be paid for the study
and testimony; a listing of any other cases in which the witness
has testified as an expert at trial or by deposition within the
preceding four years.

***

E. (1) The expert’s drafts of a report required under Paragraph B of
this Article, and communications, including notes and
electronically stored information or portions thereof that
would reveal the mental impressions, opinions, or trial
strategy of the attorney for the party who has retained the
expert to testify, shall not be discoverable except, in either
case, on a showing of exceptional circumstances under which
it is impractical for the party seeking discovery to obtain facts
or opinions on the same subject by other means.

(2) Nothing in this Article shall preclude opposing counsel from
obtaining any facts or data the expert is relying on in forming
his opinion, including that coming from counsel, or from
otherwise inquiring fully of an expert into what facts or data
the expert considered, whether the expert considered
alternative approaches, or into the validity of the expert’s
opinions.
Paragraph E of Article 1425 was added in 2007 to protect from
discovery drafts of required expert reports and communications with
testifying experts that would reveal the attorney’s mental impressions,
opinions, or trial strategy, without sacrificing full discoverability of facts and
data supporting the expert’s opinions. If documents or electronically stored
information contain both facts and protected material of an attorney, the
court may order production subject to redaction. See La. C.C.P. art. 1425,
Revision Comment –2007.

In ruling on discovery matters, the trial court is vested with broad
discretion, and, upon review, an appellate court should not disturb such

rulings absent a clear abuse of discretion. Khoobehi Props., LLC v. Baronne
Dev. No. 2, L.L.C., 16-506 (La. App. 5 Cir. 3/29/17), 216 So.3d 287, 303,
writ denied, 17-0893 (La. 9/29/17), 227 So.3d 288.

Because the transcript of the hearing on the motion to quash is not
included in the writ application, it is unclear what actually happened at the
hearing on the motion. However, upon review of the writ application and
the attachments thereto, on the showing made, we find the trial court erred in
its ruling to the extent that Items (1)(a) and (1)(b) allow for
“communications, including notes and electronically stored information or
portions thereof that would reveal the mental impressions, opinions, or trial
strategy” of defendants’ attorneys. See La. C.C.P. art. 1425(E)(1). Thus, we
grant this writ application in part for the limited purpose of ordering the trial
court to conduct an in camera inspection and redaction of the portions of the
requested documents that reveal defendants’ attorneys’ “mental impressions,
opinions, or trial strategy.”

Item Seven
Next, relators argue that Item Seven is overbroad, vague, and
burdensome. As shown above, Item Seven requests:

(7) For the years 2018-2021, with respect to matters that you have
been retained to provide expert testimony/opinion, please provide
the following information:

a. Case Caption

b. Whether the opinion was given via in court or deposition
testimony.

Relators argue that they are objecting to the creation of a document
listing the case captions of all cases where Dr. Aiken was “retained to
provide expert testimony/opinion” but which did not result in a trial or
deposition testimony. Relators allege that Dr. Aiken has between 13,000-
15,000 patient charts that he keeps by patient name, and he would have to go
through each file manually to provide this information.
Upon review, we find no error in the trial court’s ruling ordering the
production of information requested in Item Seven. La. C.C.P. art. 1425(B)
specifically provides that the court can order that the expert report include “a
listing of any other cases in which the witness has testified as an expert at
trial or by deposition within the preceding four years.” (Emphasis added.)
We find that Item Seven simply seeks precisely the particular information
allowed in the statute for the period of time allowed in the statute. Thus, we
find no merit to this argument.

Item Eight
Finally, relators argue that Item Eight calls for a document that is redundant
and irrelevant. Item Eight seeks a “statement with supporting financial records
indicating the portion of your income derived from the medical examination of the
plaintiff in the instant litigation, Tor T. Bridges.” Relators contend it is redundant

because Dr. Aiken is called to also produce his invoices pursuant to Item Ten. 2
They argue that to the extent this request requires that Dr. Aiken breakdown the
invoice amounts to determine his income separated from overhead, employee pay,
etc., it is burdensome. They also argue that the information is irrelevant to the
subject of the present suit and just constitutes a “fishing expedition.” La. C.C.P.
art. 1425(B) provides that the court can order that the expert report include “the
compensation to be paid for the study and testimony.”
Upon review, we find that plaintiff is not entitled to information found
outside the scope of this statute. Thus, we grant this writ in part and reverse the
trial court’s ruling in Item Eight of the judgment, but only insofar as it ordered the
production of information outside the scope of La. C.C.P. art. 1425(B). To the
extent (and only to the extent) that Item Eight seeks a statement with supporting
financial records indicating the “compensation” paid to Dr. Aiken for “the study
and testimony” in plaintiff’s case pursuant to La. C.C.P. art. 1425(B), we find no
error.

CONCLUSION
For the foregoing reasons, we grant this writ application in part, deny the
writ application in part, and remand the matter for an in camera inspection, as
more fully set forth above.

Gretna, Louisiana, this 21st day of January, 2022.

JGG
SJW
HJL

2
Item Ten requests:
Copies of any documents relating to and/or a listing of all payments made by
Ernest F. Colbert, Jr, State Farm Mutual Automobile Insurance Company, and/or
Direct TV L.L.C., or any of their affiliates and/or representatives, and/or law firm
Lohman, Carnahan, Batt, Angelle, & Nadar and/or the Legnard Law Firm, L.L.C.,
to Dr. David W. Aiken, Jr., with respect to the plaintiff in the instant litigation,
Tor T. Bridges.

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 01/21/2022 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

21-C-646
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable E. Adrian Adams (DISTRICT JUDGE)
Benjamin W. Gulick (Respondent) Gregory P. DiLeo (Respondent)

MAILED
Nicole L. Oddo (Respondent) Sidney J. Angelle (Relator) David W. Aiken, Jr., M.D. (Relator)
Attorney at Law Eric B. Berger (Relator) In Proper Person
300 Lafayette Street Attorney at Law 7030 Canal Boulevard
Suite 101 400 Poydras Street Suite 110
New Orleans, LA 70130 Suite 2300 New Orleans, LA 70124
New Orleans, LA 70130