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Skepnek v. Roper & Twardowsky, LLC

United States District Court, Tenth Circuit

November 18, 2013

WILLIAM J. SKEPNEK and STEVEN M. SMOOT, Plaintiffs,
v.
ROPER & TWARDOWSKY, LLC and ANGELA ROPER, Defendants.

ORDER

James P. O’Hara U.S. Magistrate Judge

The plaintiffs, William J. Skepnek and Steven M. Smoot, bring this diversity action against the defendants, Roper & Twardowsky, LLC, and Angela Roper, alleging among other things that defendants breached a contract regarding legal fees stemming from litigation in New Jersey. This matter comes before the court upon plaintiffs’ motion to enforce the court’s order of October 3, 2013 (doc. 132). For the reasons discussed below, plaintiffs’ motion is granted.

I. Background

The court’s October 3, 2013 order (doc. 129) contains a detailed recitation of the case’s relevant procedural background and facts underlying the case, and therefore the court does not repeat them here. Suffice it to say the court granted plaintiffs’ motion to compel, denied defendants’ motion for a protective order, and ordered defendants to produce responsive information to Requests for Production Nos. 6, 7, 10, and 11. Specifically, defendants were ordered to provide “all electronic communications between Angela Roper, Kenneth Thyne or anyone else associated with Roper & Twardowsky, LLC and the fifteen individuals listed by defendants in their motion to compel.” Defendants were ordered to produce this information by October 18, 2013.

On October 15, 2013, defense counsel Erica Barker, requested a two-week extension to produce the documents. Plaintiffs’ counsel agreed and gave defendants an extension until November 1, 2013. On October 30, 2013, Ms. Barker requested a second extension, until November 5, 2013, and promised to ship a disc of the documents via overnight delivery. On November 4, 2013, Ms. Barker e-mailed plaintiffs’ counsel a “Dropbox link” which contained some but not all of the documents defendants planned to produce.[1] Ms. Barker stated that “due to the ongoing limitations related to Ms. Roper’s health, the document production is not yet complete and should be finished by tomorrow afternoon….”[2] Notably, in the same e-mail, Ms. Barker stated that “Defendants are withholding as attorney client privilege all private email communications between Angela Roper and Ken Thyne and the clients.”[3]

Plaintiffs argue that defendants’ repeated challenge of the privilege issue despite the court’s previous rulings in plaintiffs’ favor on this issue is “flaunting the Court’s order and dragging the discovery of this case to a standstill.” Therefore, plaintiffs ask that the court “address under Rule 37(b) Defendants’ failure to produce the documents as instructed in the Court’s order of October 3, 2013; and … consider other appropriate relief as it deems just and proper.”[4]

Defendants assert that the court’s order does not address the issue of privilege and the court never ordered production of privileged documents. Defendants assert that they have complied with the court’s order and therefore plaintiffs’ motion should be denied. However, defendants state that if they “somehow misread your Honor’s October 3, 2013 order as compelling the production of privileged documents, then defendants request a hearing on the issue.”[5]

II. Discussion

On September 6, 2013, plaintiffs filed a motion to compel to make defendants provide meaningful and adequate responses to plaintiffs’ Third Set of Production Requests.[6] Specifically, at issue was the adequacy of defendants’ responses to Requests for Production Nos. 6, 7, 10, and 11. In their original responses, defendants had objected to these requests as seeking attorney-client privileged communications, among other reasons.[7] Significantly, however, in response to plaintiffs’ motion to compel, defendants argued that plaintiffs’ motion should be denied for failure to meet and confer and only objected to the requests as unduly burdensome, overly broad, and irrelevant. Defendants did not specifically address their previous assertion of the attorney-client privilege in response to these requests. Rather, defendants asserted that plaintiffs have already been “given access to confidential, privileged, attorney work-product, attorney privilege documents” and stated that two of its clients have submitted affidavits stating that they do not consent to the disclosure of all email communications they had with their attorneys at Roper & Twardowsky.[8]

The duty to raise the issue of privilege in response to plaintiffs’ motion to compel rested with defendants, not plaintiffs. If defendants intended to rely upon objections of privilege, defendants had the burden to assert those objections and support them in opposing the motion to compel. Their failure precludes them from now relying upon the objections. They abandoned them.[9]

Even were the court to indulge defendants and construe the reference to two client affidavits in response to plaintiffs’ motion to compel as a reassertion of the attorney-client privilege, defendants failed to meet their burden to support that privilege originally and in response to plaintiffs’ motion to compel. As the party asserting attorney-client privilege, defendants bear the burden of establishing that it applies.[10] To carry that burden, defendants had to make a “clear showing” that the asserted objection applies, “describe in detail the documents or information to be protected, and provide precise reasons for the objection to discovery.”[11] The detailed and specific showing required under Fed.R.Civ.P. 26(b)(5) is typically presented in the form of a privilege log.[12] A privilege log under District of Kansas precedent should include the following:

1. A description of the document explaining whether the document is a memorandum, letter, e-mail, etc.; 2. The date upon which the document was prepared; 3. The date of the document; 4. The identity of the person(s) who prepared the document; 5. The identity of the person(s) for whom the document was prepared, as well as the identities of those to whom the document and copies of the document were directed, including an evidentiary showing based on competent evidence supporting any assertion that the document was created under the supervision of an attorney; 6. The purpose of preparing the document, including an evidentiary showing, based on competent evidence, supporting any assertion that the document was prepared in the course of adversarial litigation or in anticipation of a threat of adversarial litigation that was real and imminent; a similar evidentiary showing that the subject of communications within the document relates to seeking or giving legal advice; and a showing, again based on competent evidence, that the documents do not contain or incorporate non-privileged underlying facts; 7. The number of pages of the document; 8. The party’s basis for withholding discovery of the document (i.e., the specific privilege or protection being asserted); and 9. Any other pertinent information necessary to establish the elements of each asserted privilege.[13]

Defendants have made no showing that they provided a privilege log when they originally withheld the information from discovery. They have made no showing that they submitted a privilege log to the court in response to the underlying motion to compel. Defendants did not even attach a privilege log in response to the present motion to enforce but only informed the court that they planned to submit one to plaintiffs.

Plaintiffs did attach defendants’ recently submitted privilege log as an exhibit to the former’s reply brief.[14] This privilege log was provided to plaintiffs after the court’s ruling on the underlying motion to compel and after responding to the instant motion to enforce. Defendants had the duty to timely provide the information required by Rule 26(b)(5) and they ...


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