United States District Court, D. Kansas
MEMORANDUM & ORDER ON PLAINTIFF'S MOTION TO COMPEL
KENNETH G. GALE, Magistrate Judge.
Before the Court is Plaintiff's Motion to Compel (Doc. 21). The dispute centers on a series of interrogatories and requests for production which seek information regarding communications Defendants had with counsel prior to the termination of Plaintiff's employment. Plaintiff claims the attorney-client privilege and work product doctrine were waived by production of documents in her personnel file as well as Defendants' use of the qualified immunity defense. Plaintiff also seeks certain information regarding computer equipment owned by Defendant City of Hays. Plaintiff's motion is GRANTED in part and DENIED in part for the reasons set forth below.
Plaintiff brings this lawsuit against her former employer, Defendant City of Hays, Kansas (Defendant City), as well as individual Defendants Toby Dougherty, the City Manager for Defendant City, and Donald Scheibler, Chief of Police for Defendant City. ( See generally Doc. 1.) Plaintiff brings various claims against Defendants for the allegedly wrongful termination of her employment. Specifically, she contends that she was improperly fired after submitting an affidavit in a lawsuit (hereinafter "Dryden lawsuit") brought by former Hays, Kansas Police Department Officer Blaine Dryden against Defendant City, Defendant Dougherty, and the former Chief of Police "alleging interference with his constitutional rights...." ( Id., at 3-4.) Plaintiff contends, in part, that her termination constituted an unlawful interference with her right to testify at trial in violation of the First Amendment, an unlawful interference with her right to speak on a matter of public concern, and a violation of public policy. Defendants deny Plaintiff's claims and contend that her employment was terminated "because she could not maintain confidentiality... misused city computers... and could not effectively work with her superiors." (Doc. 42, at 1.)
At issue are discovery requests regarding communications described by Plaintiff as "between the City and its attorneys asking if they would be legally justified in firing her, which the City has since used as the basis for several affirmative defenses and has voluntarily disclosed" to Plaintiff. (Doc. 21-1, at 2.) Plaintiff continues that because Defendants "placed advice they received from their attorneys into [Plaintiff's] personnel file, produced it to her in discovery, and relied on such advice to claim their actions were lawful' and in good faith, ' [Plaintiff] believes they have waived attorney-client privilege and work product protection as to this advice." ( Id. ) Plaintiff also seeks certain information regarding Defendant City's computers "[b]ecause of the City's shifting explanations for why [Plaintiff] was fired...." ( Id. )
The referenced document that had been placed in Plaintiff's personnel file and voluntarily produced in discovery was titled "Time Line With Firma" and included an entry for May 10, 2012, written by Defendant Scheibler, which stated in part: "I was contacted... by Peter Maharry and was questioned about an affidavit that Firma had signed in the Dryden lawsuit.... I spoke with [attorney] John Bird and he agreed with concerns about confidentiality. John Bird spoke with Peter and then called me back and he stated that the City would be justified in moving forward." (Doc. 21-6, at 1.) The time line also indicates that Scheibler met with John Bird the next day and confirmed that Bird was "ok" with Defendant City terminating Plaintiff's employment. Id., at 2. Plaintiff has propounded an Interrogatory and five Requests for Production seeking information, documents, and/or ESI relating to conversations between Defendant City's employees and attorneys Mr. Bird and/or Mr. Maharry relating to Plaintiff's employment or the termination thereof. (Doc. 21-1, at 5-6.)
Defendant objects to producing this information on the basis of the attorney-client privilege and work product doctrine. Plaintiff contends that the information disclosed in the time line constitutes a waiver of the attorney-client privilege.
A. Attorney-Client Privilege.
Federal court jurisdiction in this case is based on Plaintiff's claims arising under the United States Constitution as well as a federal statutory scheme, 42 U.S.C. § 1983. (Doc. 1, at 2.) As such, federal law provides the rules of decisions as to the application of the attorney-client privilege. Fed.R.Evid. 501. Under federal common law, the essential elements of the attorney-client privilege are: (1) where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except if the protection is waived. Marten v. Yellow Freight Sys., Inc., No. 96-2013-GTV, 1998 WL 13244, *5 (D. Kan. Jan. 6, 1998) (citation omitted).
The privilege protects confidential communications by a client to an attorney made in order to obtain legal assistance from the attorney in his capacity as a legal advisor.' The privilege also protects advice given by the lawyer in the course of representing the client. The privilege protects communications with in-house counsel as well as outside attorneys. The privilege, however, is to be extended no more broadly than necessary to effectuate its purpose.'
New Jersey v. Sprint Corp., 258 F.R.D. 421, 425 (D. Kan. 2009) (citations omitted).
The importance of the attorney-client privilege in American jurisprudence is well-established. See Cincinnati Ins. Co. v. M.S. ex rel. Serrano, No. 11-2075-JAR/KGG, 2011 WL 6304086 (D. Kan. Dec. 16, 2011) (citing Milavetz, Gallop &Milavetz, P.A. v. U.S., 130 S.Ct. 1324, at n.5 (2010) (holding that the attorney-client privilege is an important "means of protecting that relationship and fostering robust discussion" between a party and its counsel)). As such, waivers of the privilege are to be narrowly construed. Id.
Plaintiff claims that Defendants waived the attorney-client and work product doctrine "by voluntarily disclosing the advice they received, and by placing it into [Plaintiff's] personnel file as the justification [Defendant City] used to fire" ...