United States District Court, D. Kansas
MEMORANDUM AND ORDER
KENNETH G. GALE, Magistrate Judge.
Before the Court is Plaintiff's "Motion to Defendant City of Hays Kansas to Produce Documents Listed on its January 9, 2014 Privilege Log." (Doc. 36.) For the reasons set forth below, Plaintiff's motion is DENIED.
A. Nature of Case.
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.)
B. Nature of Motion.
In response to various requests for production, the parties agreed to have Defendant City search its e-mail server for messages containing certain agreed terms, including "Firma" and "Helget." Defendant produced documents in two sets, including privilege logs for each set. Plaintiff contends that according to the second privilege log (dated January 9, 2014), 66 e-mail messages were withheld, "[b]ut multiple e-mails withheld are neither to' nor from' any of the City's attorneys, and their descriptions do not describe any sufficient bases for the attorney-client privilege' to apply." (Doc. 36-1, at 2.)
Defendant responds that the privilege applies even if counsel for the City was not copied on the e-mail because the e-mails were between employees of Defendant City at the direction of counsel and "meant to gather information to aid counsel in providing legal representation to the City, " in particular regarding discovery requests. (Doc. 52, at 2-3.) Defendant also argues that the descriptions in the privilege log are sufficient. ( Id., at 6.) The Court will address both of the issues Plaintiff has raised in turn.
A. Application of Attorney-Client Privilege.
The undersigned Magistrate Judge has recently discussed the attorney-client privilege in a previous Order in this case, holding that 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. 97, at 4.) Thus, as previously stated, federal law provides the rules of decisions as to the application of the attorney-client privilege. ( Id.; 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 ...