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Skepnek v. Roper & Twardowsky, LLC

United States District Court, D. Kansas

September 4, 2014



DANIEL D. CRABTREE, District Judge.

This matter comes before the Court on defendants' Motion for Review (Doc. 166) of two Orders issued by Magistrate Judge O'Hara and plaintiffs' Motion for Leave to File Amended Complaint (Doc. 199). For the reasons explained below, the Court denies defendants' Motion for Review and denies plaintiffs' Motion for Leave to Amend.

This lawsuit stems from a dispute over an alleged attorney fee sharing agreement be-tween plaintiffs William J. Skepnek and Steven M. Smoot and defendants Roper & Twardowsky, LLC and Angela Roper. Plaintiffs specialize in prosecuting legal malpractice actions. In 2001, defendant Roper contacted plaintiff Skepnek about an agreement that had been reached between Prudential Life Insurance Company of America, Inc. and New York law firm Leeds, Morelli & Brown to settle employment discrimination claims on behalf of 359 Prudential employees. In the fall of 2002, plaintiffs and defendants agreed to bring claims in New Jersey against Leeds, Morelli & Brown alleging malpractice arising out the Prudential settlement. The parties also agreed to handle the litigation jointly and to divide equally the legal fees collected. In 2010, the Prudential legal malpractice case settled. However, defendant Roper told plaintiff Skepnek that, except for a small group of clients, plaintiffs were entitled to no portion of the fees because they had abandoned the cases. On September 8, 2011, plaintiffs filed this lawsuit seeking to recover attorneys' fees allegedly owed them by defendants under the fee sharing agreement.

I. Defendants' Motion for Review (Doc. 166)

A. Background

Defendants' motion seeks review of Judge O'Hara's Orders compelling defendants to produce allegedly privileged client e-mails.

On February 8, 2013, plaintiffs served on defendants their Third Requests for Production of Documents. Request Nos. 6, 7, 10, and 11 sought, among other things, all communications between defendants and several individuals, including Thomas O'Donnell and Schubert Jacques. O'Donnell and Jacques are New Jersey residents who at all times relevant to defendants' motion were clients of the defendant law firm Roper & Twardowsky. Defendants objected that Request Nos. 6, 7, 10, and 11 sought documents protected by the attorney-client privilege, but served re-sponses subject to their objections on March 11, 2013.

Plaintiffs found defendants' initial responses inadequate and asked defendants to perform an additional search for all e-mails responsive to plaintiffs' Third Requests for Production. De-fendants replied that the requested search was overbroad and would lead primarily to the discov-ery of irrelevant and unresponsive documents. Defendants offered to perform the search, but on-ly if plaintiffs would pay for the time involved. Plaintiffs refused.

On September 6, 2013, plaintiffs filed a Motion to Compel (Doc. 114) responses to their Third Requests for Production. Among other things, plaintiffs sought all electronic communica-tions between defendant Roper or anyone else associated with Roper & Twardowsky and a list of fifteen people, including O'Donnell and Jacques.

Defendants filed an Opposition to plaintiffs' Motion to Compel and Cross-Motion for Protective Order (Doc. 124) on September 20, 2013. Defendants argued that plaintiffs' motion should be denied because plaintiffs' requests were unduly burdensome, overly broad, and irrele-vant, among other reasons. In addition, defendants attached affidavits from O'Donnell and Jacques objecting to the disclosure of e-mail communications they had with defendants. In an October 3, 2013 Order (Doc. 129), Judge O'Hara rejected defendants' arguments that the disput-ed discovery requests were overbroad and unduly burdensome. Judge O'Hara granted plaintiffs' Motion to Compel and ordered defendants 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, " including O'Donnell and Jacques, by October 18, 2013.[1]

Defendants requested, and received, two extensions of the deadline to comply with Judge O'Hara's Order. On November 4, 2013, defendants' counsel e-mailed plaintiffs' counsel a "Dropbox" link which contained some, but not all, of the documents ordered to be produced. Notably, the e-mail stated, "Defendants are withholding as attorney client privilege all private email communications between Angela Roper and Ken Thyne and the clients, " including O'Donnell and Jacques.[2]

On November 5, 2013, plaintiffs filed a Motion to Enforce the Court's Order on plain-tiffs' Motion to Compel (Doc. 132), arguing that by withholding privileged documents, defend-ants were "flaunting the Court's Order and dragging the discovery of this case to a standstill."[3] Plaintiffs asked the court to "address under Rule 37(b) Defendants' failure to produce the docu-ments as instructed in the Court's order of October 3, 2013; and... consider other appropriate relief as it deems just and proper."[4] In response (Doc. 134), defendants argued that Judge O'Hara's Order granting plaintiffs' Motion to Compel did not address the issue of privilege and never ordered production of privileged documents. Defendants also provided plaintiffs with a privilege log of the e-mails they claimed as privileged. Significantly, the privilege log contained only the name of the client who sent each e-mail, the size of each e-mail, and the date each with-held e-mail was sent.

On November 18, 2013, Judge O'Hara granted plaintiffs' Motion to Enforce (Doc. 139) and ordered defendants to produce all responsive documents by November 25, 2013, "regardless of privilege'...."[5] Judge O'Hara found that defendants had failed to show that the withheld e-mails were privileged in their original objections and in response to plaintiffs' Motion to Compel because they did not meet their burden to show that the attorney-client privilege applied. Judge O'Hara also explained that defendants should have described in detail the documents or infor-mation to be protected and provided precise reasons for their objection to discovery. Judge O'Hara also held that defendants' privilege log was inadequate. By failing to establish each el-ement of the asserted privilege in their privilege log, Judge O'Hara found that defendants had waived the privilege.

Defendants filed a Motion for Reconsideration with Judge O'Hara (Doc. 146) on No-vember 25, 2013, but provided no additional evidence in support of their privilege claims. Judge O'Hara denied defendants' motion on December 11, 2013 (Doc. 163), writing that "defendants have still failed to meet their burden to support that privilege by making a clear showing that the privilege applies to their e-mail communications with two former clients."[6]

On December 18, 2013, defendants filed a Motion for Review of the Magistrate Judge's Order (Doc. 166), asking this Court to set aside the portions of Judge O'Hara's Orders compel-ling production of the allegedly attorney-client privileged e-mails.

B. Legal Standard

On nondispositive pretrial matters, a district court does not conduct a de novo review of the magistrate judge's order. Instead, a district court applies a more deferential standard by which the moving party must show that the magistrate judge's order is "clearly erroneous or con-trary to law." First Union Mortg. Corp. v. Smith, 229 F.3d 992, 995 (10th Cir. 2000); Fed.R.Civ.P. 72(a). The clearly erroneous standard requires that the reviewing court affirm unless it, after reviewing all of the evidence, is left with the definite and firm conviction that a mistake has been committed. Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (in-ternal quotation marks omitted). The contrary to law standard permits the district court to con-duct an independent review of purely legal determinations made by the magistrate judge. Sprint Commc'ns Co. v. Vonage Holdings Corp., 500 F.Supp.2d 1290, 1346 (D. Kan. 2007) (citations omitted). A magistrate judge's order is contrary to law if it "fails to apply or misapplies relevant statutes, case law or rules of procedure." Walker v. Bd. of Cnty. Comm'rs of Sedgwick Cnty., No. 09-1316-MLB, 2011 WL 2790203, at *2 (D. Kan. July 14, 2011) (internal quotation marks omitted). Harmless error by the magistrate judge does not warrant reversal. See Riviera Drilling & Exploration Co. v. Gunnison Energy Corp., 412 F.App'x 89, 95 (10th Cir. 2011).

C. Analysis

Defendants ask this Court to "set aside the portions of the [magistrate judge's] Orders holding the [defendants] waived the attorney-client privilege of [their] clients."[7] Defendants ar-gue specifically that certain e-mails between defendants and their clients Thomas O'Donnell and Schubert Jacques are protected by the attorney-client privilege and that Judge O'Hara erred by finding that defendants waived the privilege.

It is well settled that a party withholding documents as privileged has the burden to demonstrate the applicability of the privilege. E.g., ERA Franchise Sys., Inc. v. N. Ins. Co. of N.Y., 183 F.R.D. 276, 278 (D. Kan. 1998). Yet in the face of clear instructions by Judge O'Hara about the requirements to establish the basis for the attorney-client privilege and at least two ex-plicit warnings that their showing was inadequate, defendants never met their burden. As a re-sult, Judge O'Hara ordered defendants to produce the allegedly privileged client e-mails. Be-cause Judge O'Hara's ...

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