United States District Court, D. Kansas
MEMORANDUM AND ORDER
Gerald
L. Rushfelt U.S. Magistrate Judge.
Before
the Court is Plaintiff's Motion to Enforce Discovery (ECF
64). Plaintiff seeks production of documents withheld by
Defendants upon grounds of attorney-client
privilege.[1] For the reasons below, the Court grants in
part and denies in part Plaintiff's motion.
I.
Legal Standard(s)
Magistrate
Judge O'Hara succinctly described this district's
treatment of attorney-client privilege in In re Syngenta
Ag Mir 162 Corn Litigation:[2]
Fed. R. Civ. P. 26(b)(1) limits discovery to
“nonprivileged matters.” Because this litigation
arises out of a federal statutory scheme, federal law governs
the application of the attorney-client
privilege.[3] 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.[4]Although this description
suggests that the privilege only operates to protect the
client's communications to a lawyer, the Tenth Circuit
recognizes that a lawyer's communication to a client is
also protected if it is “related to the rendition of
legal services and advice.”[5] The party asserting the
privilege bears the burden of establishing that the elements
are met.[6]
Caselaw in this district provides a wealth of guidance as to
what is-and is not-protected by the attorney-client
privilege. First, it is important to note that
“personal, confidential, [or] private
information” is not necessarily
privileged.[7]“As this Court has held repeatedly,
‘confidential' does not equate to
‘nondiscoverable' or
privileged.”[8] Second, it is clear that
“[u]nderlying facts are not protected by the
privilege.”[9] “Similarly, neither the acts or
services performed by an attorney during the course of his
representation, nor the scope of representation, are within
the attorney-client privilege because they are not
‘communications.'”[10] Nor are “general
topics of attorney-client discussions” or ultimate
“legal conclusions” of counsel
protected.[11] Thus, for example, this court has held
that the subject matters of an in-house attorney's
discussions with company executives are not
privileged.[12]
Finally, it bears mentioning that under the eighth element,
absence of waiver, the party claiming the privilege must
demonstrate that “the substance of an otherwise
privileged communication” is not revealed to a third
party.[13] The burden of showing that the privilege
has not been waived remains with the party claiming the
privilege.[14] “Because confidentiality is key to
the privilege, ‘[t]he attorney-client privilege is lost
if the client discloses the substance of an otherwise
privileged communication to a third
party.'”[15]
Generally,
the withholding party submits a privilege log, the contents
of which may vary in both substance and format. Courts in
this district require a privilege log, relating to documents,
to include:
(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 (if different from # 2);
(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.[16]
The
objecting party must provide enough information in the
privilege log to enable the withholding party, and the Court,
to assess each element of the asserted privilege and
determine its applicability.[17] Failure to provide supporting
details in the privilege log may result in denial of the
privilege.[18]
II.
Discussion
Plaintiff's
Motion to Enforce Discovery (ECF 64) seeks discovery of
documents for which Defendants have asserted attorney-client
privilege. Defendants have listed 53 documents on their
amended privilege log (ECF 66-1 at 5-8), totaling
approximately 70 pages.[19] As an initial matter, the Court is
satisfied that the parties have sufficiently conferred as
required by D. Kan. Rule 37.2 and Fed.R.Civ.P. 37(a)(1).
Defendants,
as the withholding parties asserting privilege, bear the
burden to show attorney-client privilege as to each document.
While their showing of each document's purpose (number
six in the requirements, stated above) could be less
conclusory and provide more evidentiary support, the Court
finds their privilege log complies with the standard set in
this district. It thus establishes the elements of
attorney-client privilege. The relevant question then is
whether Defendants have waived the privilege.
Both
Plaintiff and Defendants have cited Heglet v. City of
Hayes, Kansas in support of their respective
positions.[20] Because Heglet is very similar
to this case, both in form and in substance, the Court will
address its applicability. Like here, the plaintiff Heglet
sued both her former employer, the City of Hays, Kansas, and
individual defendants, including the City Manager and Chief
of Police, for wrongful termination of her employment. She
alleged she was terminated in violation of her First
Amendment rights for submitting an affidavit in a fellow
officer's civil case against the same defendants.
Defendants in Heglet raised two issues of
attorney-client privilege. They involved (1) voluntary
disclosure of the legal advice received; and (2) reliance by
the defendants upon a city attorney's advice to justify
their actions. This placed at issue the discoverability of
both the advice they sought and the advice they received.
Those are the same issues that the present motion raises. The
Court will address them in reverse order.
A.
Have Defendants put the legal advice sought and received at
issue by relying on the City Attorney's advice to justify
their actions?
Plaintiff
contends Defendants have shown their reliance on counsel to
be a sword in the litigation-i.e. justifying their actions by
referring to their consultation with the City Attorney- and
are therefore precluded from concurrently utilizing the
attorney-client privilege as a shield. Defendants agree they
cannot assert the privilege as both sword and shield. But
they deny using it as a sword in this case. The Court must
decide, therefore, whether or not they have waived the
privilege by relying on protected legal advice as part of
their defenses.
In the
absence of Tenth Circuit precedent, courts in this district
have adopted the waiver test applied in Hearn v.
Rhay.[21]
Under the Hearn test, each of the following three conditions
must exist to find waiver: (1) assertion of the privilege was
the result of some affirmative act, such as filing suit, by
the asserting party; (2) through this affirmative act, the
asserting party put the protected information at issue by
making it relevant to the case; and (3) application of the
privilege would have denied the opposing party access to
information vital to its defense. A court, then, should find
that the party asserting a privilege has impliedly waived
that privilege through his own affirmative conduct when the
party “places information protected by it in issue
through some affirmative ...