Leftwich v. City of Pittsburg

          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 ...