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Luper v. Board of Trustees of Police & Fire Retirement System of Wichita

United States District Court, D. Kansas

July 28, 2017

JEFFREY L. LUPER, Plaintiff,


          Kenneth G. Gale United States Magistrate Judge

         Now before the Court is the Motion to Compel filed by Plaintiff seeking documents withheld by Defendant Board of Trustees on the basis of the attorney-client privilege. (Doc. 42.) Having reviewed the submissions of the parties, Plaintiff's motion is DENIED.


         Plaintiff alleges that he has a “legitimate claim of entitlement to service connected disability benefits” from the Police & Fire Retirement System of Wichita, Kansas (“Retirement System”). (See Doc. 1, at 8.) Plaintiff claims that Defendant Board of Trustees (“Defendant” or “the Board”) violated Plaintiff's Constitutional Right to due process rights as a result of an on-going, unreasonable delay in determining whether the is entitled to disability benefits under the Retirement System. (Id., at 9.)

         The present motion relates to Plaintiff's Request for Production No. 1 and Interrogatories Nos. 5, 6, and 7. Request No. 1 sought “[a]ll documents identified in response to interrogatories.” Interrogatory No. 5 asked Defendant to “[i]dentify all written communications between any attorney and the Board that address [Plaintiff's] claim for service-connected disability benefits, as well as any documents that reflect such communications.” Interrogatory No. 6 sought the dates of, senders, recipients and individuals who received every written communication identified in response to Interrogatory No. 5. Finally, Interrogatory No. 7 asked Defendant to “[i]dentify all minutes, notes, and recording of every executive or nonpublic session of the Board in which [Plaintiff's] claim for service-connected disability benefits was addressed with an attorney.” In response to these discovery requests, Defendant provided certain documents but, according to Plaintiff, “held back hundreds of emails and documents generated during [Defendant's] consideration of [Plaintiff's' claim” for benefits. (Doc. 43, at 2.) Defendant withheld the documents on the basis of the attorney-client privilege and/or work product doctrine. Plaintiff contends that the fiduciary exception to the privilege “prevents [Defendant[ from asserting pre-decisional legal advice and related documents from beneficiaries” such as Plaintiff.[1] (Id., at 3.)


         Fed.R.Civ.P. 26(b) states that “[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party . . . Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” As such, the requested information must be both nonprivileged and relevant to be discoverable. Plaintiff's motion focuses on Defendant's claim of the attorney-client privilege for the documents in question.

         The application of the attorney-client privilege in this District was recently summarized by Magistrate Judge O'Hara in the case of In re Syngenta Ag Mir 162 Corn Litigation:

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. 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. 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.' The party asserting the privilege bears the burden of establishing that the elements are met.

No. 14-2591-JWL, 2017 WL 386835, at *4 (D. Kan. Jan. 27, 2017) (internal citations omitted).

         The party withholding documents subject to the privilege must submit a privilege log, which is required 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.

Leftwich v. City of Pittsburg, Kansas, No. 16-2112-JWL-GLR, 2017 WL 1338838, at *2 (D. Kan. April 12, 2017) (citing BridgeBuilder Tax Legal Servs.,P.A. v. Torus Specialty Ins. Co., No. 16-2236-JWL-GEB, 2017 WL 914809, at *4 (D. Kan. Mar. 8, 2017) (citations omitted)). “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 ...

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