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Hale v. Emporia State University

United States District Court, D. Kansas

April 3, 2018

ANGELICA HALE, Plaintiff,
v.
EMPORIA STATE UNIVERSITY, GWEN ALEXANDER, DAVID CORDLE, and JACKIE VIETTI, Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree, United States District Judge

         Plaintiff Angelica Hale filed this action pro se[1] against defendants Emporia State University (“ESU”), Gwen Alexander, David Cordle, and Jackie Vietti. Plaintiff alleges that her former employer, ESU, violated Title VII by terminating her employment as retaliation because she complained about racial discrimination. Plaintiff also alleges that defendants Alexander, Cordle, and Vietti retaliated against her after she exercised her right to speak out against discrimination and racism. Based on this allegation, plaintiff asserts a First Amendment retaliation claim under 42 U.S.C. § 1983 against these three individuals in their individual capacities.

         On November 22, 2017, plaintiff filed a Motion to Compel. Doc. 63. Plaintiff's motion sought an order compelling ESU to produce all internal investigation documents that ESU had withheld and identified on its privilege log as protected by attorney-client privilege and the work product doctrine. Plaintiff's motion to compel argued, among other things, that the withheld documents are discoverable because they come within the crime-fraud exception to privilege.

         On February 20, 2018, Judge Teresa J. James granted plaintiff's motion in part and denied it in part. Doc. 71. Specifically, Judge James identified certain email communications that did not contain attorney-client privileged communications or work product. Id. at 19-20. Judge James thus ordered ESU to produce the identified documents to plaintiff. Id. at 19. Judge James denied the motion in all other respects. Among other things, her ruling specifically rejected plaintiff's arguments under the crime-fraud exception. Id. at 3-7.

         Plaintiff has filed an Objection to Judge James's Order. Doc. 73. She asserts that Judge James erred by refusing to order production of the withheld documents under the crime-fraud exception to privilege. And she asks the court to set aside that portion of Judge James's Order under Federal Rule of Civil Procedure 72(a). For reasons explained below, the court overrules plaintiff's Objection and affirms Judge James's decision.

         I. Legal Standard

         Federal Rule of Civil Procedure 72(a) permits a party to present specific, written objections to a magistrate judge's order. When reviewing a magistrate judge's order deciding nondispositive pretrial matters, the district court applies a “clearly erroneous or contrary to law” standard of review. See First Union Mortg. Corp. v. Smith, 229 F.3d 992, 995 (10th Cir. 2000) (quoting Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1461-62 (10th Cir. 1988)); 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). Under this clearly erroneous standard, the district court does not conduct a de novo review of the factual findings; instead, it must affirm a magistrate judge's order unless a review of the entire evidence leaves it “with the definite and firm conviction that a mistake has been committed.” Ocelot Oil Corp., 847 F.2d at 1464. In contrast, “the contrary to law” standard permits the district court to conduct an independent review of purely legal determinations made by the magistrate judge. Sprint Commc'ns Co. L.P. 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 Cty. Comm'rs of Sedgwick Cty., No. 09-1316-MLB, 2011 WL 2790203, at *2 (D. Kan. July 14, 2011) (quotation omitted).

         II. Analysis

         Plaintiff asserts that Judge James erred by refusing to compel ESU to produce internal investigation documents that, plaintiff contends, are discoverable under the crime-fraud exception to the attorney-client privilege. Plaintiff alleges that defendants fraudulently investigated her and her husband's report of a hate crime and racism at ESU. Plaintiff contends that defendants, working with counsel, misled and deceived the public by falsely reporting the investigation's results at a press conference on September 9, 2015. Plaintiff alleges that defendants reported the false information to give the public the false impression that ESU had done nothing wrong and to accuse plaintiff's husband-falsely-of “perpetrating a hate hoax.” Doc. 73 at 3. Plaintiff asserts that defendants' fraudulent conduct disparaged her and her husband's names and reputation.

         Based on these facts, plaintiff argued to Judge James that ESU's internal investigation documents were discoverable under the crime-fraud exception to privilege. Judge James disagreed. Judge James first explained the law governing the crime-fraud exception:

Under the crime-fraud exception, “[t]he attorney-client privilege does not apply where the client consults an attorney to further a crime or fraud.” Motley v. Marathon Oil Co., 71 F.3d 1547, 1551 (10th Cir. 1995). See Clark v. United States, 289 U.S. 1, 15 (1933) (“There is a privilege protecting communications between attorney and client. The privilege takes flight if the relation is abused. A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told.”). The crime-fraud exception also applies to documents claimed to be protected from discovery as work product. See In re Vargas, 723 F.2d 1461, 1467 (10th Cir. 1983) (court's analysis on crime-fraud exception applied to “both the attorney-client and work-product privileges”). The purpose of the crime-fraud exception is to assure that the seal of secrecy between the attorney and client does not extend to communications made for the purpose of getting advice for the commission of a fraud or crime. United States v. Zolin, 491 U.S. 554, 563 (1989); Burton v. R. J. Reynolds Tobacco Co., 167 F.R.D. 134, 140 (D. Kan. 1996). The crime-fraud exception has not been extended to torts generally. Motley, 71 F.3d at 1551. The party claiming that the crime-fraud exception applies must present prima facie evidence that the allegation of attorney participation in a crime or fraud has some foundation in fact. Id. The determination of whether such a prima facie showing has been made is left to the sound discretion of the district court. Id.

Doc. 71 at 4-5.

         Judge James next recognized that plaintiff was contending that ESU's general counsel was involved in the commission of a fraud. Id. at 5. Judge James then recited the elements of fraud under Kansas law:

(1) The defendant made a false statement concerning an existing and material fact; (2) the defendant knew the statement was false or recklessly made the statement without knowing its validity; (3) the defendant intentionally made the statement for the purpose of inducing the plaintiff to act upon it; (4) the plaintiff reasonably relied and acted upon the ...

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