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Pipeline Productions, Inc. v. The Madison Companies, LLC

United States District Court, D. Kansas

April 29, 2019

PIPELINE PRODUCTIONS, INC., et al., Plaintiffs and Counterclaim Defendants,
v.
THE MADISON COMPANIES, LLC, et al., Defendants and Counterclaimants.

          MEMORANDUM AND ORDER

          ANGEL D. MITCHELL, U.S. MAGISTRATE JUDGE

         This matter comes before the court on Plaintiffs' Renewed Motion to Compel Suzanne Land Documents (ECF No. 441). Therein, plaintiffs Pipeline Productions, Inc., Backwood Enterprises, LLC, OK Productions, Inc., and Brent Mosiman (collectively “Pipeline”) renew their motion to compel defendants The Madison Companies, LLC and Horsepower Entertainment, LLC (collectively “Madison”) to produce documents to and from Suzanne Land found on Madison's July 5 and 6 privilege logs. For the reasons set forth below, the court grants Pipeline's motion as to Privilege Log Entry Nos. 126, 129, 130, 132, 139-148. The court also grants the motion insofar as it has conducted an in camera inspection of Defendants' Privilege Log Entry Nos. 127 and 134-136. The motion is denied in all other respects.

         I. BACKGROUND

         The court has previously summarized the facts giving rise to this case. See Pipeline Prod., Inc. v. Madison Cos., LLC, No. 15-4890-KHV, 2019 WL 1206786, at *1 (D. Kan. Mar. 14, 2019). The case arises out of the parties' business dealings relating to the Thunder on the Mountain country music festival (“Thunder”) in 2015. According to the Complaint, Pipeline is a well-known producer of live music festivals, including Thunder. Madison is a venture capital firm that was looking to invest in Pipeline's music festival business. In 2014-2015, the parties engaged in various business dealings trying to structure a deal, but that deal fell through shortly before the Thunder festival was scheduled to occur in 2015. Pipeline was financially devastated, was forced to cancel Thunder 2015, and filed this lawsuit. In this lawsuit, the parties dispute whether and the extent to which they incurred legally binding obligations to one another before the deal fell through. Pipeline asserts claims for breach of contract, breach of fiduciary duty, fraud, and tortious interference. Madison seeks a refund of the money it advanced for Thunder 2015.

         Pipeline previously moved to compel Madison to produce the documents at issue in this motion to compel. (ECF No. 302.) At the time, this case was assigned to U.S. Magistrate Judge K. Gary Sebelius, who denied Pipeline's motion without prejudice to refiling a renewed motion directed to this particular category of documents. See Pipeline Prod., Inc., No. 15-4890-KHV, 2019 WL 1206786, at *3. Since then, Madison produced certain documents, narrowed its claim of privilege to 154 documents, and served a supplemental privilege log and supporting declarations. Pipeline now moves to compel Madison to produce the remaining documents that appear on the supplemental privilege log. The subject documents all involve Ms. Land, who was at all relevant times an independent contractor of Madison.

         Pipeline's arguments are essentially threefold.[1] First, Pipeline argues Madison waived the attorney-client privilege as to all of the documents by including Ms. Land in the communications because she was an independent contractor, not an agent or employee. Second, Pipeline argues Madison should be compelled to produce 14 of the documents that include Marcee Rondon because (1) Madison waived privilege because Ms. Rondon is an outside public relations executive and/or (2) these communications were not made for the purpose of giving or receiving legal advice. Third, Pipeline argues Madison has not provided sufficient information to enable Pipeline to evaluate Madison's privilege claims as to four sets of documents that include the subject line of the “Kaaboo Del Mar” music festival.[2]

         II. LEGAL STANDARD

         Fed. R. Evid. 501 provides that “state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.” Fed.R.Evid. 501; Frontier Refining, Inc. v. Gorman-Rupp Co., Inc, 136 F.3d 695, 699 (10th Cir. 1998). In this case, the court has diversity jurisdiction over common law claims, which are governed by Kansas law. Therefore, Kansas law applies to the privilege claims at issue.

         In Kansas, the attorney-client privilege is codified at Kan. Stat. Ann. § 60-426. Under the statute, with few exceptions, “communications found by the judge to have been between a lawyer and his or her client in the course of that relationship and in professional confidence, are privileged.” See State v. Gonzalez, 234 P.3d 1, 10 (Kan. 2010). The party asserting attorney-client privilege bears the burden to establish that it applies. In re Grand Jury Proceedings, 616 F.3d 1172, 1183 (10th Cir. 2010); Cypress Media, Inc. v. City of Overland Park, 997 P.2d 681, 693 (Kan. 2000). This burden includes showing the privilege has not been waived. See Johnson v. Gmeinder, 191 F.R.D. 638, 642 (D. Kan. 2000).

         III. ANALYSIS

         To support Madison's privilege claims, it submitted a privilege log (ECF No. 441-1) and affidavits from defense counsel Benjamin Scheibe (ECF No. 444-1), Ms. Land (ECF No. 441-2), and Bryan Gordon, who is Madison's chairman and CEO (ECF No. 330-6). Madison also submitted the documents that are the subject of the motion to compel for in camera inspection, but the court finds it largely unnecessary to review those documents for purposes of assessing Madison's privilege claims. The court has therefore reviewed and considered the documents submitted for in camera review only to the extent expressly set forth below.

         A. Documents Involving Ms. Land [3]

         All of Madison's privilege log entries include documents sent to or received by Ms. Land. Pipeline argues that including Ms. Land in these communications waived privilege because she was an independent contractor of Madison. Pipeline focuses on the language in her Independent Contractor Agreement that provides that she “does not have the authority to act for Madison, or to bind Madison in any respect whatsoever.”[4] (ECF No. 442-2 ¶ 10, at 3.) Pipeline also argues that Ms. Land was not the functional equivalent of an employee, and therefore her inclusion on the emails waives the privilege.

         Kan. Stat. Ann. § 60-426(c)(1) defines the “Client” for purposes of the attorney-client privilege to include “a corporation or other association that, directly or through an authorized representative, consults an attorney . . . for the purpose of . . . securing legal advice from the attorney in a professional capacity.” Kansas courts have not construed the scope of “authorized representative” as it applies to non-employee consultants. However, by the statute's plain terms, “client” includes a representative who is authorized by the corporation to “consult[] an attorney . . . for the purpose of . . . securing legal advice” for the corporation. Thus, contrary to Pipeline's arguments, the statute does not distinguish between ...


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