McCollum v. UPS Ground Freight Incorporated et al

Filing 59

ORDER denying 49 Motion to Strike. Signed by Judge David G Campbell on 4/4/2012.(NVO)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 Stephanie McCollum, as conservator for the minor wrongful death beneficiaries, on behalf of all wrongful death beneficiaries; and as Personal Representative of the estate of Marcela Baca, No. CV11-00961-PHX-DGC ORDER Plaintiff, 12 13 vs. 14 United Parcel Service, Inc., et al., Defendants. 15 16 Defendants have filed a motion to strike Plaintiff’s counsel’s assertion of the 17 attorney-client privilege with respect to certain fact witnesses in this case. Doc. 49. 18 Plaintiff’s counsel have filed a response (Docs. 53, 54) and Defendants have replied 19 (Docs. 57, 58). No party has requested oral argument. For the reasons that follow, the 20 motion will be denied. 21 Defendants incorrectly style their motion as a motion to strike. Under Local Rule 22 of Civil Procedure 7.2(m), a motion to strike may be filed only if it is authorized by 23 statute or rule. LRCiv 7.2(m)(1). Defendants purport to file their motion to strike under 24 Federal Rule of Civil Procedure 37(a), but that rule does not authorize motions to strike. 25 The Court will construe Defendants’ motion as a motion to compel evidence under Rule 26 37(a). 27 The affidavit of Rose Marie Baca and Jose Vasquez establishes that they have 28 retained attorney Andrew Alex (one of the Plaintiff’s counsel in this case) to represent 1 them in matters arising out of the death of Marcela Baca. A number of different 2 proceedings are identified in the affidavit. Doc. 54-1. The declaration of Diana Alvarez 3 establishes that she has retained attorney Mark Gilling (another of the Plaintiff’s counsel 4 in this case) to represent her interests with respect to claims arising out of the death of 5 Marcela Baca. Doc. 54-2. Defendants have provided no evidence to contradict these 6 assertions. 7 Defendants seem to argue that Plaintiff’s counsel cannot represent a fact witness in 8 this litigation. They cite no authority for such proposition. So far as the Court is aware, 9 lawyers and clients are free to agree upon the nature and scope of representation. If a fact 10 witness agrees to be represented by a Plaintiff’s counsel for purposes of litigation, he or 11 she is free to do so. The affidavit and declaration make clear that the fact witnesses in 12 this motion have retained Plaintiff’s counsel to represent them generally with respect to 13 claims arising out of the death of Marcela Baca. The fact that these witnesses are not the 14 actual claimants in this lawsuit does not somehow prevent them from entering into such 15 an attorney-client agreement. Nor does it prevent them from utilizing their retained 16 counsel to protect their interests at the deposition. Defendants have provided no basis for 17 defeating this attorney-client privilege. 18 Defendants argue that the privilege must be asserted on a question-by-question 19 basis. Doc. 50, at 5. Although this is true, it is clear that Plaintiff’s counsel asserted the 20 privilege and instructed the witnesses not to answer only with respect to questions 21 concerning communications between the witnesses and their lawyers. Because such 22 communications clearly are privileged, the instruction and objection are appropriate. 23 IT IS ORDERED that Defendants’ motion (Doc. 49) is denied. 24 Dated this 4th day of April, 2012. 25 26 27 28 -2-

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