McCollum v. UPS Ground Freight Incorporated et al
ORDER denying 49 Motion to Strike. Signed by Judge David G Campbell on 4/4/2012.(NVO)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
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,
United Parcel Service, Inc., et al.,
Defendants have filed a motion to strike Plaintiff’s counsel’s assertion of the
attorney-client privilege with respect to certain fact witnesses in this case. Doc. 49.
Plaintiff’s counsel have filed a response (Docs. 53, 54) and Defendants have replied
(Docs. 57, 58). No party has requested oral argument. For the reasons that follow, the
motion will be denied.
Defendants incorrectly style their motion as a motion to strike. Under Local Rule
of Civil Procedure 7.2(m), a motion to strike may be filed only if it is authorized by
statute or rule. LRCiv 7.2(m)(1). Defendants purport to file their motion to strike under
Federal Rule of Civil Procedure 37(a), but that rule does not authorize motions to strike.
The Court will construe Defendants’ motion as a motion to compel evidence under Rule
The affidavit of Rose Marie Baca and Jose Vasquez establishes that they have
retained attorney Andrew Alex (one of the Plaintiff’s counsel in this case) to represent
them in matters arising out of the death of Marcela Baca.
A number of different
proceedings are identified in the affidavit. Doc. 54-1. The declaration of Diana Alvarez
establishes that she has retained attorney Mark Gilling (another of the Plaintiff’s counsel
in this case) to represent her interests with respect to claims arising out of the death of
Marcela Baca. Doc. 54-2. Defendants have provided no evidence to contradict these
Defendants seem to argue that Plaintiff’s counsel cannot represent a fact witness in
this litigation. They cite no authority for such proposition. So far as the Court is aware,
lawyers and clients are free to agree upon the nature and scope of representation. If a fact
witness agrees to be represented by a Plaintiff’s counsel for purposes of litigation, he or
she is free to do so. The affidavit and declaration make clear that the fact witnesses in
this motion have retained Plaintiff’s counsel to represent them generally with respect to
claims arising out of the death of Marcela Baca. The fact that these witnesses are not the
actual claimants in this lawsuit does not somehow prevent them from entering into such
an attorney-client agreement. Nor does it prevent them from utilizing their retained
counsel to protect their interests at the deposition. Defendants have provided no basis for
defeating this attorney-client privilege.
Defendants argue that the privilege must be asserted on a question-by-question
basis. Doc. 50, at 5. Although this is true, it is clear that Plaintiff’s counsel asserted the
privilege and instructed the witnesses not to answer only with respect to questions
concerning communications between the witnesses and their lawyers. Because such
communications clearly are privileged, the instruction and objection are appropriate.
IT IS ORDERED that Defendants’ motion (Doc. 49) is denied.
Dated this 4th day of April, 2012.
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