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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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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,

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vs.

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United Parcel Service, Inc., et al.,
Defendants.

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Defendants have filed a motion to strike Plaintiff’s counsel’s assertion of the

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attorney-client privilege with respect to certain fact witnesses in this case. Doc. 49.

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Plaintiff’s counsel have filed a response (Docs. 53, 54) and Defendants have replied

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(Docs. 57, 58). No party has requested oral argument. For the reasons that follow, the

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motion will be denied.

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Defendants incorrectly style their motion as a motion to strike. Under Local Rule

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of Civil Procedure 7.2(m), a motion to strike may be filed only if it is authorized by

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statute or rule. LRCiv 7.2(m)(1). Defendants purport to file their motion to strike under

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Federal Rule of Civil Procedure 37(a), but that rule does not authorize motions to strike.

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The Court will construe Defendants’ motion as a motion to compel evidence under Rule

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37(a).

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The affidavit of Rose Marie Baca and Jose Vasquez establishes that they have

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retained attorney Andrew Alex (one of the Plaintiff’s counsel in this case) to represent

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them in matters arising out of the death of Marcela Baca.

A number of different

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proceedings are identified in the affidavit. Doc. 54-1. The declaration of Diana Alvarez

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establishes that she has retained attorney Mark Gilling (another of the Plaintiff’s counsel

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in this case) to represent her interests with respect to claims arising out of the death of

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Marcela Baca. Doc. 54-2. Defendants have provided no evidence to contradict these

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assertions.

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Defendants seem to argue that Plaintiff’s counsel cannot represent a fact witness in

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this litigation. They cite no authority for such proposition. So far as the Court is aware,

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lawyers and clients are free to agree upon the nature and scope of representation. If a fact

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witness agrees to be represented by a Plaintiff’s counsel for purposes of litigation, he or

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she is free to do so. The affidavit and declaration make clear that the fact witnesses in

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this motion have retained Plaintiff’s counsel to represent them generally with respect to

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claims arising out of the death of Marcela Baca. The fact that these witnesses are not the

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actual claimants in this lawsuit does not somehow prevent them from entering into such

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an attorney-client agreement. Nor does it prevent them from utilizing their retained

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counsel to protect their interests at the deposition. Defendants have provided no basis for

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defeating this attorney-client privilege.

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Defendants argue that the privilege must be asserted on a question-by-question

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basis. Doc. 50, at 5. Although this is true, it is clear that Plaintiff’s counsel asserted the

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privilege and instructed the witnesses not to answer only with respect to questions

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concerning communications between the witnesses and their lawyers. Because such

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communications clearly are privileged, the instruction and objection are appropriate.

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IT IS ORDERED that Defendants’ motion (Doc. 49) is denied.

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Dated this 4th day of April, 2012.

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