Lawrence et al v. Dependable Medical Transport Services LLC et al

Filing 119

ORDER that Defendants' 115 Motion to Strike Plaintiffs' 113 Motion for Partial Summary Judgment is granted. Plaintiffs may elect to refile the motion but if they do so, they may not rely on the emails in question. Signed by Judge H Russel Holland on 6/4/2014.(LFIG)

WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

ARTHUR LAWRENCE, et al.,

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)
Plaintiffs,
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vs.
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DEPENDABLE MEDICAL TRANSPORT
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SERVICES, L.L.C., an Arizona limited liability )
company, et al.,
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Defendants.
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__________________________________________)

No. 2:13-cv-0417-HRH

ORDER
Defendants’ Motion to Strike
Defendants move to strike1 plaintiffs’ motion for partial summary judgment. This
motion is opposed.2 Oral argument was requested but is not deemed necessary.
On May 9, 2014, plaintiffs filed a motion for partial summary judgment,3 to which
was attached an exhibit containing emails between defendants and their attorneys. The

1

Docket No. 115.

2

Docket No. 117.

3

Docket No. 113.
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emails were apparently produced as part of some 15,000 pages of documents4 that were
produced by defendants in response to plaintiffs’ first request for production of documents
in October 2013. Defense counsel avers that the emails, which are plainly privileged
communications between defendants and their attorneys, “were not intentionally included
in the materials provided to Plaintiffs’ vendor for copy, nor were they otherwise
deliberately disclosed to Plaintiffs’ counsel at any time.”5 Defense counsel avers that she
was not aware that the emails had been produced until plaintiffs filed their motion for
partial summary judgment,6 even though defense counsel had reviewed defendants’
production of documents in late November or early December 2013.
On May 14, 2014, defense counsel contacted plaintiffs’ counsel regarding the emails
and, relying on Arizona Rule of Professional Conduct 4.4, requested that plaintiffs’ counsel
return all copies of the privileged emails, certify that he had destroyed all copies, and
withdraw plaintiffs’ motion for partial summary judgment and refile it, should they elect

4

The documents were in five banker boxes. Most of the documents were in folders
organized by plaintiff name. Plaintiffs’ counsel contends the emails were in a folder labeled
“Miscellaneous” but defense counsel contends there was no such folder.
5

Affidavit of Caroline Larsen at ¶ 8, which is appended to Defendants’ Motion to
Strike Plaintiffs’ Motion for Partial Summary Judgment, Docket No. 115.
6

Id. at ¶ 12.
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to do so, without any mention of the emails.7 ER 4.4. provides that “[a] lawyer who
receives a document and knows or reasonably should know that the document was
inadvertently sent shall promptly notify the sender and preserve the status quo for a
reasonable period of time in order to permit the sender to take protective measures.”
Comment 2 to ER 4.4 explains that “[i]f a lawyer knows or reasonably should know that
a document was sent inadvertently, then this Rule requires the lawyer to stop reading the
document, to make no use of the document, and to promptly notify the sender in order to
permit that person to take protective measures.”
Plaintiffs’ counsel declined to comply with any of defense counsel’s requests,
contending that defendants intentionally produced the emails, or in the alternative, waived
any claim to privilege as to the emails.8 Plaintiffs’ counsel speculated that defendants had
voluntarily produced the emails “to aid [their] defense against willfulness for the 3 year
statute of limitations issue.”9 Plaintiffs’ counsel also pointed out that in response to
plaintiffs’ Request for Production 10, which concerned Department of Labor audits, which

7

Letter from Caroline Larsen to Trey Dayes at 2, Exhibit 4, Larsen Affidavit, which
is appended to Defendants’ Motion to Strike Plaintiffs’ Motion for Partial Summary
Judgment, Docket No. 115.
8

Email from Trey Dayes to Caroline Larsen at 1-2, Exhibit 5, Larsen Affidavit, which
is appended to Defendants’ Motion to Strike Plaintiffs’ Motion for Partial Summary
Judgment, Docket No. 115.
9

Id. at 1.
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was the subject of the emails, defendants had stated that they were producing
“‘nonprivileged or otherwise protected business records....’”10 Plaintiffs’ counsel read this
statement to mean that defendants were waiving their claim to privilege as to the emails.
Defendants then filed the instant motion seeking to strike plaintiffs’ motion for
partial summary judgment pursuant to Local Rule 7.2(m)(1), which provides, in pertinent
part, that “a motion to strike may be filed ... if it seeks to strike any part of a filing or
submission on the ground that it is prohibited (or not authorized) by a statute, rule or court
order.” Defendants argue that because the emails are privileged under Federal Rule of
Evidence 502, plaintiffs were prohibited from relying on them in support of their partial
motion for summary judgment.
“Rule 502(b) specifies that production of a privileged document does not constitute
a waiver of the privilege if the production was ‘inadvertent,’ the privilege holder ‘took
reasonable steps to prevent disclosure,’ and the privilege holder complied with Rule
26(b)(5)(B).” Briese Lichttechnik Vertriebs GmbH v. Langton, 272 F.R.D. 369, 372 (S.D.N.Y.
2011) (quoting FRE Rule 502(b)). Rule 26(b)(5)(B), Federal Rules of Civil Procedure,
“provides that if the producing party has a privilege claim affecting a produced document,
that party may notify the recipient, who is then obliged to ‘promptly return, sequester or

10

Id. at 1 (quoting Defendants’ Response to Plaintiffs’ First Request for Production
of Documents at 8, Exhibit 2, Larsen Affidavit, which is appended to Defendants’ Motion
to Strike Plaintiffs’ Motion for Partial Summary Judgment, Docket No. 115).
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destroy the specified information and any copies’ and is prohibited from using or
disclosing the information until a court resolution, which would be triggered by the
discovering party applying to the court for a determination of the privilege claim.” Id.
(quoting Fed. R. Civ. P. 26(b)(5)(B)).
Defendants notified plaintiffs that defendants had a privilege claim as to the emails.
At that point, plaintiffs were required to comply with Rule 26(b)(5)(B), even though
defendants did not specifically invoke Rule 26(b)(5)(B). ER 4.4, which defendants did
invoke, tracks Rule 26(b)(5)(B), and defendants’ invocation of ER 4.4 was sufficient to
trigger plaintiffs’ obligation to comply with Rule 26(b)(5)(B). Plaintiffs are represented by
counsel, who is required to be familiar with and comply with the Federal Rules of Civil
Procedure and who should have realized that Rule 26(b)(5)(B) was implicated when
defense counsel asserted defendants’ claim of privilege as to the emails.
“The requirements in Rule 26(b)(5)(B) are straight forward. Once a party is notified
that a claim of privilege is being made, the party must either return or destroy the
document or the party may turn the document over to the court for determination of the
claim.” Piasa Commercial Interiors, Inc. v. J.P. Murray Co., Case No. 07-617-DRH, 2010 WL
1241563, at *2 (S.D. Ill. Mar. 23, 2010). “‘Rule 26(b)(5)(B) does not address whether the
privilege or protection that is asserted after production was waived by the production’ but
instead ‘provides a procedure for presenting and addressing these issues.’” Bank of

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Camden v. State Bank and Trust Co., Case No. 5:13–CV–21 (MTT), 2014 WL 991782, at *2
(M.D. Ga. March 13, 2014) (quoting Fed. R. Civ. P. 26(b)(5) advisory committee’s note
(2006)). “Even if the [emails] were ... no longer privileged because of a waiver, as
[plaintiffs] argue[], these arguments are irrelevant to whether [plaintiffs] complied with
Rule 26(b)(5)(B).” Id. “‘The rule does not require an actual finding of privilege in order for
compliance with its terms[,]’ nor does the rule ‘provide for the non-asserting party to make
the determination on its own.’” Id. (quoting Piasa Commercial Interiors, 2010 WL 1241563,
at *2).
Here, plaintiffs took it upon themselves to make a determination as to whether the
emails had been inadvertently disclosed and whether the privilege had been waived. Such
conduct does not comply with Rule 26(b)(5)(B). Because plaintiffs have failed to comply
with Rule 26(b)(5)(B), plaintiffs will not be allowed to use the emails. See Bank of Camden,
2014 WL 991782, at *2 (barring Bank of Camden “from further use of the unredacted
versions of the documents” for blatant violation of Rule 26(b)(5)(B)); Piasa Commercial
Interiors, 2010 WL 1241563, at *3 (“As Piasa blatantly disregarded the requirements of Rule
26(b)(5) (B), the Court finds that barring further use of the document to be an appropriate
remedy”).11
11

Some courts have only barred use of the documents in question “until they are
deemed not privileged or no longer privileged[.]” Woodard v. Victory Records, Inc., Case
No. 11 CV 7594, 2013 WL 4501455, at *4 (N.D. Ill. Aug. 22, 2013). Were the court to consider
(continued...)
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In conclusion, defendants’ motion to strike12 plaintiffs’ partial motion for summary
judgment13 is granted. Plaintiffs may elect to refile the motion but if they do so, they may
not rely on the emails in question.
DATED at Anchorage, Alaska, this 4th day of June, 2014.
/s/ H. Russel Holland
United States District Judge

11

(...continued)
these issues, it would conclude that defendants’ production of the documents was
inadvertent, that defendants did not waive the privilege as to the emails, and that
defendants took reasonable steps to prevent disclosure. In short, the court would find that
the emails were still privileged. The court is unpersuaded by plaintiffs’ arguments to the
contrary.
12

Docket No. 115.

13

Docket No. 113.
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