Dumas v. City of Elk Grove et al

Filing 100

ORDER signed by Magistrate Judge John F. Moulds on 6/1/11 DENYING WITHOUT PREJUDICE #85 and #88 Motions to Quash. (Meuleman, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TAMARA DUMAS, et al.,
Plaintiffs,

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No. CIV 2:09-cv-1573-GEB-JFM

vs.
CITY OF ELK GROVE, et al.,
Defendants.

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ORDER
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This matter came on for hearing on May 26, 2011 on plaintiffs’ motion to quash.

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Jeremy Cloyd appeared for plaintiffs. Derek Haynes appeared for defendants. Upon review of

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the motion to quash, defendants’ opposition, discussion of the appearing parties and good cause

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appearing therefor, THE COURT ORDERS AS FOLLOWS:
FACTUAL AND PROCEDURAL BACKGROUND

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This action commenced on June 8, 2009 and is proceeding on an amended

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complaint filed on August 27, 2009. Therein, plaintiffs (Tamara Dumas; her husband, Rick

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Dumas; and her children, Katelin and Kimberly Dumas1) allege that on July 1, 2008 seven police

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officers and one police explorer arrested Tamara Dumas in her home after a neighbor

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complained that she had not returned a $20 horse harness he had lent her that day. Tamara

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The minors are proceeding through their mother, Tamara Dumas, as guardian ad litem.
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Dumas contends she suffered injuries as a result of excessive force used by the officers during

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the arrest and that her then-7-year old daughter, Katelin, saw the incident.

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Plaintiffs bring suit for unreasonable seizure / wrongful arrest in violation of the

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Fourth Amendment and the California Constitution; due process violations (on behalf of Rick,

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Katelin and Kimberly); entity liability / unconstitutional policies and practices pursuant to 42

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U.S.C. § 1983; entity / supervisory liability pursuant to 42 U.S.C. § 1983; battery; negligence;

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and intentional and negligent infliction of emotional distress claims (on behalf of Katelin).

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Plaintiffs seek damages and costs.

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On July 27, 2010, the parties participated in a mediation before retired District

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Judge Raul Ramirez. Plaintiffs were represented by Stewart Katz at the mediation. Although the

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parties did not settle at the mediation, a mediator’s proposal was submitted for consideration by

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each side. The following day, the parties agreed to the proposal.
The parties subsequently filed two notices of settlement. See Doc. Nos. 31-32.

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Following multiple discussions between counsel to reduce the settlement agreement to writing,

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negotiations eventually failed. On October 18, 2010, plaintiffs’ attorney, Stewart Katz, filed a

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motion to withdraw. On November 5, 2010, defendants filed their first Motion to Enforce

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Settlement Agreement. On December 6, 2010, the motion to withdraw as counsel was granted

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and the motion to enforce the settlement was withdrawn.
On January 13, 2011, new counsel was substituted for plaintiffs. On January 20,

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2011, this new counsel also filed a motion to withdraw. On April 1, 2011, the motion to

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withdraw was granted and the attorneys currently representing plaintiffs were substituted.

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On April 20, 2011, defendants filed a second Motion to Enforce Settlement

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Agreement. This motion is scheduled to be heard before the Honorable Garland E. Burrell on

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June 6, 2011.

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On April 22, 2011, defendants issued a subpoena to Stewart Katz, which calls for
Katz to appear at the hearing on their motion to enforce settlement agreement to testify and to
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produce and permit inspecting and copying of the following:
All documents and/or notes reflecting communications between you and
your previous clients Tamara Dumas, Rick Dumas, Katelin Dumas, and Kimberly
Dumas regarding the agreement to resolve the above-referenced matter including,
but not limited to, all communications authorizing you to agree to the settlement
on half of Plaintiffs.

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On May 10, 2011, plaintiffs filed the instant motion to quash. On May 24, 2011,
defendants filed an opposition.

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DISCUSSION

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Plaintiffs bring this motion asserting that the subpoena is improper because it
calls for testimony and documents that concern or consist of privileged attorney-client

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communications and/or documents covered by the work-product doctrine. Plaintiffs contend the

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privilege has not been waived and no exception applies. Plaintiffs request that the subpoena be

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quashed. In the alternative, they ask that it be modified so that only testimony and/or documents

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concerning whether the settlement agreement was effective or binding before signature be

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permitted.

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Defendants assert that plaintiffs will argue in opposition to defendants’ motion to

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enforce the settlement agreement that they never agreed to the terms of the settlement. This

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argument, they aver, necessarily puts Katz’s performance as counsel in question.

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“The attorney-client privilege is the oldest of the privileges for confidential

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communications known to the common law.” Upjohn Co. v. United States, 449 U.S. 383, 389

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(1981) (citing 8 J. Wigmore, Evidence § 2290 (McNaughton rev. 1961)). The privilege is

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intended to “encourage clients to make full disclosure to their attorneys.” Fisher v. United

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States, 425 U.S. 391, 403 (1976). The attorney-client privilege “only protects disclosure of

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communications; it does not protect disclosure of the underlying facts by those who

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communicated with the attorney.” Upjohn Co., 449 U.S. at 395.

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The related work product doctrine is codified in Federal Rule of Civil Procedure
26(b)(3), and protects attorneys from being required to divulge materials prepared in anticipation
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of litigation. Fed. R. Civ. P. 26(b)(3). It protects the “mental processes of the attorney,

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providing a privileged area within which he can analyze and prepare his client's case.” United

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States v. Nobles, 422 U.S. 225, 238 (1975). It does not protect from discovery factual

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information contained within an attorney’s papers; rather, only an attorney's “mental

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impressions, conclusions, opinions, or legal theories” are protected. In re Seagate Tech., 497

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F.3d 1360, 1375 (Fed. Cir. 2007), cert. denied, 552 U.S. 1230 (2008).

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Federal Rule of Evidence 502 explains that attorney-client privilege and work
product protection can be waived by disclosures made during a federal proceeding if:
(1) the waiver is intentional;
(2) the disclosed and undisclosed communications or information concern the
same subject matter; and

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(3) they ought in fairness be considered together.
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Fed. R. Evid. 502. “In general, a party’s voluntary disclosure of one or more privileged
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communications between the party and his attorney waives the privilege as to all
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communications between the party and his attorney on the same subject.” Starsight Telecast,
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Inc. v. Gemstar Dev. Corp., 158 F.R.D. 650, 653 (N.D. Cal. 1994). It would be unfair to allow a
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party to disclose facts beneficial to its case, but then assert the attorney-client privilege or work
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product protection to refuse disclose facts adverse to its case. Id. (citing Hercules, Inc. v. Exxon
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Corp., 434 F. Supp. 136, 156 (D. Del. 1977)).
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A party may also impliedly waive attorney-client privilege and work product
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protection. See Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975). Implied waiver occurs where:
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(1) assertion of the privilege was a result of some affirmative act, such as filing
suit, by the asserting party; (2) through this affirmative act, the asserting party put
the protected information at issue by making it relevant to the case; and (3)
application of the privilege would have denied the opposing party access to
information vital to his defense.

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Id. at 581. If waiver occurs, it applies to both attorney-client privilege and work-product
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immunity. Bittaker v. Woodford, 331 F.3d 715, 722 n.6 (9th Cir. 2003). However, courts
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narrowly tailor implied waiver to produce only those documents necessary to ensure that the

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proceedings are fair. Rambus Inc. v. Samsung Elecs. Co., 2007 WL 3444376, at *6 (N.D. Cal.

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Nov.13, 2007).

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Here, defendants argue that plaintiffs impliedly waived the attorney-client

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privilege by asserting that they did not understand the terms of the settlement agreement.

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Plaintiffs refute this assertion. In their opposition to defendants’ motion to enforce settlement

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agreement, plaintiffs do not argue that Katz did not have authority to settle or that they did not

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understand material terms. Instead, they argue that, based on their understanding, certain

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conditions needed to be met before the settlement became effective, including the execution of a

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written, signed settlement agreement; the filing of a petition for minor’s compromise; and

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approval of the settlement by the City of Elk Grove. Additionally, Tamara Dumas declares that

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she became aware that her medical condition was more serious than initially thought, thus

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making the settlement terms unsatisfactory in light of her medical bills.

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The undersigned has considered the arguments presented by plaintiffs and

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defendants. Upon consideration, the court concludes that this matter depends on issues to be

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heard at a forthcoming evidentiary hearing before Judge Burrell. Plaintiffs’ concerns will be

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better met by evidentiary rulings in the context of that hearing.

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Accordingly, IT IS HEREBY ORDERED that plaintiffs’ motion to quash is

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denied without prejudice to their right to object to documents offered or questions put to Mr.

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Katz at the evidentiary hearing on defendants’ motion to enforce the settlement agreement.

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DATED: June 1, 2011.

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/014;dumas1573.quash

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