Radeker v. County of Elbert

Filing 118

ORDER; 83 Defendants Motion for Clarification or, in the Alternative, Objection to the Magistrate Judges August 20, 2015 Order, is DENIED, by Magistrate Judge Kathleen M. Tafoya on 3/4/16.(morti, ) Modified on 3/4/2016 to include ruling of the motion (morti, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 14–cv–01238–CMA–KMT
CHERIE RADEKER,
Plaintiff,
v.
ELBERT COUNTY BOARD OF COMMISSIONERS, County of Elbert, Colorado,
KURT SCHLEGEL, Elbert County Commissioner, Officially and Individually,
ROBERT ROWLAND, Elbert County Commissioner, Officially and Individually, and
LARRY ROSS, Elbert County Commissioner, Officially and Individually,
Defendants.

ORDER

This matter is before the court on “Defendants’ Motion for Clarification or, in the
Alternative, Objection to the Magistrate Judge’s August 20, 2015 Order” [Doc. No. 83].
Plaintiffs filed a response on October 1, 2015 [Doc. No. 101] and Defendants filed a reply on
October 8, 2015 [Doc. No. 102].
The motion which was the impetus for the complained of Order is Defendants’ “Motion
to Permit Limited Subject-Matter Waiver of the Attorney/Client Privilege” (“Waiver Motion”)
[Doc. No. 46]. In the Waiver Motion, Defendants state
. . . Mr. Beltz was the County’s attorney during the relevant time periods
related to this case.
Mr. Beltz is in the position of having relevant information related to the
claims made in this case, but is unable to testify and the County is unable to
produce relevant documentation due to the attorney/client privilege.

Id. at 2 (emphasis added). The Defendants never discussed, analyzed nor addressed nonprivileged information which might have been in Mr. Belz’s possession or control. The
Defendants stated they objected “to the waiver of the attorney-client privilege as it pertains to
unrelated matters upon which Mr. Beltz rendered legal services during his tenure as County
Attorney.” Id. at 4. Additionally, Defendants represented, “[T]he County has made every effort
to preserve the sanctity of its attorney/client privilege, while at the same time providing an
avenue by which additional discovery relevant to this case may be obtained.” Id. at 5 (emphasis
added). Ultimately, the relief sought by the Defendants from the court was 1) “a limited waiver
of the attorney-client privilege as detailed in Exhibit A, and for no other purpose or proceeding”;
and 2) an “F.R.E. 502(d), order[] that disclosure in this case does not constitute a waiver of
privilege in any other federal or state proceeding.” Id. at 6.
The court denied the requests for relief in the motion, finding that Defendants were
attempting to engage in improper selective waiver of the attorney-client privilege. (Order,
August 20, 2015.) The court, in that Order, issued no findings or rulings with respect to nonprivileged information whatsoever.
The court perceives of no ambiguity in its Order that is in need of clarification and the
court declines to address issues that were not raised in the Waiver Motion.

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IT IS ORDERED
“Defendants’ Motion for Clarification or, in the Alternative, Objection to the Magistrate
Judge’s August 20, 2015 Order” [Doc. No. 83] is DENIED.
DATED this 4th day of March, 2016.

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