Tracy v. Weinman

Filing 23

ORDER; 16 Order to Show Cause is DISCHARGED. IT IS FURTHER ORDERED that the Clerks Office shall mail a copy of this Order to Convey Communications at the address indicated in the Certificate of Service 19 , by Magistrate Judge Kristen L. Mix on 1/6/16. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-mc-00166-WJM-KLM
MICHAEL J. TRACY,
Plaintiff,
v.
JEFFREY A. WEINMAN,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on the Court’s Order to Show Cause [#16].1
Defendant timely filed a Response [#18] to the Order to Show Cause.
On June 22, 2015, Plaintiff served Defendant with a subpoena for production of
documents. See [#12] at 3-5. The parties agree that Defendant has produced all clearly
non-privileged documents which are responsive to this subpoena. Id. at 1. Defendant is
an attorney who represented Telemetrix, Inc. and Convey Communications (the “Clients”)
in prior litigation. The documents sought by Plaintiff stem from that litigation. In a
Stipulation [#12], the parties stated that some or all of the documents which have not yet
been produced may be subject to the attorney-client privilege. However, “[Defendant]
Weinman does not hold the privilege and takes no position as to whether the privilege
attends any particular Document and, if so, whether waiver or any exception may apply.
Weinman does not believe, however, he is entitled to produce the Documents absent
1

“[#16]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.

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judicial determination regarding their status. Weinman has received no communication
from his former clients respecting this matter.”
Based on this information, on November 4, 2015, the Court directed Plaintiff to serve
a copy of the Order [#13] and the Motion to Compel [#2] on the Clients no later than
November 19, 2015. Plaintiff was permitted to serve counsel for Telemetrix, Inc. in the
underlying litigation filed in the United States District Court for the District of Nebraska,
Tracy v. Telemetrix, Inc. et al., Case No. 8:12CV-359, in lieu of serving the company
directly. Plaintiff was directed to file Certificate(s) of Service with this Court, which he did
on November 10, 2015. See [#15].
On November 4, 2015, the Court further ordered Defendant to provide copies of the
Potentially Privileged Documents which are subject to the subpoena to the Clients no later
than November 19, 2015.

See [#12] at 3-4.

The Court directed Defendant to file

Certificate(s) of Service with this Court. See [#13]. Defendant had not done so. See [#14].
Thus, there was no indication on the docket that the Clients received copies of the
Potentially Privileged Documents to review so they could determine whether to assert or
waive the attorney-client privilege. The Order to Show Cause [#16] was therefore issued
requiring Defendant to explain why he had not complied with the Court’s Order.
In conjunction with the Response to the Order to Show Cause, Defendant has filed
a Certificate of Service indicating that both of the Clients have been served with the
appropriate documents as of December 11, 2015. See [#19]. Since that time, Telemetrix,
Inc. has filed a Privilege Log [#22].

Convey Communications has not entered an

appearance in this matter. However, because Defendant’s service of the Court’s Orders
on Convey Communications occurred after the deadline originally set by the Court, there
is no current deadline by which Convey Communications must assert privilege as to any
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of the Potentially Privileged Documents. Accordingly,
IT IS HEREBY ORDERED that the Order to Show Cause [#16] is DISCHARGED.
IT IS FURTHER ORDERED that on or before January 19, 2016, Convey
Communications shall file a Notice with this Court stating whether it asserts or waives the
attorney-client privilege regarding the Potentially-Privileged Documents. If it asserts the
attorney-client privilege over some or all of those documents, Defendant shall provide hard
copies of the documents at issue to the Court for in camera review on or before January
26, 2016. Defendant shall produce to Plaintiff any documents over which the Clients do
not assert the attorney-client privilege within three business days after the filing of the
Notice. If Convey Communications fails to file the Notice, the Court will deem the
attorney-client privilege waived and will direct Defendant to produce the documents.
IT IS FURTHER ORDERED that the Clerk’s Office shall mail a copy of this Order
to Convey Communications at the address indicated in the Certificate of Service [#19].

Dated: January 6, 2016

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