Ezell et al v. Darr et al
Filing
20
ORDER denying 10 Motion to Strike. Ordered by Judge Clay D. Land on 01/17/2012 (ajp)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
TERRI EZELL, et al.,
*
Plaintiffs,
*
vs.
*
JOHN DARR, et al.,
*
CASE NO. 4:11-CV-93 (CDL)
Defendants.
*
O R D E R
Plaintiffs
Terri
Ezell
(“Ezell”)
and
Donna
Tompkins
(“Tompkins”), who are present employees of the Muscogee County
Sheriff’s
Office,
allege
that
Defendant
Sheriff
John
Darr
(“Sheriff Darr” or “Sheriff-elect Darr”) retaliated against them
because
they
had
supported
Sheriff
Darr’s
opponent,
former
Sheriff Ralph Johnson (“Sheriff Johnson”), in the 2008 election
in which Sheriff Darr defeated former Sheriff Johnson.
As a
result
have
of
that
alleged
retaliation,
Ezell
and
Tompkins
filed this action asserting claims pursuant to 42 U.S.C. § 1983
that
Defendants’
alleged
retaliatory
Plaintiffs’ First Amendment rights.1
to
Strike
(ECF
No.
10),
which
conduct
violated
Defendants filed a Motion
presents
the
narrow
issue
of
whether the following paragraph in Plaintiffs’ Complaint should
1
Plaintiffs Ezell, Tompkins, and Joan B. Wynn also assert other claims
in this action which are not relevant to the pending motion.
be stricken because it improperly invades the attorney-client
privilege:
Sheriff Darr was elected Sheriff of Muscogee County,
Georgia in November 2008.
On November 18, 2008 Darr
asked for an opinion from the City Attorney’s Office
as to what, if any, effect the placement of employees
by a former Sheriff into the Columbus Merit System has
on the personnel decisions of a newly elected Sheriff.
Compl. ¶ 22, ECF No. 1.
This allegation is apparently based on a disclosure of the
information to Tompkins by Sheriff Johnson after the election,
but while he was still the duly elected Sheriff, and before
Sheriff-elect Darr was sworn in to office.
that
the
allegation
should
be
stricken
Defendants maintain
because
requiring
Defendants to respond to it would invade the attorney-client
privilege.
See generally Defs.’ Mot. to Strike, ECF No. 10.
The Court rejects Defendants’ argument.
Defendant Darr was not
a client of the City Attorney in his individual capacity when he
sought
the
legal
advice
as
Sheriff-elect
in
November
2008.
Therefore, Sheriff-elect Darr’s inquiry is not protected by the
attorney-client
privilege.
Moreover,
to
the
extent
that
Sheriff-elect Darr made the inquiry on behalf of the Muscogee
County Sheriff’s Office, which was a client of the City Attorney
in November 2008, the Court finds that the communication was
disclosed by Sheriff Johnson, who was still the Sheriff at that
time.
Thus, any attorney-client privilege as to the inquiry was
2
lost upon that disclosure.
Accordingly, Defendants’ Motion to
Strike (ECF No. 10) is denied.
BACKGROUND
Sheriff
Darr
defeated
incumbent
Muscogee
Johnson in the November 2008 election.
County
Sheriff
Ezell and Tompkins, who
were employees of the Muscogee County Sheriff’s Office during
Sheriff Johnson’s tenure, had allegedly supported him during his
reelection
January
campaign.
2009,
Ezell
After
and
Sheriff
Tompkins
Darr
contend
became
that
Sheriff
he
in
retaliated
against them because of their previous support of former Sheriff
Johnson.
In
support
regarding
of
their
Sheriff-elect
Motion
Darr’s
to
inquiry
Strike
to
the
City
the
Defendants submit the affidavit of Sheriff Darr.
paragraph
Attorney,
Sheriff Darr
states he believed that all of his post-election communications
with the City Attorney’s Office seeking legal advice, including
discussions about employment decisions, would be protected by
the attorney-client privilege.
Darr
Aff.
¶
3,
ECF
No.
Defs.’ Mot. to Strike Attach. 1,
10-1.
All
of
Sheriff
Darr’s
communications with the City Attorney’s Office occurred either
over
the
phone
or
in
the
office,
communications to remain confidential.
and
he
intended
the
Id. ¶ 4.
Although Sheriff Darr had been elected Sheriff in November
2008
when
the
communications
at
3
issue
took
place,
Sheriff
Johnson was still the Sheriff for Muscogee County at that time.
Pls.’
Resp.
in
Opp’n
to
Defs.’
Mot.
Tompkins Decl. ¶ 3, ECF No. 17-1.
to
Strike
Attach.
1,
While still holding the
position of Sheriff, Sheriff Johnson learned about Sheriff-elect
Darr’s inquiry to the City Attorney.
Sheriff Johnson disclosed
this inquiry to Tompkins and several other employees who had
supported him in the election.
Id.
Sheriff Johnson told them
that Sheriff-elect Darr asked the City Attorney’s Office what,
if any, effect Sheriff Johnson’s placement of the employees into
the Columbus Merit System would have on Sheriff-elect Darr’s
personnel decisions.
Id.
Sheriff Johnson also told them that
Sheriff-elect Darr sought a legal opinion about demoting them.
Id. ¶ 4.
According to Tompkins, Sheriff Johnson said Sheriff-
elect Darr was “coming after” them.
Id.
¶ 5.
Sheriff Johnson
said, “this is my Sheriff’s Office, you are my employees, and
this affects all of you.”
Id. ¶ 6.
DISCUSSION
Defendants
contend
that
to
comply
with
Federal
Rule
of
Civil Procedure 8(b)(1)(B), which requires them to admit or deny
the allegations asserted against them in Plaintiffs’ Complaint,
they
must
Sheriff
admit
Darr
Defendants
or
and
argue
deny
whether
the
City
that
under
the
communications
Attorney’s
Federal
Rule
Office
of
Civil
between
occurred.
Procedure
12(f), the Court should strike the allegation from the Complaint
4
because the communications are protected by the attorney-client
privilege,
and
therefore
the
allegation
constitutes
an
“immaterial, impertinent, or scandalous matter.”
“The party invoking the attorney-client privilege has the
burden of proving that an attorney-client relationship existed
and
that
the
particular
communications
were
confidential.”
Bogle v. McClure, 332 F.3d 1347, 1358 (11th Cir. 2003) (internal
quotation marks omitted).
Defendants
have
relationship
failed
existed
Preliminarily, the Court finds that
to
establish
between
that
Sheriff-elect
an
attorney-client
Darr
and
the
City
Attorney’s Office in November 2008, which was prior to the date
that Sheriff-elect Darr was sworn in and became the Sheriff of
Muscogee County.
Consequently, the communications at issue are
not protected by any attorney-client privilege that may arise
from the City Attorney’s discussions with Sheriff-elect Darr in
his individual capacity.
To the extent that the communications
were made as part of the City Attorney’s representation of the
Office of the Sheriff and not Sheriff-elect Darr individually,
the Court finds that any privilege that may have attached to
those
communications
was
lost
when
Sheriff
Johnson,
while
serving as the duly elected Sheriff, disclosed them to Tompkins
and others.
It
is
well
established
that
“where
attorney-client
communications are no longer confidential, i.e., where there has
5
been a disclosure of a privileged communication, there is no
justification for retaining the privilege.”
United States v.
Suarez, 820 F.2d 1158, 1160 (11th Cir. 1987).
confidentiality
of
a
privileged
To establish the
communication,
the
party
asserting the privilege must show the communication was “(1)
intended to remain confidential and (2) under the circumstances
was
reasonably
expected
and
understood
to
be
confidential.”
Bogle, 332 F.3d at 1358 (internal quotation marks omitted).
Plaintiffs
argue
that
the
communications
alleged
in
Paragraph 22 of the Complaint are no longer confidential because
Sheriff Johnson disclosed the contents of the communications to
Tompkins.
The Court agrees.
communications
to
Tompkins
Sheriff Johnson disclosed the
and
did
not
indicate
to
intent for the communications to remain confidential.
at
the
time
Sheriff
Johnson
disclosed
the
her
any
Moreover,
communications,
control of the Muscogee County Sheriff’s Office still rested
with him and had yet to pass to Sheriff Darr.
Johnson
retained
the
power
to
waive
the
Thus, Sheriff
attorney-client
privilege by disclosing Sheriff-elect Darr’s communications with
the
City
Attorney’s
Office.
See
Commodity
Futures
Trading
Comm’n v. Weintraub, 471 U.S. 343, 348 (1985) (“[T]he power to
waive
the
corporate
corporation’s
attorney-client
management.”).
Under
6
privilege
these
rests
with
the
circumstances,
the
Court cannot conclude that Defendants have carried their burden
of demonstrating that the communications remained confidential.
Defendants also argue that even if Sheriff Johnson did not
intend for the communications to remain confidential, the fact
that his disclosure was limited to employees of the Sheriff’s
Office requires that the communications retain their privileged
nature.
Defendants’ reliance upon Upjohn Co. v. United States,
449 U.S. 383 (1981) in support of this argument is misplaced.
It is true that disclosures of privileged information to and
from
an
employer’s
counsel
involving
middle
and
lower
level
employees can be subject to the attorney-client privilege under
certain circumstances;
however,
Defendants’ attempt to extend
Upjohn to protect all disclosures made to an employee by that
employee’s superior simply because the disclosure may relate to
communications
Upjohn.
group”
In
test
corporate
with
counsel
reveals
a
misunderstanding
of
Upjohn, the Supreme Court rejected the “control
for
counsel
determining
and
the
whether
employees
communications
of
protected by the attorney-client privilege.
a
between
corporation
are
See Upjohn, 449
U.S. at 390-95 (discussing the reasons why the control group
test frustrated the purpose of the attorney-client privilege).
The Supreme Court concluded that communications between middle
and lower level employees and corporate counsel for the purpose
of securing legal advice can be covered by the attorney-client
7
privilege.
other
Id. at 394-95.
employees
Unlike in Upjohn, Tompkins and the
here did not make disclosures to counsel as
directed by their superiors.
Instead, their superior, Sheriff
Johnson, made the disclosure of this information to them in
their
individual
deserved
a
capacities
heads
up
that
presumably
their
jobs
because
may
be
he
felt
in
they
jeopardy.
Moreover, nothing about the disclosure of the information by
Sheriff Johnson to Tompkins and the other employees indicates
that it had anything to do with their obtaining legal advice
from the City Attorney.2
disclosed
the
The mere fact that Sheriff Johnson
communications
to
another
Sheriff’s
Office
employee does not cloak those communications with the attorneyclient privilege under the rationale of Upjohn.
In
summary,
Defendants
have
not
demonstrated
that
an
attorney-client relationship existed between Sheriff-elect Darr
in his individual capacity and the City Attorney’s Office when
he
made
the
Complaint.
inquiry
alleged
in
Paragraph
22
of
Plaintiff’s
Furthermore, to the extent that the inquiry sought
2
The additional authority cited by Defendants, Eglin Federal Credit
Union v. Cantor, Fitzgerald Securities, Corp., 91 F.R.D. 414 (N.D. Ga.
1981), is also distinguishable for this reason.
In Eglin Federal
Credit Union, the court found that the attorney-client privilege had
not been waived where employees outside of the control group attended
meetings discussing potential or pending litigation because corporate
counsel needed information known by the employees to provide legal
advice.
Eglin Fed. Credit Union, 91 F.R.D. at 418.
In contrast,
Sheriff Johnson’s disclosure does not demonstrate that he wanted to
gather information from Tompkins or the other employees to get legal
advice from the City Attorney.
8
legal advice on behalf of the Sheriff’s Office and not Sheriff
Darr individually, the present record establishes that Sheriff
Johnson, while acting as the duly elected Sheriff, disclosed the
inquiry referred to in Paragraph 22, and thus any privilege that
may
have
Sheriff
originally
Johnson’s
attached
subsequent
to
the
inquiry
disclosure.
was
For
lost
all
upon
of
these
reasons, the Court finds that requiring Defendants to respond to
Paragraph 22 of Plaintiff’s Complaint does not improperly invade
the attorney-client privilege.
Defendants also contend that even if the Court finds that
Defendants
should
waived
strike
the
the
attorney-client
allegation
because
privilege,
it
the
Court
is
immaterial,
impertinent, scandalous, and unfairly prejudicial.
First, the
allegation that Sheriff Darr asked the City Attorney’s Office
what effect a former Sheriff’s placement of employees into the
Columbus Merit System had on an incoming Sheriff’s personnel
decisions is not immaterial to this action because Tompkins and
Ezell
claim
that
Sheriff
Darr
retaliated
supporting Sheriff Johnson by demoting them.
against
them
for
Thus, the Court
cannot conclude that the allegation has no possible relation to
the controversy.
Defendants claim the allegation is impertinent
and potentially scandalous “insofar as it begs the question of
what advice was given,” and the “jury and the public should not
be
permitted
to
learn
the
subject
9
matters
about
which
the
incoming Sheriff sought legal counsel.”
Defs.’ Reply in Supp.
of
Pretermitting
Mot.
to
Plaintiffs
response
Strike
will
made
3-4,
ECF
eventually
by
the
No.
be
City
18.
entitled
Attorney
to
to
discover
whether
the
Sheriff-elect
full
Darr’s
inquiry, the Court has found that the alleged fact that he made
the inquiry is not protected by attorney-client privilege and is
sufficiently relevant such that the allegation should not be
stricken from Plaintiff’s Complaint.3
CONCLUSION
Based on the foregoing, Defendants’ Motion to Strike (ECF
No. 10) is denied.
IT IS SO ORDERED, this 17th day of January, 2012.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
3
The Court observes that Sheriff Darr’s current predicament could have
easily been avoided either by waiting to obtain legal advice in his
capacity as Sheriff until after he officially became Sheriff or by
establishing an individual attorney-client relationship with an
attorney from whom he sought legal advice prior to becoming Sheriff.
10
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