Alamar Ranch, LLC v. County of Boise

Filing 175

MEMORANDUM DECISION AND ORDER on Plaintiff's Motion to Exclude Evidence Defendant Claimed as Privileged in McNeese and Burke Depositions, granting and deferring 100 Motion in Limine; granting 105 Motion in Limine. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)

Alamar Ranch, LLC v. County of Boise

Doc. 175

UNITED STATES DISTRICT COURT F O R THE DISTRICT OF IDAHO

A L A M A R RANCH, LLC, an Idaho lim ite d liability company; and YTC, L L C , an Idaho limited liability company, P la in tif f s , v. C O U N T Y OF BOISE, a political s u b d iv is io n of the State of Idaho, D e f e n d a n t.

C a se No. 1:09-cv-004-BLW M E M O R A N D U M DECISION AND O R D E R ON PLAINTIFF'S MOTION T O EXCLUDE EVIDENCE D E F E N D A N T CLAIMED AS P R IV I L E G E D IN McNEESE AND B U R K E DEPOSITIONS (Dkts. 100, 105)

Before the Court are Plaintiffs' Motions in Limine To Exclude in Defendant's C a se -in -C h ie f All Evidence Which Defendant Claimed as Privileged in Timothy M c N e e s e 's Deposition (Dkt. 100) and Motion in Limine To Exclude All Evidence W h ic h Defendant Claimed as Privileged in the Patti Burke Deposition (Dkt. 105). In its re s p o n s e s , Defendant seeks to preclude Plaintiffs from arguing that Defendant's conduct in executive session was improper or a violation of law. The motions have been fully b rie f e d . The Court being familiar with the record and pleadings will grant the motions in p a rt, and reserve its ruling on the motions in part.

ME M O R A N D U M DECISION & ORDER ON PLAINTIFFS' MOTIONS TO EXCLUDE (DKTS. 100, 105) - 1

Dockets.Justia.com

ANALYSIS In the Motions in Limine, Plaintiffs urge the Court to prohibit Defendant from o f f e rin g evidence in Defendant's case-in-chief, that Defendant claimed as privileged in th e depositions of Boise County attorney Timothy McNeese, and Boise County Planning & Zoning Administrator Patti Burke. Defendant responds that, in large part, it does not o b je c t to the limitations, and that it does not intend to solicit evidence from McNeese or B u rk e for which it asserted privilege in depositions. There being agreement on that issue, th e Motions will be granted to the extent that Plaintiffs will be precluded from offering e v id e n c e through either McNeese or Burke as to matters about which they declined to a n s w e r based upon an assertion of attorney-client privilege, work product, legal c o n c lu s io n s , speculation, or executive privilege. However, Plaintiffs request more. 1. R e q u e s te d Limitation On Evidence Shielded In McNeese Deposition Is Overly B road P la in tif f s here ask the Court to preclude Defendant from raising at trial "any topic, c o m m u n ic a tio n , meeting, process, event, research, etc. which Defendant's counsel stated w a s privileged or otherwise unanswerable in McNeese's deposition," (Dkt. 100-1 at 15), w h e th e r such evidence is solicited from McNeese or from another source. In support, P la in tif f s cite case law in which parties have been prohibited from using privilege as both a shield (at deposition) and a sword (at trial, where the privilege has been waived). See G a la x y Computer Servs, Inc. v. Baker, 325 B.R. 544, 558-59 (E.D. Va. 2005);

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Engineered Prods. Co. v. Donaldson Co., 313 F.Supp.2d 951, 1022-23 (N.D. Iowa 2004); A lla n Bock Co. v. County Materials Co., 2009 WL 1955588, **14-15 (D. Minn. 2009); P a ra d ig m Alliance, Inc. v. Celeritas Technologies, LLC, 2010 WL 2681280, **14-15 (D. K a n . 2010). There may be limits to the principle that a party cannot use an assertion of p riv ile g e as both a shield and a sword. However, at a minimum it precludes a party from a s s e rtin g privilege to impede counsel's discovery efforts concerning a critical c o m m u n ic a tio n , meeting or event, and then offer evidence of that same communication, m e e tin g or event during trial. As a matter of fundamental fairness, it typically would not m a tte r whether the evidence at trial is offered through the party deposed or through a n o th e r source. On the other hand, there may be unique circumstances where it would be u n f a ir to the Defendant to be precluded from offering at trial, independent evidence of a c o m m u n ic a tio n , meeting or event. For example, it may be appropriate to admit such e v id e n c e where it was abundantly clear that such independent evidence could have been d is c o v e re d through alternative means. The Court is unable to resolve this issue in the abstract. Therefore, the Defendant w ill not be categorically precluded from offering independent evidence of a c o m m u n ic a tio n , meeting or event which McNeese declined to discuss in his deposition b a s e d upon an assertion of privilege. However, before Defendant will be permitted to o f f e r such evidence, it must satisfy the Court that admitting such evidence would not be
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unfair to the Plaintiffs. 2. R e q u e s t To Preclude Argument By Plaintiff Regarding Executive Session In support of their motions (Dkts. 100 & 105), Plaintiffs assert that any attorneyc lie n t privilege that may have applied to McNeese's communications with Boise County C o m m is s io n e rs and Patti Burke was waived as a matter of law. See Motion, Dkts. 100-1 a t 9-10, 105-1 at 3. According to Plaintiffs, McNeese's communications with the C o m m is s io n e rs and with Burke took place outside of a properly noticed public meeting, in violation of Idaho Code §§ 67-2342, 67-2341(2) and (6). Plaintiffs further argue that n o exceptions to the open meeting requirement, under Idaho Code § 67-2345, apply. Thus, it is argued that the meetings should have been open under Idaho law, and that if th e y had been open, any privilege would have been waived. The Defendant contends th a t this interpretation of the statute is incorrect and is concerned that the Plaintiffs may s u g g e s t to the jury that what occurred in executive session was improper. Plaintiff's argument seems to ignore other provisions of the statute that justified th e Commissioner's decision to meet in executive session. Under Idaho law, "[a]n e x e c u tiv e session at which members of the public are excluded may be held . . . to c o m m u n ic a te with legal counsel for the public agency to discuss the legal ramifications of a n d legal options for pending litigation, or controversies not yet being litigated but im m in e n tly likely to be litigated." I.C. § 67-2345(1)(f). According to Defendant, Alamar R a n c h and opponents of Alamar Ranch "threatened to file a lawsuit against Boise County
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stemming from Alamar's CUP application." Response, Dkt. 142 at 1-2. Defendant notes th a t the executive sessions at issue here took place in late 2007 and early 2008, and were th u s proper under Idaho Code § 67-2345(1)(f).1 B a se d strictly upon the language of the statute and the Court's limited u n d e rs ta n d in g of the circumstances, the Court is of the impression that Defendant's e x e c u tiv e sessions were proper under Idaho Code § 67-2345. At this time, the Court will g ra n t Defendant's request to preclude Plaintiffs from asserting otherwise at trial, but will a llo w Plaintiffs to re-raise the issue at trial if and when evidence supports a contrary r u lin g . ORDER I T IS ORDERED: 1. P la in tif f 's Motion in Limine to exclude evidence in Defendant's case-inc h ie f that Defendant claimed as privileged in Timothy McNeese's d e p o s itio n (Dkt. 100) is GRANTED in part and DEFERRED in part. Defendant shall be precluded from offering evidence through McNeese as to matters about which he declined to answer, on assertion of attorney-client p riv ile g e , work product, legal conclusions, speculation, or executive p riv ile g e . Defendant will also be precluded from offering other evidence of

Defendant further argues that challenges to Idaho's Open Meeting ­ or "Sunshine" ­ Law must be filed under Idaho Code § 67-2347, for which the statute of limitations has now passed. This issue is also raised in Defendant's Motion (Dkt. 113), which will be addressed by the Court separately. ME M O R A N D U M DECISION & ORDER ON PLAINTIFFS' MOTIONS TO EXCLUDE (DKTS. 100, 105) - 5

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the subjects about which McNeese refused to testify in his deposition, w ith o u t first establishing that admitting such other evidence would not be u n f a irly prejudicial to the Plaintiffs. 2. P la in tif f 's Motion in Limine to exclude evidence that Defendant claimed as p riv ile g e d in Patti Burke's deposition (Dkt. 105) is GRANTED. 3. D e f e n d a n t's request to preclude Plaintiffs from arguing that what occurred in executive sessions was improper or a violation of law is GRANTED at th is time; Plaintiffs may, however, re-raise this issue at trial upon in tro d u c tio n of evidence that supports a contrary ruling.

DATED: December 4, 2010

Honorable B. Lynn Winmill Chief U. S. District Judge

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