SNEDEKER v. SNEDEKER et al
Filing
116
ORDER granting 78 Motion to Compel Eric Somheil to Answer Deposition Questions and Produce Redacted Notes. Signed by Magistrate Judge William G. Hussmann, Jr., on 8/11/2011. (NRN)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
JENNY J. SNEDEKER,
Plaintiff,
v.
STEPHEN C. SNEDEKER and JACKSON
NATIONAL LIFE DISTRIBUTORS, LLC,
d/b/a Jackson National Life Insurance
Company,
Defendants.
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2:10-cv-189-LJM-WGH
ORDER ON DEFENDANT’S MOTION TO COMPEL
This matter is before the Honorable William G. Hussmann, Jr., United
States Magistrate Judge, on Defendant’s, Stephen C. Snedeker (“Defendant”),
Motion to Compel Third Party Witness, Eric Somheil, to Answer Deposition
Questions and Produce Redacted Notes filed June 20, 2011. (Docket Nos. 78-81).
Plaintiff, Jenny J. Snedeker (“Plaintiff”), filed a Response on July 7, 2011. (Docket
No. 84). Defendant filed his Reply Brief on July 14, 2011. (Docket No. 88).
I. Background
On March 17, 2011, Eric Somheil (“Somheil”), an attorney who previously
represented Plaintiff in the drafting of her will, was deposed by Defendant’s
counsel. At issue for the purposes of the pending Motion to Compel are questions
posed to Somheil concerning a meeting that took place on January 22, 2008,
between Plaintiff and Somheil. (Deposition of Eric Somheil (“Somheil Dep.”) at 9).
Present during a portion of the January 22, 2008 meeting were one of Plaintiff’s
sons, James Snedeker (“James”), and Plaintiff’s daughter-in-law, Loretta Snedeker
(“Loretta”). (Id. at 10). At some point later in the meeting, James and Loretta
excused themselves. (Id. at 14). Then, a second portion of the meeting took place
between Plaintiff, Somheil, and Defendant, who is Plaintiff’s other son. (Id. at 15).
Defendant called in to the meeting via telephone. (Id.). Somheil also took notes
concerning both portions of the meeting. (Somheil Dep. at 17-18). During
Somheil’s deposition, he was instructed by Plaintiff’s counsel to neither answer
certain questions regarding the January 22, 2008 meeting nor to produce the
notes he created as a result of the January 22, 2008 meeting. Defendant then
filed this Motion to Compel seeking an order from this Magistrate Judge
instructing Somheil to answer the questions and to produce his notes. Plaintiff
seeks to prohibit the disclosure of this information, arguing that it is protected by
either the attorney-client privilege or the attorney work product privilege.
II. Discussion
Rule 26(b)(1) of the Federal Rules of Civil Procedure explains: “Unless
otherwise limited by court order, the scope of discovery is as follows: Parties may
obtain discovery regarding any nonprivileged matter that is relevant to any party’s
claim or defense . . . .” A party may seek an order to compel responses to
discovery requests in the event that the opposing party fails to respond to
discovery requests or has provided evasive or incomplete responses. FED. R. CIV.
P. 37(a)(3). In responding to a motion to compel discovery, the party that objects
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to the discovery request has the burden of demonstrating, with specificity, why the
information sought is not discoverable. Graham v. Casey’s General Stores, 206
F.R.D. 251, 254 (S.D. Ind. 2002).
A. Attorney–Client Privilege
“The attorney-client privilege is one of the oldest recognized privileges for
confidential communications.” Swidler & Berlin v. United States, 524 U.S. 399,
403, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998). The privilege is intended to
encourage complete and honest communication made between attorneys and their
clients and “promote broader public interests in the observance of law and the
administration of justice.” Upjohn Co. v. United States, 449 U.S. 383, 389, 101
S.Ct. 677, 66 L.Ed.2d 584 (1981); Lahr v. Indiana, 731 N.E.2d 479, 482 (Ind. Ct.
App. 2000). The privilege allows a client to provide complete information in
confidence to its counsel and counsel to give complete legal advice about the
client’s rights and liabilities without fear that the confidences will be revealed.
Lahr, 731 N.E.2d at 482; Hartford Financial Services Group, Inc. v. Lake County
Park and Recreation Bd., 717 N.E.2d 1232, 1235 (Ind. Ct. App. 1999); Corll v.
Edward D. Jones & Co., 646 N.E.2d 721, 724 (Ind. Ct. App. 1995).
In civil diversity claims, in which there is no federal cause of action, federal
courts apply the state law of attorney-client privilege. FED. R. EVID. 501; Lorenz v.
Valley Forge Ins. Co., 815 F.2d 1095, 1097 (7th Cir. 1987); Bartlett v. State Farm
Mut. Auto. Ins., 206 F.R.D. 623, 626 (S.D. Ind. 2002). Therefore, we must apply
Indiana law to determine if the communications between Plaintiff and Somheil are
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privileged. Indiana’s attorney-client privilege is codified under Ind. Code § 34-463-1, which reads, in pertinent part: “Except as otherwise provided by statute, the
following persons shall not be required to testify regarding the following
communications: . . . Attorneys, as to confidential communications made to them
in the course of their professional business, and as to advice given in such cases.”
The party relying on the attorney-client privilege has the burden to prove the
privilege’s applicability and must do so on “a question-by-question or
document-by-document basis.” Brown v. Katz, 868 N.E.2d 1159, 1166-67 (Ind.
Ct. App. 2007); Howard v. Dravet, 813 N.E.2d 1217, 1222 (Ind. Ct. App. 2004).
“The essential prerequisites to invocation of the privilege are to establish by a
preponderance of the evidence: 1) the existence of an attorney-client relationship
and 2) that a confidential communication was involved.” Brown, 868 N.E.2d at
1166 (citing Mayberry v. Indiana, 670 N.E.2d 1262, 1266 (Ind.1996)).
Generally, the law of privilege has been applied to protect from disclosure
communications between a client and her attorney regarding the preparation of a
will. Gast v. Hall, 858 N.E.2d 154, 163 (Ind. Ct. App. 2006)(citing Brown v.
Edwards, 640 N.E.2d 401, 404 (Ind. Ct. App.1994)). There is, however, an
exception to this general rule which applies, “[a]fter the client dies . . . and a
controversy arises concerning the validity of the will or between the claimants
under the will . . . .” Brown, 640 N.E.2d at 404 (quoting Briggs v. Clinton County
Bank & Trust Co. of Frankfort, Ind., 452 N.E.2d 989, 1012 (Ind. Ct. App. 1983)).
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The privilege “is not an absolute, eternal shield; a client who does not
safeguard the confidentiality of communications that would otherwise be protected
waives the privilege and subjects the communications to compelled disclosure.”
Bartlett, 206 F.R.D. at 626. Indiana courts recognize that a client can waive the
attorney-client privilege. Roberts v. Carrier Corp., 107 F.R.D. 678, 686 (N.D. Ind.
1985)(citing Brown v. Indiana, 448 N.E.2d 10 (Ind.1983)). Generally,
communications that are made within the presence or hearing of a third person or
other disclosure of confidential information to a third party constitute a waiver of
the attorney-client privilege. Lewis v. Indiana, 451 N.E.2d 50, 55 (Ind. 1983);
Ormond v. Anthem, Inc., 2011 WL 2020661, at *2 (S.D. Ind. May 24, 2011).
However, there is no waiver of the attorney-client privilege if the third party is an
agent of either the client or attorney. Ormond, 2011 WL 2020661, at *2 (citing
United States v. Evans, 113 F.3d 1457, 1462 (7th Cir. 1997)).
In this instance, there is no dispute that Somheil was Plaintiff’s attorney
during the January 22, 2008 meeting. Therefore, any communications made by
Plaintiff to Somheil during that meeting are considered communications between
attorney and client. However, the question remains whether or not the
communications can be classified as “confidential.” It is undisputed that at least
one third party was present during all of the communications at issue in this
dispute. Therefore, Plaintiff must demonstrate that an exception applies to the
general rule that the presence of a third party during communications between an
attorney and his client waives the attorney-client privilege. Plaintiff concedes that
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Loretta’s presence during certain discussions waived the attorney-client privilege
as to those portions of the January 22, 2008 meeting. (Plaintiff’s Response to
Motion to Compel at 8). Plaintiff, however, argues that the presence of either
Defendant or James during the January 22, 2008 meeting does not amount to a
waiver of the attorney-client privilege because they were both acting as Plaintiff’s
agent at the time. (Id. at 2). This Magistrate Judge does not agree. Neither
Defendant nor James were acting on behalf of Plaintiff at the January 22, 2008
meeting.1 The nature of the meeting was for the purposes of drafting a will, a
power of attorney, and a “Gifting Letter.” Both Defendant and James were
potentially beneficiaries under the will and interested parties with regard to these
other documents. Their interests were adverse from each other, and, for that
matter, from Plaintiff as she was distributing her assets in some manner to James
and Defendant. Neither James nor Defendant were acting “on behalf of” Plaintiff
during the meeting in the sense that they were designated by Plaintiff to direct
Somheil to perform any function.2 They cannot reasonably be characterized as
Plaintiff’s agents in the drafting of these documents. Therefore, they were not
Plaintiff’s agents for the purposes of this meeting, and the exception, as provided
in Ormond, does not apply. Consequently, because a third party was present
Furthermore, Somheil admitted during his deposition that he was not representing
Defendant at the January 22, 2008 meeting.
1
Although Plaintiff executed a power of attorney designating Defendant as her attorney
in fact in 1993, and although she executed a new power of attorney on the date of the
meeting naming both Defendant and James as co-attorneys in fact, there is no evidence
that either Defendant or James was taking action on behalf of Plaintiff during the time
of the meeting.
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during all of the relevant portions of the January 22, 2008 meeting, Plaintiff has
waived the attorney-client privilege.
B. Attorney Work Product Privilege
Rule 26(b)(3) of the Federal Rules of Civil Procedure governs the disclosure
of “work product.” It protects from disclosure: (1) documents and other tangible
things; (2) produced in anticipation of litigation or for trial; (3) by or for another
party or its representative. FED. R. CIV. P. 26(b)(3). “The threshold determination
is whether the documents sought to be protected were prepared in anticipation of
litigation or for trial.” United States v. Cinergy Corp., 2008 WL 5424007, at *1
(S.D. Ind. Dec. 30, 2008)(internal citations and quotations omitted). The Seventh
Circuit has explained that “[t]he mere fact that litigation does eventually ensue
does not, by itself, cloak material . . . with the work product privilege; the privilege
is not that broad.” Binks Mfg. Co. v. National Presto Indus., Inc., 709 F.2d 1109,
1118 (7th Cir. 1983). Consequently, we must ask “whether, in light of the nature
of the document and the factual situation in the particular case, the document
can fairly be said to have been prepared or obtained because of the prospect of
litigation.” Id. at 1118-19. A distinction must be made between precautionary
documents created in the normal course of business for the remote prospect of
litigation and those documents which are prepared because an articulable claim,
likely to lead to litigation, has arisen. Sandra T.E. v. South Berwyn School Dist.
100, 600 F.3d 612, 622 (7th Cir. 2010). It is the burden of the party seeking to
oppose production of the documents to demonstrate that the work product
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privilege shields the documents at issue from discovery. See Cummins, Inc. v. Ace
American Ins. Co., 2011 WL 1655916, at *5 (S.D. Ind. May 2, 2011).
In this instance, Plaintiff cannot meet her burden of demonstrating that
Somheil’s notes from the January 22, 2008 meeting were created “because of the
prospect of litigation.” The meeting took place, according to Somheil, primarily for
the purposes of revising Plaintiff’s Last Will and Testament. (Somheil Dep. at 911). Any time that an individual creates a will where multiple relatives are
involved, the will could always be considered to have been drafted in order to
avoid future disputes between the beneficiaries. But, that is not the test. This
meeting was not held because of the prospect of imminent litigation. (Therefore,
the notes created because of the meeting were not created “because of the
prospect of litigation.”) Plaintiff argues that she drafted a “Gifting Letter” at the
January 22, 2008 meeting in which she indicated her “concerns that there will be
a dispute between my sons,” and that this proves that the meeting notes were
created in anticipation of litigation. (Plaintiff’s Response to Motion to Compel at
4). However, it appears that the meeting notes could more accurately be described
as precautionary documents created in the normal course of business for the
remote prospect of litigation which do not receive work product protection.3
Sandra T.E., 600 F.3d at 622. Furthermore, while a dispute has, in fact, now
arisen two-and-a-half years after the January 22, 2008 meeting, the time period
This Magistrate Judge concludes that the “normal course of business” of a probate
attorney is the drafting of documents such as those that were drafted at the January 22,
2008 meeting.
3
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between the creation of the meeting notes and the dispute that has now arisen is
too remote to say that the notes were created in anticipation of litigation. Hence,
the notes are not protected by the work product privilege.
III. Conclusion
For the reasons outlined above, Defendant’s Motion to Compel Third Party
Witness, Eric Somheil, to Answer Deposition Questions and Produce Redacted
Notes is GRANTED in all respects. Though Somheil was acting as Plaintiff’s
attorney at the time of the meeting, the context of the meeting establishes that the
conversations were not “confidential” communications protected by the attorneyclient privilege. The creation of any documents arising out of the meeting, some
two-and-a-half years before the filing of this suit, were not created in anticipation
of litigation.
SO ORDERED.
Dated: August 11, 2011
__________________________
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana
Electronic copies to:
Edward O’Donnell DeLaney
DELANEY & DELANEY LLC
ed@delaneylaw.net
Kathleen Ann DeLaney
DELANEY & DELANEY LLC
kathleen@delaneylaw.net
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Brian R. Garrison
BAKER & DANIELS - Indianapolis
brian.garrison@bakerd.com
Mark Douglas Hassler
HUNT HASSLER & LORENZ, LLP
hassler@huntlawfirm.net
Susan W. Kline
BAKER & DANIELS - Indianapolis
swkline@bakerd.com
Roberta Sabin Recker
BAKER & DANIELS
rsrecker@bakerd.com
Christopher S. Stake
DELANEY & DELANEY LLC
cstake@delaneylaw.net
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