Helget v. Hays, Kansas, City of et al
Filing
97
MEMORANDUM AND ORDER granting in part and denying in part 21 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 3/19/14. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
FIRMA HEGLET,
)
)
Plaintiff,
)
)
v.
) Case No. 13-2228-KHV/KGG
)
CITY OF HAYS, KANSAS, et al.,
)
)
Defendants.
)
____________________________________)
MEMORANDUM & ORDER ON PLAINTIFF’S MOTION TO COMPEL
Before the Court is Plaintiff’s Motion to Compel (Doc. 21). The dispute
centers on a series of interrogatories and requests for production which seek
information regarding communications Defendants had with counsel prior to the
termination of Plaintiff’s employment. Plaintiff claims the attorney-client privilege
and work product doctrine were waived by production of documents in her
personnel file as well as Defendants’ use of the qualified immunity defense.
Plaintiff also seeks certain information regarding computer equipment owned by
Defendant City of Hays. Plaintiff’s motion is GRANTED in part and DENIED
in part for the reasons set forth below.
BACKGROUND
Plaintiff brings this lawsuit against her former employer, Defendant City of
Hays, Kansas (Defendant City), as well as individual Defendants Toby Dougherty,
the City Manager for Defendant City, and Donald Scheibler, Chief of Police for
Defendant City. (See generally Doc. 1.) Plaintiff brings various claims against
Defendants for the allegedly wrongful termination of her employment.
Specifically, she contends that she was improperly fired after submitting an
affidavit in a lawsuit (hereinafter “Dryden lawsuit”) brought by former Hays,
Kansas Police Department Officer Blaine Dryden against Defendant City,
Defendant Dougherty, and the former Chief of Police “alleging interference with
his constitutional rights . . . .” (Id., at 3-4.) Plaintiff contends, in part, that her
termination constituted an unlawful interference with her right to testify at trial in
violation of the First Amendment, an unlawful interference with her right to speak
on a matter of public concern, and a violation of public policy. Defendants deny
Plaintiff’s claims and contend that her employment was terminated “because she
could not maintain confidentiality . . . misused city computers . . . and could not
effectively work with her superiors.” (Doc. 42, at 1.)
At issue are discovery requests regarding communications described by
Plaintiff as “between the City and its attorneys asking if they would be legally
justified in firing her, which the City has since used as the basis for several
affirmative defenses and has voluntarily disclosed” to Plaintiff. (Doc. 21-1, at 2.)
Plaintiff continues that because Defendants “placed advice they received from their
attorneys into [Plaintiff’s] personnel file, produced it to her in discovery, and relied
on such advice to claim their actions were ‘lawful’ and in ‘good faith,’ [Plaintiff]
believes they have waived attorney-client privilege and work product protection as
to this advice.” (Id.) Plaintiff also seeks certain information regarding Defendant
City’s computers “[b]ecause of the City’s shifting explanations for why [Plaintiff]
was fired . . . .” (Id.)
The referenced document that had been placed in Plaintiff's personnel file
and voluntarily produced in discovery was titled "Time Line With Firma" and
included an entry for May 10, 2012, written by Defendant Scheibler, which stated
in part: “I was contacted . . . by Peter Maharry and was questioned about an
affidavit that Firma had signed in the Dryden lawsuit. . . . I spoke with [attorney]
John Bird and he agreed with concerns about confidentiality. John Bird spoke with
Peter and then called me back and he stated that the City would be justified in
moving forward.” (Doc. 21-6, at 1.) The time line also indicates that Scheibler
met with John Bird the next day and confirmed that Bird was “ok” with Defendant
City terminating Plaintiff’s employment. Id., at 2. Plaintiff has propounded an
Interrogatory and five Requests for Production seeking information, documents,
and/or ESI relating to conversations between Defendant City’s employees and
attorneys Mr. Bird and/or Mr. Maharry relating to Plaintiff’s employment or the
termination thereof. (Doc. 21-1, at 5-6.)
Defendant objects to producing this information on the basis of the attorney-
client privilege and work product doctrine. Plaintiff contends that the information
disclosed in the time line constitutes a waiver of the attorney-client privilege.
ANALYSIS
A.
Attorney-Client Privilege.
Federal court jurisdiction in this case is based on Plaintiff’s claims arising
under the United States Constitution as well as a federal statutory scheme, 42
U.S.C. § 1983.1 (Doc. 1, at 2.) As such, federal law provides the rules of decisions
as to the application of the attorney-client privilege. Fed.R.Evid. 501. Under
federal common law, the essential elements of the attorney-client privilege are: (1)
where legal advice of any kind is sought (2) from a professional legal advisor in his
capacity as such, (3) the communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance permanently protected (7) from
disclosure by himself or by the legal advisor, (8) except if the protection is waived.
Marten v. Yellow Freight Sys., Inc., No. 96-2013-GTV, 1998 WL 13244, *5 (D.
Kan. Jan. 6, 1998) (citation omitted).
The privilege ‘protects confidential communications by a
client to an attorney made in order to obtain legal
assistance from the attorney in his capacity as a legal
advisor.’ The privilege also protects advice given by the
1
Plaintiff’s claims also arise, in part, under the laws of the State of Kansas. The
Court notes, however, that the analysis of the privilege does not differ substantively
whether addressed under federal or state law.
lawyer in the course of representing the client. The
privilege protects communications with in-house counsel
as well as outside attorneys. The privilege, however, ‘is
to be extended no more broadly than necessary to
effectuate its purpose.’
New Jersey v. Sprint Corp., 258 F.R.D. 421, 425 (D. Kan. 2009) (citations
omitted).
The importance of the attorney-client privilege in American jurisprudence is
well-established. See Cincinnati Ins. Co. v. M.S. ex rel. Serrano, No. 11-2075JAR/KGG, 2011 WL 6304086 (D. Kan. Dec. 16, 2011) (citing Milavetz, Gallop
&Milavetz, P.A. v. U.S., 130 S.Ct. 1324, at n.5 (2010) (holding that the attorneyclient privilege is an important “means of protecting that relationship and fostering
robust discussion” between a party and its counsel)). As such, waivers of the
privilege are to be narrowly construed. Id.
Plaintiff claims that Defendants waived the attorney-client and work product
doctrine “by voluntarily disclosing the advice they received, and by placing it into
[Plaintiff’s] personnel file as the justification [Defendant City] used to fire”
Plaintiff. (Doc. 21-1, at 7.) Defendant City responds that the entries
simply note conversations with counsel. They do not
spell out the advice given or all the issues discussed. At
best, they establish that legal advice was sought, but they
do not state the substance of the conversations. There
simply is no waiver.
(Doc. 42, at 4.) In other words, Defendant City argues that it merely disclosed the
fact that the conversations with counsel occurred regarding the general topic of
Plaintiff’s involvement in the Dryden lawsuit. Thus, the parties agree, and the
Court finds, that the pivotal issue is whether the voluntary disclosures were
substantive, or merely disclosures of the fact that advice was obtained. See United
States v. Ryans, 903 F.2d 731, n.13 (10th Cir. 1990) (holding that the privilege is
lost if the client discloses the substance of the privileged communication).
The Court finds that the disclosure in this case included the substance of the
attorney’s conclusions. Although the time line entry is brief, there is a substantive
recitation of the legal advice given to Defendants. (Doc. 42, at 6.) The entry
indicates that Scheibler spoke with counsel regarding “concerns about
confidentiality,” and counsel agreed. (Doc. 21-6, at 1.) Counsel also told
Scheibler that “the City would be justified in moving forward.” Id. This is not a
simple disclosure that a consultation was obtained, but reveals the legal advice
rendered. Thus, Defendants voluntary waived the privilege as a result of producing
this document in this case, and the Plaintiff’s motion is GRANTED on that basis.
In the alternative, Plaintiff contends that Defendants “waived the attorneyclient privilege and work product protection by relying on their attorneys’ advice
to justify their actions, thus putting the advice they sought and the advice they
received at issue in this case.” (Doc. 21-1, at 9.) See State ex rel Stovall v.
Meneley, 271 Kan. 355, 22 P.3d 124 (2001) (citing Hearn v. Rhay, 68 F.R.D. 574,
579-81 (E.D. Wash. 1975)).
The test set out in Hearn has also been applied to federal actions brought in
Kansas federal courts. Williams v. Spirit/United Management Company, 464
F.Supp.2d 1100 (D. Kan. 2006); State of New Jersey v. Sprint Corporation, 258
F.R.D. 421 (D. Kan. 2009). The Court agrees that this standard is applicable to the
present issue.
Under the Hearn test, the Court must find each of three conditions present to
evoke a waiver. First, the assertion of the privilege was the result of some
affirmative act, such as filing suit, by the asserting party; second, through this
affirmative act, the asserting party put the protected information at issue by making
it relevant to the case, and third, application of the privilege would deny the
opposing party access to information vital to its defense. Williams, 464 F.Supp.2d
at 1104; see also Serrano, 2011 WL 6304086, at *6. The privilege is then found
impliedly waived through the party’s own actions when the party “places
information protected by it at issue through some affirmative act for his own
benefit, and to allow the privilege to protect against such disclosure of such
information would [be] manifestly unfair to the opposing party.” Hearn, 68
F.R.D., at 581 (cited with approval in Williams, 464 F.Supp.2d at 1105).
The Hearn court reviewed an assertion of privilege by state officials who
had interposed a immunity defense to a claim under the Civil Rights Act. That
court ruled that because consultation with counsel was essential to the good faith
defense, if the plaintiff could first show substantial merit to his claim, the attorney
client privilege was waived by the assertion of the immunity claim. 68 F.R.D. 574.
In Williams the Kansas District Court, applying Hearn, rejected an
argument that reliance on good faith compliance with internal policies in an Age
Discrimination in Employment Act case waived the privilege, even when those
policies includes a required legal review. Williams, 464 F.Supp.2d at 1105. The
Court observed that “the mere fact that privileged material is relevant to a matter
that is raised as an issue in connection with the assertion of an affirmative defense
is insufficient to trigger a waiver.” Id.
Similarly, in State of New Jersey v. Sprint, the court rejected an argument
that corporate directors had waived the attorney client privilege by testifying
generally about receiving legal advice, when none of the defendants had raised
advice of counsel as a legal defense. 258 F.R.D. at 432-433. The difference
between Williams and Sprint on one hand versus Hearn on the other is that in the
former cases the attorney-client communications are merely relevant to the claims,
while in the latter they were integral to the claim itself.
The qualified immunity defense protects government officials performing
discretionary government functions from civil damages and the obligation to
defend the action. See Johnson v. Fankell, 520 U.S. 911, 914, 117 S.Ct. 1800,
138 L.Ed.2d 108 (1997); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727,
73 L.Ed.2d 396 (1982). The doctrine “is designed to protect public officials who
act in good faith, on the basis of objectively reasonable understandings of the law
at the time of their actions, from personal liability on account of later-announced,
evolving constitutional norms.” Pierce v. Gilchrist, 359 F.3d 1279, 1299 (10th
Cir.2004); Marcus v. McCollum, 394 F.3d 813, 823 (10th Cir. 2004).
Good faith, as is relates to the qualified immunity defense, has objective and
subjective elements. Hearn v. Ray, supra. What legal advice was received by
counsel, how the official responded to that advice and, for that matter, what the
official told the attorney, may be relevant to whether the defendants subjectively
acted in good faith. But the issue here is not relevance, it is waiver. Merely
asserting good faith does not waive the defense. Williams, 464 F.Supp.2d at 1105.
The record in this case is unclear as to whether Defendants have gone further than
a mere waiver. Defendants have produced in discovery facts showing that they
consulted with counsel prior to making the decision at issue. If Defendants assert
that consultation as part of their good faith claim (and they have not indicated in
their briefing whether they will do so), that affirmative act would waive the
privilege.
Regardless of the qualified immunity analysis, the Court finds that
Defendants voluntarily waived the attorney-client privilege regarding these
conversations by producing the substantive entry in the time line that was included
in Plaintiff’s personnel file in discovery. The portion of Plaintiff’s Motion to
Compel relating to this information is GRANTED.
B.
Discovery Regarding Defendant City’s Computer Equipment.
Also at issue is Defendant’s response to Plaintiff’s Interrogatory No. 9. The
interrogatory which reads:
List all computer equipment provided by the City or used
by employees of the City to perform work for the City,
including but not limited to hardware and/or peripherals
attached to a computer such as computer cases, monitors,
modems, printers, keyboards, printers, scanners, cellular
phones, smart phones, Blackberry™ phones or devices,
tablet computers, Portable Digital Assistants (“PDAs”),
or any other electronic device provided by the City to its
employees for use in performing work for the city.
Include a description of equipment, serial number, all
users for the period January 1, 2012 to present, and dates
used, and all locations where the equipment was located
for the period January 1, 2012 to present.
(Doc. 21-1, at 13.) Defendants objects that
the request is over broad and unduly burdensome in
seeking a list of every piece of equipment provided to
any employee with the City. The City has hundreds of
pieces of computer equipment and over a hundred
employees. To require a list that includes the description
of equipment, serial number, and all users would require
considerable time and effort. Further objecting, the
request seeks information that is irrelevant and not likely
to lead to the discovery of admissible evidence. The
equipment used by the Parks Department, for example,
does not bear on any claim being raised by Plaintiff.
Further objecting, the request seeks information that is
not available as the City does not have an inventory of
equipment from 2012 to present. The City maintains a
current inventory of equipment, but does not maintain a
list of all prior equipment used by the City.
Without waiving the objection, Plaintiff was provided a
PC (serial number: SN - 35S8YF1), a monitor, a
keyboard and a mouse. Her PC is being maintained by
the City as noted in request #8 and will be made available
for inspection at a mutually agreeable time and location.
Plaintiff’s other equipment has been transferred to other
individuals within the City and the City cannot state
which items were the ones used by Plaintiff. In addition,
Plaintiff had access to use of three shared printers that
were used by the department which includes roughly 54
employees.
(Doc. 42, at 9.)
The Court agrees that the interrogatory is, as written, overly broad, unduly
burdensome, and seeks irrelevant information. Defendant contends that Plaintiff
was fired, in part, for the misuse of city computers. The Court surmises that
Defendants’ contention is centered on the computer assigned to Plaintiff during her
employment, not her potential use of the computers of more than a hundred other
city employees. Plaintiff has failed to establish how information beyond Plaintiff’s
specifically assigned computer would be relevant and, even assuming it would be
relevant, how such relevance would outweigh the potential burden on Defendant to
compile and provide such information.
Although Defendant subsequently provided Plaintiff an inventory of all City
computers (Doc. 21-9), Plaintiff complains that the list “does not say to whom each
piece of equipment is assigned or where each item is located.” (Doc. 21-1, at 13.)
Thereafter, Defendants identified which City employee is or was assigned to each
computer. (Doc. 46, at 12; Doc. 42-4.) Plaintiff not complains that the document
does not provide information about the City’s smart phones and only reflects
computers currently in use without providing historical information back to
January 1, 2012. Defendant contends that it does not have this information, an
argument which Plaintiff contends is meritless.
The Court sees no value in requiring Defendant to engage in the labor and
time intensive effort to provide this smart phone and historical computer
information, even assuming it is able to do so, absent some evidence that Plaintiff
spent a significant amount of time using computers or smart phones other than her
own during her employment with the City. The Court will, however, order
Defendant to provide the requested information for the computer equipment and
smart phones of “key players” identified by Plaintiff: Scheibler, Dougherty, Brian
Dawson, Patty Wolf, Erin Niehaus, and Paul Briseno. (Doc. 21-1, at 13.) In
reaching this conclusion, the Court is not, however, opining as to the propriety of
further discovery regarding these individuals’ computers (such as whether Plaintiff
will be allowed to obtain forensic imaging of a specific hard drive).
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel
Discovery Responses (Doc. 21) is GRANTED in part and DENIED in part as
more fully set forth above.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 19th day of March, 2014.
S/ KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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