Leftwich v. Pittsburg, Kansas, City of et al

Filing 119

MEMORANDUM AND ORDER - Defendants' motion to review the magistrate judge's May 23, 2017 memorandum and order 114 is DENIED. IT IS FURTHER ORDERED BY THE COURT THAT defendants shall produce the remaining documents on their amended priv ilege log on or before Friday, June 30, 2017. Consistent with the court's prior order of May 5, 2017, the deposition of Henry Menghini must be taken no later than July 30, 2017; plaintiff's response to defendants' motion for summary j udgment must be filed on or before Friday, August 11, 2017; and defendants' reply brief must be filed on or before Friday, August 25, 2017. The court will endeavor to resolve the motion to summary judgment at least 30 days prior to trial, which the court hereby sets to start on 10/16/2017 at 09:30 AM in KC Courtroom 440 (JWL) before District Judge John W. Lungstrum. Signed by District Judge John W. Lungstrum on 06/27/2017. (ses)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS

Tommy Leftwich,
Plaintiff,
Case No. 16-2112-JWL
v.
City of Pittsburg, Kansas; Megan Fry;
Mendy Hulvey; and Daron Hall,
Defendants.

MEMORANDUM & ORDER
On April 12, 2017, the magistrate judge issued an order (doc. 88) in which he concluded
that the defendants had voluntarily waived the attorney-client privilege with respect to the City
Attorney’s advice relating to the decision to terminate plaintiff’s employment. Based on that
waiver, the magistrate judge ordered defendants to produce to plaintiff the first twelve
documents identified on defendants’ amended privilege log.

Those documents revealed

privileged communications that occurred on or before the date of plaintiff’s termination. The
magistrate judge ordered an in camera review of the remaining documents on the privilege log—
documents revealing privileged communications that occurred after plaintiff’s termination.
Thereafter, plaintiff filed a supplemental brief seeking the production of any privileged
communications relating to plaintiff’s appeal of his termination because, according to plaintiff,
the first twelve documents from the log clearly indicated that the termination decision and
plaintiff’s appeal of that decision constituted the “same subject matter” for purposes of

analyzing whether defendants’ waiver of the privilege as to legal advice concerning the
termination decision should extend to legal advice concerning the appeal of the termination
decision. See Federal Rule of Evidence 502(a). On May 23, 2017, the magistrate judge issued
an order (doc. 111) in which he concluded under Rule 502(a) that plaintiff’s appeal of the
termination decision constituted the same subject matter as the termination decision and that
fairness dictated the disclosure of privileged communications concerning plaintiff’s appeal of
the termination decision.
This matter is presently before the court on defendants’ motion to review, pursuant to
Federal Rule of Civil Procedure 72(a), the magistrate judge’s May 23, 2017 order requiring the
production of all other documents on the amended privilege log. Because the magistrate judge’s
order relates to a non-dispositive pretrial matter, the court utilizes a highly deferential standard
under which defendants must show that the magistrate judge’s order is “clearly erroneous or
contrary to law.” 28 U.S.C. § 636(b)(1)(A). In this case, the magistrate judge’s order was
neither clearly erroneous nor contrary to law and, thus, the court denies the motion.1

In the “background” section of his May 23, 2017 memorandum and order, the magistrate judge
suggests that his April 12, 2017 order requiring the production of the first twelve documents on
the amended privilege log was based on a finding that the communications therein contained
business advice as opposed to legal advice such that the communications were not privileged in
the first instance. In their motion to review, defendants assert that the magistrate judge’s order
is clearly erroneous to the extent it suggests that the judge had determined that any of the city
attorney’s communications in this case were non-privileged “business” communications.
Plaintiff does not address this issue at all in his response and the court agrees that the magistrate
judge’s April 12, 2017 does not suggest a finding that the communications were non-privileged
business communications. The background section of the magistrate judge’s May 23, 2017
order, however, does not bear on the magistrate judge’s ultimate ruling in any respect. The
court, then, disregards this aspect of defendants’ motion.
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In their motion, defendants contend that the magistrate judge’s order constitutes a clearly
erroneous application of Rule 502(a) that warrants reversal. Under Federal Rule of Evidence
502(a), a disclosure that waives the attorney-client privilege extends to undisclosed
communications if the waiver is intentional; the disclosed and undisclosed communications or
information concern the same subject matter; and they ought in fairness to be considered
together. Sprint Communications Co. v. Comcast Cable Comms. LLC, 2014 WL 3611665, at *4
Defendants challenge the magistrate judge’s

(D. Kan. 2014) (citing Fed. R. Evid. 502(a)).

finding that the termination decision and plaintiff’s appeal of that decision constitute the “same
subject matter” and his finding that “fairness” required disclosure of the additional documents. 2
As defendants concede, there is no “bright line test for determining what constitutes the
subject matter of a waiver.” Id. at *3 (quoting Fort James Corp. v. Solo Cup Co., 412 F.3d
1340, 1349–50 (Fed. Cir. 2005)). Here, the magistrate judge reasonably concluded that the
decision to terminate plaintiff’s employment and plaintiff’s appeal of that decision—both of
which undisputedly involved significant input and advice from the city attorney—constituted the
same subject matter for purposes of Rule 502(a). The key fact underlying the magistrate judge’s
ruling is that the termination decision and the appeal of that decision were inextricably linked by
defendants themselves, as evidenced in an email concerning the termination decision in which
the city attorney wrote that plaintiff should be given the reasons for his termination only if he
appealed that decision. Further evidence that the termination decision and the appeal process
Rule 502(a) applies to an “intentional waiver.” It is unclear whether that requirement means
that the privilege-holder must not only intend to disclose the communication but also intend that
the disclosure operate as a waiver. 23 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 5444 (1st ed. 2015). Regardless, defendants do not challenge this
aspect of the magistrate judge’s order.
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were linked by defendants is found in the documents provided to the magistrate judge for in
camera review. Those documents, for example, indicate that defendants intended to use the
appeals process as an opportunity to demonstrate to plaintiff that the termination decision was
justified and to flesh out the reasons for that decision.3

Finally, the court notes that the

documents in question span a fairly limited time period—from February 25, 2014 through
March 31, 2014. Contrary to defendants’ argument, then, the magistrate judge did not find an
“expansive subject matter waiver.”
The magistrate judge also concluded under Rule 502(a) that fairness required disclosure
of the additional documents identified in the amended privilege log. Defendants assert that this
finding was erroneous because the fairness aspect of Rule 502(a) is limited to those situations in
which a party selectively and deliberately discloses documents in an effort to present a one-sided
presentation of evidence, to the disadvantage of his or her adversary. See id. at *4 (quoting
Explanatory Note to Rule 502). Defendants urge that no evidence of such conduct exists in this
case. The court cannot draw that conclusion on the record before it. The magistrate judge
concluded that defendants waived the privilege by intentionally injecting into the case, through
their position statement to the EEOC and the deposition testimony of a witness, the city
attorney’s participation in the termination decision.4 After placing that issue into the case,

Plaintiff contends that the court must deny defendants’ motion without reaching the merits
because defendants have failed to provide to the court the documents that were submitted to the
magistrate judge for in camera review such that the record before the court is inadequate. The
court rejects this argument and treats the documents that were submitted to the magistrate judge
as part of the record of the case. The court retrieved those documents from the magistrate judge
to review prior to resolving defendants’ motion.
4
In passing, defendants assert in their motion that their position statement to the EEOC does not
reveal the substance of any legal advice solicited or received from the city attorney. To the
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defendants opposed the disclosure of information concerning the city attorney’s involvement in
the appeal process. But the communications about plaintiff’s appeal tend to clarify or explain
the communications already disclosed about the termination decision. Thus, a “complete and
accurate presentation” about the city attorney’s participation is required to avoid “any
misleading impression created by taking matters out of context.” See Notes to Rules 502(a) &
106 (the fairness requirement in Rule 502(a) is simply “an expression of the rule of
completeness”; language concerning “fairness” in Rule 502(a) is taken from Rule 106 because
the “animating principle is the same”).
Lastly, defendants urge that that they do not intend to rely on an advice-of-counsel
defense at trial and suggest that this reason is a basis to deny an expansion of the waiver that
occurred. But the issue of whether a privilege-holder has put its counsel’s advice at issue in a
case is pertinent to a determination of whether the privilege was waived in the first instance—a
determination that was made previously by the magistrate judge and was not challenged by
defendants. See United States v. Pinson, 584 F.23d 972, 977 (10th Cir. 2009) (when party
interjects advice-of-counsel as an element of a claim or defense, the party waives the privilege
as to all advice received concerning the same subject matter). Here, the magistrate judge
concluded that defendants waived the privilege when they disclosed attorney-client
communications in their position statement to the EEOC and when a witness testified during his
deposition about privileged communications. Thus, the only issue here is whether the waiver
that already occurred should extend to the same subject matter under Rule 502(a). The issue of

extent defendants suggest that they did not waive the privilege in their position statement, that
issue was resolved by the magistrate judge and defendants never sought review of that decision.
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whether defendants intend to rely on an advice-of-counsel defense is not pertinent to that
determination. See Shionogi Pharma, Inc. v. Mylan Pharmaceuticals, Inc., 2011 WL 6651274,
at *4 (D. Del. Dec. 21, 2011) ( Rule 502(a) is intended to address only the appropriate scope of a
waiver and not whether a waiver has occurred in the first instance).
For the foregoing reasons, the court does not find that the magistrate judge’s conclusion
that defendants’ waiver as to the termination decision should be extended to plaintiff’s appeal of
that decision is clearly erroneous. The motion is denied.

IT IS THEREFORE ORDERED BY THE COURT THAT defendants’ motion to
review the magistrate judge’s May 23, 2017 memorandum and order (doc. 114) is denied.

IT IS FURTHER ORDERED BY THE COURT THAT defendants shall produce the
remaining documents on their amended privilege log on or before Friday, June 30, 2017.
Consistent with the court’s prior order of May 5, 2017, the deposition of Henry Menghini must
be taken no later than July 30, 2017; plaintiff’s response to defendants’ motion for summary
judgment must be filed on or before Friday, August 11, 2017; and defendants’ reply brief must
be filed on or before Friday, August 25, 2017. The court will endeavor to resolve the motion to
summary judgment at least 30 days prior to trial, which the court hereby sets to start on
Monday, October 16, 2017.

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IT IS SO ORDERED.

Dated this 27th day of June, 2017, at Kansas City, Kansas.

s/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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