Leftwich v. Pittsburg, Kansas, City of et al

Filing 88

MEMORANDUM AND ORDER granting in part and denying in part 64 Motion to Enforce. The motion is granted with respect to attorney-client privilege as discussed herein; it is denied as to discovery regarding Defendants' duty to preserve electroni cally stored information, as that issue will be decided by the Court in a future Memorandum and Order addressing Plaintiff's second discovery-based motion.IT FURTHER ORDERED that, on or before April 21, 2017, Defendants shall produce documents numbered 1 through 12 on its Amended Privilege Log to Plaintiff. Defendants shall produce to the Court the remaining documents for in camera review on or before April 21, 2017. Signed by Magistrate Judge Gerald L. Rushfelt on 4/12/2017. (ydm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TOMMY LEFTWICH,
Plaintiff,
v.

Case No. 16-2112-JWL-GLR

CITY OF PITTSBURG, KANSAS, et al.,
Defendants.

MEMORANDUM AND ORDER
Before the Court is Plaintiff’s Motion to Enforce Discovery (ECF 64). Plaintiff seeks
production of documents withheld by Defendants upon grounds of attorney-client privilege.1 For
the reasons below, the Court grants in part and denies in part Plaintiff’s motion.
I.

Legal Standard(s)
Magistrate Judge O’Hara succinctly described this district’s treatment of attorney-client

privilege in In re Syngenta Ag Mir 162 Corn Litigation:2
Fed. R. Civ. P. 26(b)(1) limits discovery to “nonprivileged matters.”
Because this litigation arises out of a federal statutory scheme, federal law
governs the application of the attorney-client privilege.3 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.4
Although this description suggests that the privilege only operates to protect the
Plaintiff also raises a second, but largely ancillary, issue regarding Defendants’ duty to preserve
electronically stored information. Because this issue largely overlaps with Plaintiff’s second motion to compel
(ECF 68), and in light of the dispositive motion deadline, the Court will consider Plaintiff’s second issue in
addressing his second discovery motion. The Court thus denies without prejudice the instant motion with respect to
the duty-to-preserve discovery.
1

2

No. 14-MD-2591-JWL, 2017 WL 386835, at *4 (D. Kan. Jan. 27, 2017).

3

Fed. R. Evid. 501; New Jersey v. Sprint Corp., 258 F.R.D. 421, 425 (D. Kan. 2009).

4

New Jersey, 258 F.R.D. at 425.

client’s communications to a lawyer, the Tenth Circuit recognizes that a lawyer’s
communication to a client is also protected if it is “related to the rendition of legal
services and advice.”5 The party asserting the privilege bears the burden of
establishing that the elements are met.6
Caselaw in this district provides a wealth of guidance as to what is—and is
not—protected by the attorney-client privilege. First, it is important to note that
“personal, confidential, [or] private information” is not necessarily privileged.7
“As this Court has held repeatedly, ‘confidential’ does not equate to
‘nondiscoverable’ or privileged.”8 Second, it is clear that “[u]nderlying facts are
not protected by the privilege.”9 “Similarly, neither the acts or services performed
by an attorney during the course of his representation, nor the scope of
representation, are within the attorney-client privilege because they are not
‘communications.’”10 Nor are “general topics of attorney-client discussions” or
ultimate “legal conclusions” of counsel protected.11 Thus, for example, this court
has held that the subject matters of an in-house attorney’s discussions with
company executives are not privileged.12
Finally, it bears mentioning that under the eighth element, absence of
waiver, the party claiming the privilege must demonstrate that “the substance of
an otherwise privileged communication” is not revealed to a third party.13 The
burden of showing that the privilege has not been waived remains with the party
5

Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1370 (10th Cir. 1997) (rejecting narrower view that only
communications that reveal confidences from the client are protected); see also id. (holding that the Tenth Circuit’s
view “protects from forced disclosure any communication from an attorney to his client when made in the course of
giving legal advice”); C.T. v. Liberal Sch. Dist., Nos. 06-2093, 06-2360, 06-2359, 2008 WL 217203, at *2 (D. Kan.
Jan. 25, 2008) (“The privilege also protects advice given by the lawyer in the course of representing the client.”);
Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., No. 05-2164, 2007 WL 2192885, at *5 (D. Kan.
July 25, 2007) (“The privilege applies to communications from the client to the attorney and from the attorney to the
client.”).
6

Lewis v. UNUM Corp. Severance Plan, 203 F.R.D. 615, 618 (D. Kan. 2001).

7

AKH Co., Inc. v. Universal Underwriters Ins. Co., No. 13-2003, 2014 WL 2760860, at *7 (D. Kan. June
18, 2014).
8

Id. (quoting Williams v. Evogen, Inc., No. 12–2620, 2013 WL 3773840, at *3 (D. Kan. July 17, 2013)).

Sprint Commc’ns Co., L.P., v. Comcast Cable Commc’ns, LLC, Nos. 11-2684, 11-2685, 11-2686, 2014
WL 545544, at *4 (D. Kan. Feb. 11, 2014) (quoting Williams v. Sprint/United Mgmt. Co., No. 03–2200, 2006 WL
1867478, at *10 (D. Kan. July 1, 2006)).
9

10

Id. at *6 (quoting In re Universal Serv. Fund Tel. Billing Practices Litig., 232 F.R.D. 669, 675 (D. Kan.

2005)).
Id. (holding that counsel’s ultimate legal conclusion that defendants infringed patent was not the type of
substantive communication protected by the attorney-client privilege).
11

See, e.g., id. at *8 (holding that revelation of in-house counsel’s discussion with company executives
about possible infringement by competitors did not reveal privileged information); New Jersey v. Sprint Corp., 258
F.R.D. at 426–28 (holding that testimony stating that company’s board of directors discussed legal advice of counsel
about two specific topics and then acted a certain way did not result in waiver of the attorney-client privilege
because it did not reveal the substance of the legal advice).
12

13

In re Quest Commc’ns Int’l Inc., 450 F.3d 1179, 1186 (10th Cir. 2006) (quoting United States v. Ryans,
903 F.2d 731, 741 n.13 (10th Cir.1990)).

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claiming the privilege.14 “Because confidentiality is key to the privilege, ‘[t]he
attorney-client privilege is lost if the client discloses the substance of an otherwise
privileged communication to a third party.’”15
Generally, the withholding party submits a privilege log, the contents of which may vary
in both substance and format. Courts in this district require a privilege log, relating to
documents, to include:
(1) A description of the document explaining whether the document is a memorandum,
letter, e-mail, etc.;
(2) The date upon which the document was prepared;
(3) The date of the document (if different from # 2);
(4) The identity of the person(s) who prepared the document;
(5) The identity of the person(s) for whom the document was prepared, as well as the
identities of those to whom the document and copies of the document were directed,
including an evidentiary showing based on competent evidence supporting any assertion
that the document was created under the supervision of an attorney;
(6) The purpose of preparing the document, including an evidentiary showing, based on
competent evidence, “supporting any assertion that the document was prepared in the
course of adversarial litigation or in anticipation of a threat of adversarial litigation that
was real and imminent;” a similar evidentiary showing that the subject of
communications within the document relates to seeking or giving legal advice; and a
showing, again based on competent evidence, “that the documents do not contain or
incorporate non-privileged underlying facts;”
(7) The number of pages of the document;
(8) The party's basis for withholding discovery of the document (i.e., the specific
privilege or protection being asserted); and
(9) Any other pertinent information necessary to establish the elements of each asserted
privilege.16
The objecting party must provide enough information in the privilege log to enable the
withholding party, and the Court, to assess each element of the asserted privilege and determine

14

New Jersey, 258 F.R.D. at 426; Lewis, 203 F.R.D. at 621.

15

In re Quest Commc’ns Int’l Inc., 450 F.3d at 1186 (quoting Ryans, 903 F.2d at 741).

16

BridgeBuilder Tax + Legal Servs., P.A. v. Torus Specialty Ins. Co., No. 16-2236-JWL-GEB, 2017 WL
914809, at *4 (D. Kan. Mar. 8, 2017) (citations omitted).

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its applicability.17 Failure to provide supporting details in the privilege log may result in denial
of the privilege.18
II.

Discussion
Plaintiff’s Motion to Enforce Discovery (ECF 64) seeks discovery of documents for

which Defendants have asserted attorney-client privilege. Defendants have listed 53 documents
on their amended privilege log (ECF 66-1 at 5-8), totaling approximately 70 pages.19 As an
initial matter, the Court is satisfied that the parties have sufficiently conferred as required by D.
Kan. Rule 37.2 and Fed. R. Civ. P. 37(a)(1).
Defendants, as the withholding parties asserting privilege, bear the burden to show
attorney-client privilege as to each document. While their showing of each document’s purpose
(number six in the requirements, stated above) could be less conclusory and provide more
evidentiary support, the Court finds their privilege log complies with the standard set in this
district. It thus establishes the elements of attorney-client privilege. The relevant question then
is whether Defendants have waived the privilege.
Both Plaintiff and Defendants have cited Heglet v. City of Hayes, Kansas in support of
their respective positions.20 Because Heglet is very similar to this case, both in form and in
substance, the Court will address its applicability. Like here, the plaintiff Heglet sued both her
former employer, the City of Hays, Kansas, and individual defendants, including the City
Manager and Chief of Police, for wrongful termination of her employment. She alleged she was
terminated in violation of her First Amendment rights for submitting an affidavit in a fellow
17

See id.; see also Fed. R. Civ. P. 26(b)(5)(A)(i)-(ii).

18

BridgeBuilder, 2017 WL 914809, at *4.

19

Defendants entirely withdrew privilege on four documents and produced redacted versions of several

20

No. 13-2228-KHV/KGG, 2014 WL 1094458 (D. Kan. Mar. 19, 2014).

others.

4

officer’s civil case against the same defendants. Defendants in Heglet raised two issues of
attorney-client privilege. They involved (1) voluntary disclosure of the legal advice received;
and (2) reliance by the defendants upon a city attorney’s advice to justify their actions. This
placed at issue the discoverability of both the advice they sought and the advice they received.
Those are the same issues that the present motion raises. The Court will address them in reverse
order.
A. Have Defendants put the legal advice sought and received at issue by relying on
the City Attorney’s advice to justify their actions?
Plaintiff contends Defendants have shown their reliance on counsel to be a sword in the
litigation—i.e. justifying their actions by referring to their consultation with the City Attorney—
and are therefore precluded from concurrently utilizing the attorney-client privilege as a shield.
Defendants agree they cannot assert the privilege as both sword and shield. But they deny using
it as a sword in this case. The Court must decide, therefore, whether or not they have waived the
privilege by relying on protected legal advice as part of their defenses.
In the absence of Tenth Circuit precedent, courts in this district have adopted the waiver
test applied in Hearn v. Rhay.21
Under the Hearn test, each of the following three conditions must
exist to find waiver: (1) assertion of the privilege was the result of
some affirmative act, such as filing suit, by the asserting party; (2)
through this affirmative act, the asserting party put the protected
information at issue by making it relevant to the case; and (3)
application of the privilege would have denied the opposing party
access to information vital to its defense. A court, then, should find
that the party asserting a privilege has impliedly waived that
privilege through his own affirmative conduct when the party
“places information protected by it in issue through some
21

68 F.R.D. 574 (E.D.Wash.1975); see also Heglet v. City of Hays, Kan., No. 13-2228-KHV/KGG, 2014
WL 1094458, at *3 (D. Kan. Mar. 19, 2014); New Jersey v. Sprint Corp., 258 F.R.D. 421 (D. Kan. 2009) (citing
Williams v. Sprint/United Management Co., 464 F.Supp.2d 1100 (D. Kan. 2006)) (“Although the Tenth Circuit has
not chosen one of the approaches to waiver, Judge Lungstrum held, and the undersigned agrees, that the Tenth
Circuit would likely adopt the intermediate approach as applied by the court in Hearn . . .”).

5

affirmative act for his own benefit, and to allow the privilege to
protect against disclosure of such information would [be]
manifestly unfair to the opposing party.”22
Defendants essentially argue that the first condition is not met, because they have not taken an
affirmative act to put the privileged information at issue by making it relevant to the case.
Plaintiff, however, suggests their assertion of the defense of qualified immunity is itself an
affirmative act. Qualified immunity serves “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.”23 Defendants
contend they have “made it abundantly clear that Defendants do not intend to rely on advice or
counsel from the city attorney in furtherance of [their defense(s)] . . . Defendants are not relying
on the privileged legal advice from the city attorney as part of any defense in this case and have
not otherwise put the legal advice at issue.”24
The mere assertion of a defense, here qualified immunity, does not operate to waive the
privilege. Similar to Heglet, there is here no clear showing that Defendants have gone further
than to merely assert the defense. If Defendants assert that their consultation with the City
Attorney caused or justified their conduct (which, as quoted above, they adamantly deny they
will do), that affirmative act would waive the privilege. At this point, however, Defendants have
not waived attorney-client privilege by merely asserting a defense of qualified immunity.
B. Did Defendants Voluntarily Disclose the Legal Advice They Received?
Plaintiff next argues that Defendants have voluntarily disclosed the legal advice they
received. In support of his contention, he points to their deposition testimony and their
22

New Jersey, 258 F.R.D. at 430 (quotations and citations omitted).

23

Heglet, at *4 (quoting Pierce v. Gilchrist, 359 F.3d 1279, 1299 (10th Cir.2004); Marcus v. McCollum,
394 F.3d 813, 823 (10th Cir. 2004).
24

ECF 66 at 10-11.

6

production of a letter they sent to the EEOC. Plaintiff cites the deposition of Co-Defendant
Police Chief Hulvey, as follows:
(Plaintiff’s Counsel) Q. Meaning -- let me rephrase that. Why with
Mr. Leftwich was the process in reverse, meaning the decision was
made to terminate him first and then a directive was given to
document him and look for policy violations that he may have
violated?
Defense Counsel: Object to the form.
(Chief Hulvey) A. In the discussion I had with Daron Hall and in
consultation with our attorneys it was determined that progressive
discipline would not be used, and that -- that we would proceed
forward with the termination in lieu of using progressive
discipline.
Q. So why didn't you tell Mr. Leftwich, look, we’re not really
concerned about what policies fit, but you're fired?
A. Because I was directed to review policy.
Q. And you were directed by the city attorney, is that right?
A. City manager to review policy.
Q. Okay. And you referenced attorney, meeting with attorney, and
you were advised to terminate him without progressive discipline.
What attorney are you referring to?
[Defense objection & Reporter read back]
Q. What attorney?
A. Our city attorney Henry Menghini.
Q. Okay. And when did you have this consultation with Mr. Hall
and Mr. Menghini?
A. I don’t recall. I believe there’s an e-mail back and forth at some
point. I don't recall when we had that conversation.
Q. And you were both in -- was it the three of you? You, Mr. Hall,
and the city attorney?
A. I don’t recall who -- who all would have been present, but I
know that we discussed –

7

Defense Counsel: I don’t want you to tell any-- we're not talking
about what Mr. Menghini told you.25
The second piece of evidence is what Defendants stated in their position statement to the
EEOC, which says, in pertinent part:
City Attorney Henry Menghini met with Hall, Hulvey and Fry,
reviewed the information presented and concurred with Hulvey’s
decision to terminate Leftwich.
...
Hall, Fry, Hulvey and Menghini all agreed Leftwich would be
terminated the following morning at the beginning of his shift.
The agreed reasons for the termination included: (1)
insubordination in that Leftwich did not allow for the City to
investigate his allegations in a professional and orderly manner but
proceeded to go outside the chain of command, conducting his
own investigation, spreading rumors, asking questions, contacting
outside agencies and (2) Leftwich created an unreasonable
disruption within the police department when he hounded officers
Romaine and Christensen for information, and when he incited
other officers to gossip and dig for information. On February 22,
2014, Chief Hulvey and Lt. Tompkins met with Leftwich and
informed him his employment with the City was terminated
effective immediately.
...
Leftwich wanted his job back and complained he was “unhireable.” After the meeting Hall and Menghini met and agreed to
give Leftwich the opportunity to resign. Leftwich refused.26
Plaintiff argues that the deposition testimony and the statements in the EEOC position statement
voluntarily divulge the legal advice received; because they show not only that the City Attorney
agreed with the decision to terminate Plaintiff, but also that he revealed the reasons underlying
his concurrence and agreement.

25

ECF 64 at 10-11 (emphasis removed).

26

(ECF 64-11 at 11-12.)

8

Heglet is almost squarely on point. The Heglet defendants included a document entitled
“Timeline with [Heglet]” in plaintiff’s employee file, which was turned over in discovery. The
timeline contained the following:27

(Case No. 13-2228 ECF 21-6 (highlighting in original).) Heglet argued defendants waived the
attorney-client privilege “by voluntarily disclosing the advice they received, and by placing it
into [plaintiff’s] personnel file as the justification used to fire” her.28 The defendants argued it
merely disclosed the fact that conversations with counsel occurred regarding the general topic of
Heglet’s involvement in the other suit. The Court considered the pivotal question: whether the
above constituted substantive legal advice or merely disclosures of the fact that advice was
obtained. On this issue, Magistrate Judge Gale wrote:

27

For reference, John Bird and Peter Mahany are city attorneys, and the person who composed the timeline
is the defendant Chief of Police.
28

Heglet, at *2.

9

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. The entry indicates that Scheibler spoke with
counsel regarding “concerns about confidentiality,” and counsel
agreed. Counsel also told Scheibler that “the City would be
justified in moving forward.” 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.29
The Court finds that Judge Gale’s analysis applies here. Defendants voluntarily produced
the substance of the City Attorney’s advice by stating not just the outcome of their consultation
with the City Attorney—i.e. the decision to terminate Plaintiff—but also the reasons justifying
the termination. Judge Gale relied on the Police Chief’s disclosure of the attorney’s statement
that, after he spoke with relevant persons, “the City would be justified in moving forward.” That
statement compares with Chief Hulvey’s testimony here that, after consulting with relevant
persons and her attorneys, “it was determined we would proceed forward with the termination in
lieu of using progressive discipline.” Furthermore, discussing whether to use progressive
discipline and the two specific reasons underlying Plaintiff’s termination to which the City
Attorney agreed, goes beyond merely disclosing that an attorney was consulted. It indeed
reveals the legal advice rendered: As to progressive discipline, a choice of alternatives; as to
ultimate termination, a confirmation that these two specifically enumerated reasons are enough
to justify moving forward with termination of Plaintiff’s employment. Finally, while Heglet did
not explicitly refer to the Police Chief’s disclosure that attorney John Bird “[c]onfirmed again
that he was okay with the City of Hays terminating [plaintiff],” the Court finds that statement
equates with the repeated confirmations here that City Attorney Menghini concurred and agreed

29

Id. at *3 (emphasis in original) (internal citations omitted).

10

with terminating Plaintiff. The Court therefore finds that Defendants did voluntarily waive the
privilege by disclosing such advice in their position statement to the EEOC, a third party, and/or
producing that position statement in this case. The Court also finds that Chief Hulvey, though
perhaps inadvertently, waived the privilege by talking about whether or not to proceed with
progressive discipline during a consultation with the City Attorney (and the City Manager).
Although Defendants have waived an attorney-client privilege, it does not follow that
Plaintiff is necessarily entitled to production of all the documents he has requested. He seeks
everything on Defendants’ amended privilege log. Attorney-client privilege, however, “is to be
extended no more broadly than necessary to effectuate its purpose.”30 The motion addresses the
advice City Attorney Menghini gave the Police Chief and City Manager before terminating
Plaintiff. Both the deposition testimony and the excerpts from the EEOC letter indicate that
some of the documents may be subject to production, others not. Thus, the Court directs
Defendants to produce to Plaintiff documents numbers one through twelve on the Amended
Privilege Log. These twelve documents are the only privileged documents on or before the date
of Plaintiff’s termination. The Court does not find that communications, if any, between the City
Attorney and a Defendant after the date of Plaintiff’s termination, are necessarily subject to
production. However, the Court will conduct an in camera review as to the remaining
documents on Defendants’ Amended Privilege Log. If any of the remaining documents are
deemed responsive, the Court will order their production. But if the documents are not deemed
responsive, they still could be compelled at a later date if a Defendant were to take some
affirmative step to waive the privilege as to them.

30

New Jersey, 258 F.R.D. at 425 (citations omitted).

11

IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion to Enforce
Discovery (ECF 64) is granted in part and denied in part. The motion is granted with respect to
attorney-client privilege as discussed herein; it is denied as to discovery regarding Defendants’
duty to preserve electronically stored information, as that issue will be decided by the Court in a
future Memorandum and Order addressing Plaintiff’s second discovery-based motion.
IT FURTHER ORDERED that, on or before April 21, 2017, Defendants shall produce
documents numbered 1 through 12 on its Amended Privilege Log to Plaintiff. Defendants shall
produce to the Court the remaining documents for in camera review on or before April 21, 2017.

Dated April 12, 2017, at Kansas City, Kansas.
S/ Gerald L. Rushfelt
Gerald L. Rushfelt
U.S. Magistrate Judge

12