Deffenbaugh Industries, Inc. v. Unified Government of Wyandotte County/Kansas City, Kansas

Filing 88

MEMORANDUM AND ORDER granting in part and denying in part 71 Motion for In Camera Inspection and to Compel. Signed by Magistrate Judge Kenneth G. Gale on 4/26/21. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DEFFENBAUGH INDUSTRIES, INC.,

)
)
Plaintiff,
)
)
v.
)
)
UNIFIED GOVERNMENT OF
)
WYANDOTTE COUNTY/KANSAS
)
CITY, KANSAS,
)
)
Defendants.
)
____________________________________)

Case No.: 20-2204-JTM-KGG

MEMORANDUM & ORDER ON
MOTION FOR IN CAMERA REVIEW AND TO COMPEL
Now before the Court are the “Motion for In Camera Review and to Compel
Production of Documents Withheld or Redacted by Plaintiff” (Doc. 71) filed by
Defendant.1 Having reviewed the submissions of the parties, Defendant’s motion
is GRANTED in part and DENIED in part for the reasons set forth below.
FACTUAL BACKGROUND
The parties in this matter had entered into a contract for the collection and
disposal of residential solid waste by Plaintiff for Defendant. (See Doc. 1.)

1

For purposes of this motion, “Plaintiff” will refer to Deffenbaugh and/or “Waste
Management,” Deffenbaugh’s brand name. (Doc. 1, at 1.) Thus, any individual
employed by Deffenbaugh or Waste Management will be considered an employee of
Plaintiff.
1 

Plaintiff alleges breach of contract and seeks declaratory relief relating to the
termination of that contract. (Id.) The Court has jurisdiction based on the diversity
of the parties.
In the present motion, Defendant asks the Court to conduct an in camera
review of certain documents that have been withheld from production or redacted
by Plaintiff on the basis of attorney-client privilege and/or the work product
doctrine. (See Doc. 71.) According to Defendant, the documents relate to a prior
discovery response that resulted in Plaintiff producing
two privilege logs, one for redacted documents and one
for documents withheld in their entirety. The initial
‘Non-Redacted Documents’ log identified 804
documents withheld from production on the basis of
attorney-client privileged or work-product. The
‘Redacted Documents’ log identified 484 documents
produced with redactions of communications claimed to
be attorney-client privileged or work-product[.]
(Doc. 71, at 2.) Thereafter, the parties engaged in certain communications which,
according to Defendant, resulted in Plaintiff
produc[ing] or agree[ing] to produce a total of
approximately 273 documents that it has improperly
withheld or redacted on the basis of attorney-client
privilege or work product, and which would not have
been produced but for [Defendant] calling into question
the claimed privilege. The documents produced also
confirm that the descriptions in [Plaintiff’s] privilege logs
did not accurately describe the substance of the
communications.

2 

(Id., at 3-4 (emphasis in original).) Defendant accuses Plaintiff of “over-assertion”
of these protections and “requests the Court conduct in camera review of
certain documents currently withheld or redacted by [Plaintiff] on the basis of
attorney-client privilege or work product … .” (Id., at 4, 5.) Defendant contends
Plaintiff’s behavior “demonstrates a pattern of withholding documents that are not
truly privileged or protected work product and justifies the UG’s ongoing concern
over the remaining documents withheld.” (Id., at 20-21.)
ANALYSIS
I.

Standards for Discovery.
Fed. R. Civ. P. 26(b) states that
[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's claim
or defense and proportional to the needs of the case,
considering the importance of the issues at state in the
action, the amount in controversy, the parties’ relative
access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this
scope of discovery need not be admissible in evidence to
be discoverable.

As such, the requested information must be nonprivileged, relevant, and
proportional to the needs of the case to be discoverable. Holick v. Burkhart,
No.16-1188-JTM-KGG, 2018 WL 372440, at *2 (D. Kan. Jan. 11, 2018).
II.

Standards for Attorney-Client Privilege and Work Product Protection.
3 

As stated above, jurisdiction in this case is based on the diversity of the
parties. As such, the attorney-client privilege is governed by state law.
Fed.R.Evid. 501 (“[I]n a civil case, state law governs privilege regarding a claim or
defense for which state law supplies the rule of decision.”); see also Kannaday v.
Ball, 292 F.R.D. 640, 646 (D. Kan. 2013) (“state law governs the applicability and
scope of attorney-client privilege in diversity actions”).
The elements necessary to establish attorney-client privilege are clearly
defined by Kansas law.
(1) Where legal advice is sought (2) from a professional legal
advisor in his capacity as such, (3) the communications made
in the course of that relationship (4) made in confidence (5) by
the client (6) are permanently protected (7) from disclosures
by the client, the legal advisor, or any other witness (8) unless
the privilege is waived.
Marten v. Yellow Freight System, Inc., No. 96-2013-GTV, 1998 WL 13244, *5-6
(D. Kan. Jan. 6, 1998) (citing State v. Maxwell, 10 Kan. App. 2d 62, 63, 691 P.2d
1316, 1319 (1984)).
Not all of a party’s communications involving its attorneys are privileged,
however. Motley v. Marathon Oil Co., 71 F.3d 1547, 1550-51 (10th Cir. 1995).
“The attorney-client privilege ... is to be extended no more broadly than necessary
to effectuate its purpose.” Great Plains Mut. Ins. Co. v. Mutual Reins. Bur., 150
F.R.D. 193, 196 (D. Kan. 1993). The privilege only “protects confidential
communications by a client to an attorney made in order to obtain legal assistance
4 

from the attorney in his capacity as a legal advisor.” Marten, 1998 WL 13244 at
*6; see also Williams v. Sprint/United Mgmt. Co., No. 03-2200-JWL-DJW, 2006
WL 266599, at *2-3 (D. Kan. Feb. 1, 2006), clarified in part by Williams v.
Sprint/United Mgmt. Co., 2006 WL 3694862 (D. Kan. Dec. 13, 2016).
The communication must consist predominantly of legal advice for
protection to attach to the communication. Taylor v. LM Ins. Corp., No. 19-1030,
2019 WL 5696861, at *5 (D. Kan. Nov. 4, 2019). It is well-established that facts
acquired from other persons and sources and merely conveyed between counsel
and client are not privileged. In re Grand Jury Proceedings, 616 F.3d 1172, 1182
(10th Cir. 2010) (citations omitted).
“Client,” “communication,” and “attorney” are defined statutorily defined as
follows:
(1) ‘Client’ means a person or corporation or other
association that, directly or through an authorized
representative, consults an attorney or attorney’s
representative for the purpose of retaining the attorney or
securing legal service or advice from the attorney in a
professional capacity … .
(2) “Communication” includes advice given by the
attorney in the course of representing the client and
includes disclosures of the client to a representative,
associate or employee of the attorney incidental to the
professional relationship.
(3) “Attorney” means a person authorized, or reasonably
believed by the client to be authorized, to practice law in
any state or nation the law of which recognizes a
5 

privilege against disclosure of confidential
communications between client and attorney.
K.S.A. § 60-246(a).
While claims of attorney-client privilege are governed by state law in
diversity cases, the work product doctrine is governed by a uniform federal
standard pursuant to Fed.R.Civ.P. 26(b)(3). Frontier Refining, Inc. v. Gorman–
Rupp Co., Inc., 136 F.3d 695, 702 (10th Cir.1998). That rule states, in relevant
part:
(A) Documents and Tangible Things. Ordinarily, a party
may not discover documents and tangible things that are
prepared in anticipation of litigation or for trial by or for
another party or its representative (including the other
party's attorney, consultant, surety, indemnitor, insurer,
or agent). But, subject to Rule 26(b)(4), those materials
may be discovered if:
(i) they are otherwise discoverable under
Rule 26(b)(1); and
(ii) the party shows that it has substantial
need for the materials to prepare its case and
cannot, without undue hardship, obtain their
substantial equivalent by other means.
(B) Protection Against Disclosure. If the court orders
discovery of those materials, it must protect against
disclosure of the mental impressions, conclusions,
opinions, or legal theories of a party’s attorney or other
representative concerning the litigation.
Fed.R.Civ.P. 26(a)(3).
Plaintiff asserts that
6 

real and imminent potential for litigation existed at that
time is further evidenced by the fact that undersigned
counsel was engaged to represent Deffenbaugh during
this time frame and that Deffenbaugh began circulating
litigation holds concerning this dispute beginning in late
August 2019. … Thus, as to the documents on privilege
log created in or after August 2019, Deffenbaugh
properly withheld those documents as work product.
(Doc. 79, at 12.) Plaintiff continues that “because all of these documents are also
protected by the attorney-client privilege, the Court need not undertake a work
product analysis in deciding this Motion.” (Id.)
III.

Standards for In Camera Review.
It is within the sound discretion of the trial court whether to conduct an in

camera review of documents. Black & Veatch Corp. v. Aspen Ins. (UK) Ltd., 297
F.R.D. 611, 621 (D. Kan. 2014).
The court may and does review documents in camera to
determine an alleged privilege, when the party asserting
it has made some initial, factual showing that it exists.
The Court must have some bases or grounds for
conducting an in camera review. Such review may be
useful if there is a genuine dispute between the parties
as to the accuracy of the withholding party’s
description of certain documents. Such review is not,
however, to be routinely undertaken, particularly in a
case involving a substantial volume of documents, as a
substitute for a party’s submission of an adequate
record in support of its privilege claims.
Id. at 621 (emphasis added); see also Jaiyeola v. Garmin Int’l, Inc., No. 20-2068HLT, 2021 WL 492654, at *6 (D. Kan. Feb. 10, 2021) (declining request for in
7 

camera review). There is no basis for the Court to conduct an in camera review in
situations wherein the privilege log at issue provides sufficient description of the
documents withheld, the requesting party “hasn’t shown that the documents aren’t
privileged,” and the underlying dispute comes down to “whether the privileges
apply.” Jaiyeola, 2021 WL 492654, at *6.
IV.

Privilege Log Requirements.
A party withholding documents on the grounds of privilege must expressly

make the claim of privilege, usually in the form of a privilege log. Sprint Comms.
Co., L.P. v. Vonage Holdings Corp., 05–2433–JWL–DJW, 2007 WL 1347754
(D.Kan. May 8, 2007) (citing Fed.R.Civ.P. 26(b)(5)). Additionally, Rule
26(b)(5)(A) provides:
[w]hen a party withholds information otherwise
discoverable by claiming that the information is
privileged or subject to protection as trial-preparation
material, the party must: (i) expressly make the claim;
and (ii) describe the nature of the documents,
communications, or tangible things not produced or
disclosed—and do so in a manner that, without revealing
information itself privileged or protected, will enable
other parties to assess the claim.
Fed.R.Civ.P. 26(b)(5)(A). See also Kear v. Kohl’s Dept. Stores, Inc., No. 121235-JAR-KGG, 2013 WL 3088922, at *3 (D. Kan. June 18, 2013) (citing
Fed.R.Civ.P. 26(b)(5)).

8 

Courts in this District have found that a sufficient privilege log should
indicate the type of document being withheld, for instance whether it is
memorandum, letter, e-mail, etc. In re Universal Serv. Fund Tele. Billing
Practices Lit., 232 F.R.D. 669, 673 (D. Kan. 2005) (citing Hill v. McHenry, No.
99–2026, 2002 WL 598331, at *2 (D.Kan. Apr. 10, 2002)). The log should include
certain other information such as the basis for withholding the document, the date
it was prepared, the identity of the author(s) and recipient(s) “including an
evidentiary showing based on competent evidence supporting any assertion that the
document was created under the supervision of an attorney,” the purpose of
preparing the document, and a showing that the communication relates to seeking
or giving legal advice. Id.
V.

Documents at Issue.
The documents at issue are contained in two privilege logs – the log

consisting of non-redacted documents that were not produced (Doc. 71-1) and the
log consisting of redacted documents (Doc. 71-2) that were produced with
redactions. Entries from the redacted documents log are discussed in subsection A.
while entries from the non-redacted documents log are discussed in subsection B.,
infra.
A.

Privilege Log of Redacted Documents. (Doc. 71-2.)
1.

Lines 15-17.
9 

These documents consist of an email chain between Carl Niemann, John
Blessing, Paul Howe and Rich Sarac with the subject “Wyco question … .” (Doc.
71-2, at 1.) Niemann, Blessing, Howe, and Sarac are non-attorney employees of
Plaintiff. The email contains two attachments authored by Niemann and an
individual identified as “Pete.” (Id.) The log for redacted documents describes the
documents as follows: “Email reflecting legal advice from M. Hamstra re: 2012
Contract.”
Defendant complaints that Plaintiff has produced “what appears to be an
unredacted version of this same email, which confirms the substance of the
communication does not relate to legal advice from M. Hamstra. (Doc. 73-2.)
Rather, Neimann states that he, Blessing, and Howe, conducted a “thorough
review” of the contract and developed the attached memo relating to “desired
modification points,” ostensibly line 16 of the redacted log. (Doc. 79-8, at 2.)
According to Defendant, Plaintiff “now agrees the email is not privileged but
refuses to produce the attachments.” (Doc. 71, at 8-9.) Defendant continues that
“[n]either the email nor the attachments thereto authored by non-lawyers are
privileged communications or work-product.” (Id., at 9.)
Defendant’s generalization that documents authored by non-lawyers cannot
be considered work-product or attorney-client communications. The attorney
client privilege clearly “protects confidential communications by a client to an
10 

attorney made in order to obtain legal assistance from the attorney in his capacity
as a legal advisor.” Marten, 1998 WL 13244 at *6 (emphasis added). Further, it is
well-established that the work product doctrine protects not only documents
created by counsel, but may also protect documents created at the direction of
counsel. See generally Williams v. Sprint/United Mgmt. Co., No. 03-2200-JWLDJW, 2006 WL 2850659 (D. Kan. Oct. 5, 2006).
Plaintiff has not shown that the attachments are work product. The email at
issue was sent in January 2017. By Plaintiff’s own assertion, the anticipation of
litigation did not begin until August 2019. (Doc. 79, at 12.)
The Court finds, however, that the privilege log is sufficient to establish that
the attachment to the email (Lines 16) is protected by the attorney-client privilege.
Line 16 clearly indicates that it is an “[a]ttachment to above email reflecting legal
advice from [attorney] M. Hamstra re 2012 Contract.” (Doc. 71-2, at 1.)
As for Line 17, however, there has been no explanation by Plaintiff as to the
identity of “Pete.” (Id., at Line 17.) As such, there is nothing to establish that
information from or communication involving this individual would be subject to
the attorney-client privilege. Defendant’s motion is GRANTED as to line 17 and
Plaintiff is directed to produce the same.
2.

Lines 23-24, 126-128, 165, 206, 215-217, 221, 224-229, 233,
272, 273, 281, 284-286, 382-386, 394, 396-398.

11 

These documents are all identified as originating from non-lawyer Justin
Vetsch and consisting of “[n]otes reflecting request for legal advice from M.
Hamstra re various contract task items” or “… contract task items.” (See Doc. 712.) According to Defendant, the document was he memorandum was “regularly …
circulated among numerous non-attorney employees” of Plaintiff who updated or
edited the document. (Doc. 71, at 9.) Defendant contends that “[t]he nature of the
communications transmitting the document suggests the redactions are not
confidential attorney-client communications” and that it was “authored by a
business manager and is not privileged (or any privilege is waived) where it is
shared among numerous seemingly non-managerial employees in the ordinary
course of business.” (Id.)
Plaintiff responds that “[p]roducing the redacted information would reveal
the substance of the legal advice that was being sought from in-house counsel
Micah Hamstra.” (Doc. 79, at 24.) Plaintiff continues that “[t]he fact that this
memorandum was circulated among non-attorney employees and was authored by
a non-lawyer does not mean that the substance of the statements do not reflect the
seeking of legal advice.” (Id.) “‘Communications which reflect advice given by
counsel to a corporation do not lose their privileged status when they are shared
among corporate employees who share responsibility for the subject matter of the
communication.’” Anaya v. CBS Broadcasting, Inc., 251 F.R.D. 645, 652 (D.
12 

N.M. 2007) (quoting Urban Box Office Network, Inc. v. Interfase Managers,
L.P., No. 01-8854, 2006 WL 1004472, at *3 (S.D.N.Y. April 18, 2006)); see also
Hansen Constr. Inc. v. Everest Nat’l Ins. Co., 2017 WL 7726711, at *2 (D. Colo.
July 28, 2017) (discussing when attorney-client privilege extends as far as “lowerlevel” corporate employees).
The privilege log at issue (Doc. 71-2) provides a sufficient description of the
documents withheld, Defendant “hasn’t shown that the documents aren’t
privileged,” and the underlying dispute merely comes down to “whether the
privileges apply.” Jaiyeola, 2021 WL 492654, at *6. There is no basis for the
Court to conduct an in camera review of these documents. Defendant’s motion is
DENIED as to this category.
3.

Lines 43, 245.

These two documents were authored by Kent Harrel and sent to John
Blessing, both of whom are non-lawyers. (Doc. 71-2, at 3, 13.) The first is
identified as an “email sent for purpose of facilitating legal advice re request by
Bonner Springs for a meeting concerning residential trash pick-up” while the
second is identified as “email seeking legal advice from M. Hamstra re contract
negotiations with Bonner Springs.” (Id.) Both indicate “residential trash pick up”
as the email “re” line. Both are being withheld based on attorney-client privilege
and the work product doctrine. (Id.)
13 

Defendant contends that “[i]t is unclear what is intended by ‘facilitating
legal advice’ in an email between two non-lawyers, but the nature of the
communications suggests the emails were completely or predominately for the
purpose of communicating business matters, advice or strategy and not a
privileged communication.” (Doc. 71, at 9-10.) Defendant continues that “[t]he
log does not indicate the document was prepared at the direction of counsel or in
anticipation of litigation.” (Id., at 10.)
Plaintiff directs the Court to a redacted version of the document represented
by Line 327. (Doc. 79, at 24-25; Doc. 79-9; Doc. 71-2, at 17, Line 327.) Plaintiff
asserts that this email – which is part of the chain represented by the documents at
Lines 43 and 245 – clearly included attorney Micah Hamstra and sought legal
advice from him. According to Plaintiff,
the emails following Blessing’s request for legal advice
(Redacted Log Entries 43 and 245) are emails which
discuss or comment on Blessing’s request for legal
advice and were sent for the purpose of facilitating legal
advice from Micah Hamstra, as the privilege log
descriptions for these documents explain. That Micah
Hamstra is not included on all the subsequent emails
following Blessing’s request for legal advice does not
vitiate the privileged nature of these communications.
(Doc. 79, at 25.)
The privilege log at issue (Doc. 71-2) provides a sufficient description of the
documents withheld, Defendant “hasn’t shown that the documents aren’t
14 

privileged,” and the underlying dispute merely comes down to “whether the
privileges apply.” Jaiyeola, 2021 WL 492654, at *6. There is no basis for the
Court to conduct an in camera review of these documents. Defendant’s motion is
DENIED as to this category.
4.

Lines 51, 52, 53, 60, 61, 63, 365, 366, 370.2

This group is comprised of an email chain with the subject line of “Kansas
City KS Contract – Spring 2016 RO PI Issue.” (Doc. 71-2, at 4, 19.) The
documents are being withheld on the basis of the attorney-client privilege, with the
stated description of “email exchanged for purposes of seeking legal advice from
M. Hamstra re payments, fees, and rates disputed by the UG under the 2012
Contract.”3 (Id.) The email was exchanged between John Blessing, Carl Niemann,
Becky Robinson, Delores Walton, Blaine Degnan, all of whom are non-lawyer
employees of Plaintiff. (Id.)
According to Defendant, the description of the communications suggest that
“the redacted communications are completely or predominantly for purposes of
communicating business matters, advice or strategy, on which Mr. Hamstra was
merely copied, and they are not privileged attorney-client communications.” (Doc.
71, at 10.) Plaintiff responds that

2

These emails are in the same email chain as the documents represented by Lines 533540, 544, and 556 of the non-redacted log (Doc. 71-1), discussed infra.
3
As used herein, “UG” refers to “Unified Government.”  
15 

[t]he email string starts with an email from paralegal
Yvette Korb and the redacted emails include attorney
Micah Hamstra and paralegal Yvette Korb. Further, the
email on WM_0052903 [Doc. 79-10] that is partially
redacted begins with ‘I believe legal,’ showing there is a
discussion about information related to advice from the
legal department. The descriptions for all of these entries
explain that there was legal advice being sought. [Doc.
71-2.] The fact that some of the e-mail chain is not
privileged does not waive the privilege as to the portion
of the e-mail chain that is redacted.
(Doc. 79, at 25.)
The Court finds that there is no basis for the Court to conduct an in camera
review of these documents. The privilege log at issue (Doc. 71-2) provides a
sufficient description of the documents withheld, Defendant “hasn’t shown that the
documents aren’t privileged,” and the underlying dispute merely comes down to
“whether the privileges apply.” See Jaiyeola, 2021 WL 492654, at *6.
Defendant’s motion is DENIED as to this category.
5.

Line 62.

This document is an email chain with the subject line “KCK Master
Agreement – Priority Negotiation Points to Broach 9/15.” (Doc. 71-2, at 4.) The
email was exchanged between Paul Howe, John Blessing, Carl Niemann, and Kent
Harrell, who are non-legal employees of Plaintiff, as well as attorney Micah
Hamstra and paralegal Yvette Korb. (Id.) The privilege log describes the email as

16 

“seeking legal advice re negotiation points with the UG on the 2012 Contract.”
(Id.)
Defendant contends that “the emails do not appear to be directed to [attorney
Hamstra] as he does not respond to any email or otherwise participate in the
communication.” (Doc. 71, at 10. ) Defendant argues that “[t]he nature of the
communication suggests the redacted emails were completely or predominantly for
purpose of communicating business matters, advice or strategy and not requesting
legal advice from Mr. Hamstra.” (Id.)
Plaintiff argues that
Defendant’s Motion inaccurately contends that the
document does not appear to be directed to [attorney]
Micah Hamstra and argues that Hamstra ‘does not
respond to any email or otherwise participate in the
communication.’ Motion at 10. To the contrary, NonRedacted Log Entries 88 and 89 are part of the same
email string (as evident by the subject line and date of the
email) and evidence that Micah Hamstra did participate
in the discussions contained in these emails. [Doc. 71-1,
at Lines 88, 89.]
(Doc. 79, at 19.)
The Court finds that there is no basis for the Court to conduct an in camera
review of these documents. The privilege log at issue (Doc. 71-2) provides a
sufficient description of the documents withheld, Defendant “hasn’t shown that the
documents aren’t privileged,” and the underlying dispute merely comes down to

17 

“whether the privileges apply.” See Jaiyeola, 2021 WL 492654, at *6.
Defendant’s motion is DENIED as to this category.
6.

Line 69.

This document is an email from non-attorney Carl Niemann to non-attorney
John Blessing with the subject “KCK – Request for Under billed Calculation on
CO and RO Work, History of PIs to KCK, and Adjustments for Impact Fee
Increases Implemented this Spring.” (Doc. 71-2, at 4.) The log indicates attorneyclient privilege as the basis for it being withheld, with the stated reason “email
reflecting legal advice of [attorney] M. Hamstra re history of PIS implemented
with KCK.” (Id.)
According to Defendant, “[t]he nature of the communication suggests it is
completely or predominantly for the purpose of communicating business matters,
advice, or strategy.” (Doc. 71, at 11.) Defendant continues that “Plaintiff has
agreed to produce this document with modified redactions, but has not as of the
date of this filing, and it is unclear if any portion should be redacted.” (Id.)
Plaintiff responds that “[t]he redacted portion of the email chain
contains privileged communications” while the “portion of this email which could
be construed as communicating business advice or strategy is not redacted.” (Doc.
79, at 28.)

18 

The Court finds that there is no basis for the Court to conduct an in camera
review of these documents. The privilege log at issue (Doc. 71-2) provides a
sufficient description of the documents withheld, Defendant “hasn’t shown that the
documents aren’t privileged,” and the underlying dispute merely comes down to
“whether the privileges apply.” See Jaiyeola, 2021 WL 492654, at *6.
Defendant’s motion is DENIED as to this category.
7.

Line 79. 

This document is an email chain containing a redacted email from non-

attorney John Blessing to non-attorney Robin Lunacek with the stated subject of
“UG/KCK.” (Doc. 71-2, at 5.) The log lists attorney-client privilege and the work
product doctrine as the bases for withholding and describes the privilege as “email
reflecting strategy of WM’s legal department and outside counsel in regards [sic]
to dispute by WM and UG.” (Id.) The Court surmises – and Plaintiff verifies –
that the redacted portion consists of Blessing answering Ms. Lunacek’s inquiry
about the “resolution of the liquidated damages charged by” Waste Management.
(Doc. 73-9, at 1; Doc. 79, at 25.)
Defendant contends that “[t]he nature of the communication and question
asked suggests the response by Mr. Blessing does not convey legal advice of
counsel or is otherwise privileged.” (Doc. 71, at 11.) Defendant continues that

19 

“[t]he log does not indicate the document was prepared in anticipation of litigation
or was directed by counsel.” (Id.)
The initial email includes Ms. Lunacek’s inquiry to Blessing, “What is the
status of this dispute?” (Doc. 79, at 25; Doc. 73-9, sealed, at 1.) Plaintiff explains
that the redacted email “then contains information that Blessing received from inhouse and outside counsel based on privileged communications and includes
discussion of legal strategy and positions.” (Doc. 79, at 25.)
The Court finds that there is no basis for the Court to conduct an in camera
review of these documents. The privilege log at issue (Doc. 71-2) provides a
sufficient description of the documents withheld, Defendant “hasn’t shown that the
documents aren’t privileged,” and the underlying dispute merely comes down to
“whether the privileges apply.” See Jaiyeola, 2021 WL 492654, at *6.
Defendant’s motion is DENIED as to this category.
8.

Lines 108, 112, 297, 340.

These documents are an email chain with the subject line “Urgent Complaint
letter from Wyandotte County. Needs response prior to customer call at 11am!”
(Doc. 71-2, at 6, 7, 15, 18.) The document consists of a fully redacted email from
non-attorney John Blessing to non-attorneys Justin Vetch, Kent Harrell, Lisa
Disbrow, with attorney Micah Hamstra and paralegal Yvette Korb listed as
recipients. (Id.) The log states the documents are being withheld on the bases of
20 

the attorney-client privilege and work product doctrine, with the stated privilege
description of “email chain seeking legal advice re response to letter from the UG”
(id., at 6, 7) or “email requesting legal advice from M. Hamstra re response to
complaint letter received from UG” (id., at 15, 18.)
Defendant contends that the communications do not appear to be directed to
Hamstra “as he does not respond to any email or otherwise participate in the
communication.” (Doc. 71, at 11-12.) Defendant continues that “[t]he nature of
the communications suggests the redacted email from Blessing is completely or
predominantly for purposes of communicating business matters, advice or
strategy” and that the privilege log “does not indicate the document was prepared
in anticipation of litigation.” (Id., at 12.)  
Plaintiff responds that “[t]he subject line of the email chain also makes clear
that it is seeking advice on responding to a letter from the [Unified Government].”
(Doc. 79, at 19.) The Court is not persuaded by Defendant’s position that the
email chain cannot be seeking legal advice from Hamstra because he does not
respond in the email chain. As Plaintiff correctly asserts, “[t]his is irrelevant – the
fact that counsel does not respond to an email in writing does not mean that the
sender is not requesting legal advice.” (Id.)
The Court finds that there is no basis for the Court to conduct an in camera
review of these documents. The privilege log at issue (Doc. 71-2) provides a
21 

sufficient description of the documents withheld, Defendant “hasn’t shown that the
documents aren’t privileged,” and the underlying dispute merely comes down to
“whether the privileges apply.” See Jaiyeola, 2021 WL 492654, at *6.
Defendant’s motion is DENIED as to this category.
9.

Line 139.

According to the privilege log, this document is an email from Carl Neimann
to John Blessing, both of whom are non-attorneys. (Doc. 71-2, at 8.) Defendant’s
brief, however, describes the document as an email chain from Blessing to several
non-attorney employees of Plaintiff, copying attorney Micah Hamstra, with the
subject line “WM Meeting 1-9-19.” (Doc. 71-12). This is the accurate description
of the document. (See Doc. 79-14.)
The response from Niemann indicates Blessing’s email was a summary and
list of action items. (Id.) The log states “[e]mail reflecting request for legal advice
re contract negotiations with UG.” (Doc. 71-2, at 8.) According to Defendant,
“[t]he nature of the communications suggests Blessing’s email was completely or
predominantly for the purpose of communicating business matters, advice or
strategy” and that “[t]o the extent the email in part requests advice from Mr.
Hamstra, only that portion should be redacted.” (Doc. 71, at 12.)
Plaintiff responds that the “redacted portion of the email chain

22 

contains privileged communications,” while the portion that “could be construed as
communicating business advice or strategy is not redacted.” (Doc. 79, at 28-29.)
The Court finds this to be appropriate. There is no basis for an in camera
inspection of this document based on the information provided to the Court. This
portion of Defendant’s motion is DENIED.
10.

Lines 146, 149, 201, 348.

These documents are copies of a memo titled written by non-attorney Carl
Niemann. (Doc. 71-2, at 8, 11, 18.) Defendant contends the document was edited
by non-attorney John Blessing and attached to emails between these two
employees of Plaintiff. (Doc. 71, at 12.) The document was attached to emails
between Carl Niemann and John Blessing. (Doc. 73-12, sealed.) A significant
portion of the memo is redacted. (Id.) The privilege log indicates that the memo
consists of ‘[n]otes reflecting WM’s legal strategy concerning house count dispute
with UG and request for legal advice from M. Hamstra.” (Doc. 71-2, at 8, 11, 18.)
Defendant contends that the memo “does not indicate it was intended for
communication with Mr. Hamstra or directed by Mr. Hamstra” but rather that “the
nature of the communication suggests it is completely or predominantly for the
purpose of communicating business matters, advice or strategy.” (Doc. 71, at 1213.) Plaintiff explains, however, that this memorandum “contains a mix of

23 

business and legal advice, thus the “discussion of legal advice is redacted, while
the business advice is not redacted.” (Doc. 79, at 29.)
The Court finds that there is no basis for the Court to conduct an in camera
review of these documents. The privilege log at issue (Doc. 71-2) provides a
sufficient description of the documents withheld, Defendant “hasn’t shown that the
documents aren’t privileged,” and the underlying dispute merely comes down to
“whether the privileges apply.” See Jaiyeola, 2021 WL 492654, at *6.
Defendant’s motion is DENIED as to this category.
11.

Lines 171, 172.

These emails are from non-attorney John Blessing to non-attorneys Kent
Harrell and Justin Vetch, as well as attorney Micah Hamstra, with the subject line
“Waste Management & 311 Operations Updates” and “WM Response for May
2019 Request.” (Doc. 71-2, at 9.) The log describes the emails as “sent for the
purpose of facilitating legal advice from M. Hamstra re communication with UG’s
311 Manager” and “sent for the purpose of facilitating legal advice from M.
Hamstra re UG’s responses to WM’s questions concerning the May 2019 data.”
(Id.) The documents are being withheld on the basis of the attorney-client
privilege and work product doctrine. (Id.)
Defendant argues that “[i]t is unclear what ‘facilitating legal advice’ is
intended to mean in this context, but the log does not indicate the email was sent
24 

for the purpose of requesting legal advice from Mr. Hamstra.” (Doc. 71, at 13.)
Defendant continues that “[t]he nature of the communication suggests it is
completely or predominantly for the purpose of communicating business matters,
advice or strategy, on which Mr. Hamstra is merely included as one of several
recipients” and that the log “does not indicate the document[s were] prepared in
anticipation of litigation or at the direction of counsel.” (Id.)
The Court is unpersuaded by Defendant’s argument, which basically boils
down to “counsel being one of many recipients of an email means the document
cannot be privileged.” “‘Communications which reflect advice given by counsel to
a corporation do not lose their privileged status when they are shared among
corporate employees who share responsibility for the subject matter of the
communication.’” Anaya, 251 F.R.D. at 652 (D. N.M. 2007) (quoting Urban Box
Office Network, Inc, 2006 WL 1004472, at *3).
Defendant has made no argument that any of the individuals involved in the
email chain would be outside the umbrella of the attorney-client privilege as to the
topics discussed. The sheer number of people involved in the discussion does not
invalidate the privilege. This portion of Defendant’s motion is DENIED.
12.

Line 412.

This privilege log states this document is an email between Kelly Rooney
and Sue Powell, both of whom are non-attorneys, with the subject line “Fwd: May
25 

Data – Misses.” (Doc. 71-2, at 21.) Defendant’s brief, however, describes the
document as “a fully redacted email from John Blessing to non-attorneys Justin
Vetsch, Kent Harrell and Kelly Rooney, and [attorney] Hamstra, subject ‘Fwd:
May Data – Misses.’” (Doc. 71, at 14.)
Regardless, the privilege log describes the document as an “[e]mail
requesting legal advice from M. Hamstra re UG’s penalty calculation for May
2019.” (Doc. 71-2, at 21.) The log indicates the document is withheld on the basis
of the attorney-client privilege and work product doctrine. (Id.)
Defendant argues that the “email is directed to numerous non-attorneys
suggesting it is completely or predominantly for the purpose of communicating
business matters, advice or strategy, on which Mr. Hamstra is merely copied and it
is not a privileged communication seeking his legal advice.” (Doc. 71, at 14.)
There has been no evidence presented that any of the email recipients are
outside third-parties, nor does Defendant advance this argument. To the contrary,
all of the recipients are employee-representatives of the party Plaintiff in this case.
Although the attorney-client privilege may be waived when a corporation
disclosures private communications to third parties, the attorney-client privilege is
not waived merely by sharing intra-corporately. “‘Communications which reflect
advice given by counsel to a corporation do not lose their privileged status when
they are shared among corporate employees who share responsibility for the
26 

subject matter of the communication.’” Anaya, 251 F.R.D. at 652 (quoting Urban
Box Office Network, Inc., 2006 WL 1004472, at *3); see also Hansen Constr.
Inc., 2017 WL 7726711, at *2 (discussing when attorney-client privilege extends
as far as “lower-level” corporate employees).
No valid justification has been set forth to conduct an in camera review of
this document. As such, this portion of Defendant’s motion is DENIED.
13.

Line 183.

This is an email from John Blessing to Kent Harrell and attorney Micah
Hamstra with the subject line “WMI Appeal.” (Doc. 71-2, at 10.) The log
describes this email as “reflecting legal strategy in WM’s 6-18-19 Response and
Appeal Letter” and is listed as attorney-client privileged and protected by the work
product doctrine. (Id.)
Defendant indicates that while Hamstra is a recipient of the email, he “does
not respond to any email or otherwise participate in the communication.” (Doc.
71, at 14.) Defendant also indicates that “[o]ne of the redactions appears to be a
single or very few words.” (Id.)
The Court agrees with Plaintiff’s assertion that “[t]here is no requirement
that a statement in a communication must be a minimum length before it can be
privileged.” (Doc. 79, at 20.) Further, there is no requirement that a
communication must include any response from counsel to be classified as
27 

attorney-client communication. The privilege clearly also “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.” Marten, 1998 WL 13244 at
*6. See also In re Grand Jury, 616, F.3d at 1182 (holding that the privilege
protects the client’s communications to a lawyer).
Defendant has advanced no valid justification for the Court to conduct an in
camera review of this document. As such, this portion of Defendant’s motion is
DENIED.
14.

Line 218.

This document is a partially redacted email from non-attorney Susan Molton
to non-attorneys Kent Harrell, Sue Smith, Ryan Nordt, and Bill Minnis with the
subject line “PDA and questions re KCK.” (Doc. 71-2, at 12; Doc. 73-17.) There
were no attorneys involved in the communication. (Id.) The privilege log
indicates the email “discuss[es] advice from counsel re UG contract.” (Doc. 71-2,
at 12.) The log indicates the document is being withheld on the basis of the
attorney-client privilege and work product doctrine. (Id.)
Defendant contends that “[t]he nature of the communications suggests the
redacted text is completely or predominantly for the purpose of communicating
business matters, advice or strategy” and that “[t]he log does not indicate the
documents were prepared in anticipation of litigation.” (Doc. 71, at 14-15.)
28 

Plaintiff responds that the email “contains limited redactions of advice from
counsel” and that “[t]hose portions of the email that are not discussing legal advice
have not been redacted.” (Doc. 79, at 25-26.) The Court will not rely on
Defendant’s conclusory assumption that the redacted text may merely consist of
business communications.
Defendant has advanced no valid justification for the Court to conduct an in
camera review of this document. As such, this portion of Defendant’s motion is
DENIED.
15.

Line 242.

This document is an email from non-attorney Kent Harrell to non-attorneys
Paul Howe and Lisa Disbrow, with a copy to attorney Micah Hamstra. (Doc. 71-2,
at 13.) The email has a subject line of “FW: Emailing: Contract for Residential
Solid Waste 120101-311231” and is being withheld on the basis of the attorneyclient privilege. (Id.) The log describes the email as “facilitating legal advice
from M. Hamstra re penalties under the 2012 Contract and the 311 system.” (Id.)
Defendant contends that “[t]he nature of the communication suggests it is
completely or predominantly for the purpose of communicating business matters,
advice or strategy, on which Mr. Hamstra was copied but not asked to provide
legal advice and did not provide legal advice.” (Doc. 71, at 15.)

29 

The fact that an attorney was “one of many recipients” of a communication
does not per se invalidate its status as attorney-client communication. Legends
Mgt. Co., LLC v. Affiliated Ins. Co., No. 16-1608-SDW-SCM, 2017 WL 4227930,
at *4 (D. N.J. Sept. 22, 2017). Cf. Anaya, 251 F.R.D. at 652 (citation omitted)
(holding that “‘[c]ommunications which reflect advice given by counsel to a
corporation do not lose their privileged status when they are shared among
corporate employees who share responsibility for the subject matter of the
communication’”) and Hansen Constr. Inc., 2017 WL 7726711, at *2. No valid
justification to conduct an in camera inspection has been put forth. As such, this
portion of Defendant’s motion is DENIED.
Defendant states that Plaintiff has agreed to produce the email with modified
redactions, “but has not as of the date of this filing, and it is unclear that any
portion of the email should be redacted.” (Doc. 71, at 15.) Plaintiff has done so
(Doc. 79-6.) The Court finds this production, with the indicated redactions, to be
appropriate.
16. Line 280.
This is an email between non-attorneys Kent Harrell and Susan Molton (no
attorneys included) with the subject line “KC Hauling Residential Review.” (Doc.
71-2, at 15.) According the privilege log, the document is protected by the
attorney-client privilege and work product doctrines because it “discuss[es] legal
30 

advice from M. Hamstra re Deffenbaugh continuing to provide services under the
2012 Contract and residential unit verification.” (Id.)
According to Defendant, “[t]he nature of the communication suggests the
redacted text is completely or predominantly for the purpose of communicating
business matters, advice or strategy, not the confidential disclosure of legal advice
provide by Mr. Hamstra.” (Doc. 71-2, at 15.) Defendant continues that “[t]he log
does not indicate the documents were prepared in anticipation of litigation.” (Id.)
Plaintiff responds that the redacted portions of the email “are discussing
legal advice from in-house attorney Micah Hamstra” and that “[t]hose portions of
the email that are not discussing legal advice have not been redacted.” (Doc. 79, at
26.) The Court will not rely on Defendant’s conclusory assumption that the
redacted text may merely consist of business communications.
Defendant has advanced no valid justification for the Court to conduct an in
camera review of this document. As such, this portion of Defendant’s motion is
DENIED.
17.

Lines 371, 373.

These documents contain redacted emails from non-attorneys Sue Powley
and Carl Niemann to several other non-attorney employees as well as attorney
Micah Hamstra, with the subject line “KCK CONTRACT REIVEW AND PRO
FORMA BUILD – Check-In & Coordination Call.” (Doc. 71-2, at 19; Doc. 7331 

20.) The log indicates the documents are attorney-client privileged because they
consist of “Email seeking and facilitating legal advice re negotiation provisions in
the 2012 Contract.” (Doc. 71-2, at 19.)
According to Defendant, “[t]he nature of the communications suggest they
were completely or predominantly for the purpose of communicating business
matters, advice or strategy and related to a financial proforma, not the confidential
disclosure of legal advice provide by Mr. Hamstra.” (Doc. 71, at 16) Defendant
continues that Plaintiff has agreed to produce the emails with modified redactions,
“but has not as of the date of this filing, and it is unclear if any portion should be
redacted.” (Id.)
Plaintiff responds that “[t]he redacted portion of the emails relates
to the solicitation of legal advice from Micah Hamstra.” (Doc. 79, at 29.) The
privilege log clearly reflects this. There is no valid justification for the Court to
conduct an in camera review. As such, this portion of Defendant’s motion is
DENIED.
18.

Line 410.

This document is an email chain which starts with a series of four fully
redacted emails between non-attorneys Paul Bickford, John Blessing and Justin
Vetch on which no attorney is copied. (Doc. 71-2, at 21; Doc. 73-21.) Attorney
Micah Hamstra is eventually involved and the chain includes email directly from
32 

him. (Id.) The log lists the document as protected by the attorney-client privilege
and work product doctrine and states that it is an “[e]mail providing, seeking, and
discussing legal advice re: meeting with the UG, fleet maintenance, and evaluation
of the 2012 Contract.” (Doc. 71-2, at 21.)
Defendant argues that “[t]he redacted emails between businesspeople with
no attorney involvement suggest they are business communications that do not
request or convey legal advice from Mr. Hamstra and are not privileged” and that
“[t]he log does not indicate the documents were prepared in anticipation of
litigation.” (Doc. 71, at 16.)
Plaintiff responds that “[t]he redacted portion of the emails relates
to the solicitation of legal advice from Micah Hamstra.” (Doc. 79, at 29.) The
privilege log clearly reflects this. There is no valid justification for the Court to
conduct an in camera review. As such, this portion of Defendant’s motion is
DENIED.
B.

Privilege Log of Non-Redacted Documents.4 (Doc. 71-1.)
1.

Lines 2-3.

These are emails from non-attorney Carl Niemann to non-attorney John
Blessing with the subject line of “KCK Wyandotte billing of fees dispute.” (Doc.

4

The documents discussed in this section from the privilege log consisting of Doc. 71-1
have not been redacted and have been withheld in their entirety.
33 

71-1, at 1.) The documents have been withheld on the basis of the attorney-client
privilege with the stated reason that they consist of an “[e]mail exchanged for
purposes of seeking legal advice from [attorney] M. Hamstra re 1993 and 2012
Contracts and billing fee disputes.” (Id.)
Defendant argues the documents should be reviewed and/or produced
because no attorneys were involved in communication according to the log and,
thus, the communication was “most likely to be for business purposes, advice or
strategy and not privileged.” (Doc. 71, at 17.) According to Defendant, Plaintiff
has agreed to produce with redactions but has not as of this filing and it is unclear
if any portion should be redacted. (Id.) These documents were not referenced in
Plaintiff’s opposition brief (Doc. 79) or in Defendant’s reply (Doc. 87). As such,
the Court surmises the issue has been resolved and reaches no conclusion herein.
To the extent Plaintiff has not produced these documents, it has waived any
argument for failing to do so.
2.

Lines 11-14.

These are email with the subject line of “KCK Wyandotte billing of fees
dispute.” (Doc. 71-1, at 1.) The email are from non-legal employee John Blessing
to several non-legal employees, with attorney Micah Hamstra included as a
recipient. Thus, the attorney-client privilege has been raised. (Id.) The log

34 

indicates the email relate to “seeking legal advice re 1993 and 2012 Contracts and
billing and fee disputes.” (Id.)
Defendant notes that Hamstra “is one of several recipients but does not
participate in the communication,” thus it “is most likely to be predominately
for business purposes, advice or strategy and not privileged.” (Doc. 71, at 17.)
According to Defendant, Plaintiff has agreed to produce the email with redactions,
“but has not as of this filing and it is unclear if any portion should be redacted.”
(Id.)
Citing authority from outside this District and the 10th Circuit, Plaintiff
argues that “the fact an email contains multiple recipients does not alter the
privilege analysis and is not dispositive of whether the privilege applies.” (Doc.
79, at 17-18 (citing Legends Mgt. Co., 2017 WL 4227930, at *4.) The Court
agrees with this legal principle.
Again, there has been no evidence presented that any of the email recipients
are outside third-parties, nor does Defendant make this argument. To the contrary,
all of the recipients are employee-representatives of the party Plaintiff in this case.
Although the attorney-client privilege may be waived when a corporation
disclosures private communications to third parties, the attorney-client privilege is
not waived merely by sharing intra-corporately. “‘Communications which reflect
advice given by counsel to a corporation do not lose their privileged status when
35 

they are shared among corporate employees who share responsibility for the
subject matter of the communication.’” Anaya, 251 F.R.D. at 652 (quoting Urban
Box Office Network, Inc., 2006 WL 1004472, at *3); see also Hansen Constr.
Inc., 2017 WL 7726711, at *2 (discussing when attorney-client privilege extends
as far as “lower-level” corporate employees).
No valid justification to conduct an in camera inspection has been put forth.
As such, this portion of Defendant’s motion is DENIED.
3.

Lines 18-19.

This is an email and email attachment related to “UG 311 fine data.” (Doc.
71-1, at 1.) All recipients were non-attorney employees of Plaintiff. (Id.) The
documents were withheld on the basis of the attorney-client privilege and work
product protection as exchanged or prepared “for purposes of seeking legal advice
from [attorney] M. Hamstra related to analysis of fines assessed against [Plaintiff]
under the 2012 contract.” (Id.)
Defendant complains that the log lists no author of the document, although
Plaintiff has indicated that non-attorney John Blessing drafted it. (Doc. 71, at 17;
Doc. 79, at 26.) Defendant also points out that, according to the log, no attorney is
“involved” in the document and the attachment was drafted by a non-lawyer. (Id.;
see also Doc. 71-1, at 1.)
Plaintiff responds as follows:
36 

[t]he descriptions for these documents explain this email
was exchanged and prepared for ‘purposes of seeking of
legal advice from Micah Hamstra related to analysis of
fines assessed against Deffenbaugh under the 2012
Contract.’ … (Doc. 71-1). The spreadsheet attached as
Entry 19 is the same as the spreadsheet Deffenbaugh
previously inadvertently produced and subsequently
clawed back pursuant to a clawback letter, dated
November 5, 2020. [Doc. 79-11] (11/5/20 Clawback).
That clawback letter explains that this spreadsheet was
prepared in conjunction with obtaining legal advice from
in-house attorney Micah Hamstra as well as outside
counsel and was prepared in reasonable anticipation of
litigation and therefore it is protected by the attorneyclient privilege and work product doctrine. Defendant
did not challenge this clawback. Non-Redacted Log
Entry 18 is an email in which John Blessing explained
the process he undertook to create the spreadsheet
attached to the email as Non-Redacted Log Entry 19, and
therefore it is similarly protected.
(Doc. 79, at 26.) Plaintiff has adequately explained the privileged and/or protected
nature of the document involved. Defendant has not set forth a valid justification
to conduct an in camera inspection. As such, this portion of Defendant’s motion is
DENIED.
4.

Line 21.

This is an email with the subject line “June and July KCK 311 Fine data”
sent to three non-attorney employees as well as attorney Micah Hamstra. (Doc.
71-1, at 1.) The document was withheld on the basis of the attorney-client
privilege and work product protection as “seeking legal advice and preparing work
product re missed pick ups, fine data, and evaluation of the 311 system.” (Id.)
37 

Defendant complains that no author of the document is listed in the log,
although Plaintiff has indicated it was written by John Blessing. (Doc. 71, at 17;
Doc. 79, at 21.) Defendant also states that while attorney Hamstra is listed as one
of several recipients, “[t]he communication is most likely to be predominately for
business purposes, advice or strategy and not privileged.” (Id.) Defendant has
provided no substantive support for this conclusory allegation.
As discussed above, advice from counsel to a corporate client does not lose
its privileged status simply because it is shared among numerous corporate
employees who have responsibility for the subject of the advice. See Anaya, 251
F.R.D. at 652 (citation omitted); see also Hansen Constr. Inc., 2017 WL 7726711,
at *2 (discussing when attorney-client privilege extends as far as “lower-level”
corporate employees). Defendant’s motion is DENIED as to this document.
5.

Lines 35, 38, 51-54.

These are email between various non-attorney employees of Plaintiff
regarding “KCK Annual Price Increase calculation (January 2021).” (Doc. 71-1, at
2, 3.) Plaintiff has indicated the documents discuss or reflect “legal advice of
[attorney] M. Hamstra re price increase calculations under the 2021 Contract” and,
therefore, have been withheld on the basis of the attorney-client privilege and the
work product doctrine. (Id.)

38 

Defendant complains that the privilege log gives no indication of attorney
involvement with the documents. (Doc. 71, at 17.) Defendant indicates that while
Plaintiff subsequently produced these documents with redactions, “based upon the
description in the log the communication are most likely to be predominately for
business purposes, advice or strategy and not privileged.” (Id.)
The written communication between corporate management employees is
not typically protected by the attorney-client privilege, but “a party may be able to
successfully demonstrate applicability of privilege by establishing that the
communication was made in confidence for the primary purpose of obtaining legal
advice.” White v. Graceland College Center for Professional Devel. & Lifelong
Learning, Inc., 586 F.Supp.2d 1250, 1269 (D. Kan. 2008) (citing Williams v.
Sprint/United Mgmt. Co., No. 03–2200–JWL–DJW, 2006 WL 266599, at *3
(D.Kan. Feb. 1, 2006) (holding that attorney-client privilege could apply to
communications of legal advice between non-lawyer members of management and
human resources department if the communication was made in confidence for the
primary purpose of obtaining legal advice)). “In order to do so, the party asserting
the privilege must be able to establish the communication was made in confidence
for the primary purpose of obtaining legal advice even though not a direct
communication from or to counsel.” (Id.) The Court finds that this extends to
imparting legal advice to such employees as well.
39 

The privilege log at issue (Doc. 71-2) provides a sufficient description of the
documents withheld and establishes that they the communications were for the
primary purpose of imparting legal advice received from in-house counsel. (Doc.
71-1, at 2, 3.) Defendant “hasn’t shown that the documents aren’t privileged,” and
the underlying dispute merely comes down to “whether the privileges apply.”
Jaiyeola, 2021 WL 492654, at *6. There is no basis for the Court to conduct an in
camera review of these documents. Defendant’s motion is DENIED as to this
category.
6.

Lines 90-92.

These documents consist of an email from non-attorney Carl Niemann to
several non-attorney employees of Plaintiff as well as attorney Micah Hamstra,
along with two attachments to that email. (Doc. 71-1, at 5.) The email has a
subject line of “KCK MASTER AGREEMENT – PRIORITY NEGOTIATION
POINTS TO BROACH 9/15.” (Id.) The log indicates the email discusses and
seeks “legal advice re negotiations with the UG on the 2021 Contract.” (Id.) The
attachments are stated to have been “prepared for facilitating legal advice from M.
Hamstra re negotiation points with the UG on the 2021 Contract.” (Id.) The
documents have been withheld on the basis of the attorney-client privilege. (Id.)

40 

Defendant contends that although attorney Hamstra is “one of the many
recipients,” Mr. Hamstra is included as one of many recipients,” “[t]he
communication is most likely to be predominately for business purposes, advice or
strategy and not privileged.” (Doc. 71, at 17.) Defendant points out that the
attachments, which were written by non-attorneys Carl Niemann and
an otherwise unidentified “Pete,” are “likely for business purposes, advice and
strategy and not privileged.” (Id.)
Plaintiff responds that the email contains “a specific portion … in which
[attorney] Micah [Hamstra] and [paralegal] Yvette [Korb] are … addressed, and
that is seeking legal advice.” (Doc. 79, at 29; Doc. 79-19, at 2.) Lines 91 and 92
are the attachments to the email and, according to Plaintiff, “were prepared by nonattorneys for the purpose of facilitating legal advice from in-house attorney Micah
Hamstra concerning negotiation points on the 2012 Contract.” (Doc. 79, at 29.)
The Court finds that there is no basis for Defendant’s conclusory statement
that the documents are “most likely to be predominately for business purposes,
advice or strategy and not privileged.” (Doc. 71, at 17.) Plaintiff has sufficiently
described the documents and has clearly established that counsel was involved in
the communication. Advice from counsel to a corporate client does not lose its
privileged status simply because it is shared among numerous corporate employees
who have responsibility for the subject of the advice. See Anaya, 251 F.R.D. at
41 

652 (citation omitted). This portion of Defendant’s motion is DENIED as to Lines
90 and 91.
As for Line 92, however, there has been no explanation by Plaintiff as to the
identity of “Pete.” (Doc. 71-1, at Line 92.) As such, there is nothing to establish
that information from or communication involving this individual would be subject
to the attorney-client privilege. Defendant’s motion is GRANTED as to line 92
and Plaintiff is directed to produce the same.
7.

Lines 95-98.

These documents consist of two emails, with the subject line “KCK
CONTRACT REVIEW AND PROFORMA BUILD – Check-in & Coordination
Call,” and attachments thereto. (Doc. 71-1, at 5.) The email were written by and
exchanged between various non-attorney employees of Plaintiff and attorney
Micah Hamstra was also a recipient. The attachments were written by nonattorney employee John Blessing and an otherwise unidentified “WMI-USER.”
(Id.) The emails are stated to be attorney-client privileged as they were written for
the purpose of “seeking legal advice re negotiation provisions in the 2021 contract”
while the attachments were “prepared for the purpose” of seeking that legal advice.
(Id.)
Defendant again contends that attorney Hamstra was merely one of many
recipients, thus “[t]he communication is most likely to be predominately for
42 

business purposes, advice or strategy and not privileged.” (Doc. 71, at 17.)
Defendant indicates that Plaintiff has agreed to produce the documents with
redactions “but has not as of this filing and it is unclear if any portion should be
redacted.” (Id., at 17-18.)
Plaintiff responds that “[t]he fact that the parent email included six recipients
in the to line, including counsel, and a paralegal in the CC line does not mean the
documents loses its privileged status.” (Doc. 79, at 30.) The Court agrees. This
portion of Defendant’s motion is DENIED.
8.

Lines 102, 103.

These are email sent by non-attorney employee Carl Niemann to various
non-attorney employees as well as attorney Micah Hamstra. (Doc. 71-1, at 6.)
The first has the subject line of “Request for Contract Review and Proforma Build
– KCK Municipal Contract” and is indicated to seek “legal advice re negotiating
provisions in the 2021 contract.” (Id.) The second has the subject line of “KC
CONTRACT REVIEW AND PROFORMA BUILD – Check-in & Coordination
Call” and is indicated to be a “[m]eeting invitation containing details seeking legal
advice re negotiation provisions in the 2021 Contract.” (Id.) Both are withheld on
the basis of the attorney-client privilege. (Id.)
Defendant complains that attorney Hamstra was merely “copied as one of
many recipients” and “[t]he communication is most likely to be predominately for
43 

business purposes, advice or strategy and not privileged.” (Doc. 71, at 18.)
Defendant indicates that Plaintiff has agreed to produce these emails with
redactions “but has not as of this filing and it is unclear if any portion should be
redacted.” (Id.)
Defendant’s contention that Hamstra was merely “copied as one of many
recipients” on the email is incorrect. (Doc. 71, at 18.) Hamstra was a recipient.
Further, as Plaintiff argues, “[t]he fact that this email contains multiple recipients
does not alter the result of the privilege claim where, as here, the description
explains that the communication involves a request for legal advice.” (Doc. 79, at
30.) The Court agrees. See Legends Mgt. Co., 2017 WL 4227930, at *4 (holding
that the fact that an attorney was “one of many recipients” of a communication
does not per se invalidate its status as attorney-client communication). Given the
information provided, there is no basis for Defendant’s conclusory statement that
the email are “most likely to be predominately for business purposes, advice or
strategy and not privileged.” (Doc. 71, at 18.) Defendant’s motion is DENIED as
to this category.
9.

Lines 120-122.

This is an email with the subject line “KCK CONTRACT – Follow-Up
Coordination Call” drafted by non-attorney Carl Niemann and sent to various nonattorney employees as well as attorney Micah Hamstra. (Doc. 71-1, at 7.) Also
44 

included are two attachments to that email, one written by Niemann and the other
written by an otherwise unidentified “Pete.” (Id.) The email is stated to be a
“[m]eeting invitation containing details facilitating legal advice re payments under
the 2021 contract and residential unit verification,” while the attachments are
stated to have been prepared for that purpose as well. (Id.) The documents are
withheld on the basis of the attorney client-privilege and the work product
doctrine. (Id.)
Defendant again complains that attorney Hamstra was merely “copied as one
of many recipients” of this meeting invitation. (Doc. 71, at 18.) Defendant
contends the attachments, which were “authored by non-attorneys Carl Niemann
and ‘Pete’,” were “likely for business purposes, advice and strategy and not
privileged.” (Id.)
As stated above, the Court finds that the fact that an attorney was “one of
many recipients” of a communication does not per se invalidate its status as
attorney-client communication. Legends Mgt. Co., 2017 WL 4227930, at *4.
Stated another way, advice from counsel to a corporate client does not lose its
privileged status simply because it is shared among numerous corporate employees
who have responsibility for the subject of the advice. See Anaya, 251 F.R.D. at
652 (citation omitted); see also Hansen Constr. Inc., 2017 WL 7726711, at *2

45 

(discussing when attorney-client privilege extends as far as “lower-level” corporate
employees).
In addition, Plaintiff asserts that “[t]he invitations at issue are not those
which simply indicate that a meeting is to occur” but rather “contain substantive
information and discussion in the body and, in some instances, also attach
documents that communicate or facilitate legal advice.” (Doc. 79, at 15; Doc. 711, at Lines 120-122.) Plaintiff establishes this with citations to other meeting
invitations with attorney Hamstra that “did not contain substantive discussions
within the invitations” that were produced in their entirety by Plaintiff. (Doc. 79,
at 16 (citing Docs. 79-3, 79-4).) The Court DENIES Defendant’s motion as to
Lines 120 and 121.
As for Line 122, however, there has been no explanation by Plaintiff as to
the identity of “Pete.” (Doc. 71-1, at 7, at Line 122.) As such, there is nothing to
establish that information from or communication involving this individual would
be subject to the attorney-client privilege. Defendant’s motion is GRANTED as to
line 122 and Plaintiff is directed to produce the same.
10.

Lines 130, 626, 187-189, 193, 317, 328.

Documents represented by Lines 130, 626, 187-189, 193, and 317, consist of
email and attachments thereto with subject line of “KCK322 12/17 meeting agenda
build.” (Doc. 71-1, at 7, 11, 12, 19, 38.) The emails (including meeting
46 

invitations) are listed as “seeking legal advice and detailing legal strategy re future
meeting with the UG” while the attachments are stated to have been “prepared as
work product related to negotiations on terms of the 2012 Contract.” (Id.) The
email represented by Line 328 has the subject line of “KCK 12/17 meeting agenda
build” and is described as an email “discussing legal advice and detailing legal
strategy re future meeting with the UG.” (Id., at 20.) The documents have been
withheld on the basis of the attorney-client privilege and the work product
doctrine. (Doc. 71-1, at 7, 11, 12, 19, 20, 38.) All of the documents except Lines
317 and 328 have attorney Micah Hamstra as a recipient or copied individual. (Id.)
Defendant contends that because attorney Hamstra was merely included as
one of many recipients, the meeting invitation and related emails “are likely to be
predominately for business purposes, advice or strategy and not privileged (or not
privileged in their entirety).” (Doc. 71, at 18.) Again, the fact that an attorney was
“one of many recipients” of a communication does not per se invalidate its status
as attorney-client communication. Legends Mgt. Co., 2017 WL 4227930, at *4.
Further, Plaintiff has explained that “[t]he invitations at issue are not those
which simply indicate that a meeting is to occur” but rather “contain substantive
information and discussion in the body and, in some instances, also attach
documents that communicate or facilitate legal advice.” (Doc. 79, at 15.) As
stated above, Plaintiff has produced – and has not claimed privilege for – emails
47 

that consist of mere meeting invitations. No valid justification to conduct an in
camera inspection has been put forth by Defendant. This portion of Defendant’s
motion is, therefore, DENIED.
11.

Line 156.

This email, with the subject line “Status update with UG/KCK 7.8,” is being
withheld on the basis of the attorney-client privilege and work product doctrine.
(Doc. 71-1, at 9.) The log indicates the document was drafted “in response to
email string sent for purpose of facilitating legal advice from attorney M. Hamstra
re disputed penalties assessed by the UG.” (Id.)
Defendant complaints that the email has no listed author and the only
recipient is not an attorney. (Id.) Plaintiff has, however, “advised Defendant that
the draft email was authored by John Blessing as indicated by email signature
block in the document and that it is similar to the email identified in Non-Redacted
Log Entry 242.” (Doc. 79, at 31, n.7.)
As discussed above, written communication between corporate management
employees will be considered privileged when demonstrated to be made in
confidence for the purpose of obtaining or imparting legal advice. See White, 586
F.Supp.2d at 1269. The privilege log indicates this is the purpose of the email.
(Doc. 71-1, at 9.) Plaintiff has also indicated that this email is part of the series of
communications discussed in subsection 12, infra.
48 

There is no basis for the Court to conduct an in camera review in situations
wherein the privilege log at issue provides sufficient description of the documents
withheld, the requesting party “hasn’t shown that the documents aren’t privileged,”
and the underlying dispute comes down to “whether the privileges apply.”
Jaiyeola, 2021 WL 492654, at *6. This portion of Defendant’s motion is
DENIED.
12.

Lines 157, 173, 242, 244, 394-97, 400-402, 577, 609-610.

These documents have the subject line of “Status update with UG/KCK 7.8”
and consist of an email chain between several non-attorney employees of Plaintiff
in which attorney Micah Hamstra is included directly (Lines 157, 173, 242, 244,
577), is copied (Line 173, 402) or the documents include forwards of email
exchanges with him (Lines 394, 400, 401, 609, 610). (Doc. 71-1, at 9, 10, 14, 15,
24, 35, 37.) A few of the documents are email exchanged between non-legal
employees. (Id., at 24, Lines 395-97.) The documents have been withheld on the
basis of the attorney-client privilege and work product doctrine with the stated
purpose for the emails as “facilitating legal advice from M. Hamstra re disputed
penalties assessed by the UG.” (Id.)
Defendant asserts that attorney Micah Hamstra was merely “one of many
recipients” of these communications. (Doc. 71, at 18, 19.) As such, Defendant
draws the conclusion that the documents were “likely to be predominately for
49 

business purposes, advice or strategy, summary of conversation with UG or
underlying facts and not privileged.” (Id., at 19-20.)
The fact that an attorney was “one of many recipients” of a communication
does not per se invalidate its status as attorney-client communication. Legends
Mgt. Co., 2017 WL 4227930, at *4. Cf. Anaya, 251 F.R.D. at 652 (citation
omitted) and Hansen Constr. Inc., 2017 WL 7726711, at *2. Defendant has made
no argument that any of the individuals involved in the email chain would be
outside the umbrella of the attorney-client privilege as to the topics discussed. The
sheer number of people involved in the discussion does not invalidate the privilege.
Further, the attorney-client privilege “protects both the giving of
professional advice to those who can act on it as well as the giving of information
by the client to the attorney so that sound and informed advice can be provided.”
Brown v. Unified School Dist. No. 501, No. 10-1096-JTM-KMH, 2011 WL
111693, at *4 (D. Kan. Jan. 13, 2011) (citing Upjohn Co. v. United States, 449
U.S. 383, 389–90 (1981)). There is no justification to conduct an in camera
review to determine if factual information is included in these documents.
Defendant also points out that “[n]o attorney [was] involved” in several of
these communications according to the privilege log. (Doc. 71, at 20.) As stated
previously, written communication between corporate management employees will
be considered privileged when demonstrated to be made in confidence for the
50 

purpose of obtaining or imparting legal advice. See White, 586 F.Supp.2d at 1269.
This portion of Defendant’s motion is, therefore, DENIED.
13.

Lines 206, 208, 212, 294-295, 319, 517.

This email chain, between non-attorney employees of Plaintiff, has the
subject line of “KCK conversation 12/5” and is described as “discussing legal
advice from M. Hamstra re Deffenbaugh continuing to provide services under the
2021 Contract and residential unit verification” (Lines 206, 208, 212, 295, 517),
seeking this legal advice (Line 294), or “facilitating” this legal advice (Line 319).
(Doc. 71-1, at 12, 13, 18, 19.) The documents have been withheld on the basis of
the attorney-client privilege and work product doctrine. (Id.)
Defendant again states that “[n]o attorney [is] involved [in the
communication] per log” and surmises that “[t]he communication is most likely to
be predominately for business purposes, advice or strategy and not privileged (or
not privileged in its entirety).” (Doc. 71, at 18.)
As discussed above, written communication between corporate management
employees will be considered privileged when demonstrated to be made in
confidence for the purpose of obtaining or imparting legal advice. See White, 586
F.Supp.2d at 1269. The privilege log indicates this is the purpose of the email.
(Doc. 71-1, at 9.)

51 

There is no basis for the Court to conduct an in camera review in situations
wherein the privilege log at issue provides sufficient description of the documents
withheld, the requesting party “hasn’t shown that the documents aren’t privileged,”
and the underlying dispute comes down to “whether the privileges apply.”
Jaiyeola, 2021 WL 492654, at *6. This portion of Defendant’s motion is
DENIED.
14.

Line 225.

This email is a meeting invitation, subject “KCK next steps,” that Plaintiff
contends “contain[s] details seeking legal advice re the 311 call system and further
negotiations with the UG.” (Doc. 71-1, at 13.) The privilege log indicates it was
exchanged between two non-attorney employees of Plaintiff. (Id.)
Defendant states that “[n]o attorney [is] involved [in the communication] per
log” but concedes that Plaintiff “indicates Mr. Hamstra was one of several
recipients.” (Doc. 71, at 18; Doc. 79, at 21.) Defendant surmises that “[t]he
communication is most likely to be predominately for business purposes, advice or
strategy and not privileged (or not privileged in its entirety).” (Id., at 18-19.)
The Court will not rely on Defendant’s conclusory assumption that the
document may merely consist of business communications. Defendant has
advanced no valid justification for the Court to conduct an in camera review of this
document. As such, this portion of Defendant’s motion is DENIED.
52 

15.

Lines 276, 281, 283, 285, 286, 289-293, 303, 526.

These documents consist of email and certain attachments thereto (Lines
290-293) sent by non-attorney employees of Plaintiff to other non-attorney
employees as well as attorney Micah Hamstra and paralegal Yvette Korb. (Doc.
71-1, at 17, 18, 19.) The privilege log indicates the emails sought legal advice or
facilitated legal advice on various topics relating to Defendant. (Id.) One
document, Line 526, was an email exchanged between non-attorney employees
Carl Niemann and Harry Lamberton. (Id., at 32.) The privilege log indicates this
is an “[e]mail forwarding email seeking legal advice re Deffenbaugh continuing to
provide services under the 2021 Contract and residential unit verification.” (Id.)
Defendant asserts that attorney Micah Hamstra was merely “one of many
recipients” of these communications. (Doc. 71, at 19.) As such, Defendant draws
the conclusion that the documents were “likely to be predominately for business
purposes, advice or strategy, summary of conversation with UG or underlying facts
and not privileged.” (Id.)
As with the other documents for which this argument was raised, the fact
that an attorney was “one of many recipients” of a communication does not per se
invalidate its status as attorney-client communication. Legends Mgt. Co., 2017
WL 4227930, at *4. Cf. Anaya, 251 F.R.D. at 652 (citation omitted) and Hansen
Constr. Inc., 2017 WL 7726711, at *2. As for Line 526, written communication
53 

between corporate management employees will be considered privileged when
demonstrated to be made in confidence for the purpose of obtaining or imparting
legal advice. See White, 586 F.Supp.2d at 1269. Defendant has made no argument
that any of the individuals involved in the email chain would be outside the
umbrella of the attorney-client privilege as to the topics discussed. The sheer
number of people involved in the discussion does not invalidate the privilege.
Further, the attorney-client privilege “protects both the giving of
professional advice to those who can act on it as well as the giving of information
by the client to the attorney so that sound and informed advice can be provided.”
Brown, 2011 WL 111693, at *4 (citation omitted). There is no justification to
conduct an in camera review to determine if factual information is included in
these documents. This portion of Defendant’s motion is, therefore, DENIED.
16.

Line 322.

This is an email with the subject line “KCK house count validation and
billing deadline” from a non-attorney employee of Plaintiff to a non-attorney
employee. (Doc. 71-1, at 19.) The privilege log indicates it is a “[f]orward of
email to [attorney] M. Hamstra requesting legal advice re KCK house count
process” and states it is being withheld on the basis of the attorney-client privilege.
(Id.)

54 

Defendant notes that no attorney was “involved” in the communication per
the log and then concludes that the email is “[l]ikely to be predominately for
business purposes, advice or strategy or underlying facts and not privileged.”
(Doc. 71, at 19.) Defendant does not dispute, however, that attorney Hamstra was
“involved” in the underlying communication that was being forwarded between the
non-attorney employees.
The Court will not rely on Defendant’s conclusory assumption that the
document may merely consist of business communications. Further, the attorneyclient privilege “protects both the giving of professional advice to those who can
act on it as well as the giving of information by the client to the attorney so that
sound and informed advice can be provided.” Brown, 2011 WL 111693, at *4
(citation omitted).
Defendant has advanced no valid justification for the Court to conduct an in
camera review of this document. As such, this portion of Defendant’s motion is
DENIED.
17.

Lines 369, 582, 588-91.

These are email with the subject line “WyCo Contract review” exchanged
between various non-attorney employees of Plaintiff, sent for the “purpose of
facilitating legal advice from M. Hamstra re 2012 Contract.” (Doc. 71-1, at 22, 35,
36.) Two of the documents are attachments to one of these emails and were
55 

prepared for the purpose of facilitating legal advice. (Id., at 36, Lines 590, 591.)
The documents have been withheld on the basis of the attorney-client privilege and
the work product doctrine. (Id. at 22, 35, 36.)
Defendant merely states that “[n]o attorney involved per log.” (Doc. 71, at
19.) Defendant then draws the conclusion that the communications were “[l]ikely
to be predominately for business purposes, advice or strategy or underlying facts
and not privileged.” (Doc. 71, at 19.)
Referencing the documents discussed in subsection B.9., supra, Plaintiff
explains that these documents “start from the original email and its attachments
(Non-Redacted Log Entries 589-591) regarding changes to a memorandum
regarding contract points; the original version of the memorandum was prepared
for a meeting with in-house counsel Micah Hamstra and others.” (Doc. 79, at 27.)
Plaintiff continues that the “follow-on emails (Non-Redacted Log Entries 330, 369,
582, 588) were discussions concerning changes to the memorandum that included
a reference to obtaining legal advice from Micah Hamstra.” (Id.) Plaintiff also
points out that the memorandum is attached to emails to Hamstra and others which
were not challenged by Defendant. (Id., referencing Doc. 71-1, at Lines 196-200.)
The attorney-client privilege “protects both the giving of professional advice
to those who can act on it as well as the giving of information by the client to the

56 

attorney so that sound and informed advice can be provided.” Brown, 2011 WL
111693, at *4 (citation omitted).
There is no justification to conduct an in camera review to determine if
factual information is included in these documents. The Court will not rely on
Defendant’s conclusory assumption that the documents may merely consist of
business communications. Defendant has advanced no valid justification for the
Court to conduct an in camera review of this document. As such, this portion of
Defendant’s motion is DENIED.
18.

Line 466.

This email, with the subject line “June and July KCK 311 fine data,” was
sent by non-attorney employee Kent Harrell to several non-attorney employees.
(Doc. 71-1, at 28.) The document has been withheld on the basis of the attorneyclient privilege and work product doctrine. (Id.) Plaintiff indicates the mail
“discuss[es] legal advice and prepar[es] work product remised pick ups, fine data,
and evaluation of the 311 system.” (Id.)
Defendant points out that “[n]o attorney [was] involved per log.” (Doc. 71,
at 20.) Defendant then concludes that the communications were “[l]ikely to be
predominately for business purposes, advice or strategy or underlying facts and not
privileged.” (Id.)

57 

As stated above, written communication between corporate management
employees will be considered privileged when demonstrated to be made in
confidence for the purpose of obtaining or imparting legal advice. See White, 586
F.Supp.2d at 1269. Defendant has made no argument that any of the individuals
involved in the email chain would be outside the umbrella of the attorney-client
privilege as to the topics discussed. The sheer number of people involved in the
discussion does not invalidate the privilege.
As stated above, it is well-established that the attorney-client privilege
“protects both the giving of professional advice to those who can act on it as well
as the giving of information by the client to the attorney so that sound and
informed advice can be provided.” Brown, 2011 WL 111693, at *4 (citation
omitted).
There is no justification to conduct an in camera review to determine if
factual information is included in these documents. This portion of Defendant’s
motion is, therefore, DENIED.
19.

Lines 528-31.

These documents consist of an email (Lines 528, 530) attachments thereto
(Lines 529, 531) with the subject line “Transfer DPT – Municipal Contract Pass
Thru Analysis.” (Doc. 71-1, at 32-33.) While the documents were sent and/or
created by non-attorney employees of Plaintiff to other non-attorney employees,
58 

the privilege log states that the documents were sent or created for purpose of
“discussing” or “facilitating” certain “legal advice from M. Hamstra re analysis of
municipal contracts.” (Id.) They are being withheld on the basis of the attorneyclient privilege. (Id.)
Defendant asserts that there was “[n]o attorney involved [in the
communications] per log.” (Doc. 71, at 20.) As such, Defendant draws the
conclusion that the documents were “likely to be predominately for business
purposes, advice or strategy, summary of conversation with UG or underlying facts
and not privileged.” (Id., at 20.) Defendant indicates that Plaintiff “has agreed to
produce [these documents] with redactions but has not as of this filing and it is
unclear if any portion should be redacted.” (Id.)
The Court reiterates that written communication between corporate
management employees will be considered privileged when demonstrated to be
made in confidence for the purpose of obtaining or imparting legal advice. See
White, 586 F.Supp.2d at 1269. Defendant has made no argument that any of the
individuals involved in the email chain would be outside the umbrella of the
attorney-client privilege as to the topics discussed. The sheer number of people
involved in the discussion does not invalidate the privilege. No justification to
conduct an in camera inspection has been put forth beyond Defendant’s conclusory
statement that the documents are likely to be “predominantly for business
59 

purposes.” Further, the attorney-client privilege “protects both the giving of
professional advice to those who can act on it as well as the giving of information
by the client to the attorney so that sound and informed advice can be provided.”
Brown, 2011 WL 111693, at *4 (citation omitted). There is no justification to
conduct an in camera review to determine if factual information is included in
these documents. This portion of Defendant’s motion is, therefore, DENIED.
20.

Lines 533, 539-540, 544, 556.

These email have the subject line “Kansas City KS Contract – Spring 2016
RO PI Issue” and were exchanged between various non-attorney employees of
Plaintiff. (Doc. 71-1, at 33, 34.) The privilege log states attorney-client privilege
as the reason they are withheld with the description that the email “seek[s]” or
“request[s] legal advice from [attorney] M. Hamstra” (Lines 533, 544),
“discuss[es]” such legal advice (Line 556), or was “exchanged for the purpose of
facilitating legal advice” (Lines 539, 540) from Hamstra regarding “payments,
fees, and rates disputed by the UG under the 2012 contract.” (Id.)
Defendant states that, according to the privilege log, no attorney was
involved in the communication. (Doc. 71, at 20.) Defendant continues, however,
that Plaintiff has indicated that Hamstra was “one of the several recipients.” (Id.;
see also Doc. 79, at 25.) Regardless, Defendant concludes that the

60 

communications were “[l]ikely to be predominately for business purposes, advice
or strategy or underlying facts and not privileged.” (Id.)
Plaintiff explains that attorney Micah Hamstra was involved in the
underlying email originated from the legal department.
The email string starts with an email from paralegal
Yvette Korb and the redacted emails include attorney
Micah Hamstra and paralegal Yvette Korb. Further, the
email on [Doc. 79-10) that is partially redacted begins
with ‘I believe legal,’ showing there is a discussion about
information related to advice from the legal department.
The descriptions for all of these entries explain that there
was legal advice being sought. … (Doc. 71-2). The fact
that some of the e-mail chain is not privileged does not
waive the privilege as to the portion of the e-mail chain
that is redacted.
(Doc. 79, at 25; see also discussion of Lines 51-53, 60, 61, 63, 365, 366, 370 from
the Redacted Privilege Log (Doc. 71-2), at subsection A.4., supra.)

The Court reiterates that written communication between corporate
management employees will be considered privileged when demonstrated to be
made in confidence for the purpose of obtaining or imparting legal advice. See
White, 586 F.Supp.2d at 1269. Defendant has made no argument that any of the
individuals involved in the email chain would be outside the umbrella of the
attorney-client privilege as to the topics discussed. The sheer number of people
involved in the discussion does not invalidate the privilege.

61 

No justification to conduct an in camera inspection has been put forth
beyond Defendant’s conclusory statement that the documents are likely to be
“predominantly for business purposes.” The privilege log at issue (Doc. 71-1)
provides a sufficient description of the documents withheld and Plaintiff has
provided additional explanation. Defendant “hasn’t shown that the documents
aren’t privileged,” and the underlying dispute merely comes down to “whether the
privileges apply.” See Jaiyeola, 2021 WL 492654, at *6. Defendant’s motion is
DENIED as to this category.
21.

Lines 543, 551.

Finally, these emails have the subject line of “REQUEST FOR REVIEW –
KCK CONTRACT” and were sent by non-attorney employee Carl Niemann to
non-attorney employee Tomas Vujovic. (Doc. 71-1, at 33.) The privilege log
describes the email as “facilitating and discussing legal advice from [attorney] M.
Hamstra re negotiating provisions of the 2012 Contract.” (Id.) The documents
have been withheld on the basis of the attorney-client privilege. (Id.)
Defendant again points out that “[n]o attorney involved per log,” then
concludes that the communications were “[l]ikely to be predominately for business
purposes, advice or strategy or underlying facts and not privileged.” (Doc. 71, at
20.) Defendant states that Plaintiff has agreed to produce these documents with
certain redactions, but notes that Plaintiff “has not as of this filing and it is unclear
62 

if any portion should be redacted.” (Id.) Plaintiff responds that “[t]he redacted
portions consist of communications which involve [attorney] Micah Hamstra and
which contain requests for legal advice from [him] concerning the negotiation of
the 2012 Contract, as the privilege description for these entries explain.” (Doc. 79,
at 31.)
Written communication between corporate management employees will be
considered privileged when demonstrated to be made in confidence for the purpose
of obtaining or imparting legal advice. See White, 586 F.Supp.2d at 1269. The
privilege log at issue provides sufficient description of the documents withheld,
Defendant “hasn’t shown that the documents aren’t privileged,” and the underlying
dispute comes down to “whether the privileges apply.” Jaiyeola, 2021 WL
492654, at *6. Defendant’s conclusory statement that the documents are probably
for “predominately business purposes” is not a valid justification for the Court to
conduct an in camera review. This portion of Defendant’s motion is DENIED.
IT IS THEREFORE ORDERED that Defendants’ Motion (Doc. 71) is
GRANTED in part and DENIED in part as set forth herein.
IT IS SO ORDERED.
Dated this 26th day of April, 2021, at Wichita, Kansas.
S/ KENNETH G. GALE

HON. KENNETH G. GALE
U.S. MAGISTRATE JUDGE
63