Holick v. Burkhart
Filing
190
MEMORANDUM AND ORDER granting 149 Motion to Quash; granting 151 Motion for Leave to File Under Seal; finding as moot 177 Motion to Strike. Signed by Magistrate Judge Kenneth G. Gale on 4/18/18. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARK HOLICK,
)
)
Plaintiff,
)
)
v.
)
)
JULIE A. BURKHART,
)
)
Defendant.
)
______________________________ )
Case No. 16-1188-JTM-KGG
MEMORANDUM & ORDER ON MOTIONS
Now before the Court are Defendant’s Motion to Quash Non-Party
Depositions (Doc. 149) and Motion to for Leave to File Under Seal (Doc. 151).
Having reviewed the submissions of the parties, Defendants motions are
GRANTED as more fully set forth below. The Court also DENIES as moot
Plaintiff’s Motion to Strike Defendant’s reply brief (Doc. 177).
FACTUAL BACKGROUND
In 2013, Defendant received a temporary order of protection from stalking
against Plaintiff in Kansas state court (state court action). Plaintiff, who is a
resident of Oklahoma, brings the present matter in federal district court alleging
malicious prosecution and abuse of process against Defendant, a Kansas resident,
relating to the allegations levied against him in the state court action. (See
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generally, Doc. 84.) Facts relevant to the individual motions will be summarized
in the context of the relevant motion, below.
I.
Defendant’s Motion to Quash Non-Party Depositions (Doc. 149)
Plaintiff seeks to depose Robert Eye and Erin Thompson, both of whom
served as legal counsel for Defendant during the state court action. Defendant
moves to quash the depositions, contending that “[a]ny knowledge about the
underlying state action possessed by counsel that is relevant to [Plaintiff’s] claims
and defenses is unquestionably privileged.” (Doc. 150, at 1.) Defendant notes that
“the operative Complaint in this case contains no allegations of a ‘conspiracy’ to
abuse legal process or engage in malicious prosecution.” (Id., at 2.) Plaintiff has
since, however, filed a Motion to Amend that, in part, seeks to add a claim for civil
conspiracy and fraudulent conduct. (See generally Doc. 152; Doc. 152-1, at 1011.) That motion will be decided by separate Order.
Plaintiff states that he has a “good-faith belief that defendant initiated the
false stalking accusation” against him “due to the planning, recommendation, and
strategy of the . . . attorneys . . . .” (Doc. 158, at 1.) He responds that he wants to
depose Defendant’s attorneys “who recommended strategy to [Defendant] before
she filed the accusations of stalking against [Plaintiff] in state court.” (Id.
(emphasis in original).) Plaintiff contends that he “does not seek to depose these
attorneys concerning their knowledge about the underlying state action after that
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action was commenced in March 2013.” (Id., at 1-2.) Rather, he wants to question
them “regarding their role in their conspiracy” with Defendant to bring “phony”
stalking charges against Plaintiff in state court. (Id., at 2.)
A.
Standards for Discovery and Motions to Quash.
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). Pursuant to
Fed. R. Civ. P. 45(d)(3)(A), the court for the District where compliance is required
must quash or modify a subpoena that “requires disclosure of privileged or other
protected matter, if no exception or waiver applies.”
Defendant argues that Plaintiff
presumably seeks to depose state counsel as to why
[Defendant] sought a PFS order and what information
she received from counsel prior to filing. This
information – consisting of confidential communications
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made for the purposes of giving and receiving legal
advice about a possible claim or remedy – falls squarely
within the scope of attorney-client privilege under
Kansas law.
(Doc. 150, at 5.) Defendant continues that Plaintiff cannot identify an exception to
the privilege that would allow the information to be discovered. (Id., at 6.)
Plaintiff responds that because Defendant has admitted that certain related emails are nonprivileged communication, he “should be permitted to depose
Thompson, Eye, and Gaines about those emails, their contents, and the
circumstances surrounding those communications.” (Doc. 158, at 5.) Plaintiff also
contends that the crime/fraud exception to the attorney-client privilege makes the
information discoverable. (Id., at 6.)
B.
Depositions of Counsel.
As a general rule, “[c]ourts do not favor thwarting a deposition.” Mike v.
Dymon, Inc., 169 F.R.D. 376, 378 (D.Kan.1996) (citing Leighr v. Beverly
Enterprises–Kansas Inc., 164 F.R.D. 550, 552 (D. Kan. 1996)). Courts in this
District have addressed the issue of a party seeking to depose opposing counsel,
holding generally that “[a]n attorney, even an attorney for a party to the suit, is
subject to being deposed.” Id. (quoting Kelling v. Bridgestone/Firestone, Inc.,
153 F.R.D. 170, 171 (D.Kan.1994)).
“Barring extraordinary circumstances, courts rarely will grant a protective
order which totally prohibits a deposition.” Simmons Foods, Inc. v. Willis, 191
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F.R.D. 625, 630 (D. Kan. 2000) (citation omitted). “‘A request to take the
deposition of a party's attorney, however, constitutes a circumstance justifying
departure from the normal rule.’” Phoenix Mut. Life Ins. Co. v. College Court,
No. 92-2254-KHV, 1993 WL 841191, at *1 (citing N.F.A. Corp. v. Riverview
Narrow Fabrics, Inc., 117 F.R.D. 83, 84 (M.D.N.C.1987)).
“While the Federal Rules do not prohibit the deposition of an attorney for a
party, experience teaches that countenancing unbridled depositions of attorneys
often invites delay, disruption of the case, harassment, and unnecessary distractions
into collateral matters.” Hay & Forage Indus. v. Ford New Holland, Inc., 132
F.R.D. 687, 689 (D.Kan.1990)). Thus, Courts “generally prohibit the deposition of
counsel for a party, unless the party seeking the deposition shows that: (1) no other
means exist to obtain the information except to depose opposing counsel; (2) the
information sought is relevant and nonprivileged; and (3) the information is crucial
to the preparation of the case.” Dymon, 169 F.R.D., at 378; see also Shelton v.
American Motors Corp., 805 F.2d 1323, 1326 (8th Cir.1986).
It is undisputed that the very limited e-mail communication from counsel
that has been produced is non-privileged, satisfying the second criteria. The Court
will assume, for the sake of this Order, that the “information is crucial to the
preparation” of Plaintiff’s case. Plaintiff cannot establish, however, that
depositions of these attorneys are the only source for this information as the other
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individuals in the email chain are able to be deposed. Under these circumstances,
the Court finds that the depositions of Defendant’s attorneys should not go
forward.1
C.
Application of the Crime/Fraud Exception.
Under Kansas law, the crime/fraud exception to the attorney-client privilege
applies to communications with attorneys who aid or enable the commission of
torts by the client or others. See K.S.A. § 60–426(b). Plaintiff argues that
Defendant “committed a fraud on the state court by lying in her verified petition.”
(Doc. 158, at 9.)
The parties disagree as to whether federal or state law governs the crimefraud exception to the attorney-client privilege. Pursuant to the Federal Rules of
Evidence, “state law governs privilege regarding a claim or defense for which state
law supplies the rule of decision.” Fed.R.Evid. 501. Because this underlying
claim is based on diversity rather than federal law, Kansas privilege law governs.
This District has determined, however, that the approach to the crime-fraud
exception is analogous under Kansas and federal law. See Berroth v. Kansas
Farm Bureau Mutual Ins. Co., Inc., 205 F.R.D. 586 (D.Kan. 2002). The Berroth
court held
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Further, case law suggests that even if all three of these factors are met, a court may still
prohibit such depositions. Simmons, 191 F.R.D., at 630 (citing Boughton v. Cotter
Corp., 65 F.3d 823, 829–31 (10th Cir.1995)).
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[u]nder Kansas law, the attorney-client privilege does not
extend ‘to a communication if the judge finds that
sufficient evidence, aside from the communication, has
been introduced to warrant a finding that the legal service
was sought or obtained in order to enable or aid the
commission or planning of a crime or a tort.’ K.S.A. 60–
426(b)(1). ‘Sufficient evidence’ for purposes of the
crime-fraud exception is ‘that which constitutes a prima
facie case.’ Burton v. R.J. Reynolds Tobacco Co., 177
F.R.D. 491, 501 (D.Kan.1997) (citing Wallace,
Saunders, Austin, Brown & Enochs, Chtd. v. Louisburg
Grain Co., 250 Kan. 54, 61, 824 P.2d 933, 939 (1992)).
A prima facie case consists of ‘evidence which, if left
unexplained or uncontradicted, would be sufficient to
carry the case to the jury and sustain a verdict in favor of
the plaintiff on the issue it supports.’ Wallace,
Saunders, 250 Kan. at 61, 824 P.2d at 939 (quotation
omitted).
Id., at 589. Berroth addressed the issue under federal law as well, holding that the
‘attorney-client privilege does not apply where the client
consults an attorney to further a crime or fraud.’ Motley
[v. Marathon Oil Co., 71 F.3d 1547, 1551 (10th
Cir.1995)] (quotation omitted). The party claiming the
exception applies ‘must present prima facie evidence that
the allegation . . . has some foundation in fact.’ Id. The
trial court has discretion to determine whether the party
has established a prima facie case, id. . . .
Id.
Given this context, the Berroth court was
guided by the principle that, at a bare minimum, before
the court even has an obligation to consider whether
to conduct an in camera review of the privileged
material, the party invoking the crime-fraud
exception must make a threshold showing of a factual
basis that is ‘adequate to support a good faith belief
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by a reasonable person that in camera review of the
materials may reveal evidence to establish the claim
that the crime-fraud exception applies.’ Zolin, 491
U.S. at 572, 109 S.Ct. 2619 (internal citations and
quotations omitted); accord Burton v. R.J. Reynolds
Tobacco Co., 167 F.R.D. 134, 141 (D.Kan. 1996) (citing
Zolin).
Id. (emphasis added). The Court thus finds the standard to be consistent under
federal and Kansas law.
Plaintiff contends that “[t]he communications between [Defendant] and
Thompson, Eye, and the Feminist Majority Foundation resulted in false legal
charges being filed, and torts committed, against [him].” (Doc. 158, at 10.)
Plaintiff continues that
the evidence here is overwhelming that none of the
advisors and attorneys who participated in framing the
false accusations by [Defendant] against [Plaintiff] had
ever been advised of all the ‘facts known to the
defendant’ or ‘all facts the defendant could have learned
by diligent effort.’ To the contrary, the lack of accurate
and adequate factual information supports the prima facie
case that [Defendant] knowingly conspired with her
attorneys to obtain a false stalking order against
[Plaintiff], whether those attorneys were fully informed
or not. They had a duty to make diligent inquiry into
those facts, and to get straight answers from [Defendant],
before assisting her in filing false pleadings in state court
against [Plaintiff].
(Id., at 11.)
Plaintiff’s argument contradicts itself. On one hand, he says that Defendant
failed to advise her attorneys of all the facts she knew or “could have learned by
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diligent effort.” On the other hand, Plaintiff argues that this lack of information
supports a prima facie case that the crime-fraud exception to the attorney-client
privilege should be applied. Assuming for the sake of argument Plaintiff’s
contention that there was a dearth of information provided to Defendant’s counsel,
this would appear to make the likelihood of a concerted effort involving defense
counsel to commit fraud or other wrongs against Plaintiff less likely.
Regardless, the Court finds that Plaintiff has failed to make a threshold
showing of a factual basis that the crime-fraud exception applies to Defendant’s
communications with counsel. Plaintiff’s Motion to Quash (Doc. 149) is
GRANTED.2
II.
Defendant’s Sealed Motion to File Under Seal (Doc. 151, sealed).
Defendant moves, pursuant to D. Kan. Rule 5.4.6 for an Order allowing her
to file under seal an exhibit to her Motion to Quash Non-Party Depositions (supra).
Defendant contends that if disclosed, the exhibit, which consists of her
“confidential emails . . . could jeopardize the safety of [Defendant] or other
individuals named in the emails and/or expose them to an increased risk of harm.”
(Doc. 151, sealed, at 1, citing Judicial Watch, Inc. v. FDA, 449 F.3d
141, 153 (D.C. Cir. 2006) (finding that privacy rights warranted the sealing of
2
Because the Court did not rely on any of the arguments contained in Defendant’s reply
brief (Doc. 164) in reaching this conclusion, the Court DENIES as moot Plaintiff’s
motion to strike the reply brief (Doc. 177).
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identifying information for individuals involved in the approval process for a
drug used to terminate pregnancy).)
Defendant contends that public interest in the exhibit is “minimal.” (Id., at
2.) She argues that the public’s right to access such documents is limited when
“offered solely in the context of a discovery dispute, not in a motion seeking to
resolve the parties’ substantive rights.” (Id., citing Riker v. Fed. Bureau of
Prisons, 315 F. App’x 752, 755 (10th Cir. 2009) (“[W]here the documents ‘play
only a negligible role in the performance of Article III duties, the weight of
presumption is low and amounts to little more than a prediction of public access.’”
(citations omitted)).)
Plaintiff argues that the evidence contained in the emails “is highly probative
to plaintiff’s claims” and contains “discrepancies” with Defendant’s deposition
testimony and the report she gave to the Wichita police. (Doc. 159, at 4.) Plaintiff
contends this makes the exhibit “important impeachment evidence.” (Id.)
As to potential security concerns, Defendant argues that
[c]ourts widely recognize the real and significant risk
posed by disclosure of names and identifying information
of individuals involved in ensuring abortion access. See,
e.g., Judicial Watch, 449 F.3d at 153 (D.C. Cir. 2006)
(finding that privacy rights warranted the sealing of
identifying information for individuals involved in the
approval process for a drug used to terminate pregnancy);
Nat’l Abortion Fed’n v. Ctr. for Med. Progress, No. 15
Civ. 3522, 2016 WL 454082, at *1–2 (N.D. Cal. Feb. 5,
2016) (recognizing that disclosure of the identity of
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individuals involved in reproductive health services
creates a heightened risk of threats and harm); Glenn v.
Md. Dep’t of Health & Mental Hygiene, No. 48, Sept.
Term 2015, 2016 WL 690513, at *4 (Md. Feb. 22, 2016)
(affirming the state agency’s redaction of identifying
information in light of the ‘history of violence’ against
providers of abortion services).
(Doc. 151, sealed, at 3.) Defendant continues that the exhibit at issue “reveal[s]
that [Defendant] has consulted with employees of a non-profit organization
focused on ensuring safe access to reproductive care for security and logistics
advice.” Defendant argues sealing the document is necessary for her to protect
herself, her family and her employees because of “the threats from anti-abortion
activists that [she] consistently faces . . . .” (Id., at 4.)
Plaintiff argues that “there has been absolutely no showing that (1) the
information in the exhibit requires protection, or (2) the disclosure would result in
any ‘clearly defined and serious injury.’ Instead, defendant makes conclusory
allegations with general references to other cases decided under other facts and
legal standards.” (Doc. 159, at 2.) Plaintiff contends that Defendant “merely
speculates about some vague harm that might happen as the result of the disclosure
of emails that are five years old and involve persons whose connections to abortion
are already well known through other public disclosure.” (Id., at 2.) Plaintiff also
points out that the emails “contain no personal identifying information or other
private information. They contain no private addresses, private phone numbers,
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social security number, or the like.” (Id., at 5.) Plaintiff also distinguishes the
cases cited by Defendant, arguing that they “involved some pre-existing standard
of confidentiality, such as a statute, regulation, or confidentiality agreement” and
“required some specific evidentiary showing of an increased risk of violence or
danger to the particular group of persons at issue.” (Id., at 7.)
The Court takes judicial notice of the fact that the potential harm to abortion
providers in Wichita is more than speculative or “vague.” That stated, the Court
acknowledges Plaintiff’s contention that the persons who sent/received the emails
have “connections to abortion [that] are already well known through other public
disclosure.” (Doc. 159, at 2.)
The emails do, however, refer to other individuals, such as the person who
appears to have called the police on the protesters, who are not “well known” to
activists and who may be placed in danger if their identities can be ascertained
from the emails. While this individual’s name and address are not shared, it would
not be difficult to determine who this individual is (or at least narrow the identity
of the individual down to a very small pool of likely persons).
That potential danger to someone who is otherwise entirely unrelated to
these proceedings, while not necessarily eminent, is sufficient to support sealing
the exhibit for the purposes of this motion, particularly because the motion is
procedural rather than substantive. Nothing in this ruling would affect the District
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Court’s ability to allow this exhibit to be unsealed should the exhibit be used to
support a substantive motion (such as a motion for summary judgment) or used at
trial to impeach Defendant or another witness. As such, Defendant’s Motion for
Leave to File Under Seal (Doc. 151) is GRANTED.
IT IS THEREFORE ORDERED that Defendant’s Motion to Quash (Doc.
149) is GRANTED, Defendant’s Motion to Seal (Doc. 151, sealed) is
GRANTED, and Plaintiff’s Motion to Strike (Doc. 177) is DENIED as moot.
IT IS SO ORDERED.
Dated this 18th day of April, 2018, at Wichita, Kansas.
S/ KENNETH G. GALE
HON. KENNETH G. GALE
U.S. MAGISTRATE JUDGE
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