Payne v. University of Southern Mississippi et al

Filing 76

ORDER granting in part and denying in part 59 Plaintiff's Motion to Compel. Signed by Magistrate Judge Michael T. Parker on May 16, 2013. (KM)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
THOMAS PAYNE
v.

PLAINTIFF
CIVIL ACTION NO. 1:12cv41-KS-MTP

UNIVERSITY OF SOUTHERN MISSISSIPPI, ET AL.

DEFENDANTS

ORDER
This matter is before the court on the Motion [59] to Compel filed by Plaintiff. Having
considered the submissions of the parties and the applicable law, and having reviewed the disputed
documents in camera, the court finds that the Motion [59] to Compel should be granted in part and
denied in part as set forth herein.
In its Order [56] dated April 12, 2013, the court ordered the parties to confer in good faith
regarding specific challenges to documents identified on the Defendants’ privilege logs and to
submit a joint report: 1) certifying that the good faith conference was held, and 2) identifying the
particular documents on the privilege logs that remain in dispute. The parties submitted their Joint
Report [59-1] on April 25, 2013, setting forth the remaining withheld documents in dispute.
Plaintiff filed the instant Motion [59] on April 26, 2013, seeking an order compelling The
University of Southern Mississippi (USM), Dr. Martha Saunders, and Dr. Robert Lyman
(hereinafter “the Defendants”) to produce certain documents withheld on the basis of privilege and
identified on their privilege log. The parties have confirmed that Plaintiff’s Motion [59] only
involves the above-named Defendants and does not pertain to Dr. Lisa Nored, Dr. Joe Whitehead,
Dr. Dale Ledford, or Dr. Rex Gandy.1
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See Response [68]; Reply [69]. Documents withheld and/or redacted from the PayneInternal File No. 1 and No. 2 at issue in Plaintiff’s Motion [59] are identified on the privilege log
produced by Defendants Dr. Lisa Nored, Dr. Joe Whitehead, Dr. Dale Ledford, and Dr. Rex

The disputed documents withheld by Defendants consist mainly of handwritten notes
regarding Plaintiff prepared by counsel for USM (Lee Gore, Richard Lambert, or Truett Roberts)
and correspondence to/from counsel for USM (Gore, Lambert, or Roberts) and USM employees
regarding Plaintiff. Having reviewed the disputed documents in camera, the court agrees with
Defendants that the vast majority of such documents are protected by the attorney-client privilege
and/or the work-product doctrine and need not be produced, with the few exceptions noted below.
Defendants have described in detail why each disputed document was withheld as
privileged. See Memo. [67] at 9-27. Moreover, Defendants submitted an affidavit from Lee Gore,
counsel for USM from 1990 - January 31, 2011, describing the documents at issue and his
involvement in the preparation of same. See Ex. C to Response [66-3]. Contrary to Plaintiff’s
arguments, Defendants are not required to provide affidavits and/or retainer agreements from each
USM employee that was the sender or recipient of the correspondence with USM counsel
regarding legal advice for matters regarding Plaintiff. See Buford v. Holladay, 133 F.R.D 487, 491
(S.D. Miss. 1990) (“Where the communications are of a confidential nature, are made between a
client and his attorney, and are made for the purpose of seeking or giving legal advice, such
communications are absolutely protected from disclosure by the attorney-client privilege.”).
However, the court finds that the following documents are not privileged and should be
produced:
USMPRIV00069 - email correspondence between Ledford and Nored;
USMPRIV00008 - envelope; Defendants may redact the hand-written notes; and

Gandy. See Privilege Log [53-1]. However, Payne’s internal files are in the control and
possession of Defendants USM, Dr. Martha Saunders, and Dr. Robert Lyman. See Response
[68].
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USMPRIV00010-13 - anonymous letters and attachments.
Accordingly,
IT IS, THEREFORE, ORDERED:
1.

That Plaintiff’s Motion [59] to Compel is granted in part and denied in part as set
forth herein.

2.

Defendants shall produce to Plaintiff the documents required by this Order by
Monday, May 20, 2013.

3.

The parties’ requests for fees and costs are denied.

SO ORDERED this the 16th day of May, 2013.
s/Michael T. Parker
United States Magistrate Judge

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