Jo Ann Howard and Associates, P.C. et al v. Cassity et al

Filing 2631

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Non-Party BMO Harris Bank, N.A.'s Motion to Quash Plaintiffs' Subpoena to Testify at a Deposition in a Civil Action or Produce Documents in Lieu of Deposition 2617 is GRANTED, in part, and DENIED, in part. Signed by District Judge E. Richard Webber on 8/14/18. (KXS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JO ANN HOWARD & ASSOCIATES, P.C.,
et al.,
Plaintiff(s),
v.
J. DOUGLAS CASSITY, et al.,

Defendant(s).

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No. 4:09CV01252 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Non-Party BMO Harris Bank, N.A.’s Motion to
Quash Plaintiffs’ Subpoena to Testify at a Deposition in a Civil Action or Produce Documents in
Lieu of Deposition [2617].
BMO Harris Bank, N.A. (“BMO”) asks the Court to quash Plaintiffs’ subpoena for
documents BMO previously listed on a privilege log. BMO was previously a defendant in this
litigation. On September 26, 2014, Plaintiffs filed a motion to compel against BMO seeking
production or an in camera review of 29 documents listed on BMO’s privilege log. On
November 13, 2014, Plaintiffs and BMO notified the Court they had reached a settlement, all
claims against BMO were dismissed, and the motion to compel was terminated.
Plaintiffs have now served a third-party subpoena on BMO seeking those same 29
documents that were the subject of the previous motion to compel. BMO asserts it does not need
to produce the documents, because, in the settlement agreement, Plaintiffs agreed to release
BMO from all demands, rights, and obligations of any kind that arose or are related to the claims
of this lawsuit. Further, BMO argues the documents are privileged and not relevant to Plaintiffs’

claims against PNC Bank. Plaintiffs assert the documents are not privileged and the settlement
agreement states BMO agreed to provide reasonable cooperation to Plaintiffs.
The settlement agreement’s release of BMO from claims, demands, or rights that arise
out of the claims or causes of action asserted by Plaintiffs does not apply as BMO suggests and
does not prevent BMO from responding to a subpoena. Additionally, pursuant to the agreement’s
cooperation clause, BMO agreed to provide reasonable cooperation to Plaintiffs including
“producing in response to reasonable requests for additional documents relevant to the subject
matter of the Lawsuit that have not already been produced and are non-privileged.” (emphasis
added). Thus, the Court must determine if the documents are non-privileged for the subpoena to
be enforceable.
Plaintiffs argue attorney-client privilege does not apply to the documents because of the
fiduciary exception to the privilege. Upon acceptance of the trusteeship, a trustee is under a duty
to administer the trust solely in the interest of the beneficiary. Estate of Luyties v. Scudder, 432
S.W.2d 210, 214 (Mo. 1968). The trustees have a fiduciary obligation to act in the beneficiaries’
interest when administering the trust. United States v. Jicarilla Apache Nation, 564 U.S. 162,
170 (2011). When a trustee obtains legal advice for the purpose of administering the trust, and
not for the trustee’s own defense, the beneficiaries are entitled to the documents. Id. Attorneyclient privilege does not apply because the legal advice was sought for the beneficiaries’ benefit
and at the beneficiaries’ expense. Id.
The fiduciary exception to attorney-client privilege does not apply to documents 1-3, 1214, 16, and 17,1 because these documents request legal advice about the trusts before Marshall &
Ilsley Trust Company, N.A. (“M&I”) (BMO’s predecessor) became trustee. At that time, M&I
1

All document numbers correspond to the document numbers listed on BMO’s privilege log
produced at ECF No. 1804-2.
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did not have a duty to the beneficiaries of the trust, did not seek the advice for the beneficiaries’
benefit, and the advice sought was not paid for by the trust. Similarly, the fiduciary exception
does not apply to Documents 10, 11, and 18 through 26, because they were sent or received after
M&I resigned as trustee. Therefore, M&I did not have a duty to the beneficiaries at that time.
Documents 1-3, 10-14, 16-18, 20, 24, and 25 are protected by either attorney-client or the
work-product doctrine, because they request legal advice, include legal advice or are litigation
summaries. Therefore, BMO does not need to produce these documents.
Documents 19 and 21-23 are M&I Trust Administrative Committee minutes. The
descriptions state these include “discussion in preparation for litigation and reflecting legal
advice re litigation.” The parts of these documents that discuss litigation and legal advice are
protected by attorney-client privilege but any other issues discussed in the minutes are not
protected and must be disclosed. Therefore, Documents 19 and 21-23 shall be produced to the
Court for in camera review for the Court to determine what, if anything, is privileged.
Documents 4-7 and 15 shall be produced to the Court for in camera review. The privilege
logs describes these as “Requesting legal advice re Forever trustee removal documentation” and
“Requesting legal advice re Forever Network trustee appointment documentation.” These
documents were sent or received after the date M&I accepted the Forever Pre-Need Trusts. The
descriptions indicate they may contain advice sought for the benefit of the beneficiaries, but the
Court cannot determine if they must be disclosed from the description alone.
Document 8 does not need to be produced because it is not relevant to the issues
remaining in dispute in this matter. This document discusses Forever Oak Hill Endowed Care
Trust which is not one of the pre-need trusts at issue. Document 9 is protected by attorney-client
privilege because it involved advice M&I sought to determine if it should resign as trustee. It

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was not sought for the benefit of the beneficiaries. The remaining documents, 26-29, are
protected by the attorney-client privilege, because they consist of a memorandum and
handwritten comments created by Pamela Roberts, a trust administrator for M&I, and sent to
Victor Schultz, M&I’s in-house counsel, for the purpose of receiving legal advice. “The privilege
exists to protect not only the giving of professional advice to those who can act on it but also the
giving of information to the lawyer to enable him to give sound and informed advice.” Upjohn
Co. v. United States, 449 U.S. 383, 390 (1981).
Therefore, BMO shall produce to the Court, within five days of this order, Documents 47, 15, 19, and 21-23 for in camera review.
Accordingly,
IT IS HEREBY ORDERED that Non-Party BMO Harris Bank, N.A.’s Motion to Quash
Plaintiffs’ Subpoena to Testify at a Deposition in a Civil Action or Produce Documents in Lieu
of Deposition [2617] is GRANTED, in part, and DENIED, in part.
So Ordered this 14th Day of August, 2018.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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