Baird et al v. Dolgencorp, LLC et al

Filing 120

MEMORANDUM AND ORDER re: #116 IT IS HEREBY ORDERED that the motion of defendants Dolgencorp, L.L.C., and Dolgencorp, Inc. to quash the deposition of Bryan Schubert (Doc. #116 ) is sustained as to confidential communications between Bryan Schubert and defendants' counsel and the motion is denied in all other respects.. Signed by Magistrate Judge David D. Noce on 2/5/13. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GREGORY BAIRD, et al.,
Plaintiffs,
v.
DOLGENCORP, L.L.C., et al.,
Defendants.

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No. 4:11 CV 1589 DDN

MEMORANDUM & ORDER
Before the court is the motion of defendants/third party plaintiffs Dolgencorp,
L.L.C., and

Dolgencorp, Inc. to quash the deposition of Bryan Schubert, which was

noticed by plaintiffs for February 7, 2013. (Doc. 116.) The court heard oral argument
during an expedited telephone conference hearing on February 5, 2013.

Following the

hearing the court orally ruled the motion, sustaining it in part and otherwise overruling it.
This Memorandum and Order more fully explains the court’s disposition of the motion.
Defendants retained Bryan Schubert to perform investigative work.

Defendants

recently provided plaintiffs’ counsel with videotapes of surveillance footage of plaintiff
Gregory Baird prepared by Schubert while doing his investigation for defendants.
Thereafter, plaintiffs issued a subpoena to Schubert for a deposition in Tulsa, Oklahoma
at 2:00 p.m. on February 7, 2013. Defendants sought to quash plaintiffs’ subpoena by
invoking Fed. R. Civ. P. 45(c)(3), which requires courts to quash or modify subpoenas that
require disclosure of privileged or other protected matters. Specifically, defendants argue
that plaintiffs’ subpoena requires the disclosure of matters protected by the attorney-client
and work product privileges.
Fed. R. Civ. P. 26(b)(1) states that “[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense . . . .” Fed. R. Civ. P.
26(b)(1).

Plaintiffs state that during the deposition, they will inquire about the

circumstances of the recording of the videos, including the dates and times of the

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recordings and the existence of additional unproduced surveillance footage.1 The court
finds that plaintiffs’ discovery request is relevant to the claims and defenses alleged.
In this diversity case, the state law that supplies the rule of decision also supplies
the law regarding privileges. See Fed. R. Evid. 501. In this case, Missouri law governs the
inquiry regarding the attorney-client privilege. See Hansen v. Sears, Roebuck & Co., 574
F. Supp. 641, 643-44 (E.D. Mo. 1983).
Under Missouri law, information is protected by the attorney-client privilege if it is
voluntarily transmitted between a client and a lawyer in confidence by a means that does
not generally disclose information to third parties. State v. Longo, 789 S.W.2d 812, 815
(Mo. Ct. App. 1990); Mo. Rev. Stat. § 491.060(3).

The privilege also extends to

communications between investigators and attorneys. State ex rel. Terminal R. Ass'n of
St. Louis v. Flynn, 257 S.W.2d 69, 73 (1953); Ratcliff v. Sprint Missouri, Inc., 261 S.W.3d
534, 547 (Mo. Ct. App. 2008).

Accordingly, the confidential communications between

Schubert and defendants’ counsel are privileged.
Fed. R. Civ. P. 26(b)(3)(A) governs the work product doctrine and states that
“[o]rdinarily, 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.” Fed. R.
Civ. P. 26(b)(3)(A). The work product doctrine protects the documents and tangible things
prepared by Schubert in his capacity as an investigator on behalf of defendants. United
States v. Nobles, 422 U.S. 225, 238-39 (1975); United States v. Willis, 565 F. Supp. 1186,
1219 (S.D. Iowa 1983). This would include the videos he produced, if the defendants had
not waived any such privilege by disclosing them to plaintiffs.
However, defendants seek to quash plaintiffs’ subpoena for a deposition, which
produces testimony rather than documents or tangible things. “[W]hile Rule 26(b)(3)
affords protection for documents and tangible things, the underlying facts are not
protected by the work-product doctrine.” Onwuka v. Fed. Express Corp., 178 F.R.D. 508,
512-13 (D. Minn. 1997); Resolution Trust Corp. v. Dabney, 73 F.3d 262, 266 (10th
Cir.1995); Phillips Electronics North America Corp. v. Universal Electronics, Inc., 892
F.Supp. 108, 110 (D.Del.1995).

What Bryan Schubert witnessed, that is relevant to the

case, may be the subject of his deposition.
During the hearing, counsel for defendants stated that no additional unproduced
surveillance footage exists. The undersigned notes that if the footage already produced by
defendants is presented to the jury during trial, fairness will require defendants to produce
any additional footage.

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Accordingly,
IT IS HEREBY ORDERED that the motion of defendants Dolgencorp, L.L.C., and
Dolgencorp, Inc. to quash the deposition of Bryan Schubert (Doc. 116) is sustained as to
confidential communications between Bryan Schubert and defendants’ counsel and the
motion is denied in all other respects.

/S/ David D. Noce______________
UNITED STATES MAGISTRATE JUDGE
Signed on February 5, 2013.

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