Barfield et al v. Sho-Me Power Electric Cooperative et al

Filing 435

ORDER entered by Judge Nanette Laughrey. The following documents are privileged communications and protected from disclosure: KCF0013979, KCF0013986, KCF0014095, KCF0014097, KCF0014098, KCF0014101, KCF0014102, KCF0014110, KCF0014111, KFC0014118, KCF 0014119, KAMO-0038605, KAMO-0038663-66, and KAMO-0041961. The following documents are not privileged and must be produced to Plaintiffs entirely in un-redacted form: KCF0014109, KCF0014117, KAMO-0037334, KAMO-0037473, KAMO-0037562, KAMO-0037954, KAM O-0038602, KAMO-0038606, KAMO-0039422, KAMO-0039618, KAMO-0041462, KAMO-0041795-96, KAMO-0044058, and KAMO-0044816. The following documents are only privileged in part, and KAMO must produce un-redacted versions of these documents consistent with the attached Order: KAMO-0037469, KAMO-0038601, KAMO-0044053, KAMO-0044815, and KAMO-0044812. Any document ordered to be produced must be produced within three days of the date of this Order. (Cross, Ashley)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
CHASE BARFIELD, et al.,
Plaintiffs,
v.
SHO-ME POWER ELECTRIC
COOPERATIVE, et al.,
Defendants.

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Case No. 2:11-cv-04321-NKL

ORDER
Before the Court is a discovery dispute between Plaintiffs and the KAMO
Defendants regarding whether certain documents partially or entirely withheld by the
KAMO Defendants are protected by the attorney-client privilege. 1 KAMO submitted the
contested documents to the Court for an in camera review. The types of documents
included in the dispute include letters from multiple attorneys to KAMO executives,
email correspondence, and minutes from meetings held by KAMO’s Board of Directors
and various subcommittees. The letters and emails were withheld entirely, while the
board minutes were produced in redacted form.
I.

Discussion
The attorney-client privilege attaches to: 1) Information transmitted by voluntary

act of disclosure; 2) between a client and his lawyer; 3) in confidence; and 4) by a means
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The privilege logs submitted to the Court concerning the contested documents list both the attorneyclient and work-product privileges as reasons why the information should not be disclosed. However, the
Court has held two teleconferences over the disputed documents and neither party has raised any
argument relating to the work- product privilege. Therefore, the Court will not consider whether any of
the documents are protected by the work-product privilege.
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which, so far as a client is aware, discloses the information to no third parties other than
those reasonably necessary for the transmission of the information or for the
accomplishment of the purpose for which it is to be transmitted. State v. Longo, 789
S.W.2d 812, 815 (Mo. Ct. App. 1990). An attorney-client relationship is established
when a prospective client seeks and receives legal advice and assistance from an attorney
who intends to provide legal advice and assistance to the prospective client. Polish
Roman Catholic St. Stanislaus Parish v. Hettenbach, 303 S.W.3d 591, 601 (Mo. Ct. App.
2010). In determining whether the legal advice and assistance of an attorney is sought
and received, courts look to the substantive nature of the contacts within the relationship,
regardless of what formal or procedural incidents have occurred. Id. (citing McFadden v.
State, 256 S.W.3d 103, 107 (Mo. banc 2008)).
A. Letters to KAMO from various attorneys
The first category of documents at issue is a series of letters to KAMO executives,
Daymon Barton or Chris Cariker, from attorneys Sean Burrage, Stratton Taylor, Craig
Johnson, or Donald Nevard. The documents at issue, which were withheld entirely, are
KCF0013979 and KCF0013986. The letters identify legal issues and questions asked by
KAMO executives and provide advice on actions KAMO should take. There is no doubt
the content of these letters is legal advice given at the request of KAMO executives.
However, Plaintiffs argue the letters are not protected by the attorney-client privilege
because the KAMO Defendants have failed to prove there was an attorney-client
relationship between the attorneys rendering the advice and KAMO. In support of this
argument, Plaintiffs cite to Mid-Continent Cas Co. v. Daniel Clampett Powell &
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Cunningham, LLC, 196 S.W.3d 595 (Mo. Ct. App. 2006), for the proposition that belief
in an attorney-client relationship alone is insufficient to create such a relationship.
In Mid-Continent Cas Co., the plaintiff, one of three companies in an informal
conglomeration, paid the settlement costs for litigation between a second of the three
companies and a third parties. The plaintiff thereafter sued the second company’s
attorney for legal malpractice. The attorney denied that an attorney-client relationship
existed between him and the plaintiff company. In support of its contention that an
attorney-client relationship existed, the plaintiff claimed that the attorney had listed it as a
client in a legal directory, that the plaintiff had paid the attorney’s fees, that the attorney
reported on the litigation to the plaintiff, that the plaintiff’s employees believed a
relationship existed, and that the attorney was performing a service intended by the
second company to benefit the plaintiff. Id. at 598-99. In concluding that no attorneyclient relationship existed between the attorney and the plaintiff, the Missouri Court of
Appeals remarked that the plaintiff presented no facts to support a finding that it received
legal advice or assistance from the attorney or that the attorney intended to provide such
advice or assistance on the plaintiff’s behalf. Id. at 598. Belief that a relationship existed
was insufficient, particularly in light of the record which demonstrated the attorney was
hired to fulfill the second company’s legal needs and the lack of evidence to support a
finding that the plaintiff had the same legal needs. Id. at 599.
This case is distinguishable. Each attorney, or a representative from that
attorney’s firm (where multiple attorneys from the same firm represented KAMO),
submitted an affidavit stating the time period he entered into an attorney-client
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relationship with KAMO and stating that all appearances, presentations, and information
provided to KAMO were in the context of an attorney-client relationship. Further, the
documents at issue clearly relay legal advice and establish that KAMO sought and
received legal advice from various attorneys who intended to provide legal advice in a
particular manner. 2 Unlike the plaintiff in Mid-Continent Cas. Co., there is evidence of a
direct attorney-client relationship between KAMO, Burrage, Taylor, Johnson, and
Nevard, all of whom agree a relationship existed. Therefore, KCF0013979 and
KCF0013986 are protected from disclosure by the attorney-client privilege.
B. Emails regarding proposed legislation
The next category of documents is a series of emails regarding amendments to
proposed legislation. The documents at issue, which were withheld entirely, are
KCF0014095, KCF0014097, KCF0014098, KCF0014101, KCF0014102, KCF0014109,
KCF0014110, KCF0014111, KCF0014117, KCF0014118, and KCF0014119. Before
discussion on the privileged status of these documents, however, a brief explanation of
the relationship between the parties involved in the email communications is necessary.
KAMO is one of several members of the Association of Missouri Electric
Cooperatives (AMEC), a trade association for Missouri’s electric cooperatives. Chris
Cariker, KAMO’s CEO, is a member of AMEC’s board of directors, which is comprised
of representatives from AMEC’s electric cooperative members. Attorney Pat Baumhoer
2

For instance, KCF0013979 begins, “Dear Daymon: This letter is written pursuant to your request to
briefly summarize the legal issues that you and I have discussed regarding . . . .” A second letter in
KCF0013979 begins, “Dear Daymon: This is a follow-up to the conversation we had at the recent board
meeting. We have done a great deal of research . . . and would offer the following observations . . . .”
Similarly, KCF0013986 begins, “Dear Mr. Cariker: This office is in receipt of your request for guidance
as it relates to . . . ”
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serves as corporate counsel of AMEC. In 2012, the Missouri legislature was considering
legislation which could affect AMEC members. AMEC’s CEO asked Baumhoer “to
work with AMEC members regarding proposed legislation, including communicating
with AMEC members regarding the language of the bill and any proposed revisions to
the bill and answering any questions they may have.” Baumhoer Aff. ¶ 14. The emails at
issue are communications between Baumhoer, Cariker, and other AMEC board members
(KCF0014095, KCF0014110) and emails between Baumhoer, Cariker, and KAMO’s
outside counsel (KCF0014098, KCF0014101, KCF0014117, KCF0014118, and
KCF0014119). Id. at ¶¶ 15-16.
Plaintiffs first argue that no attorney-client relationship existed between Baumhoer
and KAMO. As to the emails between Baumhoer, Cariker, and other AMEC board
members and staff, it is clear an attorney-client relationship existed regardless of whether
there was a separate relationship between KAMO and Baumhoer. Rule 4-1.13 of the
Supreme Court of Missouri’s Rules of Professional Conduct specifically addresses who
an attorney represents when an organization or association is his or her client. Comment
2 of Rule 4-1.13 states, “When one of the constituents of an organizational client
communicates with the organization’s lawyer in that person’s organizational capacity, the
communication is protected . . . . This does not mean, however, that constituents of an
organizational client are the clients of the lawyer.” See also ABA Mod. Rule of Prof.
Cond. 1.13. The email communications illustrate that Baumhoer was to author
amendments to the proposed legislation on behalf of AMEC and its members. He then
sent draft amendments to AMEC board members and invited the board members to ask
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questions or give suggestions. The emails also convey a sense of confidentiality. For
example, in KCF0014095, Baumhoer states, in part, “Current status is not to show to
anyone unless David determines it would be a good idea.” Baumhoer also submitted an
affidavit stating that in the context of the emails with Cariker and other AMEC board
members, he was serving as AMEC’s corporate counsel. Rule 4-1.13 makes it clear that
communications between Cariker and Baumhoer in Cariker’s role as a board member of
AMEC are privileged.
The outcome is the same for the emails between Baumhoer and Cariker and
Baumhoer, Cariker, and KAMO’s outside counsel. While KAMO has not provided
sufficient evidence to prove that it was an independent client of Baumhoer, 3 Baumhoer’s
communications with Cariker are still privileged because they are communications with
Cariker in his organizational capacity as a board member of AMEC. Baumhoer
instructed AMEC’s board members to review the proposed amendments and to offer
suggestions and questions. The communications from Cariker and KAMO’s counsel
regarding the amendments appear to be responses to Baumhoer’s invitation. KAMO
concedes that due to the nature of Cariker’s role in AMEC and his job as KAMO’s CEO,
3

The Missouri Court of Appeal’s decision in Multilist Serv. of Cape Girardeau, Missouri, Inc. v. Wilson,
14 S.W.3d 110 (Mo. Ct. App. 2000) is instructive. In Multilist Serv., members of a corporation sued the
corporation’s attorney for malpractice. The attorney claimed that no relationship existed between him
and the individual members. The Missouri Court of Appeals agreed. The court concluded that the
attorney’s discussions with the members regarding pending litigation, his attendance at various meetings,
his advice to specific members, and letters he wrote expressing the legality of what the corporation was
doing were consistent with his duty to represent the corporation, and not the individual members. Id. at
114. The attorney necessarily had to discuss legal matters with members, as a corporation is an artificial
entity which must act through an agent. Baumhoer’s communications with Cariker and other board
members are not consistent with individual representation of the members, but rather, consistent with his
role as AMEC’s corporate counsel. Baumhoer was asked by AMEC’s CEO, not KAMO’s CEO, to work
with AMEC members regarding the proposed legislation. His work with the members was in furtherance
of his representation of AMEC.
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Cariker was often wearing both an AMEC board member and AMEC member/KAMO
hat when communicating with Baumhoer. However, the privilege is not waived merely
because Cariker was also a representative of KAMO at the same time he was a board
member of AMEC. To require Cariker to separate those roles is impractical in light of
the fact that his membership on AMEC’s board is a direct result of his role as CEO of
KAMO, a member of AMEC.
Plaintiffs also argue that even if an attorney-client relationship existed, advice
regarding lobbying is not privileged. In support of this argument, Plaintiffs cite to In re
Bisphenol-A (BPA) Polycarbonate Plastic Products Liability Litigation, 2011 WL
1136440 at *3 (W.D. Mo. 2011) (hereinafter BPA Litigation), where this Court held that
advice regarding lobbying, public relations, and dealing with the media were nonprivileged matters. This case is distinguishable from BPA. In BPA Litigation, the Court
found that a list provided by an attorney of legislative activity undertaken by a variety of
governmental entities around the country did not involve legal advice or analysis. Id.
Other emails found to contain non-privileged information included comments of
lobbyists regarding legislative action, a publicity/lobbying campaign proposal,
communications regarding lobbying efforts, and lobbying – as opposed to legal –
strategy. The communications at issue in this case rise above a mere regurgitation of
recent legislative actions or lobbying efforts and proposals and more closely resemble
legal advice and analysis. The emails contain drafts of amendments to proposed
legislation, why certain amendments were made, how the amendments might legally

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affect electric cooperatives, and interpretation of the meaning of the proposed legislation
and who it would affect.
Because there is sufficient evidence of an attorney-client relationship between
Cariker in his role as an AMEC board member and Baumhoer and because the
communications contain privileged information, the following documents are protected
from disclosure: KCF0014095, KCF0014097, KCF0014098, KCF0014101,
KCF0014102, KCF0014110, KCF0014111, KFC0014118, and KCF0014119.
KCF0014109 is a blank document and is not protected by the attorney-client privilege.
KCF0014117 is a series of emails between Chris Cariker and Pat Baumhoer regarding the
status of the proposed bill in the Missouri legislature. This communication does not
contain legal advice or analysis and is therefore, not privileged information.
KCF0014109 and KCF0014117 must be disclosed to Plaintiffs.
C. Board meeting minutes and packets
The last category of documents is board meeting minutes and packets from the
KAMO Board of Directors, the KAMO Technical Advisory Committee, or the KAMO
Telecommunications Subgroup Committee. These documents were produced to
Plaintiffs in redacted form, but Plaintiffs seek the un-redacted versions.
KAMO-0037334 4

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The privilege log identifies the redacted document number as a range of pages that encompass an entire
board meeting document rather than the specific page where the redacted information is located. Rather
than listing the entire page range, the Court will address the specific document number where the alleged
privileged information is located. For example, KAMO’s privilege logs list KAMO-0037328-36 as a
privileged document, but only KAMO-0037334 contains alleged privileged material. The Court will refer
to KAMO-0037334.
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KAMO-0037334 is a communication by Chris Cariker to the KAMO Board of
Directors regarding a lawsuit. KAMO has not met its burden of proving the information
communicated by Cariker was legal advice given to him by KAMO’s counsel. There is
mention in the minutes of KAMO’s plan to work with the law firm Andereck Evans, but
there is no indication in the minutes that anything Cariker stated was legal advice from an
attorney or what attorney, if any, gave him advice. A statement in the privilege log that
Cariker was “relaying legal advice given by KAMO’s counsel” is, without more,
insufficient to establish that the information was privileged. KAMO-0037334 is not
privileged and must be produced in un-redacted form.
KAMO-0037469
KAMO-0037469 is a communication by KAMO’s Chief Operations Office. He is
relaying legal advice provided by the firm Ewing & Hoberock regarding condemnation
and rights to install fiber under Missouri law. KAMO has provided evidence of an
attorney-client relationship with Ewing & Hoberock through the affidavit of Chris
Hoberock. However, KAMO’s redaction is too broad and attempts to protect information
that is not legal advice. Therefore, KAMO must produce to Plaintiffs in un-redacted
form the sentence beginning with “The second item . . . fiber.”
KAMO-0037473
KAMO-0037473 is a communication by Pat Baumhoer regarding language used in
an amendment to an agreement between KAMO and Associated Electric Cooperative,
Inc. Baumhoer’s affidavit and supplemental affidavit only claim representation in the
context of working on proposed legislation in Baumhoer’s role as corporate counsel of
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AMEC. The affidavits do not state Baumhoer was retained for general advice on
agreements between KAMO and Associated Electric Cooperative or that he considered
communications with KAMO’s board to be privileged. KAMO has failed to meet its
burden of proving that KAMO-0037473 is privileged. It must be produced in unredacted form.
KAMO-0037562
KAMO-0037562 is a communication by Cariker to KAMO’s board regarding
Oklahoma SB 408. KAMO has not met its burden of proving the information
communicated by Cariker was legal advice given to him by KAMO’s counsel. There is
no indication in the minutes that anything Cariker stated was legal advice from an
attorney or what attorney, if any, gave him advice. KAMO-0037562 is not privileged and
must be produced in un-redacted form.
KAMO-0037954
KAMO-0037954 states that a presentation was given by an attorney and gives the
title of the presentation. This statement is not legal advice or analysis and is therefore,
not privileged. KAMO-0037954 must be produced in un-redacted form.
KAMO-0038601
KAMO-0038601 is a communication from Daymon Barton to the Technical
Advisory Committee. The communication also includes legal advice from attorneys
Patrick Shore, Sean Burrage, and Craig Johnson regarding corporate structure. KAMO
has presented sufficient proof of an attorney-client relationship with these attorneys
through the affidavits of Larry Derryberry (for Pat Shore), Stratton Taylor (for Sean
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Burrage), and Craig Johnson. However, KAMO’s redaction is too broad and attempts to
protect information that is not legal advice. Therefore, KAMO must produce to Plaintiffs
in un-redacted form the sentence “He then provided background information . . . not
allowing it.”
KAMO-0038602
KAMO-0038602 is a communication from Daymon Barton to the Technical
Advisory Committee regarding corporate structure and a review of KAMO’s operating
agreement. KAMO has not met its burden of proving the information communicated by
Barton was legal advice given to him by KAMO’s counsel. There is no indication in the
minutes that anything Barton stated was legal advice from an attorney or what attorney, if
any, gave him advice. KAMO-0038602 is not privileged and must be produced in unredacted form.
KAMO-0038605
KAMO-0038605 is a communication from attorney Tony Foster of the law firm
Taylor, Burrage, Foster, Mallet, & Downs, to the Technical Advisory Committee. It is
legal advice and analysis regarding formation of a limited liability company. KAMO has
provided sufficient evidence to establish an attorney-client relationship existed with
Foster through the affidavit of Stratton Taylor. 5 Therefore, KAMO-0038605 is
privileged information.
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Foster worked for the law firm Taylor, Burrage, Foster, Mallet & Downs. Stratton Taylor submitted an
affidavit stating that attorneys in the Taylor, Burrage firm were engaged in an attorney-client relationship
at the time this information was conveyed by Foster. Taylor lists himself, Sean Burrage, Clinton Russell,
Mark Ramsey, and paralegal Stephanie Wells as people who would have provided information or
presentations to KAMO. Foster is not on this list, but the minutes state he was from the Taylor, Burrage
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KAMO-0038606
KAMO-0038606 is a suggestion from Foster to the Technical Advisory
Committee about how KAMO’s Board would receive updates from a limited liability
company. This communication is business advice, not legal advice, and is not privileged.
See BPA Litigation, 2011 WL 1136440 at *7. KAMO-0035606 must be produced in unredacted form.
KAMO-0038663-66
KAMO-0038663-66 contain extensive communication from attorneys Tony Foster
and Chris Hoberock to the KAMO Telecommunications Subgroup Committee regarding
the legality of a fiber project under Oklahoma and Missouri law. KAMO-0038663-66 is
legal advice and therefore, privileged.
KAMO-0039422
KAMO-0039422 is a communication from a KAMO board member in a board
packet regarding the formation of a subsidiary. Though the communication states that the
Technical Advisory Committee “received guidance regarding legal aspects from an
attorney,” no information on that attorney was provided and no advice was documented
in the minutes. KAMO has not met its burden of establishing that KAMO-0039422
contains privileged information. KAMO-0039422 must be produced in un-redacted
form.
KAMO-0039618

firm, and Taylor specifically states that the list of attorneys is without limitation. It appears Foster was
only inadvertently left out of the specific list provided by Stratton Taylor.
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KAMO-0039618 is a minute entry from the KAMO Technical Advisory
Committee which was included in a KAMO board packet. The minute entry states that
the Technical Advisory Committee received legal opinions from various law firms about
the legality and risks of certain actions. The minutes only state the subject matters that
were covered, not the legal advice or analysis given. This summary is not privileged
information. KAMO-0039618 must be produced in un-redacted form.
KAMO-0041462
KAMO-0041462 is a summary of a communication by Cariker to the KAMO
board. Cariker discussed Oklahoma SB 408 and how it relates to attaching fiber-optic
cable to existing transmission lines. KAMO has not met its burden of proving the
information communicated by Cariker was legal advice given to him by KAMO’s
counsel. There is no indication in the minutes that anything Cariker stated was legal
advice from an attorney or what attorney, if any, gave him advice. KAMO-0041462 is
not privileged and must be produced in un-redacted form.
KAMO-0041795-96
KAMO-0041795-96 is a document titled “KAMO’s Not-for-Profit Tax Status.” It
is unclear who authored the document. It contains several questions with answers, only
one set of which is redacted. The document requests that any comments or concerns be
directed to KAMO’s Finance Committee Chairman. Although the answer to the redacted
question states that “The attorneys have reported . . .,” there is no indication what
attorney reported the information. A vague reference to “attorneys” does not establish
the existence of an attorney-client relationship. Therefore, KAMO has not met its burden
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of establishing that KAMO-0041795-96 is privileged information. KAMO-0041795-96
must be produced in un-redacted form.
KAMO-0041961
KAMO-0041961. KAMO-0041961 contains a communication from attorney
Craig Johnson to the Technical Advisory Committee regarding creation of a limited
liability company. This communication is legal advice and is privileged information.
KAMO-0044053
KAMO-0044053 is the same document as KAMO-0037469, and, as discussed
above, is privileged except the sentence “The second item . . . fiber.” which must be
produced in un-redacted form.
KAMO-0044058
KAMO-0044058 is the same document as KAMO-0037473, and is not privileged
for the same reasons. KAMO-0044058 must be produced in un-redacted form.
KAMO-0044815
KAMO-0044815 is the same document as KAMO-0041961, which contains
privileged information. However, KAMO-0044815 is redacted more extensively than the
same paragraph in KAMO-0041961. Some of the redacted information in KAMO0044815 is not legal advice, and therefore, KAMO must produce the sentence “The
Committee approved . . . will address these issues.” in un-redacted form.
KAMO-0044816
KAMO-0044816 is the same document as KAMO-0039618 and is therefore not
privileged for the same reasons. KAMO-0044816 must be produced in un-redacted form.
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KAMO-0044812
KAMO-0044812 contains information about proposed changes to various policies.
These changes were submitted to attorney Sean Burrage for his review. However,
KAMO-0044812 does not disclose what changes were suggested by Burrage, and
therefore, does not contain legal advice. Only one sentence within the redacted
information suggests a conclusion by Burrage. That sentence is privileged information.
KAMO-0044812 must be produced in un-redacted form except for the sentence “Mr.
Burrage . . . Policy 213.”
II.

Conclusion
For the reasons set forth above the following documents are privileged

communications and protected from disclosure: KCF0013979, KCF0013986,
KCF0014095, KCF0014097, KCF0014098, KCF0014101, KCF0014102, KCF0014110,
KCF0014111, KFC0014118, KCF0014119, KAMO-0038605, KAMO-0038663-66, and
KAMO-0041961. The following documents are not privileged and must be produced to
Plaintiffs entirely in un-redacted form: KCF0014109, KCF0014117, KAMO-0037334,
KAMO-0037473, KAMO-0037562, KAMO-0037954, KAMO-0038602, KAMO0038606, KAMO-0039422, KAMO-0039618, KAMO-0041462, KAMO-0041795-96,
KAMO-0044058, and KAMO-0044816. The following documents are only privileged in
part, and KAMO must produce un-redacted versions of these documents consistent with
the above discussion: KAMO-0037469, KAMO-0038601, KAMO-0044053, KAMO0044815, and KAMO-0044812. Any document ordered to be produced must be
produced within three days of the date of this Order.
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s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: June 9, 2014
Jefferson City, Missouri

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