Price v. Jarett et al

Filing 68

ORDER that Plaintiff's Motion to Compel in Camera Review (Filing No. 61 ) is granted. Union Pacific shall produce the first eight emails listed on its privilege log (Filing No. 48 , Ex. A) to the Court under seal for in camera review. Union Pacific shall deliver the documents to the chambers of the undersigned magistrate judge no later than April 10, 2017. The Court will rule on Union Pacific's Motion to Quash Notice of Deposition of Kathleen Hughes (Filing No. 59 ) following its review of the documents. Ordered by Magistrate Judge Susan M. Bazis. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SEAN D. PRICE,
Plaintiff,

8:15CV200

vs.
ORDER
BRIAN JARETT, and UNION PACIFIC
RAILROAD COMPANY,
Defendants.
This matter is before the Court on Defendant Union Pacific Railroad Company’s (“Union
Pacific”) Motion to Quash Notice of Deposition of Kathleen Hughes (Filing No. 59) and Plaintiff
Sean Price’s Motion to Compel in Camera Review. (Filing No. 61.)

BACKGROUND

In this action, Plaintiff alleges that Union Pacific wrongfully terminated his employment.
(Filing No. 1.) Plaintiff seeks to depose Union Pacific’s in-house counsel, Kathleen Hughes
(“Hughes”). Plaintiff contends that Hughes was part of a business committee that was tasked
with deciding whether Plaintiff’s employment with Union Pacific should be terminated. Plaintiff
maintains that Hughes acted as a business decision-maker in connection with Plaintiff’s
termination, and that her communications in that context are not protected by the attorney-client
or work-product privileges. Plaintiff bases this assertion largely upon the deposition testimony
of Union Pacific employee, Elizabeth Winkler (“Winkler”). Winkler testified that there was a
“panel” that she had to consult before terminating Plaintiff.

This panel included Hughes.

Winkler testified that the panel would have to come to a “unanimous consensus to move forward
on [a] termination.” (Filing No. 60-4 at CM/ECF pp. 5-6.)

Union Pacific contends that any testimony Hughes could provide in this case relates to
legal advice she provided to Union Pacific. Union Pacific maintains that the “panel” Winkler
referred to in her deposition did not meet as a group to evaluate Plaintiff’s termination. Rather,

Winkler requested input from each panel member separately.

Union Pacific asserts that

Hughes’s role in evaluating Plaintiff’s termination was solely to review whether there were legal
implications of concern for Union Pacific.

DISCUSSION

The attorney-client privilege only applies to confidential communications made to
facilitate legal services, and does not apply where a lawyer acts as a business advisor. United
States v. Horvath, 731 F.2d 557, 561 (8th Cir. 1984). “Where business and legal advice are
intertwined, the legal advice must predominate for the communication to be protected.” Neuder
v. Battelle Pacific Northwest National Laboratory, 194 F.R.D. 289, 292 (2000).
“[C]ommunications by a corporation with its attorney, who at the time is acting solely in his
capacity as a business advisor, would not be privileged.” Id.

In this case, it is unclear whether Hughes was serving as an attorney or business advisor
in connection with Plaintiff’s termination. Plaintiff claims that in order for the Court to make an
informed decision regarding Hughes’s role, the Court needs to conduct an in camera review of
the first eight emails identified on Union Pacific’s privilege log. The Court finds this approach
reasonable. By reviewing these limited documents, the Court will be in a better position to
ascertain the role Hughes played in Plaintiff’s termination. If, as Union Pacific contends,
Hughes’s participation was limited to rendering legal advice, Plaintiff’s requested deposition and
document production would likely be improper. Therefore, the reasonable course in fairly
evaluating this discovery dispute is for the Court to review the emails as requested by Plaintiff.

Accordingly,

IT IS ORDERED:

1.

Plaintiff’s Motion to Compel in Camera Review (Filing No. 61) is granted.

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2.

Union Pacific shall produce the first eight emails listed on its privilege log (Filing

No. 48, Ex. A) to the Court under seal for in camera review. Union Pacific shall deliver the
documents to the chambers of the undersigned magistrate judge no later than April 10, 2017.

3.

The Court will rule on Union Pacific’s Motion to Quash Notice of Deposition of

Kathleen Hughes (Filing No. 59) following its review of the documents.
Dated this 4th day of April, 2017.
BY THE COURT:
s/ Susan M. Bazis
United States Magistrate Judge

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