Ancier v. Egan et al

Filing 18

MEMORANDUM AND ORDER - 1) The five pages submitted to the court for in camera review, (Filing No. 17 ), are not protected from disclosure under the attorney-client privilege.2) Robb N. Gage shall produce the documents submitted for in camera review in response to the subpoena issued by the United States District Court for the District of Hawaii, (see Filing No. 1 , at CM/ECF p. 6). Ordered by Magistrate Judge Cheryl R. Zwart. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GARTH ANCIER,
Plaintiff,

8:15CV210

vs.
MEMORANDUM AND ORDER
MICHAEL P. EGAN III, JEFFREY M.
HERMAN, AND MARK F.
GALLAGHER,
Defendants.
A subpoena was served on Robb N. Gage ("Gage"), a former lawyer for Defendant
Michael P. Egan III ("Egan"). Gage moved to quash the subpoena on several grounds,
including that the subpoena demanded production of documents protected by the
attorney-client privilege.

Except as to five pages, the parties were able to resolve the motion. As to the five
pages withheld by Gage, the parties agreed to submit the “documents to, from, produced
by, or previously stored by law enforcement that Gage claims are privileged to the Court
for in camera review to determine whether they are protected by the attorney-client
privilege.” The court ordered Gage to submit the documents for in camera review.

The burden of proving any privilege rests with Defendant Egan and his attorney,
Gage. Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 609 (8th Cir. 1977); State ex
rel. Stivrins v. Flowers, 273 Neb. 336, 341, 729 N.W.2d 311, 317 (2007). “An attorneyclient relationship is created when (1) a person seeks advice or assistance from an
attorney, (2) the advice or assistance sought pertains to matters within the attorney's
professional competence, and (3) the attorney expressly or impliedly agrees to give or
actually gives the desired advice or assistance.”

State ex rel. Stivrins v. Flowers, 273

Neb. at 341-42. To be protected from disclosure, a communication must be between the

attorney and the client and “must be one which is essentially confidential in character and
which relates to the subject matter upon which advice was given or sought.” Id.

The court has reviewed the five pages submitted by Gage. (Filing No. 17). They
appear to be excerpts from the transcript of an interview of Egan, and it appears Egan
was being prepared to provide testimony or a statement in a litigated case. But there is
nothing of record indicating who was interviewing Egan, or who else was present (if
anyone) during the interview.

Based on the information of record, it appears the

transcript was produced “to, from, or . . . by, or previously stored by law enforcement,
including the Federal Bureau of Investigations ("FBI"). . . .” (Filing No. 15, at CM/ECF
p. 4). Perhaps the “Interviewer” referenced in the five withheld pages was not Gage, but
rather a law enforcement officer, in which case the communications within the transcript
were not attorney/client communications.

And even if Gage conducted the transcribed

interview of Egan, it is unclear whether others (including law enforcement personnel)
were present during the interview. In either case, based on the record before the court
and the reasonable inferences to be drawn from that record, the five pages at issue were
in the possession of not only Gage, but were knowingly and purposefully disclosed
outside the attorney-client relationship to law enforcement officers.

As such, the court finds Gage and Egan have failed to prove the five pages
presented to the court for in camera review include communications protected from
discovery under the attorney-client privilege.

Accordingly,

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IT IS ORDERED:

1)

The five pages submitted to the court for in camera review, (Filing No. 17),
are not protected from disclosure under the attorney-client privilege.

2)

Robb N. Gage shall produce the documents submitted for in camera review
in response to the subpoena issued by the United States District Court for
the District of Hawaii, (see Filing No. 1, at CM/ECF p. 6).

February 3, 2016.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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