Rural Water Sewer and Solid Waste Management v. Guthrie City of et al

Filing 499

ORDER denying 474 plaintiff's Motion to Supplement the Record of Phase II of Trial; 480 defendants' Motion to Strike and Seal Privileged Material, with Request for Sanctions; and 489 defendants' Motion for Leave to Conduct Discov ery Regarding (1) Plaintiff's Motion to Supplement the Record of Phase II of Trial and (2) Defendant's Motion to Strike and Seal Privileged Material with Request for Sanctions (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 9/3/2015. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
RURAL WATER, SEWER AND SOLID
WASTE MANAGEMENT DISTRICT
NO. 1, LOGAN COUNTY,
OKLAHOMA, AN AGENCY AND
LEGALLY CONSTITUTED
AUTHORITY OF THE STATE OF
OKLAHOMA,
Plaintiff,
vs.
CITY OF GUTHRIE, AN OKLAHOMA
MUNICIPALITY AND THE GUTHRIE
PUBLIC WORKS AUTHORITY, A
PUBLIC TRUST,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. CIV-05-786-M

ORDER
Before the Court is plaintiff’s Motion to Supplement the Record of Phase II of Trial, filed
January 22, 2015. On February 17, 2015, defendants filed their response, and on February 24, 2015,
plaintiff filed its reply. Also before the Court is defendants’ Motion to Strike and Seal Privileged
Material, with Request for Sanctions, filed February 17, 2015. On March 3, 2015, plaintiff filed its
response, and on March 10, 2015, defendants filed their reply. Finally, before the Court is
defendants’ Motion for Leave to Conduct Discovery Regarding (1) Plaintiff’s Motion to Supplement
the Record of Phase II of Trial and (2) Defendant’s Motion to Strike and Seal Privileged Material
with Request for Sanctions, filed March 4, 2015. On March 13, 2015, plaintiff filed its response,
and on March 20, 2015, defendants filed their reply. Based upon the parties’ submissions, the Court
makes its determination.

I.

Introduction
Plaintiff has moved this Court to supplement the record of Phase II of the trial with two

letters that the City of Guthrie’s attorney, Randel Shadid, sent to the City of Guthrie’s Mayor,
Council, and City Manager. Plaintiff seeks to submit these letters for the limited purpose of
establishing that defendants were aware that their extension of service southward down South
Division Street to the disputed customers Mission Hills and Pleasant Hills was a major
encroachment issue before the construction of the South Division Extension began. Defendants
assert that these letters contain privileged information protected by the attorney-client privilege and
that defendants never authorized the release of these documents. Defendants, thus, move this Court
to strike plaintiff’s motion to supplement the record and to seal these two letters. Defendants also
move this Court for leave to conduct discovery regarding how plaintiff and Ms. Hirzel obtained
these two letters.1
II.

Discussion
A.

Whether the letters contain privileged information protected by the attorney-client
privilege
The [attorney-client] privilege protects confidential communications
by a client to an attorney made in order to obtain legal assistance
from the attorney in his capacity as a legal advisor. The privilege
also protects advice given by the lawyer in the course of representing
the client. The privilege protects communications with in-house
counsel as well as outside attorneys. The privilege, however, is to be
extended no more broadly than necessary to effectuate its purpose.
Not every communication between an attorney and client is
privileged, only confidential communications which involve the

1

Plaintiff states that it obtained the letters from Ms. Hirzel, a citizen. Ms. Hirzel states that
she obtained these two letters through an Open Records Act request. Defendants question the
veracity of these statements.
2

requesting or giving of legal advice. The focal point of the protection
afforded by the attorney-client privilege lies with communications
between attorneys and their clients. And, although the privilege
protects disclosure of substantive communication between attorney
and client, it does not protect disclosure of the underlying facts by
those who communicated with the attorney. There must be a
connection between the subject of the communication and the
rendering of legal advice for the attorney-client privilege to shield the
communication from disclosure. Legal advice must predominate for
the communication to be protected. The privilege does not apply
where the legal advice is merely incidental to business advice. There
is also a distinction between a conference with counsel and a
conference at which counsel is present; the mere presence of counsel
at a meeting does not make all communications during the meeting
privileged.
A general description of the work performed by the attorney is not
protected by the privilege. Acts or services performed by an attorney
during the course of the representation are not within the privilege
because they are not communications. . . . Nor is information
privileged simply because it comes from an attorney. The mere fact
that one is an attorney does not render everything he does for or with
the client privileged. . . .
In re Universal Serv. Fund Tel. Billing Practices Litig., 232 F.R.D. 669, 674-75 (D. Kan. 2005)
(internal quotations and citations omitted).
Having carefully reviewed the two letters in question, the Court finds the letters do not
contain information protected by the attorney-client privilege. Specifically, the Court finds that
neither letter contains “legal advice.” In the December 27, 2004 letter, Mr. Shadid simply reminds
the city manager that he needs copies of certain documents and states that he needs to meet with the
city manager. In the December 22, 2004 letter, Mr. Shadid simply sets forth information he received
during a meeting with plaintiff that was open to the public, sets forth plaintiff’s position regarding
defendants encroaching into its district, sets forth what the parties were to do after the meeting, and
states that he will be doing some legal research and visiting with staff regarding the issues.

3

Accordingly, because the letters are not protected by the attorney-client privilege, the Court
finds that plaintiff’s Motion to Supplement the Record of Phase II of Trial should not be stricken
and finds that there is no basis to seal the letters. Further, the Court finds there is no need for any
discovery regarding how plaintiff obtained the letters.
B.

Whether the record of Phase II of the trial should be supplemented with the letters
A district court has broad discretion to reopen a case to accept
additional evidence and that decision will not be overturned on
appeal absent an abuse of that discretion. In deciding whether to
reopen [t]he court should consider the time the motion [if any] is
made, the character of additional testimony and the potential
prejudicial effect in granting or denying the motion. Ultimately,
fairness is the key criterion in determining whether to reopen.

Smith v. Rogers Galvanizing Co., 148 F.3d 1196, 1197-98 (10th Cir. 1998) (internal quotations and
citations omitted).
Having carefully reviewed the parties’ submissions, the Court finds that while plaintiff
timely filed its motion, there is no need to supplement the record of Phase II of the trial with the
letters. Specifically, the Court finds the record contains sufficient evidence on the issue of when
defendants knew that plaintiff claimed 7 U.S.C. § 1926(b) protection in relation to defendants’ South
Division Extension for this Court to make its rulings as to Phase II of the trial and that the two letters
plaintiff seeks to supplement the record with would be cumulative.
III.

Conclusion
Accordingly, for the reasons set forth above, the Court DENIES plaintiff’s Motion to

Supplement the Record of Phase II of Trial [docket no. 474], defendants’ Motion to Strike and Seal
Privileged Material, with Request for Sanctions [docket no. 480], and defendants’ Motion for Leave
to Conduct Discovery Regarding (1) Plaintiff’s Motion to Supplement the Record of Phase II of

4

Trial and (2) Defendant’s Motion to Strike and Seal Privileged Material with Request for Sanctions
[docket no. 489].
IT IS SO ORDERED this 3rd day of September, 2015.

5