Davis v. PMA Companies Inc et al

Filing 58

ORDER granting in part and denying in part 50 Plaintiff's Motion to Compel. Signed by Honorable Robin J. Cauthron on 9/7/12. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

J. MARK DAVIS,
Plaintiff,
vs.
PMA COMPANIES, INC.,

Defendant.

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Case No. CIV-11-359-C

MEMORANDUM OPINION AND ORDER
Plaintiff J. Mark Davis brought this suit against Defendant PMA Companies, Inc.
(“PMA”) alleging breach of contract and the duty of good faith as well as wrongful
termination. Plaintiff filed the present motion to compel the production of documents that
Defendant claims are protected by the attorney-client privilege and work-product doctrine.
I. APPLICABLE LAW
Rule 26(b)(1) of the Federal Rules of Civil Procedure provides for discovery of “any
nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P.
26(b)(1) (emphasis added). The exclusion of privileged information from the otherwise
“broad sweep of discovery,” is an attempt to “strike a balance between promoting the truthseeking goal of discovery and the purpose of the stated privilege.” Lindley v. Life Investors
Ins. Co. of Am., 267 F.R.D. 382, 387 (N.D. Okla. 2010). In a case based on diversity
jurisdiction, such as this one, state law governs claims of attorney-client privilege, while
federal law controls the work-product doctrine. Frontier Refining, Inc. v. Gorman-Rupp Co.,

136 F.3d 695, 699, 702 n. 10 (10th Cir. 1998); see Fed. R. Civ. P. 26(b)(3); Fed. R. Evid.
501. The party asserting either protection has the burden of clearly showing its applicability.
Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 542 (10th Cir. 1984). Because
privileges “are in derogation of the search for truth,” they are “construed narrowly.” United
States v. Kapnison, 743 F.2d 1450, 1456 (10th Cir. 1984).
The attorney-client privilege, codified at 12 Okla. Stat. § 2502, protects “confidential
communications [between the attorney and the client] made for the purpose of facilitating the
rendition of professional legal services to the client.” 12 Okla. Stat. § 2502(B). The
privilege “encourage[s] full and frank communication between attorneys and their clients,”
Upjohn Co. v. United States, 449 U.S. 383, 389 (1981), by “shield[ing] the client’s
confidential disclosures and the attorney’s advice.” Chandler v. Denton, 1987 OK 38, ¶ 19,
741 P.2d 855, 865. In order for the privilege to apply, the party asserting the privilege must
establish: (1) the existence of an attorney-client relationship; (2) the confidential nature of
the communication; and (3) that the communication was made for the purpose of seeking or
providing legal advice. Lindley, 267 F.R.D. at 388-89.
Rule 26(b)(3) of the Federal Rules of Civil Procedure governs the attorney workproduct doctrine. Frontier Refining, 136 F.3d at 702 n.10. The goal of Rule 26(b)(3) “is to
protect ‘an attorney’s subjective analysis and substantive efforts in, or in anticipation of,
litigation from use by the adverse party.’” Lindley, 267 F.R.D. at 388 (quoting Adams v.
Gateway, Inc., Case No. 2:02-CV-10 TS, 2003 WL 23787856, at *8 (D. Utah Dec. 30,
2003)). The Rule provides that “documents and tangible things that are prepared in
2

anticipation of litigation or for trial by or for another party or its representative” are
ordinarily not discoverable. A party may discover these “work-product” materials only upon
a showing of (1) a substantial need for the materials and (2) an inability to obtain their
substantial equivalent by other means without undue hardship.

Fed. R. Civ. P.

26(b)(3)(A)(ii). However, “the mental impressions, conclusions, opinions, or legal theories
of a party’s attorney” receive heightened protection close to absolute immunity. Id.
26(b)(3)(B); see Lindley, 267 F.R.D. at 393-94 (“‘This doctrine provide[s] an almost
absolute protection for an attorney’s mental impressions and conclusions.’”) (quoting
Hoffman v. United Telecomms., Inc., 117 F.R.D. 436, 439 (D. Kan. 1987)).
II. ANALYSIS
A. Documents Relating to the Geerhart Litigation, the California Pay Plan, and the
California Release
Plaintiff seeks compulsion of the following documents: documents relating to a suit
brought by an employee of Midlands Claim Administrators, Inc. (“MCA”) against MCA
(“Geerhart Litigation”); documents reflecting discussions about possible changes to
California pay practices (“California Pay Plan”); and documents pertaining to a potential
liability release (“California Release”).1 Defendant PMA argues that these documents and
discussions are protected by the attorney-client privilege because of the involvement of
1

These documents include emails withheld as privileged. In his Motion to Compel,
Plaintiff objects to PMA’s classification of entire email strings as privileged, without individual
identification of each email. (Pl.’s Br., Dkt. No. 50, at 11.) Plaintiff correctly states that each
email within a string is separate and must be reviewed separately for the purpose of privilege
determination. However, PMA has addressed this deficiency and logged individual emails in its
updated privilege log. (See Def.’s Br., Dkt. No. 51, at 15 n.12; id., Ex. 12.)
3

PMA’s in-house counsel, Stephen Kibblehouse, and by the work-product doctrine. Plaintiff
counters that no attorney-client relationship existed between MCA and PMA’s in-house
counsel and that the communications and documents were not made for the purpose of
seeking legal advice, preventing application of the attorney-client privilege. Alternatively,
Plaintiff asserts this his participation in the communications and his former position as
president of MCA resulted in a “qualified” privilege that entitles him to access.
1. Existence of an Attorney-Client Relationship
As support for his assertion that no attorney-client relationship was formed, Plaintiff
cites his own affidavit wherein he states that, with respect to the Geerhart Litigation, the
California Pay Plan, and California Release, MCA was represented by outside counsel, Keith
Bremer, not by PMA’s in-house counsel. (Pl.’s Br., Dkt. No. 50, Ex. 3 ¶¶ 2-3.) Plaintiff
claims that MCA did not rely on PMA’s in-house counsel for legal advice and that any
communications between MCA and PMA’s in-house counsel were made as a result of either
Mr. Kibblehouse’s position as an officer of PMA and a board member of MCA’s direct
parent company or PMA’s “insertion of its in-house counsel in the process.” (Id. ¶¶ 4-6.)
In response, Defendant argues that there was an attorney-client relationship between
PMA’s in-house counsel and MCA and that PMA is also a “client” for the purpose of
attorney-client privilege, giving it standing to assert privilege. Defendant offers the affidavit
of Stephen Kibblehouse, general counsel of PMA, to support its claim of an attorney-client
relationship between MCA and Mr. Kibblehouse. (Def.’s Br., Dkt. No. 51, Ex. 2 ¶ 2.) Mr.
Kibblehouse states that his role as general counsel of PMA is to manage the legal affairs of
4

all of the PMA companies, including PMA’s subsidiaries,2 of which MCA is one, and
provide centralized legal services and support. (Id. ¶¶ 2-5.) Mr. Kibblehouse claims that
Plaintiff notified PMA’s in-house legal department of the Geerhart Litigation and asked how
they wished to proceed, to which PMA responded by authorizing retention of outside
counsel. (Id. ¶¶ 5-6.) Mr. Kibblehouse maintains that even after hiring outside counsel,
PMA representatives remained involved in the defense of the Geerhart Litigation and
“worked directly” with the outside firm, offering legal review and advice. (Id. ¶¶ 7-9.)
Given the centralized nature of legal services at PMA and its subsidiaries, it is
reasonable to believe that MCA, PMA’s subsidiary, did have an attorney-client relationship
with PMA’s in-house counsel. But, even if MCA is considered a client, MCA is not a party
to this lawsuit and has not asserted attorney-client privilege. The attorney-client privilege
belongs to the client and must be invoked by the client or on the client’s behalf. 12 Okla.
Stat. § 2502(C); see Chandler, 1987 OK 38, ¶ 19, 741 P.2d at 865. PMA argues that because
of its parent-subsidiary relationship with MCA, PMA is also a “client” for the purpose of
asserting attorney-client privilege. Neither the Oklahoma courts nor the Tenth Circuit have
decided that members of a corporate group are joint clients for the purpose of privilege.
However, other courts have held that “the members of the corporate family are joint clients,”
especially because of the common practice of in-house centralization. In re Teleglobe

2

PMA is the sole shareholder of Midlands Holding Corporation (“MHC”), which is the
sole shareholder of Midlands Management Corporation (“MMC”), which is the sole shareholder
of MCA.
5

Commc’ns Corp., 493 F.3d 345, 369, 372 (3d Cir. 2007).3 This reasoning is persuasive.
Thus, for the purpose of the attorney-client privilege, PMA and MCA are joint clients, giving
PMA standing to assert MCA’s attorney-client privilege.
2. In-House Counsel: Legal vs. Business Purposes
Even when an adequate attorney-client relationship exists, the attorney-client privilege
will only block production when the communications in issue were made for the purpose of
giving legal advice, which Plaintiff disputes. Attorney involvement alone is insufficient to
render a communication subject to the attorney-client privilege.

In re Grand Jury

Proceedings, 616 F.3d 1172, 1182 (10th Cir. 2010); see also Scott v. Peterson, 2005 OK 84,
¶ 7, 126 P.3d 1232, 1234 (“Generally, the mere status of an attorney-client relationship does
not make every communication between attorney and client protected by the privilege.”).

3

See also In re Grand Jury Subpoena #06-1, 274 F. App’x 306, 310-11 (4th Cir. 2008)
(noting that “a number of courts have held that close corporate affiliation, including that shared
by a parent and a subsidiary, suffices to render those entities ‘joint clients’ or ‘co-clients,’ such
that they may assert joint privilege in communications with an attorney pertaining to matters of
common interest”); United States v. Am. Tel. & Tel. Co., 86 F.R.D. 603, 615 (D.D.C. 1979)
(holding that the “corporate ‘client’ includes not only the corporation by whom the attorney is
employed or retained but also parent, subsidiary, and affiliate corporations”); Glidden Co. v.
Jandernoa, 173 F.R.D. 459, 472 (W.D. Mich. 1997) (noting that the “universal rule of law” is
that “the parent (as well as the subsidiary) is the ‘client’ for purposes of the attorney-client
privilege” because of the parent and subsidiary’s “community of interest”); (Restatement (Third)
of Law Governing Law § 73 (2000) (“For purpose of the privilege, when a parent corporation
owns controlling interest in a corporate subsidiary, the parent corporation’s agents who are
responsible for legal matters of the subsidiary are considered agents of the subsidiary.”). See
generally Andrew R. Taggart, Parent-Subsidiary Communications and the Attorney-Client
Privilege, 65 U.Chi.L.Rev. 315 (1998) (“Ordinarily, the attorney-client privilege exists between
a single entity (such as a corporation) and its counsel. . . . The vast majority of courts, however,
have held that communications between a parent and a subsidiary retain their confidential nature
despite the fact that each party is a discrete legal entity.”).
6

The communication must also relate to legal advice or strategy.

In re Grand Jury

Proceedings, 616 F.3d at 1182.
In deciding whether a communication involved legal or business advice, many courts
have applied heightened scrutiny to communications involving in-house counsel, given that
many in-house attorneys also “‘serve as company officers, with mixed business-legal
responsibility.’” Lindley, 267 F.R.D. at 389 (quoting Rossi v. Blue Cross & Blue Shield of
Greater NY, 540 N.E.2d 703, 705 (N.Y. 1989)). However, Oklahoma has not adopted a
“heightened scrutiny” analysis or applied a rebuttable presumption that an in-house
attorney’s input “is more likely business than legal in nature.” See Lindley, 267 F.R.D. at
389-92 (applying a three-tier analysis to in-house communications rather than the “status
presumptions”).

Therefore, the Court does not presume that an in-house attorney’s

involvement was primarily for business purposes, but instead looks at each communication
to determine whether it was made for the purpose of seeking or providing legal advice. Id.
at 391 (holding that the determination of whether a communication was made for legal
purposes is “fact-driven”).
Courts have relied on the affidavits and privilege logs submitted by the party claiming
privilege when making the “legal purpose” determination. In Motley v. Marathon Oil Co.,
71 F.3d 1547 (10th Cir. 1995), the plaintiff argued that certain documents prepared by
Marathon Oil’s in-house counsel, John Miller, were not privileged because Marathon had
failed to establish that they were prepared for a legal rather than a business purpose. Id. at
1550. The Tenth Circuit disagreed, pointing to Miller’s affidavit, wherein he stated that he
7

had prepared the documents in issue for the purpose of giving legal advice for the corporate
restructuring of Marathon, and that he “‘did not render business advice in the Memorandum
and Lists.’” Id. at 1551. Because the plaintiff did not offer evidence directly contradicting
Miller’s statements, the court upheld the district court’s conclusion that communications in
issue were made for the purpose of providing legal advice, and were therefore privileged.
Similarly, in a recent case, a court found documents “properly withheld from production”
“[b]ased on the privilege log’s detailed description of the documents.” United Food &
Commercial Workers Union v. Chesapeake Energy Corp., Case No. CIV-09-1114-D, 2012
WL 2370637, at *11 (W.D. Okla. June 22, 2012). The privilege log’s description of each
document “include[d] a reference to its submission for the purpose of obtaining legal advice
or comment and/or its receipt from the attorney, including references to documents including
attorney notes or comments.” Based on this evidence, the court found that “[t]hese
documents satisfy the attorney-client privilege requirements.” Id.
In the present case, PMA has offered the affidavits of two of its in-house attorneys as
evidence that the communications and documents it seeks to protect were made for the
purpose of rendering legal services. In his affidavit, Stephen Kibblehouse, Senior Vice
President4 and General Counsel of PMA, states that “[a]s Executive Vice President and
General Counsel, [he has] both legal and business responsibilities” but he is “familiar with

4

Mr. Kibblehouse was Executive Vice President and General Counsel of PMA from June
2008 to October 1, 2010. He has served as Senior Vice President and General Counsel from
October 1, 2010 to the present. (Def.’s Br., Dkt. No. 51, Ex. 2 ¶ 2.)
8

the distinction between these roles.” (Def.’s Br., Dkt. No. 51, Ex. 2 ¶ 10.) He continues by
claiming that “[i]n litigation matters, or matters that may result in litigation, [his] role is
almost exclusively legal in nature.” Thus, “[his] efforts to assist in the legal defense of the
Geerhart Litigation were part of [his] regular, day-to-day activities as an attorney,” “not part
of [his] separate business duties.” (Id.) Mr. Kibblehouse also states that his role regarding
the revisions to internal pay practices were “part of [his] regular, day-to-day activities of
providing legal services as general counsel of the PMA Companies,” “not activities that [he]
engaged in as part of [his] ordinary business, non-legal duties.” (Id. ¶ 12; see id.) With
respect to the employee releases, Mr. Kibblehouse asserted that his role “was not part of any
regular, day-to-day business activities for PMA,” but involved “the core legal services that
[he] provide[s] as an attorney for PMA.” (Id. ¶ 15.) The affidavit submitted by Stephen
Gartner, Assistant General Counsel of Pennsylvania Manufacturer’s Association Insurance
Company, a subsidiary of PMA, includes similar language. (Def.’s Br., Dkt. No. 51, Ex. 6
¶ 2). Mr. Gartner claims that he did not participate in the legal defense of the Geerhart
Litigation, the revisions to internal pay practices, or the employee releases “for any business
purpose unrelated to providing legal advice and performing legal services.” (Id. ¶¶ 9, 12,
15.) Defendant PMA’s privilege log likewise describes the withheld documents as relating
to legal opinions or legal advice. (Def.’s Br., Dkt. No. 51, Ex. 12.) As in Motley and United
Food, this evidence provides a basis for PMA’s assertion of attorney-client privilege.
3. “Qualified” Attorney-Client Privilege

9

Alternatively, Plaintiff argues that even if PMA can establish the basic elements of
attorney-client privilege, PMA cannot assert that privilege against Plaintiff, given Plaintiff’s
participation in many of the communications in issue and his former position as an officer
and director of MCA. Neither the Oklahoma courts nor the Tenth Circuit have held that
privilege is “qualified” or limited when asserted against former officers or directors. Instead,
Plaintiff relies on three unpublished opinions5 from other federal district courts. (Pl.’s Br.,
Dkt. No. 50, at 9-11.) In response, Defendant argues that the attorney-client privilege can
only be waived by the corporate client’s current management6 and points to a line of cases
rejecting the theory that former officers or directors are entitled to production of otherwise

5

See Winner v. Etkin & Co., Case No. 2:07-cv-903, 2008 WL 2486130, at *5 (W.D. Pa.
June 17, 2008) (noting in dicta that Etkin, the party seeking discovery, was either “within” the
privilege or the privilege had been waived because of earlier conversations about the contested
transaction); Carnegie Hill Fin., Inc. v. Krieger, Case No. 99-CV-2592, 2000 WL 10446, at *2
n.2 (E.D. Pa. 2000) (concluding that the policy underlying the attorney-client and work-product
protections would not be furthered by denying former officers and directors of the corporation
access to documents which they could have viewed upon request at any time during their tenure
with the company); Resolution Trust Corp. v Adams, Case No. 93-389-CIV-ORL-18, 1994, WL
315646 (M.D. Fla. Apr. 14, 1994) (holding that a former director was entitled to discovery of
reports or attorney product that he could have reviewed while director).
6

See 12 Okla. Stat. § 2502(B) (“A client has a privilege to refuse to disclose and to
prevent any other person from disclosing confidential communications made for the purpose of
facilitating the rendition of professional legal services to the client.”) (emphasis added);
Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 348-49 (a corporation’s
privilege is waived or asserted by current—not former or displaced—management, acting “in a
manner consistent with their fiduciary duty to act in the best interests of the corporation and not
of themselves as individuals”); In re C.W. Mining Co., 636 F.3d 1257, 1262 (10th Cir. 2011)
(holding “only active managers may exercise [a corporation’s attorney-client] privilege” and that
“former managers no longer have any role”), cert. denied, ___ U.S. ___, 132 S.Ct. 104 (2011).
10

privileged or protected documents.7 The opposing cases relied on by Plaintiff and Defendant
represent two schools of thought, known as the “collective corporate client” and “entity is
the client” approaches. See Montgomery v. eTreppid Techs., LLC, 548 F. Supp. 2d 1175,
1184-85 (D. Nev. 2008).
The “collective corporate client” approach applies the joint client exception to
corporate communications and documents, preventing the corporation from asserting the
attorney-client privilege against a former officer or director. Id. at 1185. In Gottlieb v.

7

Fitzpatrick v. Am. Int’l Grp., Inc., 272 F.R.D. 100, 108-09, 109 n.6 (S.D.N.Y. 2010)
(rejecting plaintiff’s arguments that his status as a (1)former officer and director or (2) author or
recipient entitled him to access privileged communications); Gilday v. Kenra, Ltd., Case No.
1:09-cv-00229-TWP-TAB, 2010 WL 3928593, at *3 (S.D. Ind. Oct. 4, 2010) (adopting the
position that a former employee’s right to access privileged documents terminates upon leaving
the corporation, even as to documents actually accessed during the former employment);
Montgomery v. eTreppid Techs., LLC, 548 F. Supp. 2d 1175, 1187 (D. Nev. 2008) (concluding
that the line of cases denying access to former officers and directors is more persuasive); Dexia
Credit Local v. Rogan, 231 F.R.D. 268, 277 (N.D. Ill. 2004) (holding that “a corporation has a
legitimate expectation that a person who leaves the control group no longer will be privy to
privileged information”); Bushnell v. Vis Corp., Case No. C-95-04256 MHP, 1996 WL 506914,
at *8 (N.D. Cal. Aug. 29, 1996) (following the line of cases which deny former directors the
right to access privileged information); Milroy v. Hanson, 875 F. Supp. 646, 649-50 (D. Neb.
1995) (holding that current management can assert privilege against a dissident director); In re
Hutchins, 216 B.R. 11, 16 (Bankr. E.D. Ark. 1997) (deciding, after reconsideration of its
previous, opposite ruling, that privilege may be asserted against a former director); Genova v.
Longs Peak Emergency Physicians, P.C., 72 P.3d 454, 462 (Colo. App. 2003) (agreeing “with
the line of cases concluding that the attorney-client privilege may be established against a former
director of a corporation”); Nunan v. Midwest, Inc., Case No. 2004/00280, 2006 WL 344550, at
*7 (N.Y. Sup. Ct. 2006) (noting that “[a]lthough there is discredited authority to the contrary,
most of the more recent cases embrace the view that, when a former officer or direct is suing the
company for his or her own personal gain, the privilege belongs to the corporation and if
asserted is effective to prevent disclosure to the former officer or director”) (internal citations
omitted); In re Mktg. Investors Corp., 80 S.W.3d 44, 50 (Tex. App.–Dallas 1998, no pet.)
(finding the Milroy line of cases persuasive and concluding that a corporation may assert
privilege against a former president); Lane v. Sharp Packaging Sys., Inc., 640 N.W.2d 788, 792
(Wis. 2002) (holding that former directors cannot view privileged materials).
11

Wiles, 143 F.R.D. 241 (D. Colo. 1992), the court analyzed whether the corporation could
assert the privilege against the former director with respect to documents generated during
the director’s tenure. Id. Relying on Kirby v. Kirby, Case No. CIV..A 8604, 1987 WL
14862 (Del. Ch. Jul 29, 1987), the court held it could not. Gottlieb 143 F.R.D. at 247. The
court analogized this situation to the scenario presented “when parties with a common
interest retain a single attorney to represent them.” Id. If the joint clients later become
adverse, “neither is permitted to assert the attorney-client privilege as to communications
occurring during the period of common interest.” Id. The collective approach treats both the
corporation and its managers as clients; thus, they are subject to the joint client exception.
Under the “entity is the client” approach, courts have rejected the Gottlieb/Kirby
approach, claiming that those cases “make a fundamental error by assuming that for a
corporation there exists a ‘collective corporate “client”’ which may take a position adverse
to ‘management’ for purposes of the attorney-client privilege.” See Milroy v. Hanson, 875
F. Supp. 646, 649 (D. Neb. 1995). Courts adopting the “entity is the client” approach have
held that the corporate entity or organization is the sole client for the purpose of attorneyclient privilege. See id. (“There is but one client, and that client is the corporation.”).
Although the corporation acts through its managers, those managers are only representatives
of the corporate client, not clients themselves. Id. Accordingly, a former officer or director
has no right to frustrate the attorney-client privilege, particularly when suing for personal
benefit, rather than as a fiduciary. Id. at 650; see also Fitzpatrick v. Am. Int’l Grp., Inc., 272
F.R.D. 100, 108-09 (S.D.N.Y. 2010); Montgomery, 548 F. Supp. 2d at 1187.
12

In line with the modern trend,8 the Court finds the Milroy line of cases to be more
persuasive. First, in Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343
(1985), the Supreme Court held because a former officer or director could not assert or waive
a corporation’s privilege, the former officer or director “retains no control over the
corporation’s privilege.” Id. at 349 n.5. A former manager retains control if he or she can
prevent a corporation from asserting privilege because that in effect amounts to a waiver.
Therefore, the Gottlieb/Kirby approach seems contrary to Supreme Court precedent.
Moreover, allowing a former director access to privileged corporate documents “as a matter
of course would have seemingly perverse implications.” Fitzpatrick, 272 F.R.D. at 108. It
seems paradoxical to allow a party to access information previously available to that
individual only because of his or her role as a fiduciary once that party is adverse to the
corporation and no longer required to act in the corporation’s best interests.

Id.

Additionally, there seems to be a high potential for abuse, especially in the class action
context, as one former officer or director could prevent the application of privilege against
the entire class, none of whom previously had access to the sought-after documents and
communications. See Barr v. Harrah’s Entm’t, Inc., Case No. Civ. 05-5056JEI, 2008 WL

8

See Montgomery, 548 F. Supp. 2d at 1186 (noting that “many more courts have rejected
the reasoning in Gottlieb than in Milroy”); Nunan v. Midwest, Inc., Case No. 2004/00280, 2006
WL 344550, at *7 (N.Y. Sup. Ct. 2006) (“Although there is discredited authority to the contrary,
most of the more recent cases embrace the view that, when a former officer or director is suing
the company for his or her own personal gain, the privilege belongs to the corporation and if
asserted is effective to prevent disclosure to the former officer or director.”) (internal citations
omitted).
13

906351, at *6 (D.N.J. Mar. 31, 2008) (refusing to apply Kirby because of the case’s class
action context).
Therefore, Plaintiff’s status as a former director and officer of PMA does not entitle
him to production of otherwise privileged communications made during his tenure at MCA.
Plaintiff also argues that he should at least be able to access communications that he once
authorized, received, or otherwise participated in while president of MCA. However, this
argument also fails. Plaintiff is not the client and has no right to access any privileged
communications now that he is no longer employed by PMA, regardless of his prior
involvement. When rejecting a similar claim, the court in Fitzpatrick noted by analogy “that,
when a corporate fiduciary leaves the employ of the company, he is ordinarily bound to
respect properly asserted corporate privacy interests, for example, by not appropriating trade
secrets to which he may have been exposed during his tenure.” Fitzpatrick, 272 F.R.D. at
109 n.6. Similarly, a former officer or director cannot appropriate knowledge he had access
to as a corporate fiduciary after he has left that corporation’s employ. Id.; see also Gilday
v. Kenra, Ltd., Case No. 1:09-cv-00229-TWP-TAB, 2010 WL 3928593, at *4 (S.D. Ind. Oct.
4, 2010) (holding that a corporation “may assert the attorney-client privilege against [a
former manager], even as to privileged documents she accessed during her employment”).
Because the documents9 sought by Plaintiff are subject to the attorney-client privilege, it is
9

These protected documents include the drafts of the releases of claims relating to the
California pay issues. Plaintiff’s argument that drafts of documents intended to be published to
third parties are not subject to privilege is unpersuasive. Although there might be non-binding
caselaw to the contrary from other jurisdictions, this Court has previously held that even “drafts
of documents ultimately publicly filed or disseminated continue to be protected by the attorney14

not necessary for the Court to analyze Defendant’s alternative theory of work-product
protection.
B. Deposition Testimony
In March 2012, Plaintiff took the depositions of three PMA officers: John Cochrane,
Stephen Kibblehouse, and Andrew McGill. During each deposition, PMA’s counsel objected
and instructed the deponent not to answer on the grounds of attorney-client or work-product
privilege. Plaintiff argues that answering the questions would not have infringed on
privileged information and the deponents should have answered the questions posed.
Rule 30 provides that during a deposition, “[a] person may instruct a deponent not to
answer . . . when necessary to preserve a privilege.” Fed. R. Civ. P. 30(c)(2). This
protection does not prevent the disclosure of facts but does protect confidential
communications and mental impressions or legal theories which are subject to the attorneyclient and work-product privileges. See Upjohn Co. v. United States, 449 U.S. at 395
(holding that privilege “only protects disclosure of communications” not “the underlying
facts”); JPMorgan Chase Bank v. Liberty Mut. Ins. Co., 209 F.R.D. 361, 362 (S.D.N.Y.
2002) (“In a nutshell, depositions . . . are designed to discover facts, not contentions or legal
theories, which, to the extent discoverable at all prior to trial, must be discovered by other
means.”).
1. Deposition of John Cochrane

client privilege absent certain circumstances.” United Food, 2012 WL 2370637, at *10.
15

While deposing Mr. Cochrane, Plaintiff sought information about the disclosures
PMA made to Old Republic Insurance Company (“ORIC”) before, during, or after ORIC’s
acquisition of PMA. Plaintiff’s attorney asked, “What did Mr. Kibblehouse tell you about
[PMA’s disclosures to ORIC]?” (Pl.’s Br., Dkt. No. 50, Ex. 4, at 4, ll. 19-20.) Defendant’s
counsel objected, claiming that anything Mr. Kibblehouse had told Mr. Cochrane was
privileged. As a follow-up question, Plaintiff’s counsel asked Mr. Cochrane if his testimony
included any information “received from Mr. Kibblehouse.” (Id. at 5, ll. 9-11.) Defendant’s
counsel objected on the grounds that the follow-up question was “an end run around the
privilege.” (Id. at 5, l. 14.)
With respect to the attorney-client privilege, distinguishing between facts and
communications is critical. Although deponents must disclose known facts, it is wellestablished that clients cannot be forced to answer questions relating to what they told their
attorneys, or what their attorneys told them. See Upjohn, 449 U.S. at 395 (“‘The client
cannot be compelled to answer the question, “What did you say or write to the attorney?”’”
(quoting Philadelphia v. Westinghouse Elec. Corp., 205 F. Supp. 830, 831 (D.C. Pa.
1962))).10 Plaintiff’s first question clearly violates this rule by directly asking about the
contents of a confidential communication between Mr. Cochrane and his attorney. Thus, the
Court will not compel Mr. Cochrane to disclose what Mr. Kibblehouse told him about the
10

See also Banks v. Office of Senate Sergeant-at-Arms, 233 F.R.D. 1, 5 (D.D.C. 2005)
(refusing to compel deponent to answer questions relating to what she told her attorney or what
her attorney told her); In re CFS-Related Sec. Fraud Litig., 223 F.R.D. 631, 635 (N.D. Okla.
2004) (“[C]ommunications between the attorney and the client, even when the parties are
discussing factual information, are protected by the attorney client privilege.”).
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disclosures to ORIC. Neither will the Court will compel Mr. Cochrane to answer whether
he learned any of his information from Mr. Kibblehouse. Answering this question would
reveal the “nature of the communication” between Mr. Cochrane and Mr. Kibblehouse by
confirming that they had communicated about the disclosures. See In re CFS-Related Sec.
Fraud Litig., 223 F.R.D. 631, 635 (N.D. Okla. 2004). Plaintiff was entitled to ask Mr.
Cochrane to disclose any facts he was personally aware of that related to PMA’s disclosures,
as pointed out by Defendant’s counsel. (Pl’s Br., Ex. 4, at 5, ll. 2-7) (informing Mr.
Cochrane that he could answer if Plaintiff’s attorney asked him about his own knowledge
rather than his communications with Mr. Kibblehouse). Plaintiff is not entitled to discover
anything about the nature of Mr. Cochrane’s communications with his attorney.
2. Deposition of Stephen Kibblehouse
The information sought by Plaintiff during his deposition of Stephen Kibblehouse is
likewise subject to the attorney-client privilege. During Mr. Kibblehouse’s deposition,
Plaintiff asked him about the contents of a telephone conversation they had regarding the
California Pay Plan and the California Releases.

Specifically, Plaintiff asked Mr.

Kibblehouse whether Plaintiff reported “that he had ethical concerns about what he was
being asked to do by Mr. McGill regarding the employees of MCA in their California office.”
(Pl.’s Br., Dkt. No. 50, Ex. 5, at 4, ll. 3-7.) Defense counsel objected on the basis that the
content of any conversation between Mr. Kibblehouse and Plaintiff in his role as president
of MCA was privileged. Plaintiff argues that the communication was not privileged because

17

he was not seeking legal advice from Mr. Kibblehouse during the conversation at issue, but
trying to report the activities of Mr. McGill.
The Court finds the Plaintiff’s argument unpersuasive. The telephone conversation
between Plaintiff and Mr. Kibblehouse was not limited to Plaintiff’s ethical concerns but
included a broader discussion about the legal ramifications of revising PMA’s pay practices
and seeking releases from PMA’s California employees. (See Def.’s Br., Dkt. No. 51, at 2324.) Plaintiff cannot use a self-serving declaration to isolate a particular segment of a
conversation from its context when challenging PMA’s assertion of attorney-client privilege.
Plaintiff has pointed to no evidence, such as an internal reporting procedure, to support his
assertion that he was seeking to report the activities of a PMA officer, rather than raise
concerns about the legality of the California Pay Plan and the California Releases. Because
the content of the conversation between Plaintiff and Mr. Kibblehouse is privileged, the
Court will not order Mr. Kibblehouse to answer Plaintiff’s question.11
3. Deposition of Andrew McGill
Plaintiff challenges Mr. McGill’s failure to answer questions relating to Mr. McGill’s
prior use of employee releases and his handling of Plaintiff’s ethical concerns. First, Plaintiff
asked Mr. McGill if he had ever had employees of PMA or its subsidiaries sign releases
similar to the proposed California Release. (Pl.’s Br., Dkt. No. 50, Ex. 6, at 12, ll. 15-19.)

11

Because Mr. Kibblehouse cannot answer Plaintiff’s first question on the basis of
privilege, he also cannot answer Plaintiff’s follow-up question, which had embedded within it an
assumed answer to the prior question.
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Mr. McGill was directed not to answer on the basis of privilege. (Id. at ll. 20-22.) However,
whether Mr. McGill had previously obtained releases of employer liability from PMA
employees is a fact, not a communication. As such, it is not protected by the attorney-client
privilege. Nor is the fact of a release’s existence protected by the work-product doctrine,
although the releases themselves, if they exist, might be shielded as attorney work product,
if prepared in anticipation of litigation. Mr. McGill must answer Plaintiff’s question.
Mr. McGill must also answer Plaintiff’s question relating to the handling of Plaintiff’s
ethical concerns. After Mr. McGill stated that he had not reported Plaintiff’s concerns to
PMA’s audit committee, Plaintiff asked, “Well, wouldn’t you consider the complaints
[Plaintiff] was making . . . something you needed to document and report?” (Id. at 15, ll. 15.) Mr. McGill refused to answer on the basis of privilege. Plaintiff did not ask whether Mr.
McGill received legal advice with respect to Plaintiff’s ethical concerns or any reporting
obligations, nor the content of any such advice. Instead, Plaintiff limited his question to
whether Mr. McGill personally believed that the concerns raised by Plaintiff were the type
of complaints that normally should be documented and reported. Mr. McGill’s personal
beliefs are not privileged as attorney-client communications or attorney work product.
Therefore, he must answer Plaintiff’s question.

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III. CONCLUSION
For the above stated reasons, Plaintiff’s Motion to Compel (Dkt. No. 50) is
GRANTED IN PART and DENIED IN PART. The motion is granted as to the two
challenged questions from Mr. McGill’s deposition. Mr. McGill is hereby ORDERED to
answer the above described questions. In all other respects, the motion is DENIED.
IT IS SO ORDERED this 7th day of September, 2012.

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