Knutson v. Oklahoma City City of et al

Filing 46

ORDER granting 30 plaintiff's Motion to Compel Production of Unredacted Documents (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 12/7/2016. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
FREDRICK BRUCE KNUTSON,
an individual,
Plaintiff,
vs.
CITY OF OKLAHOMA CITY,
a municipal corporation, et al.,
Defendants.

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Case No. CIV-14-606-M

ORDER
Before the Court is plaintiff’s Motion to Compel Production of Unredacted Documents, filed
October 14, 2016. On October 31, 2016, defendants filed their response, and on November 2, 2016,
plaintiff filed his reply. Based upon the parties’ submissions, the Court makes its determination.
Defendant City of Oklahoma City (“City”) has produced emails responsive to plaintiff’s
discovery requests that are heavily redacted based upon assertions of attorney-client privilege, work
product, and deliberative process. City has failed to produce a privilege log for all of the redacted
emails. Plaintiff moves this Court to issue an order, pursuant to Federal Rule of Civil Procedure
37(a)(3)(B)(iv), compelling City to produce documents that are not redacted or in the alternative for
an in camera inspection of the particular documents. Plaintiff further moves the Court to order the
City to provide a privilege log for documents withheld or redacted that are not produced without
redaction.
Plaintiff asserts that despite the heavy redaction of the emails, it is clear that the information
that is redacted is relevant to the claims plaintiff has asserted in his Complaint. Plaintiff further

asserts that it is clear that City is relying upon the advice of counsel as a defense in this action1 and
has, therefore, waived the work product and attorney-client privilege based upon this advice of
counsel defense. Additionally, plaintiff contends that he has been denied access to unredacted
emails involving municipal counselors concerning issues relevant to the advice provided and
distributed that relate to the case at bar. Without access to these unredacted emails, plaintiff
contends he is prohibited from examining the truth, accuracy, and details of the advice provided by
the municipal counselors and that withholding the information places plaintiff at a severe
disadvantage and City is thereby allowed to use advice of counsel as both a shield and a sword.
Plaintiff, therefore, contends that City has waived the work product and attorney-client privilege by
putting the correspondence between municipal counselors and other City personnel directly at issue
in this case and, as a result, the unredacted communications should be produced.
Defendants assert that unlimited disclosure of the materials sought by plaintiff is
inappropriate.

Defendants further assert that email correspondence within the Municipal

Counselor’s Office, dating back to 2005 and in the years subsequent to the prosecution of plaintiff,
is not relevant and is clearly privileged. Specifically, defendants contend that plaintiff seeks
documents and testimony protected by the work product doctrine and by the attorney-client
privilege. Defendants further contend that the attorney-client privilege and work product doctrine
have not been waived. Defendants assert that the filing of this action and/or the fact that the
individual defendants may assert that they relied on the advice of legal counsel does not waive any
privileges or grant plaintiff unlimited access to the communications of the Municipal Counselor’s

1

In their response, defendants concede that the individual defendants have asserted qualified
immunity based upon advice of legal counsel.
2

Office, particularly given that these communications are also protected under the work product
doctrine and/or deliberative process privilege.
Courts generally apply one of three approaches to determine whether
a litigant has waived the attorney-client privilege:
The first of these general approaches is the
“automatic waiver” rule, which provides that a litigant
automatically waives the privilege upon assertion of
a claim, counterclaim, or affirmative defense that
raises as an issue a matter to which otherwise
privileged material is relevant. The second set of
generalized approaches provides that the privilege is
waived only when the material to be discovered is
both relevant to the issues raised in the case and either
vital or necessary to the opposing party’s defense of
the case. Finally, several courts have recently
concluded that a litigant waives the attorney-client
privilege if, and only if, the litigant directly puts the
attorney’s advice at issue in the litigation.
Seneca Ins. Co., Inc. v. W. Claims, Inc., 774 F.3d 1272, 1275-76 (10th Cir. 2014) (internal citations
omitted) (emphasis in original). Further, under the second approach,
“at-issue” waiver requires –
(1) assertion of the privilege was the result of some affirmative act,
such as filing suit, by the asserting party;
(2) through this affirmative act, the asserting party put the protected
information at issue by making it relevant to the case; and
(3) application of the privilege would have denied the opposing party
access to information vital to [its] defense.
Id. at 1276 (internal citations omitted) (emphasis in original).
Additionally, in relation to an assertion of qualified immunity based upon the advice of legal
counsel, the Tenth Circuit has found:
Whether reliance upon legal advice bars our imputation to [the
defendant] of constructive knowledge concerning the laws allegedly
violated by his conduct, depends upon the circumstances of each
case. Relevant factors include how unequivocal, and specifically
tailored to the particular facts giving rise to the controversy, the
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advice was, whether complete information had been provided to the
advising attorney(s), the prominence and competence of the
attorney(s), and how soon after the advice was received the disputed
action was taken.
V-1 Oil Co. v. State of Wyo., Dep’t of Envtl. Quality, 902 F.2d 1482, 1489 (10th Cir. 1990) (internal
quotations and citations omitted).
Having carefully reviewed the parties’ submissions, the Court finds that based upon the
individual defendants’ affirmative assertion of qualified immunity based upon advice of legal
counsel, defendants have waived the work product and attorney-client privilege as to those emails
relating to said assertion of qualified immunity. Specifically, the Court finds that the individual
defendants affirmatively put the advice of legal counsel – the communications to which defendants
are asserting the work product and attorney-client privilege – “at issue” by asserting qualified
immunity based upon advice of legal counsel. Further, in light of the relevant factors set forth by
the Tenth Circuit relating to this qualified immunity defense, the Court finds that by asserting
qualified immunity based upon advice of legal counsel, the individual defendants have made the
subject emails relevant to this case and application of the work product doctrine and attorney-client
privilege as to these emails would deny plaintiff access to the most vital and relevant information
needed to defend the individual defendants’ assertion of qualified immunity. Finally, the Court finds
that allowing the individual defendants to rely on advice of legal counsel to establish qualified
immunity while excluding the contents of that advice would violate the well-established principle
that neither the attorney-client privilege nor the work product doctrine can be used both as a sword
and a shield.
Additionally, having reviewed the parties’ submissions, the Court finds that it appears that
the only emails that would relate to the qualified immunity defense being asserted are those emails
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in 2012 relating to the factors set forth by the Tenth Circuit. Further, it is unclear at this juncture
whether defendants have waived their privilege as to any emails outside of the 2012 time period.2
Defendants have not submitted a privilege log in relation to any redacted emails other than those
from the 2012 time period, and plaintiff requests defendants be required to submit a privilege log.
Federal Rule of Civil Procedure 26(b)(5)(A) provides:
(A)

Information Withheld. When a party withholds information
otherwise discoverable by claiming that the information is
privileged or subject to protection as trial-preparation
material, the party must:
(i)
expressly make the claim; and
(ii)
describe the nature of the documents,
communications, or tangible things not
produced or disclosed – and do so in a manner
that, without revealing information itself
privileged or protected, will enable other
parties to assess the claim.

Fed. R. Civ. P. 26(b)(5)(A). In light of the above requirement, the Court finds that defendants
should be required to submit a privilege log as to any redacted emails that have been produced to
plaintiff.3
Accordingly, the Court GRANTS plaintiff’s Motion to Compel Production of Unredacted
Documents [docket no. 30] as follows:

2

In their response, defendants contend that any emails dating back to 2005 and in the years
subsequent to the prosecution of plaintiff are not relevant. Defendants, however, produced redacted
copies of emails within this time period to plaintiff. In light of defendants’ production of these
emails, the Court finds that defendants have waived any argument that these emails are not
discoverable.
3

Once defendants have submitted a privilege log to plaintiff, plaintiff should be able to
determine whether he believes defendants have waived their privilege as to any of these emails.
Plaintiff may file a new motion to compel at that time, if necessary.
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(1)

The Court ORDERS defendants to produce to plaintiff unredacted copies of
all emails relating to the assertion of qualified immunity based upon advice
of counsel and the relevant factors set forth by the Tenth Circuit; said
unredacted copies shall be provided to plaintiff by December 19, 2016; and

(2)

The Court ORDERS defendants to produce to plaintiff a privilege log as to
any redacted emails that have been produced to plaintiff; said privilege log
shall be provided to plaintiff by December 28, 2016.

IT IS SO ORDERED this 7th day of December, 2016.

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