Ziembovic v. GEO Group Inc et al
ORDER denying 59 Motion to Reopen the Deposition of Alex Londono at Defendant's Expense and for Costs, Fees and Other Sanctions; as more fully set out. Signed by Honorable David L. Russell on 4/5/17. (jw)
IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF OKLAHOMA
LEO “ALLEN” ZIEMBOVIC,
THE GEO GROUP, INC. and
GEO CORRECTIONS &
Case No. CIV-15-1368-R
Plaintiff has filed A Motion to Reopen the Deposition of Alex Londono at
Defendant’s Expense and for Costs, Fees and Other Sanctions (Doc. No. 59), to which
Defendants have filed a response. The Court has considered the parties’ submissions and
orders as follows.
The Court first notes that in light of the history of counsel’s relationship in this case,
the instant motion was not unexpected. The attorneys’ ability to work cooperatively
appears stymied in this action, and the Court expects both sides will endeavor to work more
cooperatively as this case moves toward trial. The Court turns now to the issues at hand.
The Court previously ordered Defendants to produce Mr. Alejandro Londono for
deposition, denying their request for a protective order that would shield him from
appearing. The Court informed the parties in a telephonic hearing ─ necessitated by
Defendants’ late filing of the motion ─ that Mr. Londono would be required to appear, but
that Defendants could invoke the privilege to any particular question, if appropriate. As a
result, the parties convened a deposition on March 7, 2017, and Defendants’ counsel
invoked the attorney-client privilege in response to certain inquiries. Plaintiff seeks a Court
order requiring Mr. Londono to appear again for deposition and answer certain questions,
asserting that the privilege is either inapplicable or waived. Defendants object and contend
that Plaintiff fails to sufficiently identify those instances where he believes the privilege
was improperly invoked and further that they were entitled to invoke the privilege in
response to the questions propounded by Plaintiff’s counsel.
Mr. Londono previously served as in house counsel for the Defendants, and just
prior to Plaintiff’s termination he apparently reviewed the termination recommendation
and indicated that he concurred in the decision. In support of Defendants’ request to avoid
the deposition entirely, Mr. Londono executed a Declaration, stating therein he did not
recall signing the termination document related to Plaintiff’s termination, but that doing so
was within the scope of his work as an attorney. “My role in signing off on termination
documents was exclusively as an attorney to ensure legal compliance and when I had
discussions about termination decisions, the discussions were for purposes of providing
legal advice.” Doc. No. 56-1.1 Accordingly, that certain communications would be
privileged is readily apparent. However, because the inquiry necessary for application of
the attorney-client privilege is fact-dependent, and because from the interaction between
The content of the Declaration makes certain of Defendants’ objections during the Deposition bewildering.
Defendant’s counsel invoked a privilege when Plaintiff’s counsel inquired: “[a]s a corporate counsel, did your
responsibilities include ensuring that terminations or terminating an employee, that employee wasn’t terminated in
violation of federal or state law?” Doc. No. 62-8. From the Court’s perspective this inquiry does not seek
information about a communication between a client and counsel nor does it seek a document or tangible thing
protected by the work-product privilege. Rather, it merely inquired about something Mr. Londono had previously
disclosed, that he signed off on termination agreements to ensure legal compliance.
counsel for both parties and the witness at the deposition, the Court is unable to clearly
discern what specific inquiries Plaintiff seeks so as to determine the contours of the
privilege in this case. Accordingly, the Court hereby orders Plaintiff’s counsel to submit
to Defendants’ counsel and the Court a list of questions for Mr. Londono, a deposition on
written questions. Defense counsel shall file under seal Mr. Londono’s responses thereto,
and the Court will make an in camera review of those answers for a determination of
whether Defendant is entitled to rely on its claim of privilege. The Court will then order
disclosure by Defendants to Plaintiff, as it deems appropriate.
Plaintiff’s written questions shall be served on Defendant’s counsel within five
days. Mr. Londono’s responses thereto shall be filed under seal no later than April 17,
2017. Plaintiff’s request that the Deposition be reconvened is hereby DENIED. His request
for costs and fees is similarly DENIED.
IT IS SO ORDERED this 5th day of April 2017.
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