Kozowski v. Nelson et al

Filing 109

Opinion and Order signed on 3/5/2020 by Magistrate Judge Mustafa T. Kasubhai: Defendant Deschutes County's Petition for Attorney Fees (ECF No. 69 ) is DENIED and Defendants' Joint Motion for a Protective Order (ECF No. 94 ) is GRANTED in part and DENIED in part. (jk)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
EUGENE DIVISION

ERIC KOZOWSKI,

Case No.: 6:18-cv-00275-MK
Plaintiff,

OPINION AND ORDER
RE: DEFENDANT DESCHUTES
COUNTY’S PETITION FOR
ATTORNEY FEES AND
DEFENDANTS’ JOINT MOTION FOR
A PROTECTIVE ORDER

v.

L. SHANE NELSON, individually and in
his capacity as Deschutes County Sheriff;
DESCHUTES COUNTY, a political
subdivision of the State of Oregon; PAUL
GARRISON, an individual,
Defendants.

KASUBHAI, Magistrate Judge:
INTRODUCTION
Before the Court is Defendant Deschutes County’s Petition for Attorney Fees (ECF No.
69) and Defendants’ Joint Motion for a Protective Order (ECF No. 94). For the reasons discussed
below, Defendant Deschutes County’s Petition for Attorney Fees is DENIED and Defendants’
Joint Motion for a Protective Order is GRANTED in part and DENIED in part.

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BACKGROUND
I. Attorney Fees
Plaintiff filed a Motion to Compel Discovery Against Defendant Deschutes County on
February 19, 2019. ECF No. 46. On March 12, 2019, Defendant Deschutes County filed a
Response. ECF No. 53. On May 2, 2019, this Court entered an order denying Plaintiff’s Motion
to Compel because Plaintiff failed to confer with Defendant in accordance with Local Rule 7-1
prior to filing his motion. Order, ECF No. 68. On May 14, 2019, Defendant Deschutes County
filed a Petition for Attorney Fees based on having to file a response to Plaintiff’s Motion to
Compel. Defs.’ Pet. Att’y Fees, ECF No. 69. Plaintiff opposed Defendant Deschutes County’s
Petition for Attorney Fees on May 28, 2019. Pl. Opp’n Defs.’ Pet. Att’y Fees, ECF No. 83.
II. Protective Order
The Deschutes County Sheriff’s Office (“DCSO”) maintains a legal department
comprised of a lawyer and an assistant. Nakahira Decl. 1-2, ECF No. 54. From 2011 to 2018,
Darryl Nakahira (“Nakahira”) served as counsel to DCSO. Id. at 2. Nakahira controlled, directed,
and supervised Julie Lovrien (“Lovrien”) as his assistant. Id. Lovrien worked as Nakahira’s
assistant for four years. Lovrien Dep. 6:7-9, ECF No. 95-2. Lovrien while working as Nakahira’s
assistant, had frequent contact with Defendants Nelson and Garrison. Id. at 9:22-10:3. In August
2018, Lovrien left the DCSO. Id. at 5:17-23. On January 28, 2019, Plaintiff deposed Lovrien in
the presence of Andrew Campbell, counsel for Defendant Deschutes County. Id. at 2.
On May 31, 2019, Plaintiff filed a Supplemental Memorandum in Opposition to Motion
for Summary Judgment and a Supplemental Declaration of Eric Kozowski. ECF Nos. 89-90. On
June 13, 2019, Defendants filed a Joint Motion for a Protective Order. ECF No. 94. In this

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motion, Defendants objected to the inclusion of ECF Nos. 89-90 because Plaintiff did not confer
with Defendants. Defendants requested the following relief in their joint motion:
(1) a finding that Lovrien may not waive Defendants’ attorney-client privilege;
(2) an order barring Lovrien from testifying in this case and barring the use of her
deposition at trial;
(3) an order barring Plaintiff or Plaintiff's counsel from communicating with
Lovrien without the presence of defense counsel;
(4) an order striking ECF Nos. 89 and 90 from the record;
(5) an order requiring that Plaintiff turn over 100 percent of his communications
with Lovrien, in whatever form or medium, to Defendants within ten days;
(6) an order requiring that Plaintiff sit for an additional deposition held at the
office of defense counsel and limited in scope to his communications with
Lovrien;
(7) an order that Plaintiff’s counsel certify to the Court by sealed declaration for
in-camera review that neither he nor anyone at his law firm knew of,
encouraged, or otherwise permitted Plaintiff’s contact with Lovrien;
(8) an order requiring that Plaintiff comply with Local Rule 7-1 for all future
filings, and that failure to do so shall result in the filing being struck; and
(9) an order awarding Defendants reasonable attorney fees and costs incurred in
moving for a protective order.
Defs.’ Joint Mot. Protective Order 11, ECF No 94.
The parties fully briefed the issue of the protective order. See ECF Nos. 94, 99, 101. The
Court ruled on portions of the motion during oral argument on November 26, 2019, and later
issued an Order. ECF No. 106. In the order, the Court re-stated its bench rulings:
Plaintiff's Supplemental Memorandum (ECF No. 89) and Supplemental Briefing
(ECF No. 90) are stricken from the record for failure to follow the conferral
requirements of Local Rule 7-1. Plaintiff is ordered to produce all
communications he had with Julie Lovrien, in whatever form or medium, to
Defendants within [ten] days of this order. Parties will schedule an additional
deposition of Plaintiff Kozowski, which is to be limited in scope to examination
about his communications with Ms. Lovrien and including any coordination of
communications between Plaintiff's attorney, Plaintiff, and Ms. Lovrien. The
deposition will be held in Salem, Oregon. After the deposition, parties may file
motions for leave to file supplemental briefing with the Court.
Id. This order granted Defendants the relief of requests four, five, six, and eight of their
motion. During oral argument, the Court ruled that Ms. Lovrien could not waive

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Defendants’ attorney-client privilege, granting Defendants’ request for relief number one.
Oral Arg. Tr. 30, ECF No. 108. And, the Court asked Plaintiff’s counsel to certify that he
did not knowingly encourage Plaintiff’s contact with Lovrien. Id. at 22-23, 52-53.
Plaintiff’s counsel so certified. Id. Further, the Court entered an order striking the content
of Plaintiff’s communications with Lovrien in ECF Nos. 89 and 90. ECF No. 106. Thus,
the Court granted Defendants request for relief number seven.
Now before this Court are Defendant Deschutes County’s Petition for Attorney Fees
(ECF No. 69) and Defendants’ request for relief two, three, and nine of their Joint Motion for
Protective Order (ECF No. 94). The Court discusses the Petition for Attorney Fees first, followed
by the Motion for Protective Order.
DISCUSSION
I. Attorney Fees
If a court denies a motion for an order compelling disclosure or discovery, a party who
opposed the motion may be entitled to “reasonable expenses incurred opposing the motion,
including attorney[] fees” paid by the movant. Fed. R. Civ. P. 37(a)(4)(B). However, the court
must not order payment if the motion was substantially justified or “make an award of expenses
unjust.” Id. “A discovery request is ‘substantially justified’ if reasonable people could differ as to
whether the party requested must comply.” Reygo Pac. Corp. v. Johnston Pump Co., 680 F.2d
647, 649 (9th Cir. 1982).
Defendant Deschutes County seek attorney fees in the amount of $7,850 for responding
to Plaintiff’s Motion to Compel filed on February 19, 2019. ECF No. 69. Plaintiff moved this
Court to compel Defendant Deschutes County to provide documents responsive to Plaintiff’s
discovery requests. Pl. Mot. Compel 1-2, ECF No. 46. For example, Plaintiff requested that

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Defendant Deschutes County produce email communications of Defendant Nelson’s directions
for how DCSO Internal Affairs investigations of Plaintiff were to be compiled. Id. at 3. Plaintiff
alleges that these emails include directions of including “citizen complaints” against Plaintiff. Id.
The Court finds that Plaintiff’s discovery request was substantially justified given that
“reasonable people could differ as to whether the party requested must comply.” Reygo Pac.
Corp. 680 F.2d at 649. Thus, the Court denies Defendant Deschutes County’s Petition for
Attorney Fees (ECF No. 69).
II. Joint Motion for Protective Order
While parties are generally entitled to broad discovery under Federal Rule of Civil
Procedure Rule 26(b)(1), protective orders under Federal Rule of Civil Procedure Rule 26(c)
represent an important “counterbalance” to that generous discovery policy. Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 34-35 (1984). Indeed, the United States Supreme Court has observed
that “privacy” itself is “implicit” in the protections of Rule 26(c). Seattle Times Co., 467 U.S. at
35 n.21. A party seeking a protective order must establish “good cause.” Fed. R. Civ. P. 26(c)(l);
In re Roman Catholic Archbishop of Portland in Or., 661 F.3d 417, 424 (9th Cir. 2011), cert.
denied, 132 S. Ct. 1867 (2012). Honoring the attorney-client privilege and work product doctrine
have repeatedly been held to qualify as “good cause.” See Hanson v. Wells Fargo Home Mortg.,
Inc., C13-0939JLR, 2013 WL 5674997, at *3 (W.D. Wash. Oct. 17, 2013) (so holding and
collecting cases).
a. Request 2—Bar Lovrien from testifying and barring use of her deposition at
trial
Lovrien’s willingness to share confidential communications to Plaintiff without the
presence of defense counsel represents a failure to honor the attorney-client privilege. Failure to
honor the privilege has “repeatedly been held to qualify as ‘good cause’” for the Court to grant a
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protective order. See Hanson, C13-0939JLR, 2013 WL 5674997, at *3. The Court acknowledges
that Lovrien’s deposition testimony may violate attorney-client privilege. However,
determinations about the use of her deposition or testimony during trial are matters best ruled on
by the trial court judge. Therefore, Defendants’ motion as to request for relief number two is
denied.
b. Request 3—Bar Plaintiff and Plaintiff’s counsel from communicating with
Lovrien without defense counsel present
Because Defendant Deschutes County is a represented party in this case, the
representation extends to Lovrien, as a former employee of Deschutes County. Federal
jurisprudence is not alone in requiring that adversarial counsel does not extract privileged
information from disgruntled or vulnerable former employees. See Kaiser v. AT&T, CIV 00–
724–PHX JWS, 2002 WL 1362054, at *6 (D. Ariz. April 4, 2002). Oregon Rules of Civil
Procedure prohibit lawyers from "knowingly us[ing] methods of obtaining evidence that violate
the legal rights" of others. Or. R. Civ. P. Rule 4.4. That prohibition includes knowingly having
contact with a represented party about the subject of that representation. See Or. R. Civ. P. Rule
4.2.
The Oregon State Bar also explained that a “[p]laintiff’s lawyer may not. . . use any
conversations with . . . [a] [f]ormer employee to invade Corporate Defendant’s lawyer-client
privilege.” Oregon State Bar Legal Ethics Comm., Formal Op. 2005-80 (revised, 2016). The
Oregon State Bar opinion clarified that the plaintiff’s lawyer “may not ask or permit. . . [f]ormer
employee to disclose to Plaintiff’s [l]awyer any communications that [the] [f]ormer [e]mployee
had with Defense [l]awyer pertaining to the matter in litigation.” Id. Further, this prohibition
applies to a plaintiff’s lawyer’s conversations with a former employee about communications the

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former employee had with corporate counsel either during or after the former employee’s
employment. Id.
The Court grants Defendant’s request for relief number three barring Plaintiff or
Plaintiff’s counsel from communicating with Lovrien regarding the subject of this litigation
without the presence of defense counsel.
c. Request 9—order awarding Defendants attorney’s fees and costs incurred in
moving for this protective order
On November 26, 2019, after oral argument, this Court ordered that “parties may file
motions for leave to file supplemental briefings.” Order, ECF No. 106. Since November 2019,
the Court has not received a motion asking for leave to file supplemental briefings from
Defendants, nor a petition for attorney fees to allow the Court to determine if Defendants’
attorney fees are reasonable. Thus, the Court denies Defendants’ relief number nine.
In summary, the Court denies Defendants’ requests for relief two and nine, and grants
request three.
CONCLUSION
For the reasons discussed above, Defendant Deschutes County’s Petition for Attorney
Fees (ECF No. 69) is DENIED and Defendants’ Joint Motion for a Protective Order (ECF No.
94) is GRANTED in part and DENIED in part.
ORDERED this 5th day of March 2020.

s/ Mustafa T. Kasubhai
MUSTAFA T. KASUBHAI
United States Magistrate Judge

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