Wellin v. Wellin et al

Filing 498

CONSENT ORDER adopting as modified Report and Recommendations re (389) Report and Recommendation.; granting (333) Motion for Protective Order in case 2:13-cv-01831-DCN; granting (347) Motion for Protective Order; adopting a s modified Report and Recommendations re (412) Report and Recommendation. in case 2:13-cv-03595-DCN; granting (102) Motion for Protective Order; adopting as modified Report and Recommendations re (160) Report and Recommendation. in case 2:14-cv-04 067-DCN in case 2:13-cv-03595-DCN Signed by Honorable David C Norton on September 26, 2016.Associated Cases: 2:13-cv-01831-DCN, 2:13-cv-03595-DCN, 2:14-cv-04067-DCN(rweh, ) (Main Document 498 replaced on 9/26/2016) (jbry, ). Modified on 9/26/2016 to replace incorrect document with correct document per chambers (jbry, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Wendy C. H. Wellin, as Special
Administrator of the Estate of Keith S.
Wellin and as Trustee of the Keith S.
Wellin Florida Revocable Living Trust
u/a/d December 11, 2001,
Plaintiff,
vs.
Peter J. Wellin, Cynthia W. Plum and
Marjorie W. King, individually and as coTrustees and beneficiaries of the Wellin
Family 2009 Irrevocable Trust u/a/d
November 2, 2009, and Friendship
Management, LLC,
Defendants.
Larry S. McDevitt, as Trust Protector of the
Wellin Family 2009 Irrevocable Trust,
Plaintiff,
vs.
Peter J. Wellin, Cynthia W. Plum and
Marjorie W. King, Individually and as CoTrustees and Beneficiaries of the Wellin
Family 2009 Irrevocable Trust, Friendship
Management, LLC, and Cynthia W. Plum
as Manager of Friendship Management,
LLC,
Defendants.
Peter J. Wellin, Cynthia W. Plum and
Marjorie W. King, as Co-Trustees of the
Wellin Family 2009 Irrevocable Trust,
Counterclaim
Plaintiffs,
vs.
Lester S. Schwartz, Esquire, as Trust
Protector of the Wellin Family 2009
Irrevocable Trust u/a/d November 2, 2009,
and Wendy C. H. Wellin as Special
Administrator of the Estate of Keith S.
Wellin,
Counterclaim
Defendants.

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Civil Action No. 2:13-cv-01831-DCN

CONSENT ORDER ADOPTING REPORT
AND RECOMMENDATION, AS
MODIFIED

Civil Action No. 2:13-cv-03595-DCN

Peter Wellin, Cynthia W. Plum , Marjorie W.
King, Individually and as Co-Trustees and
Beneficiaries of the Wellin Family 2009
Irrevocable Trust, u/a/d November 2, 2009,

) Civil Action No. 2:14-cv-04067-DCN
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Plaintiffs, )
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vs
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Wendy C.H. Wellin, Individually and as
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Trustee of the Keith S. Wellin Florida
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Revocable Trust u/a/d December 11, 2001,
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Defendants. )
This matter comes before the Court on the recommendations contained in Special Master
William L. Howard’s Report and Recommendation (“R&R”) concerning the Motion for
Protective Order filed by Wendy C. H. Wellin, as Special Administrator of the Estate of Keith S.
Wellin and as Trustee of the Keith S. Wellin Florida Revocable Living Trust u/a/d December 11,
2001 (“the Plaintiff”), ECF No. 3891, dated January 8, 2016. In this R&R, the Special Master
recommended that the Court grant the Plaintiff’s Motion for Protective Order, finding that the
communications at issue, involving non-party Kevin Kennedy, are protected from disclosure
based on the attorney-client privilege and the work product doctrine. In the R&R, the Special
Master determined that South Dakota law governs the attorney-client privilege analysis.
However, the Special Master held that, based on his in camera review of the documents at issue,
he would find that the common interest doctrine and attorney-client privilege protect the
documents from disclosure under the most stringent “identical” legal interest requirement first

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Though Case Nos. 2:13-cv-1831; 2:13-cv-3595, and 2:14-cv-4067 have been
consolidated for pre-trial purposes, all references to electronic filing numbers in this Order will
be directed to filings in Case No. 2:13-cv-1831.
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articulated in Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. 1148, 1160 (D.S.C. 1974).
ECF No. 389 at 10.
The Wellin Children filed an Objection to the R&R on February 8, 2016, ECF No. 399.
In their Objection, the Wellin Children do not object to the ultimate conclusion that the
communications at issue are protected from disclosure. However, the Wellin Children object to
the Special Master’s holding that South Dakota law applies to the issues relating to attorneyclient privilege. The Wellin Children contend that the choice-of-law issue related to the attorneyclient privilege need not be reached for purposes of this motion because it is not outcome
determinative.
After this objection was filed, counsel for the Plaintiff and counsel for the Wellin
Children agreed to submit a consent Order to this Court, adopting Judge Howard’s R&R, with
the exception of his finding that South Dakota law governs the attorney-client privilege issue,
which the parties agree is an issue the Court need not reach for purposes of this motion since
choice-of-law is not outcome determinative.
As stated in this Court’s February 17, 2015 Order Appointing the Special Master, ECF
No. 270, this Court may “adopt or affirm, modify, wholly or partly reject or reverse or resubmit”
the Special Master’s order. Fed. R. Civ. P. 53(f)(1).
In light of the parties’ agreement described herein, the Court adopts the R&R, with the
exception of the finding therein that South Dakota law governs the attorney-client privilege issue
presented, as such a finding is not necessary to grant the Motion.
Accordingly, the Special Master’s R&R is ADOPTED, as modified.

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AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
September 26, 2016
Charleston, South Carolina

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WE CONSENT:
HOOD LAW FIRM, LLC
172 Meeting Street
Post Office Box 1508
Charleston, SC 29402
Phone: [phone]
Facsimile: [phone]
Email: [e-mail]

s/ William G. DesChamps, IV
Robert H. Hood (1939)
Molly H. Craig (6671)
James B. Hood (9130)
William G. DesChamps, IV (11736)
Attorneys for Wendy C. H. Wellin, as
Special Administrator of the Estate of
Keith S. Wellin and as Trustee of the
Keith S. Wellin Florida Revocable
Living Trust u/a/d December 11, 2001

February 25, 2016
Charleston, South Carolina

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WE CONSENT:
NELSON
MULLINS
SCARBOROUGH LLP

RILEY

&

s/ Patrick C. Wooten___
Robert H. Brunson, I.D. No. 4971
[e-mail]
Bryson M. Geer, I.D. No. 7011
bryson.geer@ nelsonmullins.com
Patrick C. Wooten, I.D. No. 10399
patrick.wooten@ nelsonmullins.com
151 Meeting Street/Sixth Floor
P. O. Box 1806
Charleston, SC 29402
Phone: [phone]
Attorneys for Peter J. Wellin, Cynthia W.
Plum and Marjorie W. King, individually,
and as co-Trustees and beneficiaries of the
Wellin Family 2009 Irrevocable Trust u/a/d
November
2,
2009,
Friendship
Management, LLC, and Cynthia W. Plum,
as Manager of Friendship Management,
LLC
Charleston, South Carolina
February 25, 2016.

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