City of Hearne, Texas v. Johnson

Filing 26

ORDER GRANTING IN PART AND DENYING IN PART 21 Motion for Protective Order; GRANTING IN PART AND DENYING IN PART [] Motion to Compel. The Court hereby GRANTS in part and DENIES in part Defendant Russs Motion for Protective Order, (Dkt. 21), an d GRANTS in part and DENIES in part Plaintiff Johnsons Motion to Compel, (Dkt. 22). With respect to Johnsons Second Set of Interrogatories, Russ is hereby ORDERED to respond fully to Interrogatories No. 2 and 4, and to respond to Interrogatory No . 6 to the extent it asks about Russs own communications with law enforcement regarding the subject matter of Johnsons suit or information about when and how his attorneys communicated with law enforcement regarding the subject matter of Johnsons suit. Signed by Judge Robert Pitman. (jgb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
WACO DIVISION
MILTON JOHNSON,
Cross-Plaintiff,
v.
BRYAN F. RUSS, JR.,
Cross-Defendant.

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6:16-cv-284 RP

ORDER
Before the Court are Cross-Defendant Bryan Russ’s Motion for a Protective Order (Dkt.
21), Cross-Plaintiff Milton Johnson’s Motion to Compel and Response in Opposition to Motion for
Protective Order (Dkt. 22), and Russ’s Response to Plaintiff’s Motion to Compel, (Dkt. 25). Based
on its review of these filings, the relevant case law, and the record in this case, the Court issues the
following Order.
I. Background
This case arises out of allegations that officials for the City of Hearne (“the City”) were
misappropriating city funds. In response, Cross-Plaintiff Milton Johnson and several other residents
of the City organized an initiative petition to require a forensic audit of the City’s finances. Johnson
alleges that he and the other residents gathered 517 signatures in total, 318 of which Johnson
collected personally. The petition and signatures were submitted to the City on March 21, 2016.
According to Johnson, the city secretary normally forwards initiative petitions to the county
elections administrator, who then verifies the signatures. In this case, however, Johnson alleges the
petition was intercepted by Defendant Bryan Russ, the city attorney. According to Johnson, Russ
initially declined to forward the petition to the county elections administrator, but rather kept it in
his own possession in his private office.

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On April 6, 2016, the City filed a declaratory judgment action in state court alleging that the
proposed initiative—which would have allowed the Robertson County District Attorney to direct
the audit and determine who would conduct it—improperly vested control of City business outside
City officials and thus was not required to be placed on the ballot for vote. The City sought the
following relief:
(A) A judicial declaration that the proposed initiative extends beyond mere legislation
and encroaches on the administrative duties of the Home Rule, City of Hearne;
(B) A judicial declaration that there is no contractual or statutory authority for the
Robertson County District Attorney to handle the business and affairs of the City of
Hearne with respect to conducting audits;
(C) A judicial declaration that the proposed initiative is prohibited by the terms of
the City Charter wherein the initiative is an attempt to appropriate public funds.
(Pl.’s Pet. for Decl. J., Dkt. 1-2, at 4).
Johnson alleges that on April 7, 2016, the day after the suit was filed, Russ delivered the
petition to the county elections administrator, but sent only the 318 signatures Johnson had
collected—omitting 199 other signatures. Johnson further contends that on the following day, April
8, 2016, the county elections administrator hand-delivered a letter to Russ stating that there were
only 318 signatures on the petition, an insufficient number to place the initiative on the ballot.
Johnson alleges that Russ’s failure to forward all of the petition signatures prevented the petition
from being placed on the election ballot and that he did not learn that the petition would not be
placed on the ballot until late April, when it was too late to correct. Finally, Johnson alleges that
ordinarily petition organizers would have been informed of a deficiency regarding their petition,
such as a lack of signatures, by the City of Hearne, but that, in this case, Russ intentionally concealed
the deficiency to ensure that it would not be remedied and that the petition would not end up on the
ballot.
Upon learning that he had not been informed of the deficiency in the petition, Johnson
countersued the City, Russ, and the law firm where Russ serves as a partner, Palmos, Russ,

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McCullough, & Russ, LLP. Johnson’s counterclaim, filed on April 21, 2016, alleges violations of his
First and Fourteenth Amendment rights under 42 U.S.C. § 1983. Russ and his firm removed the
case to federal court on July 15, 2016. Soon thereafter, Johnson and the City settled their claims. On
September 23, 2016, Russ and his firm filed a motion to dismiss Johnson’s counter-claims. On
January 10, 2017, acting on the recommendation of the Magistrate Judge, the Court denied the
motion to dismiss with respect to Russ, but granted it with respect to his law firm. Accordingly, the
only remaining claims in this litigation are those are asserted by Counter-Plaintiff Johnson and
Counter-Defendant Russ.
After the parties began discovery, Russ filed a motion for a protective order on February 3,
2017. He argues that Johnson’s second set of interrogatories “seek confidential communications
made between representatives of the client, the City of Hearne, and the attorney, [Russ],” (Def.’s
Opp. Mot. Protective Order, Dkt. 21, at ¶ 2), and answered three of the interrogatories subject to
that objection. Johnson responded to Russ’s motion and filed a motion to compel interrogatory
responses on February 14, 2017. He argues that the interrogatories do not request privileged
information because they ask about non-legal services, such as Russ’s role in document delivery.
Further, he argues that any information Russ contends is privileged falls within the crime-fraud
exception to attorney-client privilege, and that some of Russ’s answers were non-responsive. These
two related discovery motions are presently before the Court.
II. Standard of Review
In general, “[p]arties may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P.
26(b)(1). “[T]he court must limit the . . . extent of discovery . . . if it determines that . . . the
proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C)(iii).

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“A party or any person from whom discovery is sought may move for a protective order.”
Fed. R. Civ. P. 26(c)(1). The court may grant the motion “for good cause . . . to protect a party or
person from annoyance, embarrassment, oppression, or undue burden or expense, including . . .
forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain
matters.” Fed. R. Civ. P. 26(c)(1)(D). “If a motion for a protective order is wholly or partly denied,”
however, “the court may . . . order that any party or person provide or permit discovery.” Fed. R.
Civ. P. 26(c)(2). In contrast, a party may move for an order to compel discovery if another “party
fails to answer an interrogatory,” or answers in “an evasive or incomplete” way. Fed. R. Civ. P.
37(a)(3)-(4).
III. Discussion
The three issues before the Court are (1) whether Johnson’s interrogatories seek to obtain
privileged information, (2) if so, whether the crime-fraud exception applies, and (3) whether Russ’s
answers are otherwise non-responsive.
A. Attorney-Client Privilege
The attorney-client privilege exists to “encourage full and frank communication between
attorneys and their clients and thereby promote broader public interests in the observance of law
and administration of justice.” E.g., Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). This
privilege “rests on the need for the advocate and counselor to know all that relates to the client’s
reasons for seeking representation if the professional mission is to be carried out.” Id. (citing
Trammel v. United States (1980)). While the attorney-client privilege extends to all situations in which
counsel is sought on a legal matter, it protects “only those disclosures necessary to obtain informed
legal advice which might not have been made absent the privilege.” Fisher v. United States, 425 U.S.
391, 403 (1976). In other words, the communication must be made “in confidence for the purpose
of obtaining legal advice from the lawyer” to fall within the scope of the privilege. United States v. El

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Paso Co., 682 F.2d 530, 538 (5th Cir. 1982). “Hence, the privilege does not protect documents and
other communications simply because they result from an attorney-client relationship.” S.E.C. v.
Microtune, Inc., 258 F.R.D. 310, 315 (N.D. Tex. 2009). “Moreover, courts generally construe the
privilege narrowly because ‘assertion of privileges inhibits the search for truth.’” Id. (citing Navigant
Consulting, Inc. v. Wilkinson, 220 F.R.D. 467, 477 (N.D. Tex. 2004)).
“A party asserting a privilege exemption from discovery bears the burden of demonstrating
its applicability.” In re Santa Fe Int’l Corp., 272 F.3d 705, 710 (5th Cir. 2001). “A general allegation of
privilege is insufficient to meet this burden.” Navigant Consulting, Inc. v. Wilkinson, 220 F.R.D. 467,
473 (N.D. Tex. 2004). Instead, “[t]he proponent must provide sufficient facts by way of detailed
affidavits or other evidence to enable the court to determine whether the privilege exists.” Id.
Russ argues that three of Johnson’s interrogatories—Interrogatories No. 2, No. 4, and
No. 6—“on their face, seek privileged communications.” (Def’s Mot. Protective Order, Dkt. 21, at
1). Because each interrogatory asks for different information, the Court will address them each
separately.
Interrogatory No. 2 provides:
INTERROGATORY NO. 2: For the period from March 1, 2016 through April
21, 2016, describe all communications related to your role in transferring petition
signatures from the City of Hearne to the office of the Robertson County Elections
Administrator. The term “describe” includes the persons involved in the
communication, the means of communication (e.g., telephone or email), the time and
date of the communication, and the purpose and contents of any such
communication. If, for example, you spoke with members of the city council
regarding when or whether to transfer the signatures to the elections administrator,
describe any such communications.
(Def.’s Resp. to Second Set of Interrogs., Dkt. 22-1, at 3-4). Russ argues that this question seeks
communications between him and his client, the City, that “were made for the purpose of seeking
legal advice.” (Id.) But, as Johnson notes in his response, the question specifically asks for “all
communications related to your role in transferring petition signatures,” and transferring signatures

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is not a legal service. (Pl.’s Mot. to Compel, Dkt. 22, at 1–2). Russ provides no explanation of how a
question regarding communications about transferring signatures would encompass protected
communications or how transferring signatures would be a legal service. And contrary to Russ’s
assertion Interrogatory No. 2 does not, on its face, seek privileged communications. The same
question would logically be asked of the city secretary (the city employee who Johnson alleges
normally transfers petition signatures) if she had been in control of the signatures rather than Russ;
it is not obvious that such communications would be made for the purposes of providing legal
advice. That Russ is an attorney does not automatically render the relevant communications
protected. Further, although the Court can imagine ways in which Interrogatory No. 2 might
encompass protected communications, for example, if the City Council asked Russ whether the
transfer of the petition signatures to the county elections administrator was required by law, the
Court cannot speculate that such communications exist and are the basis for the assertion of
privilege. Instead, Russ has the burden to provide specific facts that support his assertion of
privilege, and has failed to do so here.
Interrogatory No. 4 provides:
INTERROGATORY NO. 4: Mr. Johnson’s complaint alleges that Trudy Hancock
delivered a letter to you stating that only 318 signatures could be verified, but you did
not share this information with the Hearne City Council. Please explain why you did
not share the letter or its contents with the city council members. If you contend that
you did share the letter or its contents with council members, please describe how,
when, where, and with whom you shared that information.
(Def.’s Resp. to Second Set of Interrogs., Dkt. 22-1, at 5). Russ again argues that this question seeks
communications between him and his client, the City, that “were made for the purpose of seeking
legal advice.” (Id.). Johnson counters that the question does not seek privileged communications,
and the Court agrees.
Interrogatory No. 4 encompasses two questions. First, it asks why Russ did not share the
letter or its contents with the city council members. Second, it asks that if Russ did share the letter,
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he describe “how, when, where, and with whom you shared that information.” The first question
does not ask about a communication with Russ’s client, the City, thus does not fall within the
attorney-client privilege. The second question does ask about a possible communication between
Russ and the City, but it does not plainly ask for information encompassed by the attorney-client
privilege.
Typically, the attorney-client privilege is discussed in terms of protecting communications
from the client to the lawyer. For example, the Fifth Circuit has explained that “[t]he assertor of the
lawyer-client privilege must prove: (1) that he made a confidential communication; (2) to a lawyer or
his subordinate; (3) for the primary purpose of securing either a legal opinion or legal services, or
assistance in some legal proceeding.” United States v. Robinson, 121 F.3d 971, 974 (5th Cir. 1997)
(emphasis added). While “courts all agree that some lawyer-to-client communications are protected,”
there is some dispute over how far the privilege extends. Thurmond v. Compaq Computer Corp., 198
F.R.D. 475, 480 (E.D. Tex. 2000). Generally, however, “a derivative protection for communications
from the attorney to the client” exists, but only “to the extent that the responsive attorney
communications reveal the substance of protected communications from the client.” 1 Paul R. Rice,
et. al., Attorney-Client Privilege in the U.S. § 5:2 (2016); see also Hodges, Grant & Kaufmann v. U.S.
Gov't, Dep't of the Treasury, I.R.S., 768 F.2d 719, 720–21 (5th Cir. 1985) (“The [attorney-client]
privilege also protects communications from the lawyer to his client, at least if they would tend to
disclose the client’s confidential communications.”); Wells v. Rushing, 755 F.2d 376, 379 n.2 (5th Cir.
1985) (“[The attorney-client privilege] shields communications from the lawyer to the client only to
the extent that these are based on, or may disclose, confidential information provided by the client
or contain advice or opinions of the attorney.”); Thurmond, 198 F.R.D. at 482 (concluding that
“decisions of both the [Fifth Circuit] and this district court seem to favor at most protection only of

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those lawyer-to-client communications that would tend to reveal or are based on confidential client
communications”).
Interrogatory No. 4 seeks information about a possible communication from an attorney,
Russ, to his client, the City. Notably, the interrogatory does not ask for information about the
contents of the communication, thus Russ’s response is unlikely to reveal information or
communications that came from the client. Instead, the interrogatory seeks information about when
and how the attorney communicated information he obtained from a third party to the client. Such
information is not protected by the attorney-client privilege.
Interrogatory No. 6 provides:
INTERROGATORY NO. 6: Describe in detail all communications that you or
your lawyers, agents, or representatives have had with law enforcement officials
(prosecutors, criminal investigators, etc.) related to the subject matter of Milton
Johnson’s lawsuit against you. This request includes, but is not limited to: the name
of any such law enforcement official(s); the agency or entity represented by the
official(s); the time, date, and place of any such communication; the method of
communication (email, telephone, etc.); and the contents of any such
communication. If, for example, you were interviewed by an FBI agent or detective
regarding the handling of the petition signatures, please describe any such
communication in detail.
(Def.’s Resp. to Second Set of Interrogs., Dkt. 22-1, at 6). In Russ’s motion for a protective order he
asserts only the attorney-client privilege. However, is his response to Johnson’s interrogatories,
which Johnson, not Russ, provided to the Court, he instead asserts that “Interrogatory No. 6 asks
about Defendant’s attorney’s work product.” (Id.). The attorney-client privilege and the qualified
privilege derived from the work-product doctrine are “distinct” protections. United States v. Nobles,
422 U.S. 225, 238 n.11 (1975); see also Shields v. Sturm, Ruger & Co., 864 F.2d 379, 382 (5th Cir. 1989)
(“The work product privilege is very different from the attorney-client privilege.”). The Court will,
however, consider the applicability of both privileges.
First, the attorney client-privilege does not protect communications between Russ or his
lawyer and a third party—law enforcement officials. To the extent such communications reflected
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privileged communications from Russ to his lawyer (or vice-versa), that privilege was waived when
the communications were disclosed to a third party. See Nguyen v. Excel Corp., 197 F.3d 200, 207
(5th Cir. 1999) (“When relayed to a third party that is not rendering legal services on the client’s
behalf, a communication is no longer confidential, and thus it falls outside of the reaches of the
privilege.”)
Second, while waiver does not apply to the work-product doctrine, Shields v. Sturm, Ruger &
Co., 864 F.2d 379, 382 (5th Cir. 1989) (“The work product privilege . . . does not exist to protect a
confidential relationship but to promote the adversary system by safeguarding the fruits of an
attorney’s trial preparations from the discovery attempts of an opponent.”), it is unclear how the
work-product privilege could encompass all of the information at issue in Interrogatory No. 6. Work
product typically constitutes “documents and tangible things that are prepared in anticipation of
litigation or for trial by or for another party or its representative . . . including the other party’s
attorney.” Fed. R. Civ. P. 26(b)(3). “[T]he work product doctrine insulates a lawyer’s research,
analysis of legal theories, mental impressions, notes, and memoranda of witnesses’ statements from
an opposing counsel’s inquiries.” Dunn v. State Farm Fire & Cas. Co., 927 F.2d 869, 875 (5th Cir.
1991). Like the attorney-client privilege, “[t]he burden of establishing that a document is work
product is on the party who asserts the claim.” Hodges, Grant & Kaufmann, 768 F.2d at721.
Interrogatory No. 6 asks for details about any communication between Russ, his attorneys,
or his representatives with a law enforcement agency or official, and asks for the name of the official
and his or her respective agency, “the time, date, and place of any such communication; the method
of communication . . . and the contents of any such communication.” (Def.’s Resp. to Second Set of
Interrogs., Dkt. 22-1, at 6). It is unclear to the Court how information about when and how a
communication with law enforcement took place could expose legal theories, mental impressions, or

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notes. Instead, the only part of an answer to this interrogatory that might disclose work product
would be the last part—the request for the contents of any communications with law enforcement.
With respect to Russ, there is no reason to believe his answers would encompass workproduct. The interrogatory requests information regarding the “subject matter” of Johnson’s lawsuit,
i.e., facts surrounding Johnson’s petition with the City of Hearne and Russ’s alleged interference
with the petition. To the extent Russ discussed what happened with law enforcement officials, he
has provided no explanation for why those discussions would reflect work product. Instead, it is
quite likely that they simply reflected Russ’s memory of the events themselves, which is not
protected. With respect to Russ’s attorneys and representatives, however, the last part of
Interrogatory No. 6 will almost inevitably encompass work product. Presumably, Russ’s attorneys
only know about the subject matter of Johnson’s litigation through their representation of Russ—
thus the information they know and what they communicated to law enforcement officials would
necessarily reflect their own research and mental impressions of the case. Thus, to the extent
Interrogatory No. 6 asks about the content of communications between Russ’s attorneys or
representatives and law enforcement officials, those communications are protected by the workproduct privilege.
Based on the Court’s review of each of the interrogatories at issue, the Court finds that Russ
has only met his burden to demonstrate an applicable privilege with respect to a small portion of
Interrogatory No. 6. With respect to the rest of Russ’s answers, while it is possible that they might
encompass some privileged communications, the Court agrees with Johnson that they are tailored to
avoid privileged material, and that Russ has failed to meet his burden to demonstrate that they are
not.

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B. Crime-Fraud Exception
Johnson suggests that to the extent the attorney-client privilege is applicable to Russ’s
interrogatory responses regarding communications between Russ and the City, the crime-fraud
exception is applicable. The Court has determined that Russ has failed to demonstrate the
applicability of the attorney-client privilege to his responses regarding his communications with the
City, thus it need not consider the applicability of the crime-fraud exception.
C. Responsiveness of Russ’s Answers
Finally, Johnson argues that Russ’s answers to Interrogatories No. 3 and No. 4 are not fully
responsive. In Russ’s response to Johnson’s motion to compel, he agrees with respect to No. 3, and
explains that he “will provide a supplemental response addressing recall petitions.” With respect to
No. 4, the Court agrees that Russ’s answer is non-responsive; the interrogatory asks about whether
Russ communicated the contents of Ms. Hancock’s letter, while the answer relates to why the City
challenged the petition. The Court will therefore order a full response to Interrogatory No. 4.
IV. Conclusion
In light of the foregoing, the Court hereby GRANTS in part and DENIES in part
Defendant Russ’s Motion for Protective Order, (Dkt. 21), and GRANTS in part and DENIES in
part Plaintiff Johnson’s Motion to Compel, (Dkt. 22).
With respect to Johnson’s Second Set of Interrogatories, Russ is hereby ORDERED to
respond fully to Interrogatories No. 2 and 4, and to respond to Interrogatory No. 6 to the extent it
asks about Russ’s own communications with law enforcement regarding the subject matter of
Johnson’s suit or information about when and how his attorneys communicated with law
enforcement regarding the subject matter of Johnson’s suit.
It is further ORDERED that Russ’s motion for a protective order is granted to the extent
Johnson’s discovery requests ask for the content of any communication between his attorneys or

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representatives and a third party, including law enforcement, about the subject matter of Johnson’s
litigation.
SIGNED on March 21, 2017.

ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

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