Trans-Western Petroleum v. Wolverine Gas and Oil et al
Filing
133
MEMORANDUM DECISION granting 127 Motion to Quash Subpoena. Signed by Magistrate Judge Paul M. Warner on 12/15/2011. (tls)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
TRANS-WESTERN PETROLEUM, INC.,
a Colorado corporation,
MEMORANDUM DECISION
AND ORDER
Plaintiff,
Case No. 2:06-cv-801-TS-PMW
v.
WOLVERINE GAS AND OIL
CORPORATION, a Michigan corporation,
et al.,
Defendants.
Chief District Judge Ted Stewart
Magistrate Judge Paul M. Warner
Chief District Judge Ted Stewart referred this case to Magistrate Judge Paul M. Warner
pursuant to 28 U.S.C. § 636(b)(1)(A).1 Before the court is Trans-Western Petroleum, Inc.
(“Trans-Western”) and Brynne Shanner’s (“Shanner”) (collectively, “Movants”) motion to quash
a subpoena issued to Shanner (“Subpoena”).2 The court has carefully reviewed the written
memoranda submitted by the parties. Pursuant to civil rule 7-1(f) of the Rules of Practice for the
United States District Court for the District of Utah, the court has concluded that oral argument is
not necessary and will determine the motion on the basis of the written memoranda. See
DUCivR 7-1(f).
1
See docket nos. 2, 3.
2
See docket no. 127.
RELEVANT BACKGROUND
Trans-Western, through a related entity, is a party to a joint venture that was formed for
the purpose of obtaining an oil and gas lease (“Joint Venture”). Also through an entity, Shanner
is a party to the Joint Venture. During litigation, Trans-Western’s principal, Doug Isern,
forwarded certain e-mails (“Documents”) to the partners in the Joint Venture, including Shanner.
The overwhelming majority of the Documents were either sent to or sent by Movants’ counsel.
In September 2011, United States Gypsum Company (“Defendant”) issued the Subpoena
to Shanner to produce, among other things, the Documents and to appear for a deposition.
Movants objected to the Subpoena. After the parties met and conferred in an attempt to resolve
the dispute over the Subpoena, Movants filed the motion to quash now before the court.
ANALYSIS
In their motion, Movants seek to quash the Subpoena to the extent it seeks the
Documents, which Movants claim are protected from disclosure by the attorney-client privilege
and the work-product doctrine. Movants have also submitted the Documents for an in camera
review. Movants admit that the Documents were disclosed to Shanner. However, relying on the
common-interest doctrine, Movants argue that said disclosure did not waive protection of the
Documents under either the attorney-client privilege or the work-product doctrine.
Pursuant to rule 45(c)(3)(A)(iii) of the Federal Rules of Civil Procedure, “[o]n timely
motion, the issuing court must quash or modify a subpoena that . . . requires disclosure of
privileged or other protected matter, if no exception or waiver applies.” Fed. R. Civ. P.
45(c)(3)(A)(iii). The Tenth Circuit “reviews the district court’s rulings on attorney-client
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privilege and work-product protection for abuse of discretion.” United States v. Ary, 518 F.3d
775, 782 (10th Cir. 2008).
In response to Movants’ motion, Defendant argues that (1) the motion is premature and
untimely; (2) Movants’ objection letter and privilege log do not comply with rule 45(d)(2)(A);
(3) the Documents are not subject to the attorney-client privilege or the work-product doctrine;
and (4) even if the Documents are subject to the attorney-client privilege or the work-product
doctrine, the common-interest doctrine does not apply and, consequently, Trans-Western’s
disclosure of the Documents to Shanner and the other partners of the Joint Venture operates as a
waiver of those protections. The court will address Defendant’s arguments in turn.
I. Premature and Untimely
Defendant argues that Movants’ motion is premature and untimely. The court concludes
that both of those arguments fail. While Defendant makes the general argument that
Trans-Western has failed to comply with its overall discovery obligations, Defendant has failed
to establish that the instant motion is premature. To the contrary, the parties’ correspondence
demonstrates to the court that the parties reached an impasse, after complying with the obligatory
meet-and-confer requirement, on the issue of whether the Documents are protected by the
attorney-client privilege or the work-product doctrine. As such, the court cannot say that
Movants’ motion is premature.
The court likewise cannot say that Movants’ motion is untimely. Although it is not
entirely clear from the parties’ written submissions, it appears that Defendant takes issue only
with Movants’ decision to send their objections to the Subpoena by regular mail, rather than by
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hand delivery or e-mail. In short, based on the information provided by the parties, it does not
appear that Movants failed to object within the time frame required by rule 45(c)(2)(B). See Fed.
R. Civ. P. 45(c)(2)(B).
II. Objection Letter and Privilege Log
Defendant contends that Movants’ objection letter and privilege log fail to comply with
the requirements of rule 45(d)(2)(A). Pursuant to rule 45(d)(2)(A),
A person withholding subpoenaed information under a claim that it
is privileged or subject to protection as trial-preparation material
must:
(i) expressly make the claim; and
(ii) describe the nature of the withheld documents,
communications, or tangible things in a manner that,
without revealing information itself privileged or protected,
will enable the parties to assess the claim.
Fed. R. Civ. P. 45(d)(2)(A)(i)-(ii).
The court is not persuaded by Defendant’s arguments. The letter that Movants’ counsel
sent to Defendant’s counsel clearly states that Movants were objecting to the Subpoena because it
sought material that was protected by the attorney-client privilege and work-product doctrine.
Subsequently, Movants sent Defendant a privilege log that, in the court’s view, provides
sufficient information to comply with the requirements of rule 45(d)(2)(A). Furthermore, after
conducting an in camera review of the Documents, the court has determined that the information
provided on the privilege log accurately describes the Documents.
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III. Applicability of Attorney-Client Privilege and Work-Product Doctrine
Defendant asserts that the Documents are not protected by the attorney-client privilege or
the work-product doctrine.
The attorney-client privilege is the oldest of the privileges
for confidential communications known to the common law. Its
purpose is 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.
Ary, 518 F.3d at 782 (quotations and citations omitted).
The attorney-client privilege protects confidential
communications by a client to an attorney made in order to obtain
legal assistance from the attorney in his capacity as a legal advisor.
[T]he mere fact that an attorney was involved in a communication
does not automatically render the communication subject to the
attorney-client privilege, rather, the communication between a
lawyer and client must relate to legal advice or strategy sought by
the client.
Although this description of the attorney-client privilege
suggests the privilege only applies one way, operating to protect
the client’s communications to a lawyer, it is generally also
recognized that the privilege will protect at least those attorney to
client communications which would have a tendency to reveal the
confidences of the client.
In re Grand Jury Proceedings, 616 F.3d 1172, 1182 (10th Cir. 2010) (quotations and citations
omitted) (alteration in original).
Because confidentiality is critical to the privilege, it will be
lost if the client discloses the substance of an otherwise privileged
communication to a third party. The confidentiality of
communications covered by the privilege must be jealously
guarded by the holder of the privilege lest it be waived. Where
disclosure to a third party is voluntary, the privilege is waived.
5
Ary, 518 F.3d at 782 (quotations and citations omitted). The party asserting the attorney-client
privilege bears the burden of establishing its applicability. See In re Grand Jury Proceedings,
616 F.3d at 1183.
The work-product doctrine . . . shelters the mental
processes of the attorney, providing a privileged area within which
he can analyze and prepare his client’s case. In performing his
various duties . . . it is essential that a lawyer work with a certain
degree of privacy, free from unnecessary intrusion by opposing
parties and their counsel.
Work-product protection extends to the production of
material assembled by an attorney in preparation for impending
litigation. . . . The protection of work-product, however, is not
absolute and may be waived. . . . Courts will imply waiver when a
party claiming the protection has voluntarily disclosed work
product to a party not covered by the work-product doctrine.
Ary, 518 F.3d at 782-83 (quotations, citations, and footnote omitted) (second alteration in
original); see Fed. R. Civ. P. 26(b)(3) (codifying work-product doctrine). The party asserting the
work-product doctrine bears the burden of establishing its applicability. See In re Grand Jury
Proceedings, 616 F.3d at 1185.
The court concludes that Defendant’s arguments concerning the applicability of the
attorney-client privilege and the work-product doctrine are without merit. After conducting an in
camera review of the Documents, the court has determined that they all relate to legal advice and
strategy, reveal Movants’ confidences, or were prepared in anticipation of litigation. See Fed. R.
Civ. P. 26(b)(3); In re Grand Jury Proceedings, 616 F.3d at 1183-85; Ary, 518 F.3d at 782-83.
Accordingly, the court concludes that the Documents are indeed protected by either the
attorney-client privilege or the work-product doctrine.
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IV. Common-Interest Doctrine
Finally, Defendant argues that even if the Documents are subject to the attorney-client
privilege or the work-product doctrine, the common-interest doctrine does not apply and,
consequently, Trans-Western’s disclosure of the Documents to Shanner and the other partners of
the Joint Venture operates as a waiver of those protections.
The Tenth Circuit has recognized the common-interest doctrine, which “normally
operates as a shield to preclude waiver of the attorney-client privilege when a disclosure of
confidential information is made to a third party who shares a community of interest with the
represented party.” Frontier Ref. Inc. v. Gorman-Rupp Co., 136 F.3d 695, 705 (10th Cir. 1998);
see also In re Qwest Commc’ns Int’l, 450 F.3d 1179, 1195 (10th Cir. 2006) (providing that the
common-interest doctrine “provides an exception to waiver because disclosure advances the
representation of the party and the attorney’s preparation of the case”). This court has also
recognized the common-interest doctrine and applied it to both the attorney-client privilege and
the work-product doctrine. See Phillip M. Adams & Assocs., L.L.C. v. Winbond,
No. 1:05-cv-64-TS, 2010 U.S. Dist. LEXIS 76271, at *21-23 (D. Utah July 26, 2010)
(recognizing common-interest doctrine and finding “that the documents are, as claimed, work
product, attorney-client and/or joint prosecution for which the common interest doctrine should
apply”); P.J. v. Utah, No. 2:05-cv-739, 247 F.R.D. 664, 675 (D. Utah Nov. 27, 2007) (“Attorney
work product may be disclosed to persons who share a common interest without waiving the
privilege.”). The common-interest doctrine is applicable to joint ventures. See, e.g., United
States v. BDO Seidman, LLP, 492 F.3d 806, 815-816 (7th Cir. 2007) (“[T]he common interest
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doctrine only will apply where the parties undertake a joint effort with respect to a common legal
interest, and the doctrine is limited strictly to those communications made to further an ongoing
enterprise. . . . Reason and experience demonstrate that joint venturers, no less than individuals,
benefit from planning their activities based on sound legal advice predicated upon open
communication.”).
As noted above, Trans-Western and Shanner (through respective entities) are both parties
to the Joint Venture. Further, Trans-Western and Shanner are represented by the same legal
counsel in relation to this case. Finally, as noted by Movants, Shanner has a direct and
coterminous financial interest with Trans-Western in the Joint Venture. For these reasons, the
court concludes that Trans-Western and Shanner share a common legal interest with respect to
this case and the Documents. Accordingly, the court concludes that the common-interest
doctrine does apply here and, as a result, Trans-Western’s disclosure of the Documents to
Shanner and the other partners of the Joint Venture did not operate as a waiver of either the
attorney-client privilege or the work-product doctrine. See, e.g., id. at 816 (stating that “the
scope of the common interest doctrine is limited to a common legal interest to which the parties
formed a common strategy” and affirming the trial court’s conclusion that the common-interest
doctrine applied to a joint venture).
CONCLUSION AND ORDER
The court has determined that all of Defendant’s arguments fail and that Movants have
met their burden of demonstrating the applicability of the attorney-client privilege and the
work-product doctrine. Accordingly, the court concludes that the Documents are protected by
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either the attorney-client privilege or the work-product doctrine. Movants’ motion to quash the
Subpoena3 is GRANTED.
IT IS SO ORDERED.
DATED this 15th day of December, 2011.
BY THE COURT:
PAUL M. WARNER
United States Magistrate Judge
3
See docket no. 127.
9
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