Salt Lake City Corporation et al v. ERM WEST et al

Filing 257

MEMORANDUM DECISION and ORDER denying #105 Motion to Compel; denying #186 Motion to Compel. Signed by Magistrate Judge Paul M. Warner on 2/3/2015. (blh)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
SALT LAKE CITY CORPORATION, a
Utah municipal corporation; BP
PRODUCTS NORTH AMERICA INC., a
Maryland corporation; and CHEVRON
U.S.A. INC., a Pennsylvania corporation,
Plaintiffs,
v.
ERM-WEST, INC., a California
corporation; COMPASS
ENVIRONMENTAL, INC., a Delaware
corporation; and WRS
INFRASTRUCTURE AND
ENVIRONMENT, INC., a North Carolina
corporation, dba WRSCOMPASS, INC.,
Defendants.

MEMORANDUM DECISION
AND ORDER

Case No. 2:11-cv-1174-TS-PMW

District Judge Ted Stewart
Magistrate Judge Paul M. Warner

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 are the portions of ERM-West, Inc.’s
(“ERM”) two motions to compel seeking certain documents that Salt Lake City Corporation, BP
Products North America Inc., and Chevron U.S.A. Inc. (collectively, “Plaintiffs”) have
designated as privileged (“Privileged Documents”). 2

1

See docket nos. 62, 63.

2

See docket nos. 105, 186.

On November 14, 2014, this court issued a memorandum decision and order, which,
among other things, took under advisement the portions of ERM’s two motions to compel
seeking the Privileged Documents. 3 In that order, the court directed Plaintiffs to submit the
Privileged Documents to the court for an in camera review. Plaintiffs submitted the Privileged
Documents to the court as ordered. The court has now completed an in camera review of the
Privileged Documents and is prepared to rule on the portions ERM’s two motions to compel
previously taken under advisement.
Plaintiffs contend that the Privileged Documents are protected from disclosure by the
attorney-client privilege. 4
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.
United States v. Ary, 518 F.3d 775, 782 (10th Cir. 2008) (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
3

See docket no. 232.

4

Plaintiffs also contend that certain of the Privileged Documents are protected from disclosure
by the common-interest doctrine. ERM has presented no arguments concerning Plaintiffs’ claims
of privilege under that doctrine. Accordingly, the court will not address that issue here.
2

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). The party asserting the attorney-client privilege bears the
burden of establishing its applicability. See id. at 1183.
In a diversity case like this one, Utah privilege law controls. See Motley v. Marathon Oil
Co., 71 F.3d 1547, 1551 (10th Cir. 1995); see also Fed. R. Evid. 501. Under Utah law, a party
has
a privilege to refuse to disclose, and to prevent any other person
from disclosing, confidential communications . . . made for the
purpose of facilitating the rendition of professional legal services
to the client [where] the communications were between [or among]
the client and the client’s representatives, lawyers, lawyer’s
representatives, and lawyers representing others in matters of
common interest.
Utah R. Evid. 504(b). Further, in Utah, attorney-client communications can be privileged even if
they involve an independent contractor or consultant. See Utah R. Evid. 504 Advisory
Committee Note (“[A] representative of the client who may be an independent contractor, such
as an independent accountant, consultant or person providing other services, is a representative
of the client . . . if such person has been engaged to provide services reasonably related to the
subject matter of the legal services or whose service is necessary to provide such service.”).
After conducting an in camera review of the Privileged Documents, the court has
determined that they all contain communications “made for the purpose of facilitating the
rendition of professional legal services to the client . . . between [or among] the client and the
client’s representatives, lawyers, lawyer’s representatives, and lawyers representing others in
3

matters of common interest.” Utah R. Evid. 504(b). Further, the court concludes that the
communications with the consultants contained in the Privileged Documents directly relate to
“services reasonably related to the subject matter of the legal services.” Utah R. Evid. 504(b)
Advisory Committee Note. As such, those communications are covered by the attorney client
privilege even though the consultants were involved in them. For those reasons, the court
concludes that the Privileged Documents are protected from disclosure by the attorney-client
privilege.
The court turns next to ERM’s waiver arguments. ERM first argues that Plaintiffs have
waived the attorney-client privilege with respect to the Privileged Documents because they have
put them “at issue” in this case. See, e.g., Terry v. Bacon, 269 P.3d 188, 193 (Utah Ct. App.
2011).
Generally, when a party places privileged matters at issue in the
litigation that party implicitly consents to disclosure of those
matters. Communications between the attorney and client are
placed in issue where the client asserts a claim or defense, and
attempts to prove that claim or defense by disclosing or describing
an attorney client communication.
Id. (quotations and citations omitted).
In response, Plaintiffs argue that ERM has not demonstrated that Plaintiffs’ claims for
relief are based on privileged communications. The court agrees. ERM has failed to persuade
the court that the “at issue” exception to the attorney-client privilege applies here.
ERM next argues that Plaintiffs waived the attorney-client privilege with respect to the
Privileged Documents because Plaintiffs have disclosed other documents that contain
communications with the consultants who are also included in the communications contained in
the Privileged Documents. That argument fails. Plaintiffs contend that they have properly
4

separated communications that meet the requirements for attorney-client privilege from
communications that do not, regardless of whether they included the consultants, attorneys, or
anyone else. The court presumes that said assertion was made in good faith and, consequently,
accepts it as true. Further, if the court were to agree with ERM’s argument, it would essentially
mean that a party would waive its attorney-client privilege for all communication with counsel
that involved a consultant simply by disclosing any communication that counsel had with that
consultant, regardless of whether certain of the communications otherwise met the requirements
for the attorney-client privilege.
Based on the foregoing, IT IS HEREBY ORDERED that the portions of ERM’s two
motions to compel 5 seeking the Privileged Documents are DENIED. Given that the court has
denied ERM’s requested relief, it logically follows that ERM’s requests for an award of
reasonable expenses incurred in connection with requesting that relief are likewise DENIED.
IT IS SO ORDERED.
DATED this 3rd day of February, 2015.
BY THE COURT:

PAUL M. WARNER
United States Magistrate Judge

5

See docket nos. 105, 186.
5