Jensen v. West Jordan City et al

Filing 124

MEMORANDUM DECISION granting in part and denying in part 116 Motion to Compel. Plaintiff shall fully respond to Document Requests 21 and 25 and immediately turn over the thirteen emails identified in their briefing. The remainder o f Defendants Motion is denied. Further, Defendants must file any opposition brief related to the pending motions to quash no later than December 4, 2015. (See Dkt. 61, 64.) This brief shall be limited to a single twelve-page document and shall includ e an initial section showing cause why the court should consider the tardy oppositions. Plaintiffs reply, if any, shall be filed no later than December 14, 2015, and must be no longer than ten pages. In the absence of any action by the parties, the court will simply grant the unopposed motions to quash. Signed by Magistrate Judge Dustin B. Pead on 11/20/15. (jlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
AARON JENSEN,
MEMORANDUM DECISION
Plaintiff,
Case No. 2:12-cv-00736-DAK-DBP
v.
District Judge Dale A. Kimball
WEST JORDAN CITY, et al.,
Magistrate Judge Dustin B. Pead
Defendants.

INTRODUCTION
This civil rights matter was referred to the Court under 28 U.S.C. § 636(b)(1)(A). (Dkt. 36.)
Plaintiff Aaron Jensen alleges that West Jordan City and his former supervisor, Lt. Robert
Shober, acted wrongfully in connection with a 2009 settlement of Plaintiff’s discrimination
claims against the City. The matter is presently before the court on Defendants’ Motion to
Compel Responses to First Set of Discovery. (Dkt. 116.)
ANALYSIS
I.

Motion to compel

Defendants seek to compel responses to four requests for production of documents that seek
written communications between Plaintiff’s counsel and certain prosecuting agencies 1, arrest
records, and medical records. (Dkt. 116 at iii.) Defendants also seek an award of fees. (Id. at 8.)
In response, Plaintiff argues that the communications between his counsel and the prosecuting
agencies are protected by the work-product privilege. (Dkt. 120 at 5–8.) Plaintiff suggests he is
unsure what documents Defendants seek related to his arrest records. (Dkt. 120 at 8.) As to the

1

The prosecuting agencies are the Davis County Attorney’s Office and the Salt Lake County
District Attorney’s Office.
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medical records, Plaintiff asserts that he has turned over all records in his possession from Dr.
Soderquist and that his objection to the subpoena to Cirque Lodge has not yet been resolved. (Id.
at 10–11.) Plaintiff also asserts that Defendants failed to meet and confer and that their motion to
compel is untimely. (Id. at 2–3.) Plaintiff also requests an award of attorney fees.
Defendants argue in their reply that they attempted to meet and confer regarding these
discovery issues and that the motion to compel is timely. (Dkt. 121 at 1.) Defendants argue that
the communications with prosecuting agencies are not privileged, and even if they were at one
point, any privilege has been waived. (Id. at 2–3.) Defendants argue that “[i]f there are additional
records” related to this request, Defendants would like them produced. (Id. at 3.) Defendants’
reply shifts focus regarding the medical records. Rather than arguing that Plaintiff needs to
produce documents, Defendants suggest “they are entitled to every document in Dr. Soderquist’s
possession” and that Defendants have “received nothing from Cirque Lodge.” (Dkt. 121.)
a. The motion to compel is timely
Plaintiff’s argument regarding timeliness is not persuasive. Plaintiff cites a case from the
District of Oklahoma that is distinguishable on many grounds, not the least of which are length
of delay and proximity to trial. See Cont'l Indus., Inc. v. Integrated Logistics Sols., LLC., 211
F.R.D. 442, 444 (N.D. Okla. 2002) (finding a motion to compel untimely where plaintiff “waited
18 months before moving to compel production” filing the motion “only three weeks before the
scheduled trial”). Plaintiff does not indicate when he first received the discovery requests at
issue. He indicates that Defendants “knew by March 31, 2015,” that Plaintiff would not produce
these materials. Defendants filed their motion to compel on October 16, 2015. This delay of
seven months does not appear unjustified, particularly in light of the correspondence between the
parties. Additionally, the motion was filed four days after the close of fact discovery. While it is

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conceivable that a seven-month delay could justify denying a motion to compel as untimely, the
court does not find that such denial is warranted here. Further, trial in this matter is set to begin
August 29, 2016, over nine months from now. Accordingly, the motion to compel is timely.
b. Defendants did not adequately attempt to meet and confer
In matters where parties are represented by counsel, “the court will not entertain any
discovery motion, unless counsel for the moving party files . . . a statement showing that counsel
making the motion has made a reasonable effort to reach agreement with opposing counsel on
the matters set forth in the motion.” D. U. Civ. R. 37-1(a)(1). “Such statement must provide the
date, time, and place where counsel conferred and the names of all participants at the
conference.” Id. It is within the Court’s discretion to deny a motion to compel for failure to
comply with the meet-and-confer requirements set forth in its local rules. See Schulte v. Potter,
218 F. App'x 703, 709 (10th Cir. 2007).
Here, Defendants do not identify any informal conference that took place to address these
discovery issues. Instead, Defendants point to correspondence between the parties. Rule 371seems to suggest the parties must actually meet because it requires the parties set forth the place
where they conferred. See D. U. Civ. R. 37-1(a)(1). Yet the rule is somewhat more flexible.
Correspondence will sometimes suffice, though a conference (even telephonic) is preferable. The
conference requirement helps conserve judicial resources. Informal conferences can narrow the
issues between the parties and may even obviate the need for some discovery motions. The court
finds that Defendants failed to show a reasonable effort to meet and confer regarding the request
for Plaintiff’s arrest and medical records.
First, Defendants argue their August email constituted their attempt to meet and confer. This
email addresses only the purportedly privileged communications between counsel and the

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prosecuting agencies. (See Dkt. 116, Ex. F & G.) It does not appear to address arrest or medical
records. Further, Defendants reply makes clear that they are unsure what arrest records they seek
from Plaintiff. (See Dkt. 121 at 3.) This issue could have been clarified quickly in a conference
without the need to expend judicial resources. Likewise, the issue regarding medical records is
unclear as a result of the lack of discussion between the parties. As addressed below, it appears
that Defendants are demanding records in the possession of third parties, not Plaintiff. 2 Infra Part
I.c. Thus, Defendants motion to compel will be denied as far as it seeks to compel arrest and
medical records because Defendants did not comply with the local rule to set forth their
reasonable efforts to meet and confer.
Nonetheless, the remaining issues appear sufficiently clear for the court’s decision despite
the lack of a conference. The parties’ briefing and correspondence clarifies their respective
positions and pertinent facts regarding the privilege issues governing communications between
Plaintiff’s counsel and prosecuting agencies. Thus, the court reaches the merits of the remaining
issues in Defendants’ motion to compel.
c. Privilege issues
Even assuming the work-product privilege applies to some portion of the correspondence
between Plaintiff’s counsel and the prosecuting agencies, Plaintiff clearly waived the privilege
when he shared the materials with the prosecuting agencies. Plaintiff objected to document
requests number 21 and 25 on work-product privilege grounds. “Work-product protection
‘extends to the production of material assembled by an attorney in preparation for impending
litigation.’” United States v. Ary, 518 F.3d 775, 783 (10th Cir. 2008). “The protection of workproduct, however, is not absolute and may be waived.” Id. “Courts will imply waiver when a

2

To the extent this is the case, the request may be inappropriate under Rule 26(b)(2)(C)(i).
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party claiming the protection has voluntarily disclosed work product to a party not covered by
the work-product doctrine.” Id. The Tenth Circuit has noted that even inadvertent disclosure of
work-product material to prosecutors may waive the privilege See id. (citing In re Grand Jury
(Impounded), 138 F.3d 978, 979 (3d Cir. 1998)).
Here, Plaintiff admits that he turned the information at issue over to the prosecuting agencies.
Plaintiff’s argument on this point is somewhat confusing. He states that his attorney “absolutely
would have shared” work product with prosecutors in a criminal case, but he does not offer any
authority that provides a waiver exception in such circumstances. Although he fails to cite any
case on the issue or invoke the doctrine specifically, Plaintiff appears to argue that the court
should apply selective waiver to his disclosure. In other words, Plaintiff believes that turning
over the materials at issue should not waive his work-product claim as to everyone, but only the
prosecuting agencies. Selective waiver has not been adopted in the Tenth Circuit. See In re
Qwest Commc'ns Int'l Inc., 450 F.3d 1179 (10th Cir. 2006) (refusing to adopt selective waiver
where plaintiff in civil action sought documents previously produced by defendant to
government agencies pursuant to confidentiality agreement between agencies and defendant).
Further, the court finds selective waiver should not be applied in these circumstances,
particularly where Plaintiff did not properly brief the issue.
d. Medical records
As mentioned above, this issue will not be considered for purpose of the motion to compel
because Defendants did not show reasonable attempts to meet and confer with Plaintiff prior to
filing their motion. Supra Part I.a. Nonetheless, there appears to be significant outstanding issues
related to Plaintiff’s medical records. The motion ostensibly seeks discovery responses from
Plaintiff. Yet, the briefing addresses a subpoena served on Cirque Lodge and documents

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apparently in the possession of Dr. Soderquist, not Plaintiff. Defendants state “they are entitled
to every document in Dr. Soderquist’s possession” and that they have “received nothing from
Cirque Lodge.” (Dkt. 121.) As Plaintiff points out, he has a pending motion to quash the
subpoena to Cirque Lodge and Scott Stapley. (See Dkt. 61.) However, Defendants indicate that
the parties discussed the subpoena and that Plaintiff’s initial objection may have been obviated
by a protective order, which has since been entered. (Dkt. 116 at 7.) This suggestion is plausible
given that Plaintiff never submitted the motion to quash for decision. Plaintiff does not discuss
the extent of any conversations with Defendants and indicates only that his “objections . . . are
still pending before this Court.” (Dkt. 120.) It is not clear from the docket whether the parties
reached an informal resolution on the motion to quash or simply forgot about it. Additionally,
there is a second pending motion to quash that neither party appears to mention. (See Dkt. 64.)
Accordingly, the court will order the parties to address these two outstanding motions. If
Defendants intend to oppose the motions to quash, they must file an opposition brief no later
than December 4, 2015. This brief shall address not only the merits of the motions to quash, but
must also show cause why the court should consider a tardy opposition. Plaintiff shall file his
reply, if any, no later than December 14, 2015. If the parties are able to reach a stipulated
agreement, they shall so advise the court. In the absence of any action by the parties, the court
will simply grant the unopposed motions to quash. See D. U. Civ. R. 7-1(d).
e. The Court will not award fees
Defendants are only partially successful on the motion to compel. Accordingly, the Court has
discretion to apportion fees. Fed. R. Civ. P. 37(a)(5)(C). The court declines to award fees to
either party.

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ORDER
For the reasons set forth above, the Court GRANTS IN PART AND DENIES IN PART
Defendants’ Motion to Compel Responses to First Set of Discovery. (Dkt. 116.) Plaintiff shall
fully respond to Document Requests 21 and 25 and immediately turn over the thirteen emails
identified in their briefing. The remainder of Defendants’ Motion is denied.
Further, Defendants must file any opposition brief related to the pending motions to quash no
later than December 4, 2015. (See Dkt. 61, 64.) This brief shall be limited to a single twelve-page
document and shall include an initial section showing cause why the court should consider the
tardy oppositions. Plaintiff’s reply, if any, shall be filed no later than December 14, 2015, and
must be no longer than ten pages. In the absence of any action by the parties, the court will
simply grant the unopposed motions to quash.
IT IS SO ORDERED.
Dated this 20th day of November, 2015.

By the Court:

Dustin B. Pead
United States Magistrate Judge

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