Jensen v. West Jordan City et al

Filing 39

MEMORANDUM DECISION denying 33 Motion to Quash. Signed by Magistrate Judge Dustin B. Pead on 5/29/14. (jlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

AARON JENSEN,
Plaintiff,

MEMORANDUM DECISION
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.

I.

INTRODUCTION

This civil rights complaint was referred to the Court under 28 U.S.C. § 636(b)(1)(A).
(Docket No. 36.) Plaintiff is Aaron Jensen. Defendant relevant here is West Jordan City, a Utah
municipal corporation. Defendant previously subpoenaed nonparty Brenda Beaton (“Movant”).
In response, Movant filed this motion to quash Defendant’s subpoena. (Dkt. No. 33.) For the
reasons set forth below, the Court DENIES the motion.
II.

PROCEDURAL HISTORY

In April 2009, Plaintiff entered into a settlement agreement with Defendant regarding
harassment that Plaintiff suffered while employed by the West Jordan City Police Department.
(Dkt. No. 5 at 12-13.) Movant represented Plaintiff in that settlement as his attorney. (Dkt. Nos.
33 at 1; 37 at 2.) After withdrawing as Plaintiff’s attorney in that case, Movant still periodically
assisted Plaintiff with his legal issues, including his current complaint. (Dkt. No. 33 at 1.)

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Plaintiff’s current complaint relates to continued harassment that Defendant inflicted on Plaintiff.
(Dkt. No. 5.) Movant also currently represents Plaintiff in another unrelated matter. (Dkt. No.
33 at 2.)
On April 11, 2014, Defendant subpoenaed Movant to testify at a deposition and to bring the
following documents: (1) all written and electronic communications regarding Plaintiff that
Movant received from or transmitted to West Jordan employees/representatives; (2) all
settlement agreements regarding Plaintiff that Movant exchanged with West Jordan
employees/representatives; and (3) all documents related to any investigation/prosecution
regarding Plaintiff that was conducted by the Salt Lake County District Attorney’s Office, the
Davis County Attorney’s Office, the Utah County Attorney’s Office, P.O.S.T., and any other
municipality, county agency, state agency, or federal agency. (Dkt. No. 34, Attach. A.)
III.

STANDARD OF REVIEW FOR MOTION TO QUASH SUBPOENA

On April 22, 2014, Movant objected to Defendant’s subpoena. (Dkt. No. 34.) On April 23,
2014, Movant filed the current motion to quash the subpoena. (Dkt. No. 33.) Applicable here,
“[o]n timely motion,” a 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(d)(3)(A)(iii). However, the party bringing the privilege claim bears the burden to establish
that it applies. In re Grand Jury Subpoenas, 144 F.3d 653, 658 (10th Cir. 1998).
IV.

ANALYSIS OF MOVANT’S MOTION TO QUASH SUBPOENA

Movant seeks to quash Defendant’s subpoena because she acted as Plaintiff’s previous
counsel. (Dkt. No. 33.) Movant primarily argues that her subpoenaed testimony “is likely to
encroach upon her legal and ethical obligations to maintain attorney/client privilege.
Furthermore, such testimony is likely to encroach upon her attorney work product.” (Id. at 2.)

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Defendant opposes Movant’s motion to quash because it “is not seeking privileged
documents or privileged testimony . . . .” (Dkt. No. 37 at 3.) Instead, Defendant claims it
drafted its subpoena to “avoid[] any request for a privileged document.” (Id.) For instance,
some subpoenaed communications occurred between Movant and “multiple third-party
individuals, entities, and agencies . . . .” (Id.) Therefore, Movant cannot claim such
communications fall under the attorney-client privilege. (Id.) See In re Chevron Corp., 650 F.3d
276, 289 (3d Cir. 2011) (“[I]f persons other than the client, its attorney, or their agents are
present, the communication is not made in confidence, and the privilege does not attach.”)
(quotations omitted).
Even assuming the subpoena covers protected information, Defendant argues that Movant’s
“blanketed” privilege and work product claims are insufficient to quash Defendant’s subpoena.
(Dkt. No. 37 at 3.) In this regard, Defendant emphasizes that Movant fails “to provide a single
legal authority to” support such claims. (Id. at 4.)
The Court agrees with Defendant. To the extent that Defendant’s subpoena seeks Movant’s
communications with third parties, such communications might fall outside protected grounds.
Movant’s blanket statement that Defendant’s subpoena “is likely to encroach” on her attorneyclient privilege and her work product fails to convince the Court otherwise.
Accordingly, the Court DENIES Plaintiff’s motion to quash on attorney-client privilege and
work product grounds. See S.E.C. v. Badger, No. 2:97-CV-963K, 2009 WL 816133, at * 2 (D.
Utah 2009) (unpublished) (“Rather than a blanket assertion of privilege, if [subpoenaed person]
has documents that are subject to the attorney-client privilege or are otherwise privileged, he
must . . . provide a description of any documents withheld.”).

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In so ruling, the Court appreciates Movant’s concerns about disclosing “expunged and
sealed” criminal records and other confidential information “furnished by a prosecution or
investigative entity.” (Dkt. No. 33 at 3.) The Court emphasizes that Movant may “withhold[]
[such] subpoenaed information under a claim that it is privileged or subject to protection as trialpreparation material . . . .” Fed. R. Civ. P. 45(e)(2)(A). However, if Movant so withholds, she
“must . . . 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.” Id. 45(e)(2)(A)(ii).
As another reason to quash Defendant’s subpoena, Movant argues that Defendant failed to
reasonably compensate her for her time associated with the subpoena. (Dkt. No. 33 at 3.)
Movant argues the check for $95.11 that Defendant sent her is insufficient because Movant
“regularly charges $300.00 an hour for her services as a criminal defense attorney and $250.00
an hour for her services as a civil attorney.” (Id.)
Defendant counters that it “calculated [Movant’s] witness fee of $40.00 as outlined in 28
U.S.C. § 1821(b), and a mileage in compliance with IR-2013-95 of 0.56 [cents] per mile from
the location of [Movant’s] office to the location of the deposition in West Jordan City.” (Dkt.
No. 37 at 7.) See 28 U.S.C. § 1821(b) (“A witness shall be paid an attendance fee of $40 per day
for each day’s attendance.”); I.R.S. News Release IR-2013-95 (Dec. 6, 2013) (setting “the
standard mileage rates for the use of a car” at “56 cents per mile for business miles driven.”).
Moreover, Plaintiff cites no authority that requires a subpoenaed witness to be reimbursed at
their billable hour rate. As such, the Court DENIES Plaintiff’s motion to quash on reasonable
compensation grounds. See Brown v. City of Maize, Kan., Case No. 07-1178-JTM, 2008 WL
754742, at *4 (D. Kan. Mar. 18, 2008) (unpublished) (concluding that reimbursement “for the

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cost of producing [] requested documents at $0.15 per page” was “reasonable,” and finding that
subpoenaed individuals’ “demand for attorneys’ fees of $150/hour” was “not warranted.”).
V.

ORDERS

For the reasons set forth above, the Court DENIES Movant Brenda Beaton’s motion to
quash Defendant West Jordan City’s subpoena. (Dkt. No. 33.)
Movant must comply with Defendant’s subpoena. Within fifteen (15) days of this order,
Movant must provide Defendant with all responsive documents to Defendant’s subpoena. To the
extent Movant claims the subpoenaed information is protected, Movant must comply with the
requirements at Fed. R. Civ. P. 45(e)(2)(A) for making such claims. Within thirty (30) days
after producing the subpoenaed documents, Movant must appear at a mutually agreed upon time
for the subpoenaed deposition.
Dated this 28th day of May, 2014.

By the Court:

Dustin B. Pead
United States Magistrate Judge

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