Swasey et al v. West Valley City et al

Filing 78

MEMORANDUM DECISION AND ORDER Directing Filing of Privilege Logs; taking under advisement 69 Motion to Quash; taking under advisement 71 Motion to Quash. Signed by Magistrate Judge Brooke C. Wells on 11/10/15 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
DANIELLE SWASEY, et al.,
Plaintiffs,
v.
WEST VALLEY CITY; SHAUN COWLEY;
KEVIN SALMON; SEAN McCARTHY;
JOHN COYLE; THALE "BUZZ" NIELSON,
Defendants.

MEMORANDUM DECISION AND ORDER
DIRECTING THE FILING OF A PRIVILEGE
LOG AND TAKING THE MOTIONS
UNDER ADVISEMENT
Case No. 2:13-cv-768 DN
District Judge David Nuffer
Magistrate Judge Brooke Wells

Before the court are two motions to quash a subpoena to produce documents, information
and objects, or to permit inspection served by Defendant West Valley City upon Lindsay Jarvis. 1
As set forth below, the court takes these motions under advisement and orders Ms. Jarvis to file a
privilege log within ten (10) days from the date of this order. Following the filing of a privilege
log the parties are ordered to meet and confer regarding the requested documents and inform the
court of the status of the requested documents.
Defendant West Valley City served a subpoena on Ms. Jarvis, a former West Valley City
prosecutor, that seeks “all documents in Ms. Jarvis’s possession that (1) relate to defendant John
Coyle; (2) relate to any defendants1 in this action, (3) relate to this lawsuit, including but not
limited to alleged corruption within West Valley City and misconduct by West Valley City
designed to insulate Defendant John Coyle.” 2 Defendant notes that the instructions included
with the subpoena explicitly state that “[t]he document requests below should be read to exclude

1

Docket nos. 69 and 71.

2

Op. p. iii, docket no. 72.

attorney-client privileged or work product-protected documents.” 3 West Valley City seeks this
information based upon Plaintiffs Rule 26 Disclosures which state:
Ms. Jarvis is a former West Valley City prosecutor, and she has information
regarding the widespread corruption within West Valley City. Specifically, Ms.
Jarvis has information regarding the pervasive misconduct by West Valley City
designed to improperly and tactically insulate Defendant John Coyle from his
failure to supervise West Valley City police officers. 4

In response to the subpoena Ms. Jarvis moves the court to quash the subpoena arguing
that it is defective because (1) it requests material protected by the attorney-client privilege; (2) it
requests material that is protected by the attorney work product doctrine; and (3) the requests are
over broad, unduly burdensome and harassing. 5
Shaun Cowley also moves to quash the subpoena served upon Ms. Jarvis because it seeks
all documents related to him and to any other Defendants named in this action. Mr. Cowley
asserts the same arguments concerning attorney-client privilege and the work product doctrine.
Ms. Jarvis represented Mr. Cowley in both his criminal case and his administrative employment
action.
“The burden of establishing the applicability of [the attorney-client] privilege rests on the
party seeking to assert it.” 6 “The party must bear the burden as to specific questions or
documents, not by making a blanket claim.” 7 The privilege “must be strictly constructed and
accepted ‘only to the very limited extent that permitting a refusal to testify or excluding relevant
evidence has a public good transcending the normally predominant principle of utilizing all

3

Id.

4

Id. at p. ii.

5

Mtn. p. 1.

6

In re Grand Jury Subpoena, 697 F.2d 277, 279 (10th Cir. 1983)

7

In re Foster, 188 F.3d 1259, 1264 (10th Cir. 1999).

rational means for ascertaining truth.’” 8 Further Federal Rule 45(e)(2)(A) provides that a person
withholding information based on a claim of privilege or work product 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.” 9
Both Ms. Jarvis and Mr. Cowley have completely failed to meet their burden. Neither of
them submitted a privilege log that describes the nature of the withheld information. Rather,
they both simply make broad arguments regarding the privileges. A blanket claim of privilege
does not suffice. As such it would be proper in this instance to simply deny both motions. In an
effort, however, to help the parties more fully cooperate with each other and resolve their
differences the court orders as follows:
Ms. Jarvis is HEREBY ORDERED to submit to the court and Defendants within ten
(10) days from the date of this order, a detailed privilege log of all information, documents,
objects, etc. that are allegedly protected by any privilege.
IT IS FURTHER ORDERED that Mr. Cowley is to also submit a privilege log within
ten (10) days from the date of this order outlining in detail all information, documents, objects,
etc. that are allegedly protected by any privilege.
Following the production of the privilege logs the parties are HEREBY ORDERED to
meet and confer with each other regarding the documents and information at issue in the
subpoena. The parties are then to file with the court a memorandum outlining their efforts to
resolve the underlying motions. At such time the court will further consider the production of
the requested documents and accordingly takes the two motions under advisement.

8

Trammel v. United States, 445 U.S. 40, 50 (1980) (quoting Elkins v. United States, 364 U.S. 206, 234 (1960)).

9

Fed. R. Civ. P. 45(e)(2)(A).

IT IS SO ORDERED.

DATED this 10 November 2015.

Brooke C. Wells
United States Magistrate Judge