Hemingway et al v. Russo et al
MEMORANDUM DECISION AND ORDER granting 35 Short Form Motion to Compel Answers to Three Interrogatories. Plaintiffs are ORDERED to provide complete responses to Interrogatory Nos. 2, 3, and 5 within fourteen (14) days of the date of this order. Signed by Magistrate Judge Paul M. Warner on 10/25/17. (dla)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
TRUDY HEMINGWAY, DANIEL
MCGUIRE, MICHAEL MCGUIRE, and
AARON CHRISTENSEN, individuals,
Case No. 2:16-cv-00313-JNP-PMW
District Judge Jill N. Parrish
E. ROBERT RUSSO, et. al.,
Chief Magistrate Judge Paul M. Warner
District Judge Jill N. Parrish referred this case to Chief Magistrate Judge Paul M. Warner
pursuant to 28 U.S.C. § 636(b)(1)(A). 1 Before the court is a Short Form Motion to Compel
Answers to Three Interrogatories (the “Motion”) filed by Defendants E. Robert Russo,
Christopher McHugh, Bradley Bailey, Daniel Bartlett, Daniel Morzelewski, Kevin Wyatt, and
Cottonwood Heights City (collectively, the “Cottonwood Heights Defendants”). 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).
See docket no. 3.
See docket no. 35.
The Cottonwood Heights Defendants move the court for an order compelling Plaintiffs to
answer Interrogatory Nos. 2, 3, and 5 requesting that Plaintiffs state the factual basis for certain
allegations (the “Allegations”) set forth in Plaintiffs’ amended complaint (the “Amended
Complaint”). 3 The subject of Interrogatory No. 2 is the allegation that Defendant E. Robert
Russo (“Chief Russo”) “has implemented a policy and practice that condones and encourages
constitutional violation of the very type alleged by Plaintiffs.” 4 The subject of Interrogatory No.
3 is Plaintiffs’ allegation that “Chief Russo instructs officers in his employ faced with
constitutional search and seizure situations to stop, arrest or search first, and justify the action
later.” 5 The subject of Interrogatory No. 5 is Plaintiffs’ allegation that “Chief Russo commands
loyalty and deters whistleblowers by gathering compromising information about his officers and
testing the rank and file with questions like, ‘Are you a rat?’” 6
For each allegation, Interrogatory Nos. 2, 3, and 5 requests in relevant part, that Plaintiffs
“state the factual basis for that allegation, . . . the identity of each person who has told you or
your attorneys these things about Chief Russo, and state in detail what each such person said to
you or your attorneys.” 7
Plaintiffs refused to identify the individuals who said these things about Chief Russo, and
what each person said because, Plaintiffs allege, (1) the individuals’’ identities and the content of
Docket no. 25.
Amended Complaint, docket no. 25, at ¶ 118; Plaintiffs Discovery Responses, docket no. 35-1,
Docket no. 25, at ¶ 119; docket no. 35-1, at 10.
Docket no. 2 at ¶ 121; docket no. 35-1, at 12.
Docket no. 35-1, at 6, 10–12.
their communications are protected by attorney-client privilege and the work-product doctrine; 8
and (2) the source of these allegations is a non-retained expert whose identity or views are not
discoverable. 9 In their opposition to the Motion, Plaintiffs also claim the requested information is
protected by the common-interest doctrine. 10
As an initial matter, the court notes that the allegations against Chief Russo in the
Amended Complaint are serious. The court reminds Plaintiffs and their counsel that
[b]y presenting to the court a pleading . . . an attorney or unrepresented party
certifies that to the best of the person’s knowledge, information, and belief,
formed after an inquiry reasonable under the circumstances . . . the factual
contentions have evidentiary support, or if specifically so identified, will likely
have evidentiary support after a reasonable opportunity for further investigation or
Fed. R. Civ. P. 11(b). If the factual allegations in the Amended Complaint are not supported by
evidence, “the court may impose an appropriate sanction on any attorney, law firm, or party that
violated [Rule 11(b)] or is responsible for the violation.” Fed. R. Civ. P. 11(c)(1).
Turning to the substance of Plaintiffs’ objections, the court concludes that neither the
identities of those individuals who made the statements corroborating the allegations in the
Amended Complaint as identified by Interrogatory Nos. 2, 3, and 5 (the “Individuals”), nor the
See id. (Objection 1 and Objection 5 to Interrogatory No. 2, incorporated as objection to
Interrogatory Nos. 3 and 5; Response 2 to Interrogatory No. 2, incorporated as response to
Interrogatory No. 3; and Response 4 to Interrogatory No. 2, incorporated as response to
Interrogatory Nos. 3 and 5.).
See id. (Objection 4 to Interrogatory No. 2, incorporated as objection to Interrogatory Nos. 3
and 5; Response 1 to Interrogatory No. 2, incorporated as response to Interrogatory Nos. 3 and
See docket no. 39, at 2.
statements themselves (the “Statements”), are protected by the privileges and doctrines asserted
by Plaintiffs. 11 The court will address each in turn.
Plaintiffs claim that some of the statements supporting the allegations identified in
Interrogatory Nos. 2 and 3 were made by the Individuals in a consultation with Plaintiffs’
attorney for the purpose of obtaining legal advice about pursuing a class-action lawsuit against
Chief Russo. Consequently, Plaintiffs’ argue, the Individuals’ identities and communications
with Plaintiffs’ counsel are protected by the attorney-client privilege.
To begin, the Individuals’ identities are not protected by the attorney-client privilege as
Plaintiff claims. See In re Grand Jury Subpoenas, 906 F.2d 1485, 1488 (10th Cir. 1990) (“It is
well recognized in every circuit, including [the Tenth Circuit], that the identity of an attorney’s
client . . . [is] not normally protected by the attorney-client privilege.”)
Next, “[b]ecause confidentiality is critical to the [attorney-client] privilege, it will be lost
if the client discloses the substance of an otherwise privileged communication to a third party.”
United States v. Ary, 518 F.3d 775, 782 (10th Cir. 2008) (quotations and citation omitted). Here,
the substance of the communications between the Individuals and Plaintiffs’ counsel, as they
In addition, Plaintiffs object to the Interrogatories because they are “overly broad and unduly
burdensome because [they] seek a narrative of Plaintiffs’ case” (docket no. 39-1 at 7,
Objection 2 to Interrogatory No. 2, incorporated as objection to Interrogatory No. 3), and
because “Plaintiffs have provided . . . all responsive information in their possession that they
intend to use in their case in chief . . . .” (id., Objection 3 to Interrogatory No. 2, incorporated as
objection to Interrogatory Nos. 3 and 5). The Cottonwood Heights Defendants did not address
these objections in the Motion, nor did Plaintiffs in their opposition to the Motion. Therefore, the
court will not address these objections in the instant order.
relate to Interrogatory Nos. 2 and 3, has since been shared with third parties. Indeed, the
Allegations were included in Amended Complaint. Therefore, any attorney-client privilege that
may have protected these communications has been waived.
For the foregoing reasons, the court concludes that the attorney-client privilege does not
prevent Plaintiffs from identifying the Individuals and disclosing the Statements to the extent
they are responsive to Interrogatory Nos. 2 and 3.
Plaintiffs assert that the common-interest doctrine applies as an exception to waiver of
the attorney-client privilege. “The common interest doctrine . . . ‘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.’” U.S. ex rel.
(Redacted) v. (Redacted), 209 F.R.D. 475, 479 (D. Utah 2001) (emphasis in original) (quoting
Frontier Refining, Inc. v. Gorman–Rupp Co., Inc., 136 F.3d 695, 705 (10th Cir.1998)).
Whether Plaintiffs and the Individuals share a “community of interest” is immaterial
here. The information provided by the Individuals has not only been shared with Plaintiffs, but,
as noted above, is contained in the Amended Complaint—a document available to the general
public. Consequently, the court concludes that the common-interest doctrine does not apply as an
exception to waiver of the attorney-client privilege.
Plaintiffs’ argument that the information responsive to Interrogatory Nos. 2, 3, and 5 is
protected by the work-product doctrine is unpersuasive. “The work product privilege protects
against disclosure of the ‘mental impressions, conclusions, opinions, or legal theories of an
attorney or other representative of a party concerning the litigation.’” Resolution Tr. Corp. v.
Dabney, 73 F.3d 262, 266 (10th Cir. 1995) (quoting Fed. R. Civ. P. 26(b)(3)). Neither the
identities of the Individuals, nor the Statements themselves qualify as work-product. Plaintiffs
assert that notes of the meeting between Plaintiffs’ counsel and these individuals and a draft of a
summary judgment motion are protected by the work-product privilege. 12 The Cottonwood
Heights Defendants’ motion does not seek an order compelling Plaintiffs to disclose any such
documents. Therefore, the court concludes that the work-product privilege is no bar to Plaintiffs’
disclosure of the identities of the Individuals and the Statements sought by Interrogatory Nos. 2,
3, and 5.
NON-TESTIFYING EXPERT PRIVILEGE
Plaintiffs also invoke the non-testifying expert privilege, declining to respond to the
Interrogatories on that basis. Fed. R. Civ. P. 26(b) limits discovery of “facts known or opinions
held by an expert who has been retained . . . in anticipation of litigation or to prepare for trial and
who is not expected to be called as a witness at trial.” Fed. R. Civ. P. 26(b)(4)(D).
“The burden of establishing whether the Rule applies lies with” Plaintiffs, as the party
invoking the protection of the Rule. Arkansas River Power Auth. v. The Babcock & Wilcox Co.,
310 F.R.D. 492, 495 (D. Colo. 2015). The court finds that Plaintiffs have failed to meet their
burden of showing that the non-testifying expert privilege applies. Plaintiffs have provided no
See docket no. 35-1, at 6, 10–12 (Objection 5 to Interrogatory No. 2, incorporated as objection
to Interrogatory Nos. 3 and 5; Response 2 to Interrogatory No. 2, incorporated as response to
Interrogatory No. 3; and Response 4 to Interrogatory No. 2); see also docket no. 39 at 2–3.
facts, evidence, affidavits, or any other information that would permit the court to evaluate their
claim of privilege.
In addition, the facts known to the non-testifying expert underlying the allegations
identified in Interrogatory Nos. 2, 3, and 5, have already been disclosed in the Amended
Complaint. Plaintiffs cannot shield the source of such serious allegations by invoking Rule
26(b)(4)(D) after the fact. See Kurlander v. Kroenke Arena Co., LLC, No. 16-CV-02754-WYDNYW, 2017 WL 3084473, at *6 (D. Colo. July 20, 2017) (declining “to extend the protections of
Rule 26(b)(4)(D) to permit Defendant to essentially claw back information, already
Finally, the court notes that with respect to Interrogatory No. 5, there is a relevant
exception to the non-testifying expert privilege. A party may obtain discovery from a nontestifying expert “on showing exceptional circumstances under which it is impracticable for the
party to obtain facts or opinions on the same subject by other means.” Fed. R. Civ. P.
26(b)(4)(D). Plaintiffs assert that the sole source of the allegation identified in Interrogatory No.
5 is their non-testifying expert. 13 By Plaintiffs’ own admission, this information can be obtained
by no other means. For this additional reason, the non-testifying expert privilege does not apply
to Interrogatory No. 5.
For the foregoing reasons, the court concludes that the identity of, and facts known to,
Plaintiffs’ non-testifying expert, to the extent they are responsive to Interrogatory Nos. 2, 3, and
5, are not protected by the non-testifying expert privilege asserted by Plaintiffs.
See docket no. 39, at 2.
The court is persuaded that no privilege bars Plaintiffs from identifying each person who
made statements corroborating the allegations identified in Interrogatory Nos. 2, 3, and 5, and
disclosing the facts underlying communicated by each individual.
Accordingly, the Motion is hereby GRANTED. Plaintiffs are ORDERED to provide
complete responses to Interrogatory Nos. 2, 3, and 5 within fourteen (14) days of the date of this
IT IS SO ORDERED.
DATED this 25th day of October, 2017.
BY THE COURT:
PAUL M. WARNER
Chief United States Magistrate Judge
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