Amann v. Office of the Utah Attorney General et al
Filing
283
MEMORANDUM DECISION AND ORDER granting in part and denying in part 262 Plaintiff's Short Form Motion to Compel Production of Flash Drive. Signed by Magistrate Judge Daphne A. Oberg on 12/20/22. (dla)
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
MEMORANDUM DECISION AND
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
SHORT FORM MOTION TO COMPEL
PRODUCTION OF FLASH DRIVE
(DOC. NO. 262)
PAUL G. AMANN,
Plaintiff,
v.
OFFICE OF THE UTAH ATTORNEY
GENERAL; SEAN REYES; BRIDGET
ROMANO; and TYLER GREEN,
Case No. 2:18-cv-00341
District Judge Jill N. Parrish
Defendants.
Magistrate Judge Daphne A. Oberg
Plaintiff Paul G. Amann brought this action against his former employer, the Office of
the Utah Attorney General ( “AGO”), Attorney General Sean Reyes, and other current and
former AGO officials and employees, alleging he was wrongfully terminated in retaliation for
whistleblowing activities. 1 Mr. Amann has filed a motion to compel production of a flash drive
containing emails to and from four AGO attorneys. 2 The AGO opposes the motion, arguing the
emails are irrelevant and likely privileged, and producing a privilege log would be unduly
1
(See generally Second Am. Compl., Doc. No. 90.) Docket number is an erratum to the Second
Amended Complaint initially filed at docket number 89. The erratum is the operative Second
Amended Complaint. (See Mem. Decision and Order Granting in Part and Den. in Part Defs.’
Partial Mot. to Dismiss Second Am. Compl. 2 n.2, Doc. No. 172.)
2
(Pl.’s Short Form Mot. to Compel Prod. of Flash Drive (“Mot.”), Doc. No. 262.)
1
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burdensome. 3 The court held a hearing, ruled the AGO had not waived its objections, and took
the motion under advisement. 4
Mr. Amann’s motion is granted in part and denied in part. The AGO is ordered to
produce certain documents from the flash drive and to provide a privilege log, as described
below. Mr. Amann’s request for attorney fees is denied.
BACKGROUND
Mr. Amann claims he was terminated in retaliation for reporting misconduct at the AGO,
including concerns about an inappropriate relationship between AGO employees Craig Barlow
and Cindy Poulson. 5 Mr. Amann alleges he initially reported his concerns within the AGO, then
made a report to the Utah Department of Human Resource Management (“DHRM”) in 2014. 6
DHRM conducted an investigation and found the relationship was consensual and there was no
sexual harassment by Mr. Barlow. 7 (The AGO contends DHRM conducted the investigation at
the AGO’s request, not Mr. Amann’s.) 8 According to Mr. Amann, this investigation was
3
(Defs.’ Opp’n to Pl.’s Short Form Mot. to Compel Prod. of Flash Drive (“Opp’n”), Doc. No.
265.)
4
(See Minute Entry, Doc. No. 268.)
5
(See Second Am. Compl. ¶¶ 19–26, 34, 64, 97–98, 106, Doc. No. 90.)
6
(See id. ¶ 34.)
7
(See id. ¶ 43.)
8
(See Opp’n 2, 4, Doc. No. 265.)
2
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“tightly controlled” by the AGO and “ignored how the relationship created a hostile work
environment for others in the office.” 9
The AGO suspended Mr. Amann in 2015 and later terminated him. 10 According to the
AGO, Mr. Amann was terminated because of his involvement in sending a packet of information
about Ms. Poulson’s criminal history to the head of a training she was attending. 11 Mr. Amann
alleges the AGO’s stated reasons for terminating him were false, and he was actually terminated
for whistleblowing activities. 12 Mr. Amann filed this action, asserting a claim for violation of
Utah’s whistleblower protection statute, a Title VII retaliation claim, and constitutional claims
for violations of the First and Fourth Amendments. 13
The AGO provided the flash drive at issue here to DHRM during the 2014 investigation
into the relationship between Mr. Barlow and Ms. Poulson. 14 According to the AGO, the flash
drive contains emails sent to and from Mr. Barlow, Ms. Poulson, and two other AGO attorneys
on their AGO email accounts during a one-and-a-half to two year period. 15 Mr. Amann issued a
9
(Second Am. Compl. ¶ 43, Doc. No. 90.)
10
(See id. ¶¶ 78, 106.)
11
(See Opp’n 2, Doc. No. 265; see also Second Am. Compl. ¶¶ 71–72, 97–98, 106, Doc. No. 90
(describing the termination documents provided by the AGO).)
12
(See Second Am. Compl. ¶¶ 97–98, 106, 136, 143, Doc. No. 90.)
13
(See id. ¶¶ 126–171.)
14
(See Mot. 1, Doc. No. 262; Opp’n 2, Doc. No. 265.)
15
(Opp’n 2, Doc. No. 265; Defs.’ Suppl. Br. 2, 6, Doc. No. 269; Defs.’ Resp. to Pl.’s Suppl. Br.
2, Doc. No. 271.)
3
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discovery request for a copy of the flash drive in August 2021. 16 The AGO initially responded
that the flash drive could not be located. 17 The AGO later supplemented its response to indicate
the flash drive had been found, and objected to the request on grounds of relevance, undue
burden, attorney-client privilege, and work-product protection. 18 The AGO did not produce a
copy of the flash drive or a privilege log, and agreed to produce only the emails the DHRM
investigator reviewed. 19 Mr. Amann then filed the instant motion to compel production of the
flash drive. 20
In support of its opposition, the AGO provided declarations from the IT director who
originally compiled the flash drive’s contents, 21 the DHRM investigator who reviewed the flash
drive in 2014, 22 and a forensic examiner who reviewed the flash drive after it was recently
located. 23 According to the IT director, in connection with the 2014 DHRM investigation, he
was asked to provide emails exchanged among certain AGO employees. 24 He collected the
16
(See Ex. 4 to Mot., Def.’s Answers and Resps. to Pl.’s Second Set of Disc. Reqs. 13, Request
No. 20, Doc. No. 262-4.)
17
(See id.)
18
(See Ex. 6 to Mot., Def.’s Suppl. Resp. to Pl.’s Doc. Req. No. 20, Doc. No. 262-6.)
19
(See Opp’n 4, Doc. No. 3.)
20
(Mot., Doc. No. 262.)
21
(Ex. 2 to Opp’n, Decl. of Chris Earl (“Earl Decl.”), Doc. No. 265-2.)
22
(Ex. 3 to Opp’n, Decl. of Rosanne Ricks (“Ricks Decl.”), Doc. No. 265-3.)
23
(Ex. 1 to Opp’n, Decl. of Lane Perkins (“Perkins Decl.”), Doc. No. 265-1.)
24
(Earl Decl. ¶ 3, Doc. No. 265-2.)
4
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emails from the AGO servers, compiled them on the flash drive, and provided the flash drive to
the DHRM investigator. 25 The DHRM investigator states she only reviewed approximately 100
of the emails, which she summarized in a spreadsheet attached to her declaration. 26 She
concluded that “further review would be of little value because the emails were primarily workrelated and chatty emails among colleagues that were largely irrelevant to the investigation.” 27
According to the forensic examiner, the flash drive contains approximately 14 GB of data
comprised of about 53,750 documents, which primarily appear to be copies of emails. 28
LEGAL STANDARDS
Rule 26 permits discovery on “any nonprivileged matter that is relevant to any party’s
claim or defense and proportional to the needs of the case.” 29 Factors to be considered in
determining proportionality include “the importance of the issues at stake in the action, the
amount in controversy, the parties’ relative access to relevant information, the parties’ resources,
the importance of the discovery in resolving the issues, and whether the burden or expense of the
proposed discovery outweighs its likely benefit.” 30
25
(Id.)
26
(Ricks Decl. ¶ 6, Doc. No. 265-3.)
27
(Id. ¶ 7.)
28
(Perkins Decl. ¶ 5, Doc. No. 265-1.)
29
Fed. R. Civ. P. 26(b)(1).
30
Id.
5
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ANALYSIS
The AGO contends the emails on the flash drive are irrelevant and likely include
attorney-client-privileged communications and work-product-protected materials. 31 The AGO
argues requiring it to review all 53,000 emails and provide a privilege log would be unduly
burdensome, given their lack of relevance. 32 Mr. Amann argues the flash drive’s contents are
relevant, and the AGO waived any claim of privilege or protection by providing the emails to
DHRM. 33
1. Relevance
The emails between AGO attorneys compiled on the flash drive are relevant to Mr.
Amann’s claims. Mr. Amann claims he was terminated due to whistleblowing activities,
including reporting concerns about the relationship between Mr. Barlow and Ms. Poulson. The
flash drive contains documents which the AGO provided to DHRM for its investigation of the
relationship. These documents are relevant to show how the AGO responded to Mr. Amann’s
reports, and they may also contain evidence of the underlying alleged misconduct which Mr.
Amann was reporting. Under these circumstances, the emails provided to DHRM are relevant.
31
(Opp’n 3, Doc. No. 265.)
32
(Id.)
33
(Mot. 2–3, Doc. No. 262.) Mr. Amann also argued all the AGO’s objections should be
deemed waived because the AGO did not assert them in its initial response to his discovery
request. The court rejected this argument at the hearing, ruling the AGO’s objections were not
waived due to untimeliness, or, alternatively, any waiver was excused. (See Minute Entry, Doc.
No. 268.)
6
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Indeed, the DHRM investigator’s spreadsheet summary indicates even the limited sample
she reviewed contains emails relevant to the claims in this case. The investigator summarized
one email from Ms. Poulson to Mr. Barlow as follows: “Thinking of you; I miss you; I wish you
were here with me.” 34 Based on this description, the email could contain evidence supporting
Mr. Amann’s report of an inappropriate workplace relationship between Ms. Poulson and Mr.
Barlow. The investigator also described a January 2014 email from Ms. Poulson to another
AGO attorney as “Fwd: Packer Leaked Emails Story.” 35 This appears to refer to media reports
regarding inappropriate emails between Ms. Poulson and Mr. Barlow. 36 Emails between AGO
attorneys on this topic are relevant to Mr. Amann’s claims, where Mr. Amann alleges the AGO
retaliated against him for reporting his concerns about this relationship, among other
whistleblowing activities. The presence of relevant emails among the small sample reviewed by
the investigator suggests other emails on the flash drive are relevant as well.
The AGO argues the DHRM investigation and its conclusions are not central to Mr.
Amann’s 2016 termination. 37 The AGO points to Mr. Amann’s motion for summary judgment,
which stated (as an undisputed fact) that Mr. Amann was terminated “because of his purported
involvement in sending the packet of information about Ms. Poulson’s criminal history to the
34
(Ricks Decl. Ex. A, Doc. No. 265-3 at 6.)
35
(Id. at 7.)
36
(See Second Am. Compl. ¶¶ 31–32, Doc. No. 90 (describing media reports regarding emails
between Mr. Barlow and Ms. Poulson in January 2014).)
37
(Opp’n 2, Doc. No. 265.)
7
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director of an out-of-state training meeting.” 38 However, Mr. Amann’s summary judgment
motion merely refers to the AGO’s stated reasons for terminating him—arguing these reasons
violated the First Amendment and Utah’s whistleblower protection statute. 39 This does not
preclude Mr. Amann from pursuing his claim that his earlier whistleblowing activities (related to
Ms. Poulson’s relationship with Mr. Barlow) also motivated his termination.
The AGO also suggests all emails other than the 100 which the DHRM investigator
reviewed are irrelevant, because the other emails were not considered in the investigation. But
the fact that DHRM never reviewed or considered the other emails does not render them
irrelevant. The flash drive contains documents the AGO considered relevant, at the time, to the
issues being investigated. Thus, these documents are relevant to show how the AGO responded
to Mr. Amann’s whistleblowing activities, regardless of whether the investigator considered
them.
However, the flash drive’s contents are relevant only to the extent they comprise internal
AGO communications. The AGO’s supplemental briefing suggests the flash drive contains not
only emails between the four AGO attorneys, but also emails with “other government lawyers,
agents or offices.” 40 To the extent the flash drive contains correspondence with individuals and
38
(Pl.’s Mot. for Partial Summ. J. ¶ 35, Doc. No. 219 (internal quotation marks omitted).) This
motion was later denied without prejudice with leave to refile. (See Order, Doc. No. 256.) Due
to ongoing discovery disputes, the motion has not yet been refiled.
39
(See Pl.’s Mot. for Partial Summ. J. ¶¶ 34–35, pp. 10, 19, Doc. No. 219.)
40
(Defs.’ Resp. to Pl.’s Suppl. Br. 2, Doc. No. 271.) The IT director’s declaration, on the other
hand, indicates the flash drive contains “copies of emails exchanged among certain AGO
employees.” (Earl Decl. ¶ 3, Doc. No. 265-2 (emphasis added).) The forensic examiner’s
8
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entities outside the AGO, Mr. Amann has not demonstrated this outside correspondence is
relevant to his claims. Such emails are unlikely to contain evidence of the underlying
misconduct Mr. Amann reported or the AGO’s response to his reports. Accordingly, the AGO
need not produce such outside correspondence.
2. Undue Burden
The AGO asserts the flash drive likely contains attorney-client privileged
communications and work-product-protected materials because the emails compiled on the flash
drive were “sent or received in the ordinary course of the attorneys’ practice of law on behalf of
[the] AGO.” 41 The AGO acknowledges its counsel has not reviewed all the emails, and the
AGO has not provided a privilege log asserting privilege or protection for specific documents. 42
But the AGO argues requiring it to review the emails for privilege and provide a privilege log
would be unduly burdensome. 43
declaration also suggests the flash drive primarily contains emails between the four attorneys.
(See Perkins Decl. ¶¶ 6–9, Doc. No. 265-1.) According to the forensic examiner, the flash drive
contains a “main file folder” entitled “Craig [Barlow] to-from Cindy [Poulson].” (Id. ¶ 6.) It
also contains a “GMD Exports” folder with subfolders for emails between each of the four AGO
attorneys whose correspondence was compiled. (Id. ¶ 8.) Finally, it contains a “Novus Exports”
folder with subfolders labeled with each attorney’s name. (Id. ¶ 9.) It is unclear whether this last
folder contains external communications.
41
(Defs.’ Suppl. Br. 6, Doc. No. 269; see also Opp’n 2, Doc. No. 265.)
42
(See Defs.’ Suppl. Br. 6 n.3, Doc. No. 269; Opp’n 3, Doc. No. 265.)
43
(See Opp’n 3, Doc. No. 265.)
9
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Mr. Amann argues the AGO waived any claim of privilege or protection when it
disclosed the emails to DHRM. 44 The AGO responds that privilege or protection was not waived
because the DHRM was acting as the AGO’s agent when it conducted the investigation. 45 If the
AGO waived any claim of privilege and work-product protection by providing the flash drive to
the DHRM investigator, no privilege review would be necessary—thereby rendering the AGO’s
undue burden argument moot. Accordingly, the issue of waiver is addressed first.
Typically, in federal courts, federal common law governs the existence of privilege
unless state law supplies the rule of decision as to an element of the claim or defense. 46 When
privilege is claimed as to evidence relating to both federal and state law claims, “most circuit
courts have either held that federal privilege law governs or approved of such an approach
without explicitly adopting it.” 47 But the Tenth Circuit takes a different approach, holding where
there are federal and state law claims, “[a]s to state causes of action, a federal court should look
to state law in deciding privilege questions.” 48 That said, “it appears that the Tenth Circuit has
not confronted the issue of which law applies where evidence allegedly subject to a privilege is
relevant to both the federal and state-law claims in the case.” 49
44
(Mot. 2–3, Doc. No. 262.)
45
(Opp’n 4, Doc. No. 265; Defs.’ Suppl. Br. 7–8, Doc. No. 269.)
46
See Fed. R. Evid. 501; see also Entrata, Inc. v. Yardi Sys., No. 2:15-cv-00102, 2018 U.S. Dist.
LEXIS 149239, at *6 (D. Utah Aug. 30, 2018) (unpublished).
47
Entrata, Inc., 2018 U.S. Dist. LEXIS 149239, at *6 (internal quotation marks omitted).
48
Motley v. Marathon Oil Co., 71 F.3d 1547, 1551 (10th Cir. 1995).
49
Entrata, Inc., 2018 U.S. Dist. LEXIS 149239, at *6–7 (internal quotation marks omitted).
10
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Mr. Amann asserts both state and federal claims, which largely rely on the same
underlying allegations regarding his whistleblowing activities and termination. Thus, documents
on the flash drive are relevant to both the state and federal claims. Nevertheless, both parties
urge the court to apply federal privilege law to the instant dispute. 50 Where this case arises from
federal question jurisdiction, and the parties agree federal privilege law applies, the court looks
to federal law to determine whether the AGO’s claims of privilege and work-product protection
were waived. 51
a. Waiver of Attorney-Client Privilege
In the Tenth Circuit, “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.” 52 The privilege also protects attorney-to-client communications which
“constitute legal advice, or tend directly or indirectly to reveal the substance of a client
50
(Defs.’ Suppl. Br. 4–5, Doc. No. 269; Pl.’s Suppl. Br. 1, Doc. No. 270.)
51
Cf. Am. W. Bank Members, L.C. v. Utah, No. 2:16-cv-00326, 2022 U.S. Dist. LEXIS 6227, at
*7 (D. Utah Jan. 11, 2022) (unpublished) (“Where this case is one arising out of federal question
jurisdiction, no entity argued which law should apply, and no party indicated which claim(s) the
documents relate to, the court looks to federal law.” (citation omitted)). As noted below, Utah
law applies similar standards for privilege, work-product protection, and waiver. Thus, the
outcome would be the same under Utah law.
52
In re Grand Jury Proceedings, 616 F.3d 1172, 1182 (10th Cir. 2010) (internal quotation marks
omitted). Similarly, under Utah law, a party claiming attorney-client privilege must establish:
“(1) an attorney-client relationship, (2) the transfer of confidential information, and (3) the
purpose of the transfer was to obtain legal advice.” S. Utah Wilderness All. v. Automated
Geographic Reference Ctr., Div. of Info. Tech., 2008 UT 88, ¶ 33, 200 P.3d 643, 655 (Utah
2008).
11
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confidence.” 53 “Because confidentiality is the key to maintaining the attorney-client privilege, a
party waives the privilege when he voluntarily discloses to a third party material or information
that he later claims is protected.” 54
It is undisputed the AGO voluntarily disclosed the flash drive containing attorney emails
to DHRM, an outside agency. But the AGO argues this did not result in waiver because DHRM
was acting as the AGO’s agent by conducting an investigation at the AGO’s request. 55
Several district courts in this circuit have recognized the “presence of a third-party will
not destroy the attorney-client privilege if the third-party is the attorney’s or client’s agent or
possesses commonality of interest with the client.” 56 However, these cases also considered
“whether the third-party communication was made in confidence for the purpose of obtaining
legal advice from the lawyer.” 57 For example, in Graystone Funding Company, LLC v. Network
53
In re Grand Jury Proceedings, 616 F.3d at 1182 (quoting United States v. Defazio, 899 F.2d
626, 635 (7th Cir. 1990)).
54
Id. at 1184; see also Burke v. Regalado, 935 F.3d 960, 1023 (10th Cir. 2019) (“Any voluntary
disclosure by the client to a third party waives the privilege . . . .” (internal quotation marks
omitted)). Likewise, under Utah law, voluntary disclosure by the privilege holder waives
attorney-client privilege. See Moler v. CW Mgmt. Corp., 2008 UT 46, ¶ 17, 190 P.3d 1250, 1254
(Utah 2008); Krahenbuhl v. Cottle Firm, 2018 UT App. 138, ¶ 8, 427 P.3d 1216, 1219 (Utah Ct.
App. 2018) (explaining Utah courts “have long held that [attorney-client privilege] can be
waived by a client” (internal quotation marks omitted)).
55
(Opp’n 4, Doc. No. 265; Defs.’ Suppl. Br. 7–8, Doc. No. 269; Defs.’ Resp. to Pl.’s Suppl. Br.
3–4, Doc. No. 271.)
56
Graystone Funding Co., LLC v. Network Funding, L.P., No. 2:19-cv-00383, 2020 U.S. Dist.
LEXIS 263633, at *8 (D. Utah Dec. 11, 2020) (unpublished) (quoting Roe v. Catholic Health
Initiatives Colo., 281 F.R.D. 632, 637 (D. Colo. 2012)); see also Bethel v. United States, No. 05cv-01336-PSF-KLM, 2008 U.S. Dist. LEXIS 1680, at *21 (D. Colo. Jan. 2, 2008) (unpublished).
57
Roe v. Catholic Health Initiatives Colo., 281 F.R.D. at 637.
12
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Funding, L.P., 58 the court found privilege was not waived for emails between company
executives, in-house counsel, and a third party because the third party was acting as the
company’s agent in business negotiations and these communications were made for the purpose
of seeking legal advice from in-house counsel. 59 In Roe v. Catholic Health Initiatives
Colorado, 60 the court found “confidential communications between the attorneys retained by the
company and the Human Resources Department personnel [did] not necessarily lose their
protected character so long as the confidential information [was] revealed for the purpose of
obtaining legal advice.” 61 And in Bethel v. United States, 62 the court found a government agency
did not waive privilege by sharing attorney communications with an agency employee, where
“the communications were made in an attempt to convey or gain information related to the
pending litigation.” 63
Here, the AGO did not share the attorney emails with DHRM for the purpose of
obtaining legal advice but, rather, for the purpose of investigating alleged workplace misconduct
by those attorneys. 64 This investigation was unrelated to the underlying legal matters giving rise
58
2020 U.S. Dist. LEXIS 263633.
59
Id. at *9.
60
281 F.R.D. 632.
61
Id. at 637.
62
2008 U.S. Dist. LEXIS 1680.
63
Id. at *23–24.
64
(See Opp’n 2, Doc. No. 265; Defs.’ Resp. to Pl.’s Suppl. Br. 4, Doc. No. 271.)
13
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to the privileged communications—i.e., the cases or other legal matters the attorneys were
working on. Instead, the investigation concerned allegations of an inappropriate workplace
relationship between the attorneys. 65 In other words, the AGO voluntarily disclosed purportedly
privileged attorney emails to DHRM, an outside entity, to facilitate a workplace misconduct
investigation unrelated to the underlying legal matters the attorneys were working on. And the
AGO does not argue the investigation itself was conducted for the purpose of obtaining legal
advice regarding the workplace misconduct issue. Under these circumstances, the AGO waived
attorney-client privilege by disclosing the attorney emails to DHRM.
The AGO also suggests the disclosure was limited to the approximately 100 emails the
DHRM investigator actually reviewed. But waiver depends on whether privileged
communications were voluntarily disclosed, not what the recipient did with them. Where the
AGO voluntarily provided the flash drive to the investigator, this disclosure operates as a waiver
of the entire contents of the flash drive regardless of how many emails the investigator actually
reviewed.
For these reasons, the AGO waived any claim of attorney-client privilege for the contents
of the flash drive when it provided the flash drive to the DHRM investigator. However, this
waiver is inapplicable to attorney-client privileged communications where the client was an
65
These circumstances are distinguishable from another case cited by the AGO: Stewart v.
Kempthorne, No. 2:06-CV-209 TC, 2007 U.S. Dist. LEXIS 40525 (D. Utah June 4, 2007)
(unpublished). In that case, the court found disclosure of attorney communications to a person
who was “acting as an agent” of the Bureau of Land Management did not result in waiver
because “he was acting in the role of an employee on the very issue for which the BLM (the
client) obtained legal advice.” Id. at *5–6.
14
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outside agency or entity. Attorney-client privilege belongs to the client, 66 and there has been no
showing of waiver by any outside client. Accordingly, the AGO’s disclosure to DHRM waived
privilege only as to communications for which the AGO is the privilege holder. 67 Thus, the
AGO may only withhold documents from the flash drive based on a claim of attorney-client
privilege where the privilege-holder is an outside client.
b. Waiver of Work-Product Protection
The work-product doctrine “prevents disclosure of information that was prepared by [an]
attorney in anticipation of litigation or for trial.” 68 Under this doctrine, “[a]ttorneys’ mental
impressions are broadly protected in order to further ‘society’s interest in protecting the
adversary system by shielding litigants’ work-product from their opponents, and thus freeing
lawyers to create such materials without fear of discovery and exploitation.’” 69 Waiver of work
66
See In re Vargas, 723 F.2d 1461, 1466 (10th Cir. 1983); see also Burke, 935 F.3d at 1023
(stating privilege may be waived by the client).
67
Portions of the AGO’s briefing suggest the AGO itself is the client for purposes of the AGO’s
privilege claim. (See Defs.’ Suppl. Br. 6, Doc. No. 269; Defs.’ Resp. to Pl.’s Suppl. Br. 2, Doc.
No. 271 (citing Tax Analysts v. Internal Revenue Serv., 117 F.3d 607, 618 (D.C. Cir. 1997), for
the proposition that “[i]n the governmental context, the ‘client’ may be the agency and the
attorney may be the agency lawyer.”).) However, elsewhere, the AGO suggests its attorneys
may have represented outside Utah agencies or officers. (See Defs.’ Resp. to Pl.’s Suppl. Br. 2,
Doc. No. 271.)
68
In re Grand Jury Proceedings, 616 F.3d at 1184; see also Fed. R. Civ. P. 26(b)(3) (protecting
materials prepared in anticipation of litigation or trial from discovery except in limited
circumstances). Utah law contains “nearly identical” protections for work-product materials as
the federal rules. Gold Standard v. Am. Barrick Res. Corp., 805 P.2d 164, 168 (Utah 1990); see
also S. Utah Wilderness All., 2008 UT 88, ¶¶ 23–24.
69
Larson v. One Beacon Ins. Co., No. 12-cv-03150-MSK-KLM, 2013 U.S. Dist. LEXIS 81181,
at *21–22 (D. Colo. June 10, 2013) (unpublished) (quoting In re Foster, 188 F.3d 1259, 1272
(10th Cir. 1999)).
15
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product “is limited to disclosures that are likely to fall into an adversary’s possession.” 70 Thus,
“the pertinent question is not whether the information was disclosed, as with the attorney-client
privilege, but whether the information was disclosed to an adversary.” 71 Because of this
distinction, “it is less likely that work-product protection has been waived by disclosure to others
than that the attorney-client privilege has been waived under the same circumstances.” 72
The AGO argues DHRM was not an adversary because it conducted the investigation at
the AGO’s request. 73 The AGO submitted a supporting declaration from the DHRM investigator
stating she “conducted [the] investigation for the Utah Attorney General’s Office.” 74 Mr.
Amann presented no contrary evidence suggesting DHRM was in an adversarial role. In fact,
Mr. Amann alleges in his complaint that the AGO “tightly controlled” the DHRM
investigation. 75 On this record, the AGO has demonstrated DHRM was not an adversary when
70
Id. at *22 (quoting In re Commercial Fin. Servs., Inc., 247 B.R. 828, 853 n.33 (N.D. Okla.
2000)); see also In re Urethane Antitrust Litig., No. 04-MD-1616-JWL, 2009 U.S. Dist. LEXIS
60496, at *41 (D. Kan. July 15, 2009) (unpublished) (“Work-product protection is waived when
privileged documents are voluntarily disclosed to an adversary because [d]isclosure to an
adversary is clearly inconsistent with the rule’s goal of promoting the adversarial system.”
(alteration in original) (internal quotation marks omitted).) Similarly, the Utah Supreme Court
has recognized “work product protection is waived when disclosure substantially increases the
opportunity for potential adversaries to obtain the information.” Gold Standard, 805 P.2d at 172
(internal quotation marks omitted).
71
Larson, 2013 U.S. Dist. LEXIS 81181, at *22–23.
72
Id. at *22.
73
(Opp’n 4, Doc. No. 265; Defs.’ Suppl. Br. 7–8, Doc. No. 269; Defs.’ Resp. to Pl.’s Suppl. Br.
3–4, Doc. No. 271.)
74
(Ricks Decl. ¶ 3, Doc. No. 265-3.)
75
(Second Am. Compl. ¶ 43, Doc. No. 90.)
16
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the AGO disclosed the flash drive. Further, the record contains no basis to find disclosure to
DHRM made the flash drive likely to fall into an adversary’s possession. Therefore, the AGO
did not waive its claim of work-product protection by disclosing the flash drive to DHRM.
c. Burden of Producing a Privilege Log
The court next addresses the AGO’s argument that requiring it to review all the emails
and provide a privilege log would be unduly burdensome. The AGO has failed to make a
showing of undue burden. The AGO’s burden argument is premised, in part, on its assertion that
the documents on the flash drive are irrelevant, 76 which the court has rejected. The AGO’s only
other basis for asserting undue burden appears to be the fact that the flash drive contains 53,000
emails. However, the AGO provided no supporting evidence or estimate of the time or expense
required to review these emails and to produce a privilege log. Because the documents are
relevant to Mr. Amann’s claims, and the AGO has not provided evidence of the burden required
to review them for privilege and work product, any burden does not outweigh the likely benefit
of this discovery.
Accordingly, the AGO must provide a privilege log for any documents it seeks to
withhold on the basis of (1) work-product protection or (2) attorney-client privilege where the
privilege holder is an outside client.
3. Fee Request
Mr. Amann requests an award of attorney fees incurred in bringing the motion to compel.
Because the motion is granted in part and denied in part, and because the AGO’s position was
76
(See Opp’n 3, Doc. No. 265; Defs.’ Suppl. Br. 6 n.3, Doc. No. 269.)
17
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substantially justified as to the portions of the motion on which Mr. Amann prevailed, Mr.
Amann’s fee request is denied. 77 The court apportions each party its own expenses related to
this motion.
CONCLUSION
Mr. Amann’s motion to compel is granted in part and denied in part, and the court
ORDERS as follows:
1.
The AGO need not produce documents from the flash drive which are
communications between AGO attorneys and outside individuals or entities, as these outside
communications are irrelevant to the claims and defenses in this case.
2.
For any other documents from the flash drive which the AGO seeks to withhold
on the basis of (1) work-product protection or (2) attorney-client privilege where the privilege
holder is an outside client, the AGO is ordered to provide a privilege log.
3.
The AGO is ordered to produce all other documents from the flash drive.
77
See Fed. R. Civ. P. 37(a)(5)(A)(ii) (providing if a motion to compel is granted, the court must
not award fees “if the opposing party’s nondisclosure, response, or objection was substantially
justified”); Fed. R. Civ. P. 37(a)(5)(C) (providing if a motion to compel is granted in part and
denied in part, the court “may, after giving an opportunity to be heard, apportion the reasonable
expenses for the motion.”).
18
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4.
The AGO must comply with this order within thirty days unless the parties
stipulate to a different deadline.
5.
Mr. Amann’s request for attorney fees is denied.
DATED this 20th day of December, 2022.
BY THE COURT:
_________________________________________
Daphne A. Oberg
United States Magistrate Judge
19
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