Jenkins v. Miller et al

Filing 840

OPINION AND ORDER granting in part and denying in part 789 Motion to Compel Defendant Liberty Counsel, Inc., and Rena M. Linvdevaldsen to Product Documents; denying in part 795 Motion for Protective Order (The Miller emails should be submitted to the Court for in camera review. Signed by Judge William K. Sessions III on 6/26/2024. (law)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
JANET JENKINS, ET AL.,
Plaintiffs,
v.
KENNETH L. MILLER, ET AL.,
Defendants.

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Case No. 2:12-cv-184

OPINION AND ORDER

Before the Court can rule on the parties’ recently-filed
motions for summary judgment, it must address two pending
discovery motions: Plaintiff Janet Jenkins’ motion to compel
Defendants Liberty Counsel and Rena Lindevaldsen to produce
certain documents, ECF No. 789, and former Defendant Lisa
Miller’s motion for a protective order, ECF No. 795. For the
following reasons, both motions are granted in part and denied
in part.
FACTUAL AND PROCEDURAL BACKGROUND
This case’s lengthy factual and procedural history is
detailed elsewhere. The Court assumes the parties’ familiarity
with those facts.
In brief, Jenkins filed this lawsuit against Lisa Miller
and other associated individuals in 2012, alleging custodial
interference and conspiracy to deprive Jenkins of equal
protection of the laws. ECF No. 789 at 2. On March 21, 2023,

Miller and Jenkins signed a confidential settlement and release
agreement, in which Miller waived her attorney-client privilege
“in relation to the representation of her by Liberty Counsel or
Rena M. Lindevaldsen . . . regarding: (1) communications in or
after 2009; (2) communications regarding whether Miller should,
must, or would comply with then-existing or future court orders
over the custody or visitation of Isabella Miller; and (3)
Miller’s plan to depart the United States with Isabella, her
actual departure and her remaining outside the jurisdiction of
the United States.” ECF No. 718-1 at 17. The Court then amended
the discovery schedule for the case, ECF No. 740, and discovery
resumed.
Pursuant to prior court orders and the recent settlement,
Jenkins sought production of several documents outlined in a
November 1, 2023 email to Defendants’ counsel Horatio Mihet. ECF
No. 789-3. These included (1) journals written by Miller prior
to her departure from the United States but kept by Rena
Lindevaldsen, id. at 3; and (2) Defendants’ communications that
had been previously withheld on the basis of privilege. Id. at
5-6. Jenkins specifically cited Miller’s recent waiver of
attorney-client privilege as justification for this request. Id.
On December 30, 2023, Defendants produced some additional
documents and provided updated privilege logs. Over the course
of the next six months, Jenkins deposed several Defendants. ECF
2

No. 789 at 4. She claims that in these depositions, Defendants
represented that they knew of Miller’s absence “on or around
October 1-3, 2009” and attempted to contact Miller thereafter.
Id. Jenkins claims that she then reviewed Defendants’ privilege
logs and realized that several of the withheld documents were
from roughly this time period. She believes that these withheld
documents are “highly likely to contain critical factual
material regarding Defendants’ knowledge of Ms. Miller’s intent
to comply with court orders and/or to flee the court’s
jurisdiction; Defendants’ attempts to contact Ms. Miller; and
their knowledge of Ms. Miller’s whereabouts.” Id. at 5. The
instant motion concerns production of those documents.
It also concerns production of Miller’s journals from 20042008. Jenkins knew that the journals were “entrusted to Ms.
Lindevaldsen” because Lindevaldsen’s book, called Only One
Mommy, claims to be based on Miller’s journals which were left
with Lindevaldsen. ECF No. 789-3 at 3. She initially requested
production of those journals in a motion to compel filed in July
of 2019, ECF No. 361, which the Court granted in October of
2019. ECF No. 395. For reasons unknown to the Court, Defendants
never produced those journals.
Accordingly, Jenkins again requested production of the
journals in her November 1, 2023 request for production. In
response, Liberty Counsel Defendants stated that
3

At the time of her previous document productions, Rena
Lindevaldsen performed a diligent search and was unable to
locate any diaries of Lisa Miller. While the case was
stayed, Ms. Lindevaldsen moved from her prior residence,
and in the process of packing her household she discovered
a set of diaries that Lisa Miller had given her prior to
Lisa Miller’s disappearance. During the stay, we provided
these documents to Lisa Miller’s counsel, Anthony Biller.
Please direct further inquiries and requests on this
subject to him.
ECF No. 789-4 at 7.
Jenkins’ counsel later deposed Defendant Lindevaldsen. On
March 6, 2024, Lindevaldsen testified that she made copies of
Miller’s journals. ECF No. 789-8 at 37. She explained that
“[t]he originals were delivered to Lisa Miller’s counsel,” but
that she did not “trust FedEx, UPS, or the mail system. So even
though it was being delivered – and they also had been in my
possession and so I thought we needed to keep a copy of them.”
Id. Pursuant to that deposition testimony, Jenkins again
requested copies of Miller’s journals in an April 1, 2024 email,
citing her prior requests for production. ECF No. 789-2 at 2.
Jenkins has now filed a motion to compel production of the
journals and Liberty Counsel communications. ECF No. 789.
Liberty Counsel Defendants have responded. Miller has also filed
a response and motioned for a protective order. ECF No. 795.
Those motions are ripe for the Court.
DISCUSSION
A.

Legal Standard
4

The Federal Rules of Civil Procedure allow discovery of
“any nonprivileged matter that is relevant to the party's claim
or defense and proportional to the needs of the case.” Fed. R.
Civ. P. 26(b)(1). “A district court has wide latitude to
determine the scope of discovery.” In re Agent Orange Prod.
Liab. Litig., 517 F.3d 76, 103 (2d Cir. 2008). A court may limit
discovery for a number of reasons, including if it determines
that “the burden or expense of the proposed discovery outweighs
its likely benefit.” Fed. R. Civ. P. 26(b)(2)(C).
B.

Meet-and-Confer Rules
Liberty Counsel and Lindevaldsen (together “Defendants,”

unless distinguished) contend that the Court should deny
Jenkins’ motion to compel due to violation of the Court’s meetand-confer rule. Local Rule 7(a)(7) stipulates that any party
filing a non-dispositive motion must certify that it has made “a
good faith attempt to obtain the opposing party’s agreement to
the requested relief.” Federal Rule of Civil Procedure 37(a)(1)
imposes a similar obligation.
Jenkins satisfied her meet-and-confer obligations. On April
1, Jenkins’ counsel (Andrew O’Connor) sent an email offering to
meet and confer with Defendants regarding the discovery
requests. ECF No. 789-2 at 2. Mihet’s April 9 email responded
that Defendants would provide a response “by April 15.” ECF No.
800-1 at 9. Mihet did not offer to meet-and-confer, nor did he
5

express a belief that further dialogue was necessary (or would
be helpful) for resolution of the outstanding discovery
disputes. After the April 15 discovery deadline elapsed,
O’Connor offered to meet and confer sometime between April 16
and 23, ECF No. 800-1 at 7 – a request that Mihet again
rejected. Id. at 5. The Court finds that O’Connor’s efforts
satisfy both the local and federal rules’ requirements that
parties make “good faith” attempts to resolve non-dispositive
issues without Court intervention. 1
The Court will proceed to the merits of Jenkins’ motion.
C.

The Miller Journals
Defendants argue that the Court should permit Miller to

challenge production of those documents herself. ECF No. 800 at
6. Jenkins does not dispute that Miller has standing to object
to production of the journals. See generally ECF No. 804. The
following discussion evaluates Miller’s arguments and concludes
that the journals should be produced.
1. Privilege
Miller asserts that much of the information contained in
her journals is privileged. Her settlement with Jenkins included
The Court further finds that Jenkins’ prior discussions with
Miller and Miller’s counsel regarding the Miller journals do not
bear on the question of whether she complied with the meet and
confer rules here. ECF No. 800 at 5. Jenkins now seeks discovery
of information from different parties. She is entitled to make
that request.
1

6

a limited waiver of attorney-client privilege for her
communications with Liberty Counsel and Lindevaldsen. See ECF
No. 795 at 2; ECF No. 718-1 at 17. That waiver included “(1)
communications in or after 2009; (2) communications regarding
whether Miller should, must, or would comply with then-existing
or future court orders over the custody or visitation of
Isabella Miller (‘Isabella’); and (3) Miller’s plan to depart
the United States with Isabella, her actual departure and her
remaining outside the jurisdiction of the United States.” ECF
No. 718-1 at 17. Miller maintains that the “legal communications
reflected in these journals fall outside the scope of this
waiver.” ECF No. 795 at 3.
First, Miller did not waive all privilege objections to
production of her journals when she did not directly assert
privilege in response to Jenkins’ initial document subpoena. ECF
No. 804 at 7. Jenkins relies on Large v. Our Lady of Mercy Med.
Ctr., No. 94 CIV. 5986(JGK)THK, 1998 WL 65995 (S.D.N.Y. Feb. 17,
1998) for her waiver argument. In that case, the producing party
previously made a bevy of objections (not including privilege)
to production of certain audiotapes and was compelled to produce
them in their entirety. The Large court then concluded that
failure to raise the privilege objection in the earlier
litigation over the produced documents waived later assertion of
the objection. Id. at *4.
7

This case is different for three reasons. First, there was
no earlier litigation over production of the journals involving
various other objections, so Miller cannot have waived her
privilege argument through failure to raise it before the Court.
Second, Large involved a subsequent privilege objection to
documents that the Court already ordered produced; here, Miller
did not produce the journals at all in response to the initial
document request. See ECF No. 804-2 at 7 (Miller agreeing to
produce certain documents but withholding the journals in their
entirety). And finally, here, Miller made privilege objections
to the documents that she did produce. ECF No. 804-3 at 2. This
indicates her intent to assert privilege objections to document
requests generally. Miller has not waived her ability to make a
privilege objection.
Miller’s privilege objections are valid to the extent that
the conversations recorded in the journals do not fall within
the second and third waivers of privilege from the settlement
agreement. ECF No. 718-1 at 17. The first waiver does not apply
because the journals were written prior to 2009. ECF No. 794 at
3 (Miller declaration stating “[m]y last journal entry was
October 5, 2008”). As noted above, Miller waived attorney-client
privilege over “communications regarding whether Miller should,
must, or would comply with then-existing or future court orders
over the custody or visitation of Isabella Miller.” ECF No. 7188

1 at 17. Her declaration acknowledges that the journals “record
conversations” that she had with her attorneys “regarding [her]
custody legal dispute” with Jenkins. If those recorded
conversations touch on whether Miller “should, must, or would
comply” with custodial court orders, they are not privileged.
Miller also waived privilege for communications with her
attorneys over her “plan to depart the United States with
Isabella, her actual departure and her remaining outside the
jurisdiction of the United States.” ECF No. 718-1 at 17. She now
states that the journals do not contain information “regarding
[her] decision to leave the country, plans to leave or about any
of the other Defendants in the lawsuit and the alleged
conspiracy regarding my leaving the country.” Id. at 2-3. The
Court has no way to evaluate this claim. To the extent that the
journals record conversations about her departure from the
United States, those entries are unprivileged and should be
produced.
The Court agrees with Jenkins that Miller must provide a
privilege log. A privilege log will assist Jenkins (and perhaps,
ultimately, the Court) in determining whether the conversations
recorded in the journals fall within the scope of the waiver. 2
This applies to
well. See ECF No.
applies to “those
related to client
2

Jenkins’ crime-fraud exception argument as
804 at 8. The crime-fraud exception only
attorney-client communications that are
communications in furtherance of contemplated
9

2. Equitable Estoppel
Miller next argues that Jenkins is equitably estopped from
seeking the journals. ECF No. 795 at 8-9. This boils down to an
assertion that the settlement agreement which released Miller
from the case also resolved all of Jenkins’ discovery claims to
documents in Miller’s possession. As the Court noted in its
prior order interpreting the settlement agreement, “[t]he
cardinal principle in the construction of any contract is to
give effect to the true intention of the parties.” ECF No. 731
at 5 (quoting In re Cronan, 151 Vt. 576, 579 (1989)). That order
also characterized the agreement as “a contract between two
parties: Jenkins and Miller.” Id.
Miller asks the Court to extend the agreement beyond its
plain terms to release claims against other individuals who are
party to the lawsuit. That was not the “true intention of the
parties” and the Court will not do so. Regardless of whether
these journals were the subject of a discovery dispute at the
time of the agreement, as Miller argues (ECF No. 795 at 9), the
or ongoing criminal or fraudulent conduct.” United States v.
Jacobs, 117 F.3d 82, 87 (2d Cir. 1997). The question of whether
Miller’s communications with her attorneys were “in furtherance
of” criminal or fraudulent conduct is essentially coextensive
with the question of whether the communications dealt with
Miller’s future compliance with court orders (waiver category 2)
or her plans to leave the country (waiver category 3). The Court
cannot evaluate the crime-fraud exception argument without a
privilege log or some sort of description of what is detailed in
the journals.
10

settlement stipulates that Miller will comply with certain
discovery requests including a deposition and a discovery
subpoena. ECF No. 718-1 at 4. The fact that Miller (apparently)
complied with those obligations has no bearing on Jenkins’
ability to seek discovery from other parties. Jenkins may have
agreed to forego Miller’s production of the journals as
consideration for the settlement, but did not agree to forego
discovery of all materials relating to Miller regardless of
possession.
3. Relevance and Proportionality
Miller alleges that she has legal privacy interests that
are implicated by production of the journals. The Court agrees
with Jenkins that these privacy concerns are “more germane to
the question of whether requested discovery is burdensome of
oppressive and whether it has been sought for a proper purpose”
than they are an independent basis for shielding the journals
from discovery altogether. ECF No. 804 at 3 (quoting Reid v.
Ingerman Smith LLP, 2012 WL 6720752, at *2 (E.D.N.Y. Dec. 27,
2012)). Indeed, the Federal Rules of Civil Procedure provide
that a party “from whom discovery is sought may move for a
protective order . . . to protect [that party] from annoyance,
embarrassment, oppression, or undue burden or expense.” Fed. R.
Civ. P. 26(c)(1). This reflects the premise that embarrassment –
or privacy invasion – is not a reason to bar discovery
11

altogether, but rather a factor that the Court should consider
when determining whether and how to issue a protective order.
Accordingly, the Court will evaluate whether Jenkins’
requests are “proportional” to the case, “considering 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,”
with specific reference to Miller’s privacy concerns. Fed R.
Civ. P. 26(c)(1); see also Chen-Oster v. Goldman, Sachs & Co.,
285 F.R.D. 294, 306 (S.D.N.Y. 2012) (“[N]onmonetary costs (such
as the invasion of privacy rights, risks to business and legal
confidences, and risks to privileges) should be considered [in
any calculus of whether to allow discovery.”).
On one side of the ledger is the relevance and value of the
Miller journals. The Court concludes that the journals plausibly
contain relevant and significant information. Jenkins submits
that the journals will likely reveal evidence of Miller’s
feelings towards homosexuality – the alleged discriminatory
animus in this case – and may contain evidence of Miller’s
relationship with Liberty Counsel Defendants. Even if they do
not speak to Miller’s relationships with Defendants, the
journals may still reflect how her attitude towards same-sex
12

marriage and homosexuality changed during the time that she kept
those journals, which is relevant to the motivation underlying
the alleged conspiracy. The Court additionally agrees with
Jenkins that the journals may be “probative of what Ms.
Lindevaldsen knew about Ms. Miller’s opinions and motivations
and when she knew that, which are relevant to Jenkins’ claims
against Ms. Lindevaldsen.” ECF No. 804 at 4. Miller’s reply
brief does not meaningfully contest that the journals contain
relevant information. 3
The Court also finds that Lindevaldsen faces minimal burden
in producing the Miller journals. There is no dispute that she
possesses copies of the journals and could easily provide those
to Jenkins. ECF No. 789-8 at 37 (Lindevaldsen stating in
deposition that she made copies of the journals prior to
returning them to Miller and counsel).
The only argument against production of the journals is
protection of Miller’s privacy. Miller cites a litany of
constitutional, statutory, and common law privacy protections

The brief argues that the journals “do not contain information
related to Ms. Miller’s decision or plans to leave the country,”
but does not contest the other arguments in Jenkins’ brief. ECF
No. 833 at 5. It otherwise asks rhetorically “[h]ow important
could the information [in the journals] have been to the issues
in dispute if Ms. Jenkins was willing to waive any purported
rights to the journals when she executed the [settlement
release]?” Id. For reasons outlined below, the Court disagrees
that the settlement release applies to the journals.
3

13

that she argues militate in favor of denying the motion to
compel. ECF No. 795 at 6-8 (citing Griswold v. Connecticut, 381
U.S. 479 (1965) (constitutional right to privacy in a marriage
relationship); Smith v. Pefanis, No. 1:08-CV-1042-JOF-RGV, 2008
WL 11333335, at *3 (N.D. Ga. Oct. 30, 2008) (discovery of phone
records limited by privacy concerns); Moreno v. Hanford
Sentinel, Inc., 172 Cal. App. 4th 1125, 1130 (2009) (California
tort law recognizes privacy interests); Fed. R. Evid. 412(a)
(regulating evidentiary introduction of evidence regarding
sexual behavior)). None are on point for several reasons, but
primarily because none – with the exception of the phone records
cases – deal with discovery disputes. And even those cases
recognize that private information is largely discoverable, but
restrict production on other grounds. In Smith, the Court
concluded that the party seeking phone records had “not shown
any reason that they should be granted unrestricted access to
plaintiff’s entire personal cell phone records.” 2008 WL
11333335 at *3. And in Sovereign Partners Ltd. P'ship v. Rest.
Teams Int'l, Inc., No. 99 CIV. 0564 RJW JCF, 1999 WL 993678, at
*4 (S.D.N.Y. Nov. 2, 1999), the court ordered that the allegedly
private phone records be turned over for in camera review prior
to disclosure. In other words, both cases dealt with overbroad
requests, and neither stands for the principle that privacy
interests are a total defense to production.
14

It is challenging to formulate a discovery plan that allows
disclosure of the relevant portions of the journals while
simultaneously protecting Miller’s privacy. The journals likely
contain private information that is irrelevant to the case. See,
e.g., ECF No. 794 at 2 (Miller declaration stating that the
journals contain “intimate details of romantic relations,
financial struggles, personal reflections, and reflections on
[her] day to day life”). On the other hand, for the reasons
outlined above, they also likely contain private details
relevant to the alleged conspiracy, including Miller’s
“spiritual beliefs” and even her “legal struggles with Ms.
Jenkins.” Id.
The Court concludes that Miller has a substantial privacy
interest in the contents of the journals, which deal with
sensitive and potentially embarrassing matters that are worthy
of protection. However, because of the potential relevance of
the journals – and the fact that this contemporaneous
documentation of Miller’s feelings and relevant communications
with her attorneys is essentially unavailable through other
discovery – Lindevaldsen must produce Miller’s journals to
Jenkins (subject to the privilege limitations outlined above).
In recognition of Miller’s privacy interest, the Court hereby
designates those journals as confidential pursuant to the

15

stipulated protective order signed by the Court on February 16,
2024. ECF No. 768.
D.

Liberty Counsel Communications
Jenkins also moves to compel disclosure of various emails

involving Defendants. These include “withheld communications
predating Ms. Miller’s disappearance,” ECF No. 789 at 8, and
“withheld communications postdating Ms. Miller’s disappearance,”
id. at 10.
Defendants counter that these emails are protected under
the work product doctrine. ECF No. 800 at 6-7. “The work-product
doctrine . . . is intended to preserve a zone of privacy in
which a lawyer can prepare and develop legal theories and
strategies.” U.S. v. Adlman, 134 F.3d 1194, 1196 (2d Cir. 1998).
Federal Rule of Civil Procedure 26(b)(3) provides:
Ordinarily, a party may not discover documents and tangible
things that are prepared in anticipation of litigation or
for trial by or for another party or its representative
(including the other party's attorney, consultant, surety,
indemnitor, insurer, or agent). But, subject to Rule
26(b)(4), those materials may be discovered if they are (i)
otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need for the
materials to prepare its case and cannot, without undue
hardship, obtain their substantial equivalent by other
means.
“The work product doctrine distinguishes between fact work
product and opinion work product.” Jensen ex rel. Jensen v.
Cashin, No. 2:06-CV-41, 2008 WL 1439899, at *2 (D. Vt. Apr. 10,
2008); In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d
16

180, 183 (2d Cir. 2007). Fact work product is “factual material,
including the result of a factual investigation, whereas opinion
work product reveals the mental impressions, conclusions,
opinions, or legal theories of an attorney or other
representative.” Id. (quoting In re Grand Jury Subpoena, 510
F.3d at 183; Fed. R. Civ. P. 26(b)(3)). “To be entitled to
protection for opinion work product, the party asserting the
privilege must show a real, rather than speculative, concern
that the work product will reveal counsel's thought processes in
relation to pending or anticipated litigation.” In re Grand Jury
Subpoena, 510 F.3d at 183-84.
Whether the so-called “Miller emails” contain fact or
opinion work product is important because “opinion work product
is accorded a heightened standard of protection.” Id. Opinion
work product may be discovered “only in rare circumstances where
the party seeking discovery can show extraordinary
justification.” FDIC v. Wachovia Ins. Servs., 241 F.R.D. 104,
106–07 (D. Conn. 2007). Fact work product, on the other hand,
may be discovered “upon a showing of substantial need and
inability to obtain the equivalent without undue hardship.”
Upjohn Co. v. United States, 449 U.S. 383, 401 (1981).
Jenkins divides the requested communications into three
categories: three “facially unprotected” emails, ECF No. 805 at
4, 23 “post-kidnapping” emails, id. at 6, and 14 “pre-kidnapping
17

emails, id. at 7. The Court will evaluate the three allegedly
unprotected emails first, because it cannot assess the other
emails which are not before it.
First, Jenkins submits that three emails – documents 142,
143, and 150 – are totally unprotected. Id. at 4. Document 142
is a February 17, 2010 email between various Liberty Counsel
Defendants designated in the privilege log as “providing update,
discussion, attorney thoughts and impressions, and other
information concerning hearing in custody litigation.” ECF No.
789-6 at 20. Jenkins believes that she obtained a copy of this
email 4 through third-party discovery (and accordingly argues that
it is non-privileged), but submits that the email itself is
plainly fact work product. ECF No. 805 at 5. The Court agrees
that most of the email is fact work product. It essentially
summarizes a hearing at the Bedford County Juvenile and Domestic
Relations Court, outlining various legal issues, questioning by
lawyers, and testimony by witnesses. The email specifically

The Court agrees that the email is likely the email designated
as document 142 on the privilege log. The recipients are
identical, the date is the same, and the subject matter of the
email matches the privilege log’s description of the document as
containing “update, discussion, attorney thoughts and
impressions, and other information concerning hearing in custody
litigation.” ECF No. 789-6 at 20 (privilege log describing the
content of withheld document 142); see also ECF No. 805-2 (email
claimed by Jenkins to be Defendants’ document 142). Accordingly,
the Court uses this email as a proxy to help evaluate the
credibility of Defendants’ privilege logging.
4

18

describes the testimony of one witness regarding “when she last
saw Lisa,” “her last communication,” and “where Lisa was or
anyone who might know.” ECF No. 805-2 at 3. This summary is “the
result of a factual investigation” – that is, the investigation
of the hearing itself. Jensen, 2008 WL 1439899, at *2.
However, some parts of the email might constitute opinion
work product. These include statements like “I sense that
Rebecca Glenburg was surprised that Rena was not there with Mat”
and Mary McAlister’s commentary upon one witness’ response that
she did not know Miller’s whereabouts: “DUH. Stupid question.”
ECF No. 805-2 at 2-3. These are “the mental impressions,
conclusions, opinions, or legal theories of an attorney.”
Jensen, 2008 WL 1439899, at *2. Whether these insights “reveal
counsel's thought processes in relation to pending or
anticipated litigation” requires context such as why the author
of the email thought that these were relevant observations. In
re Grand Jury Subpoena, 510 F.3d at 183–84. If Jenkins had not
already discovered this email, these statements might be
protected as opinion work product.
Document 143 is a February 23, 2010 email between various
Liberty Counsel Defendants discussing “strategy for [an]
upcoming hearing, and discussing unsuccessful attempts to
contact [Miller].” ECF No. 789-6 at 21. Jenkins argues that it
is fact work product because any attempt to contact Miller
19

“constitute[s] the results of a factual investigation.” ECF No.
805 at 4 (cleaned up) (citing Jensen, 2008 WL 1439899, at *2).
The Court conditionally disagrees: an email that discusses
unsuccessful attempts to contact Miller may also discuss what
those unsuccessful attempts mean for litigation strategy, or
attorney speculation regarding why they were unable to reach
Miller. Those discussions would constitute opinion work product.
However, the simple fact of failure to contact Miller is fact
work product that may be discoverable upon a showing of
substantial need and undue hardship.
The preceding discussion illustrates the difficulty of
distinguishing between fact and opinion work product (especially
without viewing the documents). For instance, Jenkins is correct
that much of document 142 should have been disclosed as factual
work product, but specific elements of the email might be
protected under the heightened standard for opinion work
product. The Court is unwilling to conclude that all of the
emails for which Defendants claim privilege are discoverable
solely on the basis of one partially mis-categorized email. It
therefore will not compel carte blanche production of the
requested documents for fear of broad disclosure of Defendants’
opinions formed in anticipation of litigation.
The Court grants Jenkins’ motion for in camera review. It
concludes that Defendants have substantial need for discovery on
20

the question of whether Defendants knew or advised of Miller’s
intent to comply with court orders and subsequent flight from
the country because both questions are highly relevant to
Defendants’ involvement in the alleged conspiracy. And Jenkins
faces substantial hardship without discovery of these emails
because they could be one of the only primary sources of direct
communications between the Defendants about the alleged
conspiracy. But because (as noted above) it is difficult to
ascertain whether the emails contain fact or opinion work
product without reviewing those emails, 5 the Court concludes that
in camera review is necessary and appropriate.
One final issue is worth addressing. Jenkins posits that
document 150 is an email chain from November and early December
2009 between various Liberty Counsel Defendants and Michelle
Kenny, Isabella Miller’s guardian ad litem in the then-pending
child custody dispute, “discussing attempts to reach [Miller].”
ECF No. 789-6 at 22. Jenkins states that the email thread cannot
be privileged because “[b]y sharing these communications with
Ms. Kenny, Defendants waived work product protection.” ECF No.
789 at 12. Defendants disagree, arguing that “work product

For the reasons related to document 142, outlined above, the
Court finds that there is a “genuine dispute” as to the accuracy
of the parties’ characterization of the privileged documents at
issue. See ECF No. 800 at 14 (citing Bowne, Inc. v. AmBase
Corp., 150 F.R.D. 465, 475 (S.D.N.Y. 1993)).
5

21

protection is not waived merely because the material is
disclosed to a third party,” Adlman, 134 F.3d at 1200 n.4, and
submitting that “[p]rotection is waived only when work product
is disclosed to a third party in a manner that is inconsistent
with the purpose of the protection.” ECF No. 800 at 8 (citing In
re Steinhardt Partners, L.P., 9 F.3d 230, 235 (2d Cir. 1993)).
The Court agrees with Jenkins that sharing the emails with
Isabella Miller’s guardian ad litem is “inconsistent with the
purpose of the protection” and that the emails are therefore
unprotected. The emails were sent between November and December
of 2009. At that time, Defendants – counsel for Miller – knew
that “something had gone wrong” and that they could not contact
Miller. ECF No. 789-7 at 56 (Lindevaldsen deposition). This
situates Defendants opposite the advocate for the child, who was
presumably also known to be out of contact. Further, at that
time, custody litigation was ongoing and Defendants’ interests
were not directly aligned with the interests of the guardian ad
litem. Verrocchio v. Verrocchio, 16 Va. App. 314, 319 (1993)
(noting that in Virginia, the State’s power to protect children
“includes the long established practice of appointing a guardian
ad litem to protect the best interests of a child upon the
chancellor's determination that such appointment is necessary”).
In sum, the Court agrees that Defendants’ emails withheld
on the basis of work product privilege should be submitted to
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the Court for in camera review. Document 150 should be produced
directly to Jenkins.
Conclusion
For the reasons set forth above, Jenkins’ motion to compel
(ECF No. 789) is granted in part and denied in part. Miller’s
motion for a protective order (ECF No. 795) is denied except as
it relates to her claim of privilege over conversations
memorialized in the journals. The Miller emails should be
submitted to the Court for in camera review.
DATED at Burlington, in the District of Vermont, this 26th
day of June, 2024.
/s/ William K. Sessions III
Hon. William K. Sessions III
U.S. District Court Judge

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