Stradtman v. Republic Services, Inc. et al

Filing 161

MEMORANDUM OPINION re: 121 Motion Re: Objections to Magistrate Judge's Ruling or Recommendation. (See Memorandum Opinion For Details). Signed by District Judge James C. Cacheris on 5/21/15. (nhall)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

STEPHEN M. STRADTMAN,
Plaintiff,
v.
REPUBLIC SERVICES, INC.,
et al.,
Defendants.

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M E M O R A N D U M

1:14cv1289 (JCC/JFA)

O P I N I O N

This matter is before the Court on Defendants Republic
Services, Inc., Ronald Krall, and Republic Services of Virginia,
LLC’s (collectively “Defendants”) Objections to Magistrate Judge
John F. Anderson’s April 10, 2015 Order.

[Dkt. 121.]

For the

following reasons, the Court will overrule the objections.
I. Background
Plaintiff Stephen M. Stradtman (“Stradtman”) claims
that Defendants tortiously interfered with contractual relations
and business expectancies regarding his former employment as the
Chief Executive Officer (“CEO”) of Otto Industries North
America, Inc. (“Otto”).

(Compl. [Dkt. 1-3] at ¶¶ 121-140.)

In

general, Stradtman claims that Defendants caused his resignation
from Otto in retaliation for a discrimination lawsuit that
Stradtman’s wife, Jennifer Taylor (“Taylor”) had filed against

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Defendants.

(See generally id.)

During discovery, Defendants moved to compel
communications prior to September of 2012 between Stradtman and
Charlson Bredehoft Cohen Brown & Jones P.C. (“Charlson
Bredehoft”), the law firm that represented Taylor in her lawsuit
and currently represents Stradtman in this lawsuit.
Mot. to Compel [Dkt. 73] at 1.)

(Defs.’

Stradtman opposed, arguing that

the communications were protected by the attorney-client
privilege.

(Pl.’s Opp. [Dkt. 83] at 4-5.)

After considering

the written briefs and hearing oral argument on the motion,
Judge Anderson denied the motion to compel, finding that there
was an attorney-client relationship between Stradtman and
Charlson Bredehoft beginning in the spring of 2012.
Order [Dkt. 101].)

(4/10/15

Defendants timely noted their objection to

that Order pursuant to Federal Rule of Civil Procedure 72 and 28
U.S.C. § 636.

[Dkt. 121.]

Having been fully briefed and

argued, this motion is ripe for disposition.
II. Legal Standard
Rule 72(a) of the Federal Rules of Civil Procedure
allows a magistrate judge to hear and decide non-dispositive
motions.

Rule 72(a) also permits a party to submit objections

to a magistrate judge's ruling on such motions, like discovery
orders.

Fed. R. Civ. P. 72(a); see also 28 U.S.C. §

636(b)(1)(A); Fed. Election Comm'n v. The Christian Coal., 178
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F.R.D. 456, 459–60 (E.D. Va. 1998) (citing Thomas E. Hoar, Inc.
v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990)).
Only if a magistrate judge's decision is “clearly
erroneous or contrary to law” may a district judge modify or set
aside any portion of the decision.
28 U.S.C. § 636(b)(1)(A).

Fed. R. Civ. P. 72(a); see

The alteration of a magistrate

judge’s order is “extremely difficult to justify.”

Bruce v.

Hartford, 21 F. Supp. 3d 590, 593 (E.D. Va. 2014) (citing 12
Charles Alan Wright & Arthur Miller, Federal Practice &
Procedure § 3069 (2d ed. 1997)).
The “clearly erroneous” standard applies to questions
of fact.

In applying this standard, a reviewing court will not

reverse a lower court’s findings of fact “simply because we
would have decided the case differently.”

Easley v. Cromartie,

532 U.S. 234, 242 (2001) (citation and internal quotation marks
omitted).

“Rather, a reviewing court must ask whether, on the

entire evidence, it is left with the definite and firm
conviction that a mistake has been committed.”
and internal quotation marks omitted).
standard is therefore deferential.

Id. (citation

The “clearly erroneous”

The Christian Coalition, 178

F.R.D. at 460.
Where pure questions of law are involved, “‘that
review is plenary under the ‘contrary to law’ branch of the Rule
72(a) standard.’”

HSBC Bank USA, Nat’l Ass’n v. Resh, No.
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3:12cv668, 2014 WL 317820, at *7 (W.D. Va. Jan. 28, 2014)
(citing PowerShare, Inc. v. Syntel, Inc., 597 F. 3d 10, 15 (1st
Cir. 2010) (collecting cases)).

“‘This means that, for

questions of law, there is no practical difference between
review under Rule 72(a)’s ‘contrary to law’ standard and [a] de
novo standard.’”

Id. (citing PowerShare, 597 F. 3d at 15).

Therefore, the Court will review the factual portions of the
magistrate judge’s order under the clearly erroneous standard
but will review the legal conclusions de novo.
III. Analysis
Defendants seek a review of Judge Anderson’s ruling
that an attorney-client privilege existed between Stradtman and
Charlson Bredehoft prior to September 2012.

(Defs.’ Mem. in

Supp. [Dkt. 121] at 1.)
The attorney-client privilege applies only if:
1) the asserted holder of the privilege is
or sought to become a client; (2) the person
to whom the communication was made (a) is a
member of the bar of a court, or his
subordinate and (b) in connection with this
communication is acting as a lawyer; (3) the
communication relates to a fact of which the
attorney was informed (a) by his client (b)
without the presence of strangers (c) for
the purpose of securing primarily either (i)
an opinion on law or (ii) legal services or
(iii) assistance in some legal proceeding,
and not (d) for the purpose of committing a
crime or tort; and (4) the privilege has
been (a) claimed and (b) not waived by the
client.

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Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998) (citations
and internal quotation marks omitted).

The issue before Judge

Anderson was whether Stradtman could be considered a client of
Charlson Bredehoft in the spring of 2012.
The person seeking to invoke the attorney-client
privilege must prove that he is a client or that he
affirmatively sought to become a client.

In re Grand Jury

Subpoena: Under Seal, 415 F.3d 333, 340 (4th Cir. 2005).

“‘The

professional relationship . . . hinges upon the client's belief
that he is consulting a lawyer in that capacity and his
manifested intention to seek professional legal advice.’”

Id.

(citing United States v. Evans, 113 F.3d 1457, 1465 (7th Cir.
1997)).

An individual's subjective belief that he is

represented is not sufficient to create an attorney-client
relationship.

Id. (citing In re Grand Jury Subpoena Duces

Tecum, 112 F.3d 910, 923 (8th Cir. 1997) (“[W]e know of no
authority . . . holding that a client's beliefs, subjective or
objective, about the law of privilege can transform an otherwise
unprivileged conversation into a privileged one.”); United
States v. Keplinger, 776 F.2d 678, 701 (7th Cir. 1985) (“We
think no individual attorney-client relationship can be inferred
without some finding that the potential client's subjective
belief is minimally reasonable.”)). Rather, the putative client
must show that his subjective belief that an attorney-client
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relationship existed was reasonable under the circumstances.
Id.
Judge Anderson’s factual determination that Stradtman
had a subjective belief that he was a client of Charlson
Bredehoft was not clearly erroneous.

Judge Anderson considered

the substance of a March 22, 2012 email from Stradtman as well
Charlson Bredehoft’s attempt to retract the production of that
email to opposing counsel after it was inadvertently disclosed
by Stradtman’s attorney.

The March 22 email contains

“privileged” in the subject line (albeit misspelled).
[Dkt. 108] at 57.)

(Hr’g Tr.

In the email, Stradtman discusses filing a

complaint and strategy about a potential case with a Charlson
Bredehoft attorney.

(Id.)

As Judge Anderson noted, such a

discussion about legal strategy is evidence that Stradtman
believed he was represented by Charlson Bredehoft.

(Id.)

Judge Anderson’s finding that Stradtman’s subjective
belief was reasonable under the circumstances is also wellsupported.

First, Judge Anderson relied on Stradtman’s

counsel’s representation that Charlson Bredehoft gave Stradtman
a retainer agreement in April 2012.

(Hr’g Tr. at 42.)

Members

of the bar of this Court are bound by a duty of candor to the
tribunal, and judicial reliance on such representations is
appropriate.

See E.D. Va. Local Rule 83.1(I) (adopting

Virginia’s professional ethics rules).
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Additionally, it appears

that there were on-going conversations between Charlson
Bredehoft and Stradtman about Stradtman’s case at the time
Charlson Bredehoft gave him the retainer agreement.

(See Hr’g

Tr. at 42 [PLAINTIFF’S COUNSEL]: The retainer agreement with our
firm is proffered to Mr. Stradtman in the April [2012] time
period, and that’s after he had lots of communications or
consultations or thoughts about what the strategy would be.”)
Though the retainer agreement was signed by a representative of
Charlson Bredehoft on April 16, 2012 and by Stradtman on July
23, 2012, it is possible that an attorney-client relationship
existed before July 23, 2012.

((Pl.’s Opp., Ex. 3, at 3.) 1

“Under the law, attorney-client relationships arise out of
substance and intent, even in the absence of a written
contract.”

Am. Sci. and Eng’g, Inc. v. Autoclear, LLC, 606 F.

Supp. 2d 617, 623 (E.D. Va. 2008) (citation and internal
quotation marks omitted); see also Restatement (Third) of The
Law Governing Lawyers § 14 (“A relationship of a client and
lawyer arises when a person manifests to a lawyer the person’s
intent that the lawyer provide legal services for the person and
. . . the lawyer manifests to the person consent to do so.”).
Here, both Stradtman and Charlson Bredehoft manifested an intent
to form an attorney-client relationship through their actions –
1

According to Defendants, the first time Stradtman produced a
retainer agreement was in opposition to the instant motion.
(Defs.’ Reply [Dkt. 146] at 10.)
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Stradtman in discussing legal strategy and Charlson Bredehoft in
signing a retainer agreement and providing the same to
Stradtman.
Second, in an attempt to retract the inadvertent
disclosure of the March 22 email, Stradtman’s counsel identified
it to opposing counsel as a memorandum “discussing legal advice
[Stradtman] received” from Charlson Bredehoft.
[Dkt. 145] at 5.)

(Pl.’s Opp.

Though Judge Anderson ultimately found that

any privilege as to the March 22 email had been waived because
Stradtman’s counsel failed to take reasonable steps to prevent
or rectify the disclosure, (see Hr’g Tr. at 40), 2 this lends
support to the idea that it was reasonable for Stradtman to
believe that he was a client of Charlson Bredehoft, since
Charlson Bredehoft believed it as well. 3
Finally, the Court notes that Taylor’s lawsuit was
filed in April 2012.

(Hr’g Tr. at 44.)

In that lawsuit, which

was eventually removed to this Court, Taylor unsuccessfully
sought damages for Stradtman’s legal harms.

(Id.)

Thus, it

would not be unreasonable for Stradtman to think that Charlson
Bredehoft, which represented Taylor in her lawsuit, was also
representing his legal interests.

2

Therefore, Judge Anderson’s

Defendants do not challenge this ruling.
The email from Stradtman’s counsel to opposing counsel is dated
October 3, 2012. (Pl.’s Opp., Ex. 2.)
3

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determination that Stradtman believed himself to be a client of
Charlson Bredehoft is not clearly erroneous. 4
Judge Anderson’s legal conclusion that an attorneyclient relationship existed in April 2012 is not contrary to
law.

As noted, Stradtman was a client of Charlson Bredehoft.

Defendants’ motion sought to compel communications between
Charlson Bredehoft and Stradtman discussing Stradtman’s case
during the attorney-client relationship.

Judge Anderson

properly ruled that the documents were privileged and thus the
motion to compel was properly denied.
IV. Conclusion
For the foregoing reasons, Defendants’ motion will be
denied.

An appropriate order will issue.

May 21, 2015
Alexandria, Virginia

/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE

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Judge Anderson’s determination is not undermined by the lack of
a declaration from Stradtman, in opposition to the motion to
compel, detailing when he entered into an attorney-client
relationship. Though a declaration would have made resolution
of this issue much simpler, its absence is not dispositive on
the question of intent to form an attorney-client relationship.
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