Colley v. Dickenson County School Board et al
Filing
44
OPINION and ORDER regarding objections to Memorandum Order of the Magistrate Judge dated November 21, 2017; and that the defendants forthwith submit to the chambers of theundersigned, without filing on the record, the documents in dispute to be reviewed in camera. Signed by Judge James P. Jones on 12/18/17. (ejs)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BIG STONE GAP DIVISION
DEBRA COLLEY,
Plaintiff,
v.
DICKENSON COUNTY SCHOOL
BOARD, ET AL.,
Defendants.
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Case No. 2:17CV00003
OPINION AND ORDER
By: James P. Jones
United States District Judge
John P. Fishwick, Jr. and Monica L. Mroz, Fishwick & Associates PLC,
Roanoke, Virginia, for Plaintiff; Jim H. Guynn, Jr., Guynn & Waddell, P.C.,
Salem, Virginia, for Defendant Dickenson County School Board, Haydee
Robinson, John Skeen, Don Raines, and R.E. Nickles; Melissa W. Robinson and
Johneal M. White, Glenn Robinson Cathey Memmer & Skaff, PLC, Roanoke,
Virginia, for Defendants Susan Mullins and Rocky Barton.
In this employment discrimination case, the defendants have filed objections
to the Memorandum Order of the magistrate judge dated November 21, 2017, ECF
No. 40, on a nondispositive matter. The issue involved motions to quash by the
defendants of a subpoena served on an attorney for the Dickenson County School
Board, with the defendants contending that certain of the documents sought by the
subpoena were privileged under the attorney-client privilege or the attorney workproduct doctrine.
The magistrate judge denied the motions to quash on the ground that the
defendants had not met their burden to show that the documents in question were
in fact subject to the privileges, since they had not provided any evidence as to
what in fact the documents said, and simply made the conclusory statement that
they were protected. In their objections, the defendants argue that the court could
infer the subject matter of the documents, based upon the allegations of the
Complaint. In addition, they contend that the privilege log produced was prima
facie evidence of privilege. Finally, as an alternative, they request that this court
permit the submission of the documents in question for an in camera inspection. 1
It is within my discretion to receive and consider additional evidence when
considering objections to nondispositive decisions by a magistrate judge. United
States v. Caro, 461 F. Supp. 2d 478, 480 n.2 (W.D. Va. 2006). In deciding matters
of privilege, it is often appropriate for the court to review the disputed documents
in camera. See United States v. Zolin, 491 U.S. 554, 568-69 (1989). Such review
by itself does not terminate the privilege. Id. at 568.
Accordingly, in connection with my consideration of the objections to the
magistrate judge’s decision, I will direct the defendants to provide copies of the
allegedly privileged documents to me for my in camera review.
It is ORDERED that the defendants forthwith submit to the chambers of the
undersigned, without filing on the record, the documents in dispute.
1
The plaintiff also suggested this alternative in her brief to the magistrate judge
in opposition to the motions to quash. Opp’n Defs.’ Mots. to Quash 12, ECF No. 36.
2
ENTER: December 18, 2017
/s/ James P. Jones
United States District Judge
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