Colley v. Dickenson County School Board et al
Filing
64
OPINION AND ORDER sustaining 41 Objections and Motion for Reconsideration and 43 Objections and Motion for Reconsideration; Vacating 40 Order on Motion to Quash; The Motions to Quash, ECF Nos. 32 , 34 , are GRANTED as to requests numbered 1, 4, and 5; The Subpoena to Produce Documents dated September 21, 2017, directed to Scott Mullins, Esquire, is QUASHED as to requests numbered 1, 4, and 5. Signed by Judge James P. Jones on 4/18/2018. (lml)
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 by a former public school teacher
under both the Equal Pay Act and 42 U.S.C. § 1983, as well as a pendent state
claim of breach of contract, the defendants moved to quash a subpoena duces
tecum served by the plaintiff on the school board’s attorney, relying upon the
attorney-client and work-product privileges.1 The motions were referred to the
magistrate judge, who denied them on the ground that the defendants had not met
1
The defendants consist of the school board, its five individual members, and the
school superintendent. Two of the school board members are separately represented in
this case, and have filed a separate motion to quash and separate objections, but all
defendants have a common position on the present issues. The school board and its
members, as the clients, have standing to assert the privileges asserted here. United
States v. Under Seal (In re Grand Jury Proceedings #5), 401 F.3d 247, 250 (4th Cir.
2005).
their burden to show that the documents in question were in fact subject to the
privileges, and had simply made the conclusory statement that they were protected
by the privileges. Mem. Order 6, Nov. 22, 2017, ECF No. 40. 2 The defendants
filed timely objections to the magistrate judge’s decision. I then directed the
defendants to submit the documents in question for the court’s in camera review.
Op. & Order 2, Dec. 18, 2017, ECF No. 44. The documents have been submitted
and the objections to the magistrate judge’s Memorandum Order are now ripe for
decision.
I.
A magistrate judge’s ruling as to nondispositive matters may be reversed
only upon a finding that the order is clearly erroneous or contrary to law. 28
U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). An order is clearly erroneous when
“although there is evidence to support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mistake has been committed.”
Minyard Enters., Inc. v. Se. Chem. & Solvent Co., 184 F.3d 373, 380 (4th Cir.
1999) (internal quotation marks and citation omitted). An order is contrary to law
“when it fails to apply or misapplies relevant statutes, case law, or rules of
2
The defendants submitted to the magistrate judge a Privilege Log which
described each document claimed to be privileged by type of document (such as “Email
W/Attachment”), date, author, recipient, and a very limited description of subject matter
(such as “Salary”). Br. Supp. Mot. Quash Ex. 3, ECF No. 33-3. There are 23 separate
documents listed on the Privilege Log.
2
procedure.” United Mktg. Solutions, Inc. v. Fowler, No. 1:09-CV-1392-GBL-TCB,
2011 WL 837112, at *2 (E.D. Va. Mar. 2, 2011) (citation omitted).
Because federal law claims are made in this case, the privileges asserted here
are governed by “the principles of the common law as interpreted by the courts of
the United States in the light of reason and experience.” Fed. R. Evid. 501 advisory
committee note to 1974 enactment; see Virmani v. Novant Health Inc., 259 F.3d
284, 286 n.3 (4th Cir. 2001) (“We agree with our sister circuits that in a case
involving both federal and state law claims, the federal law of privilege applies.”).
The attorney-client privilege applies when the person claiming the privilege
has, as a client, consulted an attorney to secure legal services, and in connection
with those services, information intended to be confidential has been
communicated. In re Grand Jury Proceedings, 727 F.2d 1352, 1355 (4th Cir.
1984). The essence of the privilege is protection of what was expressly made
confidential or should have been reasonably assumed by the attorney as so
intended. United States v. Jones, 696 F.2d 1069 (4th Cir. 1982).
In the corporate context, the protections of the attorney-client privilege
extend to employees. Upjohn Co. v. United States, 449 U.S. 383, 391-95 (1981).
The attorney-client privilege protects intra-corporate communications transmitting
legal advice to employees, see Deel v. Bank of Am., 227 F.R.D. 456, 460 (W.D.
Va. 2005), and communications between employees in preparation for seeking
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legal advice, see Burlington Indus. v. Exxon Corp., 65 F.R.D. 26, 38-39 (D. Md.
1974). Only if the third party is a “stranger” to the entity is the privilege waived.
Deel, 227 F.R.D. at 458 (citation omitted).
The work-product doctrine protects materials prepared in anticipation of
litigation.
Collins v. Mullins, 170 F.R.D. 132, 134 (W.D. Va. 1996).
The
probability of litigation must be substantial and imminent, or fairly foreseeable at
the time the document was prepared. Id. The privilege encompasses both fact
work product and opinion work product.
Opinion work product contains an
attorney’s mental impressions, conclusions, opinions, or legal theories. Better
Gov’t Bureau Inc. v. McGraw (In re Allen), 106 F.3d 582, 607 (4th Cir. 1997).
Fact work product, which consists of documents that do not contain the attorney’s
mental impressions, is not entitled to absolute protection. Id.
An existing attorney-client relationship does not alone warrant a
presumption of confidentiality.
Id.
The circumstances in which the
communication was made must show the intention of secrecy. In re Grand Jury
Proceedings, 727 F.2d at 1356. Communications intended to be conveyed to
others are not entitled to attorney-client protection. Id. at 1357.
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II.
The plaintiff in this case, Debra Collins, worked as supervisor of instruction
for the Dickenson County, Virginia, public school system from 2007 until her
retirement in 2015. She contends that during her employment there was an
unlawful disparity between her salary and that of comparable male employees.
She alleges that at the time of her pending retirement in 2015, she brought this
issue to the attention of the Dickenson County School Board (the “School Board”)
and that Scott Mullins, the lawyer for the School Board, indicated to her a range of
compensation the School Board would pay her in order to correct the eight years of
disparity. She claims that she agreed to any figure within that range but that in
July of 2015 the School Board decided not to offer her any compensation. This
lawsuit followed. The defendants deny any liability to the plaintiff.
The subpoena served by the plaintiff on Mullins, the School Board’s
attorney, requested production of the following documents that are the subject of
the motions to quash:
1. All documents, including but not limited to emails, correspondence,
notes, records, and/or memoranda exchanged between [Mullins] and/or
anyone in [his] office and Reba McCowan, Clerk of the Dickenson
County School Board, regarding Debra Colley from January 1, 2015[,]
through August 1, 2015.
....
4. All documents, including but not limited to emails, correspondence,
notes, records, and/or memoranda exchanged between [Mullins] and any
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employee or representative of the Dickenson County School System
(including but not limited to the Superintendent and School Board
members), regarding Debra Colley and/or compensation for Debra
Colley from January 1, 2010[,] through August 1, 2015.
5. All documents including but not limited to emails, correspondence, notes,
records, and/or memoranda exchanged between employees or
representatives of the Dickenson County School System that [Mullins
was] copied on or that were provided to [Mullins], regarding Debra
Colley’s employment and/or compensation from January 1, 2010[,]
through August 1, 2015.
Br. Supp. Mot. Quash Ex. 1, Ex. A, ECF No. 33-1 (footnote omitted).3
Based upon my in camera review, the documents in question are all dated
following a letter of April 30, 2015, from plaintiff Colley to Superintendent
Robinson stating her claim of disparate salary treatment and requesting “redress of
financial suffering.”
Def[s]. Mullins & Barton Reply Br. Supp. Mot. Quash Ex.
A, ECF No. 38-1. The documents all relate to Colley’s claim. They include emails
to and from Mullins and Robinson and Reba McCowan, the Clerk of the School
Board, as well as emails from Mullins to the School Board members collectively.
All of Mullins’ emails contain a notice that they are a “confidential and privileged
communication,” and in some instances the subject line of the email contains
similar language. Three of the emails were copied to Brenda Greene, who is
represented to be a paralegal in Mullins’ office.
3
The defendants do not object to two classes of documents to be produced by
Mullins, numbered 2 and 3 on the subpoena, which request all communication between
Mullins and two representatives of the Virginia Retirement System concerning the
plaintiff. Id.
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In chronological order, the documents show Mullins’ receipt and initial
advice to the School Board concerning Colley’s claim; his work in compiling
evidence about the validity of the claim; his advice as to applicable law and the
School Board’s possible alternatives in resolving the claim; and his exploration and
advice concerning a possible settlement of the claim, including the drafting of a
potential severance agreement with Colley.
In her opposition to the motions to quash, Colley argued that the subpoenaed
documents are not protected by the attorney-client privilege or work-product
doctrine because: (1) the documents were disclosed to third parties and not
intended to be kept confidential; (2) Mullins was acting solely as a negotiator and
not as a lawyer; (3) the facts underlying the emails are not protected; and (4)
Colley is entitled to work product not prepared in anticipation of litigation. I will
address each of these arguments in turn.
Mullins’s intention to keep the subpoenaed documents confidential is
obvious for most of the communications. There is no indication that any of the
emails were intended to be conveyed to an unrelated third party. Mullins explicitly
warned the School Board not to share the contents of the emails with anyone else
and that doing so would result in losing the attorney-client privilege.
Despite Colley’s argument to the contrary, the fact that the pay disparity
issue was discussed with her and she was provided salary data in those discussions,
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does not constitute a waiver of the privilege with respect to all other attorney-client
communications on the issue.
For example, attorneys regularly share with
opposing counsel their decisions to take or not take certain action. This does not
break the attorney-client privilege for communications made in confidence that led
them to such decisions.
Colley argues that any communications to Superintendant Robinson and
School Board Clerk McCowan are not protected because Robinson and McCowan
are not members of the School Board and are therefore not entitled to the
privileges. This argument is misguided. Robinson and McCowan were employees
of the School Board. Robinson was required by law to attend School Board
meetings. Va. Code Ann. § 22.1-69. McCowan, as Clerk of the School Board,
was the custodian of records and would have access to all pertinent information.
Va. Code Ann. § 22.1-77. “[I]t is only natural that these employees would have
the relevant information needed by . . . counsel if he is adequately to advise the
client.” Upjohn, 449 U.S. at 391. Therefore, the communications between Mullins
and these two individuals are protected.
Colley next argues that Mullins was acting as a negotiator or business
advisor and therefore, his communications pertaining to such negotiations are not
privileged. In order for the attorney-client privilege to apply, an attorney “must be
acting as an attorney and not simply as a business advisor.” Henson v. Wyeth
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Labs., Inc., 118 F.R.D. 584, 587 (W.D. Va. 1987) (finding that work-product and
attorney-client privileges did not apply to memoranda that contained information
addressing strictly business decisions, reflected ongoing business developments,
and failed to contain specific legal advice). Unlike Henson, the documents in this
case demonstrate that the School Board was seeking legal advice from Mullins,
and that Mullins prepared work product in conjunction with this advice. These
were not documents simply “addressing business decisions” or “used in factoring
positions to be taken in the market place.” Id. at 586-87. As part of his duties, he
may have attempted to facilitate a resolution with Colley on behalf of the School
Board, but Mullins was clearly providing legal services to the School Board
regarding the claim, and not acting purely as a non-attorney negotiator.4
Colley’s final two arguments are related. She contends that the emails
described as “salary comparisons” on the Privilege Log, are not protected by the
attorney-client privilege. To be sure, the “attorney-client privilege protects only
the disclosure of client communications, and not the disclosure of any underlying
facts.” Better Gov’t Bureau, 106 F.3d at 604. The facts at issue here, however, are
4
The other cases that Colley cites in support of her contention that Mullins was
acting as a negotiator can be distinguished for the same reasons. See Bogan v. Nw. Mut.
Life Ins. Co., 145 F.R.D. 640, 641 (S.D.N.Y. 1992) (holding that memorandum written
by insurance company’s attorney describing meeting in which attorney’s sole function
was to eliminate conflict between insurance agents was not privileged); Comercio E
Industria Cont’l, S.A. v. Dresser Indus., Inc., 19 F.R.D. 513, 515 (S.D.N.Y. 1956)
(finding that the attorney-client privilege was not available when attorney was “acting as
the client’s alter ego in [the] business transactions.”). In both of these cases, the
attorney’s role clearly fell outside the scope of legal advisor.
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information prepared by Mullins or by McCowan at Mullins’s request, as part of
his legal advice to the School Board. They are work product. Some of these
attachments are fact work product and others contain legal opinions or impressions
concerning Colley’s claim.
The question is whether this work product was
prepared in anticipation of litigation.
If it was, then it is generally not
discoverable.
Colley contends that the defendants have failed to meet their burden to show
that the documents were prepared in anticipation of litigation. She argues that the
documents were actually prepared to assist in negotiations to correct the pay
disparity, and because it is alleged that the School Board told her it would correct
this disparity in April 2015, the probability of litigation was not imminent or fairly
foreseeable for the period covering the subpoenaed documents. I disagree. From
at least April, it was clear to the School Board and Mullins that Colley was
asserting a claim against the School Board. She had written a formal letter to
Robinson requesting that the School Board correct the alleged pay disparity. She
had retained an attorney and “attended a [School Board] meeting on the issue with
her lawyer present,” Reply Br. Supp. Mot. Quash 6, ECF No. 39, which certainly
must have indicated that litigation was fairly foreseeable. Accordingly, I believe
that the documents include protected work product prepared in anticipation of
litigation.
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Even factual work product prepared in anticipation of litigation can
nevertheless be discoverable upon a showing of both a substantial need and an
inability to secure the substantial equivalent of the documents by alternate means
without undue hardship. Fed. R. Civ. P. 26(b)(3); see Under Seal, 401 F.3d at 250.
Colley argues that she has a substantial need for the salary comparisons which the
Privilege Log indicates were attached to certain of the emails, and cannot get a
substantial equivalent without undue hardship. However, Colley already has some
salary comparisons previously provided to her and she can obtain any other
relevant information about School Board employees through the normal discovery
process, even if she cannot obtain the work-product material of the School Board’s
attorney.
III.
Under the circumstances, because the magistrate judge did not have access
to the documents in question, and based upon the in camera review of those
documents, I find that the magistrate judge clearly erred in denying the motions to
quash. Accordingly, it is ORDERED as follows:
1.
Defendants’ Objections, ECF Nos. 41, 43, are SUSTAINED;
2.
The magistrate judge’s Memorandum Order, ECF No. 40, is
VACATED;
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3.
The Motions to Quash, ECF Nos. 32, 34, are GRANTED as to
requests numbered 1, 4, and 5; and
4.
The Subpoena to Produce Documents dated September 21, 2017,
directed to Scott Mullins, Esquire, is QUASHED as to requests numbered 1, 4, and
5.
ENTER: April 18, 2018
/s/ James P. Jones
United States District Judge
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