Waite v. Church of Jesus Christ, Latterday Saints et al

Filing 135

ORDER Denying 83 Church Defendants' Motion to Compel. Signed by Judge Edward F. Shea. (CV, Case Administrator)

Waite v. Church of Jesus Christ, Latterday Saints et al

Doc. 135

Case 2:05-cv-00399-EFS

Document 135

Filed 06/14/2007

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Before the Court, without oral argument, is the Church of Jesus Christ of Latter-Day Saints and Donald Fossum's (hereinafter "Church Defendants") Motion to Compel (Ct. dispute that arose when it became Rec. 83), based upon a discovery clear to defense counsel that v. CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER DAY SAINTS, a Utah corporation; CORPORATION OF THE PRESIDENT OF THE CHURCH OF JESUS CHRIST OF LATTER DAY SAINTS, a Utah Corporation; DONALD C. FOSSUM, and STEVEN D. BRODHEAD, Defendants. ORDER DENYING CHURCH DEFENDANTS' MOTION TO COMPEL THOMAS A. WAITE, Plaintiff, NO. CV-05-0399-EFS UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

Plaintiff's counsel had ex parte contact with several witnesses who were former missionaries allegedly after an agreement prohibiting such

contact. Defendants

In order to obtain details of the ex parte contacts, Church ask the Court to compel Plaintiff to fully answer

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Case 2:05-cv-00399-EFS

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Interrogatories 2-5 and Request for Production No. 8, arguing any work product privilege has been waived and Plaintiff's counsel breached an agreement between counsel prohibiting ex parte contact with missionaries. Plaintiff opposes the motion, arguing that counsel did not reach an agreement and the work product privilege has not been waived for all information and materials. After reviewing the submitted material and

relevant authority, the Court is fully informed. As explained below, the Court denies the Church Defendants' motion. First, the Court finds the requested information and material is work product. In addition, under Wright v. Group Health Hospital, 103

Wash. 2d 192 (1984), it was not inappropriate for Mr. Nordstrom to contact James Ross, or other non-speaking agents, ex parte. Therefore,

Plaintiff has no obligation to produce additional information or material than was previously provided as the disclosure of some work product does not waive the privilege as to other materials. See 8 ALAN WRIGHT, ARTHUR

MILLER & RICHARD MARCUS, FEDERAL PRACTICE & PROCEDURE: CIVIL § 2024 (2d ed. 2007 update). In addition, the Court finds Plaintiff's response to the

discovery request sufficient under Federal Rule of Civil Procedure 26(b)(5)(A). Plaintiff's answer to Interrogatory No. 1 is self evident

and the following detailed Interrogatories do not have to be answered to comply with the subsection. The Court also notes that information of

mode of contact as requested in Church Defendants' interrogatories was already provided by Mr. Ross' declaration (telephone) and Mr. Eyman's preliminary recitation to Mr. Ryan during his deposition (telephone call in 2005).

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Counsel disagree on the existence of an agreement prohibiting Plaintiff's counsel from ex parte contact with former missionaries of the Church Defendants. Regrettably, even counsel who enjoy an affable and

mutually respectful professional relationship occasionally disagree on the existence and nature of oral agreements. Such is the present

situation. Counsels' respective declarations on this issue generate heat but not light. On this record, the Court declines to find the existence

of an oral agreement prohibiting Plaintiff's counsel from having ex parte contact with former missionaries, contact otherwise permitted by Wright v. Group Health Hospital, 103 Wash. 2d 192 (1984). Accordingly, IT IS HEREBY ORDERED: Church Defendants' Motion to Compel (Ct. Rec. 83) is DENIED.

IT IS SO ORDERED. The District Court Executive is directed to enter this Order and provide copies to counsel. DATED this 14th day of June 2007.

S/ Edward F. Shea EDWARD F. SHEA United States District Judge

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