Cox v. Dalton et al
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART CITY OF WESTOVERS MOTION ECF NO. 86 FOR PROTECTIVE ORDER AND/OR TO QUASH SUBPOENAS. Signed by Magistrate Judge Michael John Aloi on 11/16/21. (mh)
Case 1:21-cv-00004-TSK-MJA Document 104 Filed 11/16/21 Page 1 of 5 PageID #: 926
IN THE UNITED STATES DISTRICT COURT
FOR THENORTHERN DISTRICT OF WEST VIRGINIA
Civil Action No. 1:21-CV-4
AARON DALTON, in his individual capacity
as a City of Westover Police Officer;
JUSTICE CARVER, in his individual capacity
as a City of Westover Police Officer; and
THE CITY OF WESTOVER,
MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART CITY OF WESTOVER’S MOTION [ECF NO. 86]
FOR PROTECTIVE ORDER AND/OR TO QUASH SUBPOENAS
Presently pending before the Court is a Motion of Defendant City of Westover
(“Westover”) for Protective Order and/or to Quash Subpoenas, filed on October 15, 2021. [ECF
No. 86]. The Court is in receipt of Plaintiff’s Response [ECF No. 94], thereto, filed on October 29,
2021. The Court also is in receipt of Westover’s Memorandum in Support of its Motion [ECF No.
96], filed on November 5, 2021. By Order [ECF No. 88] dated October 22, 2021, United States
District Judge Thomas S. Kleeh referred said motion to the undersigned Magistrate Judge for
hearing and entry of an order as to appropriate disposition. Then, on November 12, 2021, the
undersigned conducted a hearing on the same. [ECF No. 102].
By this action, Plaintiff brings claims under 42 U.S.C. § 1983 against Westover and certain
of its police officers, alleging false arrest and use of excessive force. The incident in question
occurred on August 25, 2019. By certain discovery requests, Plaintiff seeks an inspection and
download of electronic devices owned by Westover’s mayor and by Westover’s city attorney, for
Case 1:21-cv-00004-TSK-MJA Document 104 Filed 11/16/21 Page 2 of 5 PageID #: 927
particular spans of time. In general terms, Westover objects to these discovery requests as being
too broad in time and scope, and in the case of the city attorney’s device, contrary to attorneyclient privilege. And in general terms, Plaintiff argues that the scope of inquiry here is appropriate
given the endemic issues identified in Westover’s operations, and that in any event the attorneyclient privilege does not attach to shield the information sought, either because the information
never was intended to be privileged, or because the crime-fraud exception to the attorney-client
A. Pertinent Law and Standards
Under the Federal Rules of Civil Procedure:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense and proportional to the needs of the case, considering
the importance of the issues at stake in the action, the amount in controversy, the
parties’ relative access to the 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 the likely benefit.
Fed. R. Civ. P. 26(b)(1) (emphases added). Notably, “[i]nformation within this scope of discovery
need not be admissible in evidence to be discoverable.” Id.
Certainly, where privileged information is sought, discovery is not so readily had. Much
of the resolution here turns on the application of the attorney-client privilege. To this end, the
Supreme Court of the United States has explained:
The attorney–client privilege is the oldest of the privileges for confidential
communications known to the common law. Its purpose is to encourage full and
frank communication between attorneys and their clients and thereby promote
broader public interests in the observance of law and administration of justice. The
privilege recognizes that sound legal advice or advocacy serves public ends and
that such advice or advocacy depends upon the lawyer's being fully informed by
Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (citation omitted). Moreover, under West
Case 1:21-cv-00004-TSK-MJA Document 104 Filed 11/16/21 Page 3 of 5 PageID #: 928
In order to assert an attorney-client privilege, three main elements must be present:
(1) both parties must contemplate that the attorney-client relationship does or will
exist; (2) the advice must be sought by the client from that attorney in his capacity
as a legal adviser; (3) the communication between the attorney and client must be
identified to be confidential.
State ex rel. U.S. Fid. & Guar. Co. v. Canady, 194 W. Va. 431, 442, 460 S.E.2d 677, 688 (1995)
(quoting Syl. Pt. 2, State v. Burton, 163 W. Va. 40, 254 S.E.2 129 (1979)).
As the Fourth Circuit has explained, “[b]oth the attorney-client and work product privileges
may be lost . . . when a client gives information to an attorney for the purpose of committing or
furthering a crime or fraud.” In re Grand Jury Proc. #5 Empanelled Jan. 28, 2004, 401 F.3d 247,
251 (4th Cir. 2005). “The party asserting the crime-fraud exception . . . must make a prima facie
showing that the privileged communications fall within the exception.” Id. More specifically:
[W]e have held that the party invoking the crime-fraud exception must make a
prima facie showing that (1) the client was engaged in or planning a criminal or
fraudulent scheme when he sought the advice of counsel to further the scheme, and
(2) the documents containing the privileged materials bear a close relationship to
the client's existing or future scheme to commit a crime or fraud. Prong one of this
test is satisfied by a prima facie showing of evidence that, if believed by a trier of
fact, would establish the elements of some violation that was ongoing or about to
be committed. Prong two may be satisfied with a showing of a close relationship
between the attorney-client communications and the possible criminal or fraudulent
Id. (citations omitted).
B. Analysis and Decision
Here, and as indicated on the record during the hearing on November 12, 2021, the
temporal scope of the information sought by Plaintiff is quite broad. While the Plaintiff alleges
longstanding, years-long practices of wrongdoing by Westover, it is unclear to the undersigned,
even after inquiry of Plaintiff’s counsel, how such a wide-ranging inquiry, without a narrowing of
subject matters to be searched and the timeframe in which to search for it, is proportional to the
needs of the case. And aside from the issue about the breadth of the information Plaintiff seeks,
Case 1:21-cv-00004-TSK-MJA Document 104 Filed 11/16/21 Page 4 of 5 PageID #: 929
the undersigned does not agree, without knowing more, that the attorney-client privilege is waived
here or otherwise does not apply.
As articulated on the record during the hearing on November 12, 2021, the undersigned
devises the following resolution of these issues for the time being. First, it is clear that, even absent
obtaining the information sought by these discovery requests at issue here, Plaintiff already has
gleaned a great deal of information which he will use in support of his claims. With such
information, his counsel can devise helpful and incisive deposition questions. Secondly, then,
Plaintiff may proceed with depositions of the above-noted mayor and city attorney, and it is hereby
ORDERED that Westover shall make these representatives available for deposition no later than
January 11, 2022. The Court does not here address Plaintiff’s argument that certain
communications are not subject to the attorney-client privilege. Thus, the undersigned cautions
Plaintiff’s counsel the attorney-client privilege may be applicable and opposing counsel may lodge
appropriate objection during these depositions on the basis of that privilege.
Third, the undersigned heard argument during proceedings on November 12, 2021 about
how information in the possession of Westover council member Ralph Mullins may aid Plaintiff
in this matter. Discovery requests as to Mr. Mullins are not before the undersigned, but to the
extent which discovery of information in Mr. Mullins’s possession may aid Plaintiff in depositions
of Westover’s mayor and city attorney, Plaintiff is encouraged to issue appropriate subpoena(s)
forthwith to obtain such information before the depositions. During proceedings on November 12,
2021, Westover’s counsel indicated that Mr. Mullins has separate legal counsel, and that Westover
does not object to Plaintiff so seeking information from Mr. Mullins.
Fourth and finally, to the extent which Plaintiff believes that the depositions of Westover’s
mayor and city attorney yield incomplete or insufficient information, Plaintiff may, subsequent to
Case 1:21-cv-00004-TSK-MJA Document 104 Filed 11/16/21 Page 5 of 5 PageID #: 930
the depositions, formulate additional, relevant discovery requests and/or schedule depositions of
Accordingly, based on the foregoing, it is ORDERED that Westover’s motion [ECF No.
86] is hereby GRANTED in part and DENIED in part as more particularly set forth herein.
It is all so ORDERED.
The Clerk of the Court is directed to provide a copy of this Order to all counsel of record,
as applicable, as provided in the Administrative Procedures for Electronic Case Filing in the United
States District Court for the Northern District of West Virginia.
DATED: November 16, 2021
Relatedly, at the hearing before the undersigned on November 12, 2021, the Court discussed the possibility
of a search of electronic devices owned and controlled by the mayor and the city attorney. The Court
discussed how or whether counsel for Plaintiff and Westover could collaborate to devise a search protocol
and search terms as to these devices, and how such protocol and terms would be germane and narrowed to
the particular claims lodged in this case and the individuals related thereto. The Court also discussed how
such information gleaned from a search of these devices could be provided to the Court in a searchable,
user-friendly format for in camera review. However, the Court did not then (and does not now) order the
development of search protocol and the production of such information for in camera review at this time.
If, after the depositions of the mayor and city attorney, Plaintiff perceives a need to burden opposing counsel
and the Court with such a process, then the Court will entertain a motion to this end.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?