Opinion
CIVIL ACTION No. 01-2095-CM, No. 01-2096-CM
January 31, 2003
MEMORANDUM AND ORDER
Pending before the court are plaintiffs Christine R. Berroth and Susan "Sue" Brown's Motions for Review of Magistrate Judge's Pretrial Order (Docs. 60 75). Plaintiffs have requested the court to review Magistrate Judge James P. O'Hara's Memorandum and Order (Doc. 59), in which Magistrate Judge O'Hara denied plaintiffs' motions to compel Scott D. Campbell, defendant Kansas Farm Bureau Mutual Insurance Company, Inc.'s designated corporate representative, to answer certain questions asked during a deposition on September 7, 2001 (Docs. 36 45). As set forth below, plaintiffs' motions are denied.
For purposes of this order, the court considers the motions in actions 01-2095 and 01-2096 jointly. Although the cases have not been consolidated, they are related because plaintiffs in each case are former employees of defendant and the testimony at issue in both motions arises from the September 7, 2001 testimony of Scott D. Campbell. In addition, Magistrate Judge O'Hara considered the cases jointly in his January 22, 2002 order (Doc. 59).
º Standard of Review of Magistrate's Order
Under 28 U.S.C. § 636(b)(1)(A), the district court's scope of review of a magistrate's decision is whether the order has been shown to be "clearly erroneous or contrary to law." Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1461-62 (10th Cir. 1988). "The clearly erroneous standard requires that the court affirm the decision of the magistrate unless `on the entire evidence [the court] is left with a definite and firm conviction that a mistake has been committed.'" Aerotech Res., Inc. v. Dodson Aviation, Inc., No. Civ. A. 00-2099-CM, 2001 WL 474302, at *3 (D.Kan. Apr. 23, 2001) (quoting Ocelot Oil Corp., 847 F.2d at 1461-62) (internal citation omitted); see also Fed.R.Civ.P. 72(a); D. Kan. Rules 72.1.1(c) 72.1.4(a).
II. Discussion
Plaintiffs argue that Magistrate Judge O'Hara's order denying their motions to compel was clearly erroneous. In their motions to compel, plaintiffs sought the court to require Mr. Campbell to testify regarding certain conversations with his attorney, Edward Horne. Defendant contended that the information sought by plaintiffs was protected by the attorney-client privilege. In his order, Magistrate Judge O'Hara rejected plaintiffs' argument that the conversations fell within the crime-fraud exception to the attorney-client privilege. Plaintiffs argued that the crime-fraud exception applied to Mr. Campbell's testimony because Mr. Campbell committed perjury by falsifying affidavits, thereby making the conversations between himself and Mr. Horne regarding the preparation of those affidavits ineligible for protection under the attorney-client privilege. However, Magistrate Judge O'Hara found that the crime-fraud exception was not available because plaintiffs failed to present sufficient evidence of a "prima facie" case of perjury. See Motley v. Marathon Oil Co., 71 F.3d 1547, 1551 (10th Cir. 1995) (stating that a party must allege a prima facie case of perjury in order for the crime-fraud exception to apply); Burton v. R.J. Reynolds Tobacco Co., 177 F.R.D. 491, 501 (D.Kan. 1997) (citing Wallace, Saunders, Austin, Brown Enochs, Chtd., v. Louisburg Grain Co., 250 Kan. 54, 61, 824 P.2d 933, 939 (1992)).
"The attorney-client privilege does not apply where a client consults an attorney to further a crime or fraud." In re Grand Jury Subpoenas, 144 F.3d 653, 660 (10th Cir. 1998) (quoting Motley v. Marathon Oil Co., 71 F.3d 1547, 1551 (10th Cir. 1995)). For the crime-fraud exception to apply, the party opposing the privilege must present prima facie evidence that the allegation of attorney participation in the underlying crime or fraud has some basis in fact. Id.
In their motions for review, plaintiffs allege Magistrate Judge O'Hara clearly erred by finding that plaintiffs failed to state a prima facie case of perjury. Specifically, plaintiffs contend that several statements in Magistrate Judge O'Hara's order misconstrued the evidence before the court. This court will examine each statement in turn.
First, plaintiffs contend Magistrate Judge O'Hara erred by finding that Mr. Campbell did not commit perjury when he made a statement in an affidavit regarding the proportion of male and female adjusters. (Pls.' Mtns. at 2-3). Magistrate Judge O'Hara found that Mr. Campbell did not intend to convey exact personnel figures, but rather estimated proportions. Magistrate Judge O'Hara drew this conclusion based upon the context of Mr. Campbell's statements, including his use of terminology such as "balanced," rather than asserting exact numbers, and Mr. Campbell's use of qualifying language such as the term "almost." Plaintiffs contend this was error because Mr. Campbell had intended to state that the numbers of males and females were evenly balanced. Based upon its review of the record, the court does not believe that Magistrate Judge O'Hara's interpretation was clearly erroneous or contrary to law. The court does not find that this statement supports an inference that Mr. Campbell committed perjury. Plaintiffs' motions are denied on this basis.
Second, plaintiffs argue that Magistrate Judge O'Hara erred by stating that Mr. Campbell had not intended in his affidavit to convey precise figures regarding the ratio of male to female adjusters defendant employed. Plaintiffs claim Magistrate Judge O'Hara misstated the manner in which Mr. Campbell was computing the numbers of male and female employees, by including the statement that Mr. Campbell "considered two female office claims representatives to be a part of the adjusting staff." (Order at 9). Upon examination, the court finds that Magistrate Judge O'Hara did not err in finding that Mr. Campbell had not intended to convey precise figures regarding the ratio of male to female adjusters. Consequently, there is no basis for the court to conclude that Mr. Campbell committed perjury. Plaintiffs' motions are denied on this basis.
Third, plaintiffs contend Magistrate Judge O'Hara erred by finding that there was no support for plaintiffs' contention that Mr. Campbell perjured himself by stating in an affidavit that he selected plaintiff Brown instead of a male adjuster, Tracy Gawith. Plaintiffs contended in their Motion to Compel that, because Mr. Campbell did not interview Mr. Gawith for the position, Mr. Campbell could not have "considered" him for the position. In his order, Magistrate Judge O'Hara rejected this argument, finding that it would have been possible for Mr. Campbell to have considered Mr. Gawith for the position, even though Mr. Campbell did not interview Mr. Gawith. Upon review, the court finds that Magistrate O'Hara's conclusion is not clearly erroneous. The court finds no support in the record for plaintiffs' proposition that Mr. Campbell perjured himself through this statement. Plaintiffs' motions are denied on this basis.
Fourth, plaintiffs state that Magistrate Judge O'Hara erred by finding that "[p]laintiff [had] presented no evidence that Campbell or defendant have attempted to withhold evidence during the [Kansas Human Rights Commission (KHRC)]'s investigation or during the course of this litigation . . . [Q]uite to the contrary, based on the evidence presented by defendant, it appears defendant and Campbell were forthcoming and thorough in responding to requests from the KHRC." (Order at 9). Plaintiffs contend that defendant did not produce certain documents to the KHRC, including its interview records. Plaintiffs do not, however, bring to the court's attention any discovery requests that were not met by defendant. Without evidence that defendant withheld information it was required to produce, the court cannot find that Magistrate Judge O'Hara erred by stating that defendant had been forthcoming in responding to requests from the KHRC. The court finds that Magistrate Judge O'Hara's ruling was not clearly erroneous as to this issue. Plaintiffs' motions are denied on this basis.
Fifth, plaintiffs allege that Magistrate Judge O'Hara erred by finding that plaintiffs failed to present a prima facie case of perjury. Specifically, plaintiffs contend that Magistrate Judge O'Hara erred by stating that "[t]he evidence does not support a good faith belief by a reasonable person that an in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies." (Order at 10-11). Magistrate Judge O'Hara found that plaintiffs could not state a prima facie case because plaintiffs failed to make the threshold showing of a factual basis to support a good faith belief by a reasonable person that an in camera review may lead to evidence that could establish that the crime-fraud exception applies. Furthermore, Magistrate Judge O'Hara found that plaintiffs failed to establish a prima facie case of perjury because plaintiffs failed to show that they justifiably relied on the truth of the statements in Mr. Campbell's affidavits. In their motions for review, plaintiffs state that the court should view corporations' statements with a heightened sense of suspicion. The court will not require less proof from plaintiffs under the applicable legal standard. Furthermore, the court finds no basis to support plaintiffs' implicit conclusion that the court should be suspicious of defendant merely because it is a corporation. The court finds that Magistrate Judge O'Hara did not err by finding that plaintiffs failed to state a prima facie case of perjury.
Based upon the applicable standard, this court finds that plaintiffs have not proven that Magistrate Judge O'Hara's decision was clearly erroneous or contrary to law. After a review of the evidence, the court is not left with a "definite and firm conviction that a mistake has been committed," Ocelot Oil Corp., 847 F.2d at 1461-62, and therefore affirms Magistrate Judge O'Hara's order.
III. Order
IT IS THEREFORE ORDERED that plaintiffs' Motions for Review of Magistrate Judge's Pretrial Order (Docs. 60 and 75) are denied.