Summary
giving party clients, as well as non-party attorney-movant, twenty days to provide detailed descriptions of withheld documents
Summary of this case from Watchous Enters., L.L.C. v. Pac. Nat'l CapitalOpinion
No. 00-2354-JAR.
May 8, 2002
MEMORANDUM AND ORDER
Pending before the Court are the following motions:
• Nonparty attorney Benjamin M. Kieler's Motion to Quash Subpoena (doc. 182); and
• Plaintiffs' Motion for Protective Order and/or to Quash Subpoenas Duces Tecum (doc. 192).
At issue in both of the motions is a subpoena issued to Benjamin M. Kieler, a nonparty attorney who formerly represented some or all Plaintiffs in this matter. More specifically, the subpoena commands Mr. Kieler to produce "[a]ny and all documents or other items in [Mr. Kieler's] possession, custody or control relating to [Mr. Kieler's] legal representation of Randell Phalp, Arona Ash, Scott Phalp and/or Aubrey Phalp for the years 1998-present."
In support of his Motion to Quash, Benjamin Kieler states that compliance with the subpoena necessarily would require him to disclose privileged and other protected confidential information of his former clients. In support of their Motion for Protective Order and/or to Quash, Plaintiffs similarly argue the material requested in the subpoena is protected from disclosure by privilege.
In response to the arguments presented by Plaintiffs and Mr. Kieler, Defendants argue that the documents referenced in the subpoena duces tecum are relevant to material jurisdictional issues. Defendants further argue Mr. Kieler fails to comply with Fed.R.Civ.P. 45 by preparing a privilege log for those responsive documents Mr. Kieler and/or Plaintiffs believe are protected from disclosure because they are attorney-client privileged and/or work product materials; thus, Defendants cannot accurately evaluate whether or not the asserted claims of protection are justified.
DISCUSSION
The Federal Rules of Civil Procedure provide that a court "shall quash or modify [a] subpoena if it . . . requires disclosure of privileged or other protected matter and no exception or waiver applies, or [if it] subjects a person to undue burden." Fed.R.Civ.P. 45(c)(3)(A)(iii) and (iv). Moreover, and for good cause shown, the court "may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed.R.Civ.P. 26(c). Such orders may include completely prohibiting certain discovery or imposing a designated method by which discovery must be conducted. Fed.R.Civ.P. 26(c)(1) and (3). One seeking a protective order or to quash a subpoena carries the burden to show good cause and/or the right to be protected. Sentry Ins. v. Shivers, 164 F.R.D. 255, 256 (D.Kan. 1996).
• Motion to Quash Subpoena
Attorney Benjamin Kieler seeks to quash the subpoena on the grounds that compliance with the subpoena necessarily would require him to disclose privileged and other protected confidential information of his former clients. Defendants respond by arguing Mr. Kieler has waived any right to assert privilege because he failed to provide a privilege log as required by federal rule. See Fed.R.Civ.P. 45(d)(2) ("when information subject to a subpoena is withheld on a claim that such information is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications or things not produced that is sufficient to enable the demanding party to contest the claim.").
"Parties objecting to discovery on the basis of the attorney-client privilege bear the burden of establishing that it applies." ERA Franchise Sys. v. Northern Ins. Co., 183 F.R.D. 276, 278 (D.Kan. 1998) (citing Boyer v. Bd of County Comm'rs. 162 F.R.D. 687, 688 (D.Kan. 1995)). "To carry the burden, they must describe in detail the documents or information to be protected and provide precise reasons for the objection to discovery." Id. at 278-79 (citing National Union Fire Ins. Co. v. Midland Bancor, Inc., 159 F.R.D. 562, 567 (D.Kan. 1994)). "A `blanket claim' as to the applicability of a privilege does not satisfy the burden of proof." Id. (citing Kelling v. Bridgestone/Firestone, Inc., 157 F.R.D. 496, 497 (D.Kan. 1994)).
Mr. Kieler fails to satisfy the requirements cited above with respect to the privilege objections asserted on behalf of his former clients. As such, the Court does not possess sufficient information to enable it to determine whether each element of the asserted privilege is satisfied. See Jones v. Boeing Co., 163 F.R.D. 15, 17 (D.Kan. 1995) (holding that a claim of privilege fails upon insufficient evidence as to any element). Given Mr. Kieler's failure to provide the required information, the Court could deny his Motion to Quash. In light of the nature of the materials requested, however, the Court will grant Mr. Kieler's Motion to Quash but direct Mr. Kieler to provide to Defendants within twenty (20) days from the date of this Order a list with "a detailed description of the materials in dispute and . . . specific and precise reasons for [its] claim of protection from disclosure." Snowden v. Connaught Lab., Inc., 137 F.R.D. 325, 334 (D.Kan. 1991) (citation omitted). The description should include at least the following information for each such document:
Although it is the client who holds the privilege, the client has the authority to prevent his or her lawyer from disclosing privileged information and such privilege may be claimed by the client in person or by his or her lawyer. K.S.A. 60-426(a).
1. A description of the document (i.e. correspondence, memorandum, etc.);
2. Date prepared or date notations made;
3. Date of document (if different from #2);
4. Who prepared the document or made notations on the document;
5. For whom the document was prepared and to whom the document was directed;
6. Purpose of preparing the document or making the notations;
7. Number of pages of each document; and
8. Basis for withholding discovery.
Mr. Kieler appears to claim it is an "undue burden" to produce the documents because the materials currently are located in an offsite storage facility without index. Given creating a privilege log necessarily involves locating the documents, the Court anticipates Mr. Kieler also will claim it is an undue burden to create the privilege log. Without detailed information in terms of time and expense involved in locating the documents, however, the Court finds that compilation of a privilege log is not unduly burdensome. Thus, Mr. Kieler is not relieved of his duty based on undue burden. See Transamerica Computer Co. v. IBM, 573 F.2d 646, 649 (9th Cir. 1978) (seventeen million potentially privileged documents).
Defendants may then request production of any document for which the claim of privilege appears inadequate or waived and, if Mr. Kieler objects as provided in Fed.R.Civ.P. 45, Defendants may file the appropriate motion pursuant to that rule.
• Motion for Protective Order
In support of their request for protection with regard to production of the referenced documents by Mr. Kieler, Plaintiffs argue (1) Defendants failed to timely serve and/or otherwise give notice of the subpoena; (2) the subpoena is overly broad in scope; and (3) the subpoena requires disclosure of materials protected by the attorney-client privilege and the work product doctrine.
• Failure to Timely Serve and/or Otherwise Give Notice of SubpoenasIn their Motion, Plaintiffs assert the subpoena issued to Mr. Kieler should be quashed based on a violation of Fed.R.Civ.P. 45(b)(1). This subsection provides that "prior notice of any commanded production of documents . . . shall be served on each party." This portion of the rule was added in 1991 and, as explained by the advisory committee notes to the 1991 amendments, "[t]he purpose of such notice is to afford other parties an opportunity to object to the production."
Here, Defendant City of Overland Park, Kansas served a notice of Mr. Kieler's subpoena concurrent with the issuance of the actual subpoena on February 4, 2002. The documents were not to be produced pursuant to the subpoena until February 15, 2002. On February 14, 2002, Plaintiffs filed their motion for protective order and/or to quash subpoena objecting to the subpoena. Based on these facts, the Court finds Plaintiffs were afforded an opportunity to object to the production and thus — given the stated purpose of Rule 45(b)(1) — the Court finds Plaintiffs received sufficient notice of the subpoena.
• Overbreadth Plaintiffs further seek protection from disclosure of the documents requested within the subpoena on grounds that the request is overly broad in scope. The Court disagrees .
Amended Rule 26(b)(1) provides that "[p]arties may obtain discovery regarding any matter . . . that is relevant to the claim or defense of any party." Fed.R.Civ.P. 26(b)(1). Further, "[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id .
Discovery of information "relevant to the subject matter involved in the action," previously allowed as a matter of right under the prior version of Rule 26(b)(1), now can be undertaken only with leave of court or for good cause shown. Since December 1, 2000, amended Rule 26(b)(1) has applied to federal court proceedings insofar as "just and practicable." It is unnecessary to decide whether the former or current version of Rule 26 is applicable here, because the Court finds the documents requested relevant under the current, more narrow version of the Rule.
When the discovery sought appears relevant, the party resisting the discovery has the burden to establish the lack of relevance by demonstrating that the requested discovery (1) does not come within the scope of relevance as defined under Fed.R.Civ.P. 26(b)(1), or (2) is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure. Scott v. Leavenworth Unified School Dist. No. 453 , 190 F.R.D. 583, 585 (D.Kan. 1999). Similarly, a party resisting discovery on the grounds that a request is overly broad has the burden to support its objection, unless the request is overly broad on its face. Etienne v. Wolverine Tube, Inc., 185 F.R.D. 653, 656 (D.Kan. 1999); Hilt v. SFC Inc., 170 F.R.D. 182, 186 (D.Kan. 1997). When the relevancy of propounded discovery is not apparent, however, its proponent has the burden to show the discovery relevant. Pulsecard, Inc. v. Discover Card Serv., Inc . , 168 F.R.D. 295, 309 (D.Kan. 1996).
Pursuant to amended Rule 26(b)(1), the Court finds the documents requested in the subpoena appear on their face to be relevant to Defendants' allegation that Arona Ash failed to satisfy the procedural prerequisites to filing suit here. The Court's finding is grounded in the possibility that responsive documents may lead to the discovery of admissible evidence. Because the Court finds the discovery sought appears relevant on its face, Plaintiffs now have the burden to establish lack of relevance by demonstrating that the requested discovery (1) does not come within the scope of relevance as defined under Fed.R.Civ.P. 26(b)(1), or (2) is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure. Scott v. Leavenworth Unified School Dist. No. 453 , 190 F.R.D. at 585. Plaintiffs, however, do not discuss relevance in their briefing, but instead argue only the substantive issue — that Arona Ash was Mr. Kieler's client. Accordingly, Plaintiffs have failed to meet their burden; thus, the Court finds the subpoena is not overly broad in scope.
The Court notes that the touchstone to the documents requested in the subpoena is not that such discovery will result in evidence which is, or even may be, admissible at trial, but rather that such discovery is "reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1).
• The Subpoena Requires Disclosure of Privileged Materials
Finally, Plaintiffs seek protection from disclosure of the documents requested within the subpoena on grounds that compliance with the subpoena necessarily would require disclosure of privileged and protected confidential information. Defendants respond by arguing Plaintiffs have waived any right to assert their privilege because they failed to provide a privilege log as required by federal rule. See Fed.R.Civ.P. 45(d)(2) ("when information subject to a subpoena is withheld on a claim that such information is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications or things not produced that is sufficient to enable the demanding party to contest the claim."). Based on the discussion set forth in the preceding section, Plaintiffs have the burden here to establish the materials are privileged and, in order to carry the burden, they must "describe in detail the documents or information to be protected and provide precise reasons for the objection to discovery." ERA Franchise Sys. v. Northern Ins. Co . , 183 F.R.D. at 278 (citations omitted). "A `blanket claim' as to the applicability of a privilege does not satisfy the burden of proof." Id . (citation omitted).
As with Mr. Kieler, Plaintiffs fail to satisfy the requirements of Fed.R.Civ.P. 45(d)(2) with respect to their privilege objections. As such, the Court does not possess sufficient information to enable it to determine whether each element of the asserted privilege is satisfied. Although, again, the Court could deny Plaintiffs' Motion for Protective Order, the Court conditionally will grant the protective order but direct Plaintiffs to provide Defendants within twenty (20) days from the date of this Order a list with "a detailed description of the materials in dispute and . . . specific and precise reasons for [their] claim of protection from disclosure." Snowden v. Connaught Lab., Inc . , 137 F.R.D. at 334 (D.Kan. 1991) (citation omitted). Defendants may then request production of any document for which the claim of privilege appears inadequate or waived and, if Plaintiffs object as provided in Fed.R.Civ.P. 45, Defendants may file the appropriate motion.
As noted earlier in this opinion, the description should include at least the following information for each such document:
• A description of the document (i.e. correspondence, memorandum, etc.);
• Date prepared or date notations made;
• Date of document (if different from #2);
• Who prepared the document or made notations on the document;
• For whom the document was prepared and to whom the document was directed;
• Purpose of preparing the document or making the notations;
• Number of pages of each document; and
• Basis for withholding discovery.
CONCLUSION
Based on the discussion above,
(1) Nonparty attorney Benjamin Kieler's Motion to Quash Subpoena (doc. 182) is granted to the extent that he shall not be required to produce the requested documents at this time. It is further ordered, however, that Mr. Kieler shall provide Defendants within twenty (20) days from the date of this Order a list with a detailed description of the materials in dispute and specific and precise reasons for the claim of protection from disclosure. Defendants may then request production of any document for which the claim of privilege appears inadequate or waived and, if Mr. Kieler objects as provided in Fed.R.Civ.P. 45, Defendants may file the appropriate motion; and
(2) Plaintiffs' Motion for Protective Order and/or to Quash Subpoena Duces Tecum (doc. 192) is granted to the extent that Mr. Kieler shall not be required to produce the requested documents at this time. It is further ordered, however, that Plaintiffs shall provide Defendants within twenty (20) days from the date of this Order a list with a detailed description of the materials in dispute and specific and precise reasons for the claim of protection from disclosure. Defendants may then request production of any document for which the claim of privilege appears inadequate or waived and, if Plaintiffs object as provided in Fed.R.Civ.P. 45 or 26, Defendants may respond accordingly.
IT IS SO ORDERED.