Opinion
Case No. 3:05-cv-249.
December 12, 2008
DECISION AND ORDER
This case was referred to the Magistrate Judge by District Judge Rice on October 16, 2008, for resolution of any discovery disputes (Doc. No. 37). Several days later, the Court conducted a telephone conference where counsel described the nature of discovery dispute, to wit, whether attorney-client privilege applied to a number of communications made with respect to the unerlying controversy. The Court and counsel agreed on a procedure whereby the disputed question would be put to the relevant witnesses who would then answer on a sealed record, out of the presence of Plaintiff and her counsel. The sealed record would then be submitted for consideration of the privilege questions.
Thereafter, witnesses DeBell, Shiels, and Bodenmiller were deposed and portions of their depositions were forwarded to the Court under cover of Defendants' counsel's letter of December 10, 2008. A hearing was then conducted by telephone on December 12, 2008, for counsel to argue the privilege question. The documents have now been filed under seal (Doc. No. 58).
This litigation arises out of Plaintiff Kathryn Reckley's employment as an Assistant City Prosecutor of the City of Springfield, Ohio. During all relevant times, her supervisor was Defendant Springfield City Prosecutor Mike Sheils, his supervisor was Defendant Springfield City Attorney Robin DeBell, the City Manager of Springfield was Matthew Kridler, and James Bodenmiller was an Assistant City Manager.
Defendants assert that the communications sought to be discovered are protected by the privilege for attorney-client communications. Plaintiff concedes that Messrs. DeBell and Shiels are attorneys but asserts that the communications between them and from them to Messrs. Kridler and Bodenmiller are not privileged because they are the ordinary communications within the corporate structure of the City about a subordinate's complaints in the workplace.
This Court has jurisdiction of this case under 28 U.S.C. §§ 1331 and 1343 because it raises federal claims under 42 U.S.C. §§ 1983 and 2000e, as well as supplemental jurisdiction under 28 U.S.C. § 1367 over Plaintiff's state law claims which are part of the same case or controversy. (Joint Pretrial Order, Doc. No. 56, ¶ II.A.) Therefore federal common law, rather than Ohio law, governs the privilege question. Fed.R.Evid. 501.
The attorney-client privilege applies (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) are made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or the legal adviser, (8) except the protection be waived. Humphreys, Hutcheson and Moseley v. Donovan, 755 F.2d 1211, 1219 (6th Cir. 1985) (quoting 8 J. Wigmore, Evidence in Trials at Common Law § 2292, at 554 (McNaughton rev. 1961). See also United States v. Goldfarb, 328 F.2d 280 (6th Cir. 1964); Fausek v. White, 965 F.2d 126, 129 (6th Cir. 1992); and Reed v. Baxter, 134 F.3d 351 (6th Cir. 1998).
Having reviewed all of the answers given by Messrs. DeBell and Shiels in their depositions, the Court finds that all of the referenced communications are protected by attorney-client privilege in that each one of them sought or gave legal advice concerning Ms. Reckley's civil rights claims. All of the communications sought to be discovered occurred after Ms. Reckley advised her superiors that she had consulted counsel regarding her employment situation. While the fact that litigation is threatened or impending is not a prerequisite for application of the privilege, the fact that these communications were made under those circumstances bolsters Defendants' characterizations of them as concerning legal advice about Ms. Reckley's employment situation.
[T]he privilege "exists to protect not only the giving of professional advice to those who can act on it, but also the giving of information to the lawyer to enable him to give sound and informed advice." Upjohn Co. v. United States, 449 U.S. 383, 390, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981) (emphasis added). In other words, the law of privilege does not distinguish between communications made by a client and those made by an attorney so long as the communications are for the purpose of securing legal advice. See Genetech, Inc. v. United States Int'l Trade Comm'n, 122 F.3d 1409, 1415 (Fed. Cir. 1997) ("The attorney-client privilege protects the confidentiality of communications between attorney and client made for the purpose of obtaining legal advice."); see also American Standard Inc. v. Pfizer Inc., 828 F.2d 734, 745 (Fed. Cir. 1987) (holding that the privilege applies "to lawyer-to-client communications that reveal, directly or indirectly, the substance of a confidential communication by the client").Info-Hold, Inc. v. Trusonic, Inc., 2008 U.S. Dist. LEXIS 91418, 8-9 (S.D. Ohio Aug. 30, 2008) (Dlott, J.) The fact that communication about legal advice is between or among employees of the client does not deprive it of its privileged status. Long v. Anderson University, 204 F.R.D. 129 (S.D. Ind. 2001); Johnson v. Sea-Landserv. Inc., 2001 U.S. Dist. LEXIS 11447 at *4 (S.D.N.Y. Aug. 9, 2001); McCook Metals, LLC v. Alcoa, Inc., 192 F.R.D. 242, 254 (N. D. Ill. 2000).
The second privilege question relates to Plaintiff's Exhibit 49 to the Bodenmiller deposition. The exhibit consists of five emails printed out of three sheets of paper. Apparently there is no question that these emails came from Mr. Sheils computer and were produced to Plaintiff by Defendants' counsel. Plaintiff's counsel asserts that the production constitutes a waiver of the privilege (Bodenmiller Depo. at 8, 11-12). Defendants claim in response that the disclosure was inadvertent. Id. at 9. Plaintiff also asserts that the last of the emails is a communication from Mr. DeBell, a lawyer, to Mr. Bodenmiller, a non-lawyer. Id. at 11, ll. 7-11, and 12, ll 8-12.
The fact that Mr. Bodenmiller is not an attorney has no significance for application of the privilege. As an executive officer of the client, the City of Springfield, Mr. Bodenmiller was positioned to receive privileged communications from Mr. DeBell.
The effect of an inadvertent disclosure of privileged material is governed by recentlyenacted Fed.R.Evid. 502(b) which provides that inadvertent disclosure of privileged material in a federal proceeding does not operate as a waiver if the holder of the privilege took reasonable steps to prevent disclosure and to rectify the error. As to initial protection, at least some of the emails in Exhibit 49 have "ATTORNEY-CLIENT PRIVILEGED" endorsed on them and Defendants' counsel took prompt steps to claim the privilege and seek return of the emails after they were disclosed. The disclosure here took place in a context particularly intended to be addressed by Fed.R.Evid. 502, the production of electronically-stored information. Given these facts, the Court concludes that the emails retain their privileged status and Plaintiff must deal with them as provided in Fed.R.Civ.P. 26(b)(5).
Although Fed.R.Evid. 502 was enacted September 19, 2008, it applies "insofar as is just and practicable, in all proceedings pending on such date of enactment." P.L. 110-322, § 1(c).