Opinion
Case No. 00-2015-KHV.
December 20, 2000
MEMORANDUM AND ORDER
This matter is before the Court on the following motions: (1) Plaintiff's Motion for Limited Extension of Discovery Deadline (doc. 97); and (2) Defendant's Motion for Protective Order and to Quash Subpoena Duces Tecum (doc. 104). Plaintiff seeks to extend discovery to reopen the depositions of Defendant's Human Resources Director, Julie Hakan, and of Defendant's former Chief of Police, Stephen Cox. She also seeks to depose Defendant's counsel, Patricia Bennett. Defendant seeks a protective order limiting the scope of the Hakan and Bennett depositions and an order quashing the subpoena duces tecum served on Ms. Bennett. In addition, Defendant opposes Plaintiff's request to reopen the deposition of Mr. Cox.
I. Factual and Procedural Background
This is an employment discrimination lawsuit brought by a former employee of Defendant. Plaintiff claims that she was discriminated against on the basis of her sex and subjected to sexual harassment and a sexually hostile work environment. She also claims that she was constructively discharged and retaliated against for complaining about the alleged sexual harassment.
The Court ruled in an October 25, 2000 Memorandum and Order ( see doc. 94) that Defendant had waived the attorney-client privilege as to a September 24, 1996 letter (the "Subject Letter") from attorney Patricia Bennett to Julie Hakan and Dick Garofano, who was at the time Defendant's City Administrator of Defendant. Ms. Bennett represented Defendant with respect to Plaintiff's claim for unemployment compensation benefits. She also currently represents Defendant in this lawsuit.
The Subject Letter recommended that Defendant not appeal the award of unemployment compensation benefits to Plaintiff. The Subject Letter states, inter alia:
Steve [Cox] admittedly advised [Plaintiff] that she would be terminated, essentially no matter what she did. Steve [Cox] did not advise [Plaintiff] about the cause that existed for termination. Thus, if Steve [Cox] were to proceed under this reasoning, an appeal would not assist the City.
* * * *
[T]he City will want to consider how to approach the issue from an internal standpoint. Steve should be advised that his actions cost the City money. He should also be advised that future employment actions need to be dealt with in a different fashion.
Defendant argued that its disclosure of the Subject Letter to Plaintiff was inadvertent and did not amount to waiver. The Court disagreed, finding that Defendant had waived the privilege by placing the Subject Letter in Plaintiff's personnel file and by allowing Plaintiff to review it and receive a photocopy of it. See October 25, 2000 Memorandum and Order, doc. 94. The Court analyzed Defendant's inadvertent disclosure of the Subject Letter to Plaintiff under the five-factor balancing test set forth in Wallace v. Beech Aircraft Corp., 179 F.R.D. 313, 314 (D.Kan. 1998). Doc. 94 at 3-9.
The Parties are now asking the Court to determine the scope of the waiver and the extent to which witnesses may be deposed or re-deposed regarding the content and subject matter of the letter and whether Plaintiff is entitled to subpoena certain documents from Ms. Bennett.
II. Defendant's Motion for Protective Order and to Quash Subpoena Duces Tecum (doc. 109)
A. Standards for Granting a Motion for Protective Order
The decision whether to enter a protective order lies within the court's discretion. Thomas v. International Bus. Mach. Inc., 48 F.3d 478, 482 (10th Cir. 1995). Federal Rule of Civil Procedure 26(c) provides that upon a showing of good cause, a court "may make any order which justice requires to protect a party or person from annoyance, embarrassment oppression, or undue burden or expense." In addition, Federal Rule of Civil Procedure 45(c) provides 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). The party seeking a protective order or moving to quash a subpoena has the burden to demonstrate good cause and/or the privilege to be protected. Sentry Ins. v. Shivers, 164 F.R.D. 255, 256 (D.Kan. 1996)
B. Analysis
1. The parties' positions
Plaintiff contends that waiver has occurred not only as to the Subject Letter, but also as to the entire subject matter, i.e., as to all of the issues discussed in the Subject Letter and as to all other communications. This would include waiver as to all other attorney-client privileged documents and communications that relate to the subject matter of the Letter. Defendant on the other hand, argues that waiver has occurred only as to the contents of the Subject Letter itself, and not as to the subject matter.
2. The applicable case law regarding scope of the waiver
The few cases from this District to address the inadvertent disclosure of documents did not address the scope of waiver since waiver was not found under the facts of those cases. See, e.g., Wallace v. Beech Aircraft Corp., 179 F.R.D. 313, 316 (D.Kan. 1998); Monarch Cement Co. v. Lone Star Indus., Inc., 132 F.R.D. 558, 560 (D.Kan. 1990). The parties have not directed the Court to, and the Court has not found, any case law from this District or the Tenth Circuit addressing the scope of waiver when a privileged document is inadvertently disclosed. There is, however, an emerging body of case law from other jurisdictions which holds that the scope of the waiver caused by an inadvertent disclosure of a privileged document is strictly limited to the contents of the document that was disclosed. See, e.g., Draus v. Healthtrust, Inc., 172 F.R.D. 384, 390 (S.D.Ind. 1997); Fidelity and Deposit Co. of Maryland v. McCulloch, 168 F.R.D. 516, 521 n. 7 (E.D. Pa. 1996); Federal Deposit Ins. Corp. v. Marine Midland Realty Credit Corp., 138 F.R.D. 479, 484 (E.D.Va. 1991) ; Prudential Ins. Co. v. Turner Newall, 137 F.R.D. 178, 182-83 (D.Mass. 1991); Golden Valley Microwave Foods, Inc. v. Weaver Popcorn Co., 132 F.R.D. 204, 208 (N.D.Ind. 1990); Parkway Gallery Furniture, Inc. v. Kittinger/Pennsylvania House Group, Inc., 116 F.R.D. 46, 52 (M.D.N.C. 1987).
The Court notes that because this case involves only federal claims, the Court will look to federal law to decide this privilege question. See Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1368-69 (10th Cir. 1997) (federal court should look to federal privilege law in cases involving federal claims.
The court in Parkway Gallery Furniture summarized the standard as follows: "The general rule that a disclosure waives not only the specific communication but also the subject matter of it in other communications is not appropriate in the case of inadvertent disclosure. . . . In a proper case of inadvertent disclosure, the waiver should cover only the specific document in issue." 116 F.R.D. at 52 (citing Standard Chartered Bank v. Ayala Int'l Holdings, Inc., 111 F.R.D. 76 (S.D.N.Y. 1986); First Wisconsin Mortgage v. First Wisconsin Corp., 86 F.R.D. 160, 173-74 (E.D. Wisc. 1980); Burlington Indus. v. Exxon Corp., 65 F.R.D 26, 45-46 (D.Md. 1974)).
Plaintiff argues that even if the Court were to adopt this rule, the exception to the rule should apply here. Plaintiff points out that several courts have applied an exception where a party attempts to unfairly use the disclosure or to gain some advantage though the disclosure. See Parkway Gallery Furniture, 116 F.R.D. at 52 (the general rule applies "unless it is obvious a party is attempting to gain an advantage or make offensive or unfair use of the disclosure"); Marine Midland Realty, 138 F.R.D. at 484 (quoting Parkway Gallery Furniture and noting that the disclosing party had made no attempt to gain advantage or make unfair use of the disclosure); Golden Valley Microwave Foods, 132 F.R.D. at 208 (same). Plaintiff argues that here, Defendant is unfairly using the Subject Letter because the Letter is allegedly inconsistent with the deposition testimony of some of Defendant's witnesses and with the position Defendant is taking in its summary judgment motion.
3. Application of the rule and exception to this case
The Court will adopt the narrowly tailored standard enunciated in Parkway Gallery Furniture and the other cases cited above. The Court finds that standard to be fair in that it does not impose unwarranted punishment on the privilege holder for inadvertent conduct. In addition, the standard is consistent with, and supportive of, the purposes behind the attorney-client privilege.
At the same time, the Court recognizes that the rule should not be applied rigidly and that an exception should lie where a party attempts to gain an advantage or make offensive or unfair use of the disclosure. The circumstances of this case, however, do not warrant application of the exception. The Court is not persuaded by Plaintiff's argument that Defendant is unfairly using the Subject Letter in this case simply because the Subject Letter is allegedly inconsistent with some of the defense witnesses' deposition testimony or inconsistent with the position Defendant has taken in its summary judgment motion. Contrary to what Plaintiff asserts, the Court finds that Defendant has made no use of the Subject Letter in the lawsuit, and certainly no improper or unfair use. If anything, Defendant has been diligent in taking steps to preserve the confidentiality of the Subject Letter once its inadvertent disclosure was discovered, and Defendant has acted to prevent the Subject Letter from being interjected into the case.
In light of the above, the Court rules that the scope of the waiver in this case shall be limited to the contents of the Subject Letter and holds that there has been no waiver as to general subject matter of the Subject Letter or as to any other privileged communications or documents. The Court will proceed to apply this ruling to the depositions sought by Plaintiff.
a. The deposition duces tecum of Patricia Bennett
Defendant does not object to producing Ms. Bennett for her deposition. Rather, Defendant seeks only an order that "Plaintiff's counsel in deposing Ms. Bennett be limited to inquiry strictly as to the content of the Subject Letter." (Doc. 104 at 1) Defendant also seeks an order quashing the subpoena duces tecum served on Ms. Bennett, which asks Ms. Bennett to produce all documents "that address or pertain to the [sic] all the matters and issues discussed" in the Subject Letter, including, among other things, all documents that address or pertain to (1) the "[c]ircumstances surrounding Donna Metzger leaving the employment of the City of Leawood"; and (2) the "[a]ctions of Steve Cox in the handling of Ms. Metzger."
The Court recognizes that special rules apply to the depositions of a party's counsel. In Simmons Foods, Inc. v. Willis, 191 F.R.D. 625 (D.Kan. 2000), this Court set forth the standard for determining when the deposition of a party's attorney should be allowed. The Court held that the deposition of opposing counsel should be limited to those circumstances where the party seeking to take the deposition shows that "(1) no other means exist to obtain the information except to depose opposing counsel; (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the case." Id. at 630 (citations omitted). Defendant does not cite Simmons Foods and makes no argument that Ms. Bennett is entitled to a protective order under the criteria set forth therein. Moreover, neither party provides any factual information that would allow the Court to apply Simmons Foods here. The Court therefore need not address the application of the Simmons Foods criteria to Ms. Bennett's deposition.
The Court holds that Defendant is entitled to have the subpoena duces tecum quashed and rules that Ms. Bennett is relieved of any obligation to produce the requested documents. The Court also holds that Defendant is entitled to a protective order limiting Ms. Bennett's deposition to questions regarding the contents of the Subject Letter.
b. Reopening the deposition of Julie Hakan
Defendant does not object to Plaintiff reopening the deposition of Ms. Hakan; however, it does seek an order limiting the scope of Plaintiff's examination to the contents of the Subject Letter. For the same reasons discussed above with respect to the Bennett deposition, the Court will grant Defendant's request for protective order as to Julie Hakan. Ms. Hakan's deposition shall be limited to questions concerning the contents of the Subject Letter.
III. Plaintiff's Motion for Limited Extension of Discovery Deadline (Doc. 97)
The Court will grant the motion to extend discovery to allow Plaintiff to depose Patricia Bennett and to re-depose Julie Hakan, subject to the limitations placed on those deposition in Part II above. Discovery shall be reopened, for this limited purpose, through January 11, 2001 .
As previously noted, Defendant objects altogether to Plaintiff re-deposing its former Police Chief, Stephen Cox. Defendant argues that Plaintiff never preserved her right to reopen Mr. Cox's deposition, as she did in Ms. Hakan's case. Defendant asserts that Plaintiff never indicated any desire or intention to reopen Mr. Cox's deposition, either during his deposition or in the proposed pretrial order. In addition, Defendant argues that reopening Mr. Cox's deposition is not warranted, as Mr. Cox was neither the author nor a recipient of the Subject Letter. Also, Plaintiff has already had ample opportunity to depose Mr. Cox regarding the reasons for terminating Plaintiff's employment.
For the reasons cited by Defendant, the Court will deny Plaintiff's request to reopen the deposition of Stephen Cox.
IV. Summary of Ruling
To recap, Plaintiff's Motion for Limited Extension of Discovery Deadline (doc. 97) is granted in part and denied in part. Discovery is hereby reopened through January 11, 2001 for the limited purpose of allowing Plaintiff to depose Patricia Bennett and re-depose Julie Hakan. Plaintiff shall not be allowed to reopen the deposition of Stephen Cox. Defendant's Motion for Protective Order and to Quash Subpoena Duces Tecum (doc. 109) is granted. The Court hereby quashes the subpoena duces tecum served upon Patricia Bennett, and Ms. Bennett is relieved of any obligation to produce the requested documents. In addition, the Court hereby enters a Protective Order limiting the depositions of Patricia Bennett and Julie Hakan to questions regarding the contents of the Subject Letter.
IT IS SO ORDERED.