Opinion
Case No. 00-4129-SAC.
March 26, 2002.
MEMORANDUM AND ORDER
This case is before the court on plaintiff's motion to review the magistrate judge's order dated January 23, 2002. As to nondispositive pretrial matters, the district court reviews the magistrate judge's order under a clearly erroneous or contrary to the law standard. 28 U.S.C. § 636(b)(1)(A); Continental Bank, N.A. v. Caton, 136 F.R.D. 691, 693 (D.Kan. 1991). "The clearly erroneous standard requires the district court to affirm the magistrate judge's order unless it has the definite and firm conviction from all the evidence that error has occurred. (citations omitted)." Id. In the relevant order, the magistrate granted defendant's motion to compel plaintiff to return an allegedly privileged document. The magistrate found that the document was in fact protected by the attorney-client privilege, that such privilege had not been waived, that the document had come into plaintiff's possession by unknown means outside the course of discovery. (Dk. 67). Relying upon its inherent equitable powers to regulate the use of information obtained outside ordinary discovery channels, the court ordered plaintiff to return all copies of the document to defendant, and barred plaintiff from referring to or using it during this litigation. Id.
The magistrate did not find that the information had been wrongfully obtained or innocently obtained.
Plaintiff now objects, asserting that the e-mail in question "does not concern a discovery dispute, constitutes an expression of company policy as opposed to a privileged communication, was obviously disclosed and disseminated by defendant and is crucially relevant to the issues in this case." (Dk. 70, p. 1-2.) Plaintiff further states that plaintiff will suffer substantial prejudice if her motion is not sustained.
Plaintiff alleges that the document shows that plaintiff applied for FMLA leave, refuting defendant's assertion that plaintiff failed to give sufficient notice of her need for such leave.
Plaintiff does not challenge the magistrate's inherent authority to order plaintiff to return the document to defendant, but submits that the principles of equity dictate that defendant should not be able to use a defense the document contradicts.
The court has reviewed the magistrate's findings of fact and its conclusions of law, and finds none of them to be erroneous. The magistrate's exercise of its equitable power was well within its discretion, and its order barring plaintiff from use of this one document does not work substantial prejudice to plaintiff.
IT IS THEREFORE ORDERED that the magistrate's order filed January 23, 2002, is affirmed, and that plaintiff's objection to magistrate's order (Dk.70) is denied.