Opinion
CIVIL NO. 01-207 LH/RLP
March 18, 2002
ORDER GRANTING PLAINTIFF'S MOTION TO COMPEL DEPOSITION TESTIMONY FROM KARL O. WYLER
THIS MATTER having come before the court on Plaintiff's Motion to Compel Deposition Testimony from Karl O. Wyler (Docket No. 158), the court having read the motion, the memoranda in support of and in opposition to the motion and otherwise being fully advised, finds that the motion is well-taken and will be GRANTED.
The motion concerns the re-deposition of Attorney Karl O. Wyler taken on January 4, 2002 pursuant to Court Order. The Court's Order of November 29, 2001 evaluated the assertion of the attorney-client privilege and the Attorney Work Product Doctrine and ordered the reconvening of the deposition of Mr. Wyler to ask questions previously objected to as well as necessary follow-up questions to the first deposition. Without repeating materials set forth in the court's November 29th Order, the material that was claimed to be privileged was not properly set forth as privileged material or material subject to the Attorney Work Product Doctrine. Therefore, the court ordered that material disclosed and the intent of the court order was to allow questions regarding those documents and any logical, relevant follow-up questions. After a review of the questions objected to at the second deposition of Mr. Wyler, the court finds those objections not to be well founded based upon the previous ruling of this court.
The objections made at the second deposition of Mr. Wyler were numerous. Therefore, the court will provide an example and analysis. Beginning on p. 18, Mr. Wyler was asked a number of questions pertaining to a memorandum dated October 14, 2000.
This memorandum has been disclosed and is not privileged. On p. 21, line 16, Mr. Wyler was asked why he was requested to write this memorandum. At that point in time beginning at line 18, Mr. Wyler indicated he thought his conversation with Mr. Hiatt would be privileged but did not explain the basis of his assertion of the privilege. It is clear that not all conversations between attorneys and their clients are privileged. Conversations between attorneys and client are privileged only for the purpose of seeking, obtaining or providing legal assistance to the client. Moreover, the question directly pertains to a memorandum, whose disclosure had been produced and whose privilege (if any) had been waived. Therefore, the objection on p. 21, line 18, to answering a question about the conversation with Mr. Hiatt is overruled on both of these grounds. With this in mind, the following objections are overruled and Plaintiff will be allowed to re-depose Mr. Wyler regarding the information sought at the various pages and lines set forth hereinbelow:
p. 21, line 18, p. 22, line 7, p. 76, line 4, p. 80, line 16, p. 83, line 14 and 21, p. 84, line 10 and 17, p. 85, line 15 and 24, p. 99, line 17, p. 106, line 25, p. 107, line 5, p. 109, line 24, p. 111, line 15, p. 113, line 14, p. 125, line 8 and p. 127, line 5.
IT IS THEREFORE ORDERED that Plaintiff's Motion to Compel Deposition Testimony from Karl O. Wyler is GRANTED.
IT IS FURTHER ORDERED that the reconvening of Mr. Wyler's deposition will be scheduled no later than April 5, 2002. Mr. Wyler's deposition shall be taken at the expense of Mr. Wyler. Further, the court will award attorney's fees and costs necessitated in Plaintiff having to bring this motion. Attorney's fees and costs are awarded pursuant to Fed.R.Civ.P. 37(b). The failure of Mr. Wyler to answer the questions as set forth hereinabove will be treated as a contempt of this court. See General Ins. Co. v. Eastern Consol. Util., Inc., 126 F.3d 215, 220 (3d Cir. 1997); Cobell v. Babbitt, 37 F. Supp.2d 6 (D. D.C. Cir. 1999).
IT IS FURTHER ORDERED that the parties are to confer regarding the appropriate level of attorney's fees and costs related to the bringing of this motion and the redeposition of Mr. Wyler. If the attorneys are unable to agree as to the level of attorney's fees recoverable, Plaintiff's counsel shall notify the court by letter no later than April 12, 2002 outlining the disagreement between the parties as briefly as possible. Thereafter, the court will set a telephonic hearing and allow the parties to present evidence regarding recoverable attorney's fees and costs.
IT IS SO ORDERED.