Opinion
Civil Action No. 2:13-cv-01831-DCN Civil Action No. 2:13-cv-03595-DCN Civil Action No. 2:14-cv-04067-DCN
09-26-2016
Wendy C. H. Wellin, as Special Administrator of the Estate of Keith S. Wellin and as Trustee of the Keith S. Wellin Florida Revocable Living Trust u/a/d December 11, 2001, Plaintiff, v. Peter J. Wellin, Cynthia W. Plum and Marjorie W. King, individually and as co-Trustees and beneficiaries of the Wellin Family 2009 Irrevocable Trust u/a/d November 2, 2009, and Friendship Management, LLC, Defendants. Larry S. McDevitt, as Trust Protector of the Wellin Family 2009 Irrevocable Trust, Plaintiff, v. Peter J. Wellin, Cynthia W. Plum and Marjorie W. King, Individually and as Co-Trustees and Beneficiaries of the Wellin Family 2009 Irrevocable Trust, Friendship Management, LLC, and Cynthia W. Plum as Manager of Friendship Management, LLC, Defendants. Peter J. Wellin, Cynthia W. Plum and Marjorie W. King, as Co-Trustees of the Wellin Family 2009 Irrevocable Trust, Counterclaim Plaintiffs, v. Lester S. Schwartz, Esquire, as Trust Protector of the Wellin Family 2009 Irrevocable Trust u/a/d November 2, 2009, and Wendy C. H. Wellin as Special Administrator of the Estate of Keith S. Wellin, Counterclaim Defendants. Peter Wellin, Cynthia W. Plum , Marjorie W. King, Individually and as Co-Trustees and Beneficiaries of the Wellin Family 2009 Irrevocable Trust, u/a/d November 2, 2009, Plaintiffs, v. Wendy C.H. Wellin, Individually and as Trustee of the Keith S. Wellin Florida Revocable Trust u/a/d December 11, 2001, Defendants.
WE CONSENT: HOOD LAW FIRM, LLC 172 Meeting Street Post Office Box 1508 Charleston, SC 29402 Phone: (843) 577-4435 Facsimile: (843) 722-1630 Email: Info@hoodlaw.com s/ William G. DesChamps, IV Robert H. Hood (1939) Molly H. Craig (6671) James B. Hood (9130) William G. DesChamps, IV (11736) Attorneys for Wendy C. H. Wellin, as Special Administrator of the Estate of Keith S. Wellin and as Trustee of the Keith S. Wellin Florida Revocable Living Trust u/a/d December 11, 2001 WE CONSENT: NELSON MULLINS RILEY & SCARBOROUGH LLP s/ Patrick C. Wooten Robert H. Brunson, I.D. No. 4971 robert.brunson@nelsonmullins.com Bryson M. Geer, I.D. No. 7011 bryson.geer@ nelsonmullins.com Patrick C. Wooten, I.D. No. 10399 patrick.wooten@ nelsonmullins.com 151 Meeting Street/Sixth Floor P. O. Box 1806 Charleston, SC 29402 Phone: (843) 853-5200 Attorneys for Peter J. Wellin, Cynthia W. Plum and Marjorie W. King, individually, and as co-Trustees and beneficiaries of the Wellin Family 2009 Irrevocable Trust u/a/d November 2, 2009, Friendship Management, LLC, and Cynthia W. Plum, as Manager of Friendship Management, LLC
CONSENT ORDER ADOPTING REPORT AND RECOMMENDATION , AS MODIFIED
This matter comes before the Court on the recommendations contained in Special Master William L. Howard's Report and Recommendation ("R&R") concerning the Motion for Protective Order filed by Wendy C. H. Wellin, as Special Administrator of the Estate of Keith S. Wellin and as Trustee of the Keith S. Wellin Florida Revocable Living Trust u/a/d December 11, 2001 ("the Plaintiff"), ECF No. 389, dated January 8, 2016. In this R&R, the Special Master recommended that the Court grant the Plaintiff's Motion for Protective Order, finding that the communications at issue, involving non-party Kevin Kennedy, are protected from disclosure based on the attorney-client privilege and the work product doctrine. In the R&R, the Special Master determined that South Dakota law governs the attorney-client privilege analysis. However, the Special Master held that, based on his in camera review of the documents at issue, he would find that the common interest doctrine and attorney-client privilege protect the documents from disclosure under the most stringent "identical" legal interest requirement first articulated in Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. 1148, 1160 (D.S.C. 1974). ECF No. 389 at 10.
Though Case Nos. 2:13-cv-1831; 2:13-cv-3595, and 2:14-cv-4067 have been consolidated for pre-trial purposes, all references to electronic filing numbers in this Order will be directed to filings in Case No. 2:13-cv-1831. --------
The Wellin Children filed an Objection to the R&R on February 8, 2016, ECF No. 399. In their Objection, the Wellin Children do not object to the ultimate conclusion that the communications at issue are protected from disclosure. However, the Wellin Children object to the Special Master's holding that South Dakota law applies to the issues relating to attorney-client privilege. The Wellin Children contend that the choice-of-law issue related to the attorney-client privilege need not be reached for purposes of this motion because it is not outcome determinative.
After this objection was filed, counsel for the Plaintiff and counsel for the Wellin Children agreed to submit a consent Order to this Court, adopting Judge Howard's R&R, with the exception of his finding that South Dakota law governs the attorney-client privilege issue, which the parties agree is an issue the Court need not reach for purposes of this motion since choice-of-law is not outcome determinative.
As stated in this Court's February 17, 2015 Order Appointing the Special Master, ECF No. 270, this Court may "adopt or affirm, modify, wholly or partly reject or reverse or resubmit" the Special Master's order. Fed. R. Civ. P. 53(f)(1).
In light of the parties' agreement described herein, the Court adopts the R&R, with the exception of the finding therein that South Dakota law governs the attorney-client privilege issue presented, as such a finding is not necessary to grant the Motion.
Accordingly, the Special Master's R&R is ADOPTED, as modified.
AND IT IS SO ORDERED.
/s/ _________
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
September 26, 2016
Charleston, South Carolina WE CONSENT:
HOOD LAW FIRM, LLC
172 Meeting Street
Post Office Box 1508
Charleston, SC 29402
Phone: (843) 577-4435
Facsimile: (843) 722-1630
Email: Info@hoodlaw.com s/ William G. DesChamps , IV
Robert H. Hood (1939)
Molly H. Craig (6671)
James B. Hood (9130)
William G. DesChamps, IV (11736) Attorneys for Wendy C. H. Wellin , as
Special Administrator of the Estate of
Keith S. Wellin and as Trustee of the
Keith S. Wellin Florida Revocable
Living Trust u/a/d December 11 , 2001 February 25, 2016
Charleston, South Carolina WE CONSENT:
NELSON MULLINS RILEY &
SCARBOROUGH LLP s/ Patrick C. Wooten
Robert H. Brunson, I.D. No. 4971
robert.brunson@nelsonmullins.com
Bryson M. Geer, I.D. No. 7011
bryson.geer@ nelsonmullins.com
Patrick C. Wooten, I.D. No. 10399
patrick.wooten@ nelsonmullins.com
151 Meeting Street/Sixth Floor
P. O. Box 1806
Charleston, SC 29402
Phone: (843) 853-5200 Attorneys for Peter J. Wellin , Cynthia W.
Plum and Marjorie W. King , individually ,
and as co-Trustees and beneficiaries of the
Wellin Family 2009 Irrevocable Trust u/a/d
November 2 , 2009 , Friendship
Management , LLC , and Cynthia W. Plum ,
as Manager of Friendship Management ,
LLC Charleston, South Carolina
February 25, 2016.