United States District Court, N.D. Oklahoma
OPINION AND ORDER
M. McCarthy, Judge
motions are before the court and are ripe for decision:
Defendant's Motion to Strike Exhibit 1 to Doc. 40, [Dkt.
42]; Plaintiffs' Motion to Withdraw Document and to
Substitute Replacement Exhibit, [Dkt. 46]; Defendant's
Motion for Protective Order to Prohibit Deposition of
Counsel, [Dkt. 51]; and Defendant's Motion to Quash
Subpoena, [Dkt. 52].
exhibit, [Dkt. 40-1], that is the subject of the motions to
strike and withdraw consists of an email string between
Defendant's management officials who were involved in the
termination of Mrs. Mafille's employment with Defendant.
Among those emails is one that refers to Defendant's
attorney by name and recites counsel's recommendation
that Mrs. Mafille's employment be terminated for reasons
listed in that email. Based on the content of that email,
Plaintiffs seek to depose Defendant's attorney, Erica
represents that, in compliance with Fed.R.Civ.P. 26(b)(5)(B)
the so-called “claw back” provision, within three
days of production of the subject email Defendant notified
Plaintiffs that Defendant was claiming a privilege in the
email. Under Fed.R.Civ.P. 26(b)(5)(B), the party being so
promptly return, sequester, or destroy the specified
information and any copies it has; must not use or disclose
the information until the claim is resolved; must take
reasonable steps to retrieve the information if the party
disclosed it before being notified; and may promptly present
the information to the court under seal for a determination
of the claim.
Defendant advised Plaintiffs of the inadvertent disclosure,
Plaintiffs appended the subject email and made reference to
its contents in the reply brief in support of Plaintiffs'
motion for sanctions. [Dkt. 40]. Defendant asserts that the
exhibit and all references thereto should be stricken and
Plaintiffs should be barred from further use of the exhibit.
response, Plaintiffs filed a motion to withdraw the exhibit
and they seek to substitute a different exhibit. [Dkt. 46].
Plaintiffs argue that the attempt to claw back the email
contained in the exhibit is misplaced because they assert the
content is not subject to the attorney-client privilege.
Plaintiffs also seek to depose Defendant's attorney
based, in part, on the content of the subject email.
26(b)(5)(B) could not be more clear. Once a producing party
claims a privilege in materials that have been produced,
no further use is to be made of the
information until the claim of privilege is resolved. As far
as Rule 26(b)(5)(B) is concerned, it is immaterial if
Plaintiffs disagree with the claim of privilege. Plaintiffs
were prohibited from making any use of the information,
period. Plaintiffs' belief that Defendants had abandoned
their claim of privilege does not excuse their use of the
information. It was incumbent upon Plaintiffs to satisfy
themselves that was the case. Again, Rule 26(b)(5)(B) is
clear. The onus for presenting the information to the court
for a determination of privilege is on the party receiving
production, here Plaintiffs.
court rejects Plaintiffs' assertion that Defendants were
somehow at fault for producing the subject emails before
conducting a full review of every email for privilege. The
very existence of Fed.R.Civ.P. 26(b)(5)(B) is intended to
facilitate the swift production of discovery by providing
some comfort to the producing party that privileges are not
waived by production in discovery.
court has reviewed the subject email and finds that it
contains privileged attorney-client communications. The
attorney-client privilege is governed by federal common law
in this federal question case. Fed.R.Evid. 501. However, the
Oklahoma statutes, 12 Okla. Stat. §2502,  provide a
succinct and accurate summary of the bounds of the
attorney-client privilege. As relevant to this case, the
privilege extends to confidential communications made for the
purpose of facilitating the rendition of professional legal
services to the client or to those reasonably necessary for
the transmission of the communication. See Upjohn v.
United States, 449 U.S. 383, 101 S.Ct. 677, 683, 66
L.Ed.2d 584 (1981)(the privilege exists, in part, to protect
the giving of professional advice to those within a company
who can act on it). It is clear from the content of the email
string that officials employed by Defendant who were involved
with the employment decision for Mrs. Mafille were awaiting
advice from Defendant's attorney. An email communicating
the advice was sent to those within the company who could act
on it. The email communicating the advice falls squarely
within the attorney-client privilege.
to Plaintiffs' assertions, this is not a case where a
party has attempted to prevent the disclosure of factual
information by use of the privilege. There is no factual
information contained in the subject email that has not
otherwise been disclosed to Plaintiff. Moreover, there is
nothing untoward about Defendant having consulted counsel,
about Defendant's decision makers discussing
counsel's advice, or about their having taken that
advice. Defendant is entitled to do all of those things.
Further Defendant has not claimed advice of counsel as a
defense, or otherwise taken any action inconsistent with
preservation of the privilege. Nor has Defendant made any
claims that would make Defendant's counsel subject to
having her deposition taken in this case.
court is not persuaded by Plaintiffs' claim that
“there is a dispute as to the basis for Marlana's
termination that only Ms. Dorwart can answer.” [Dkt.
62');">62, p. 14]. The reasons for Mrs. Mafille's termination
have been communicated to her. There has been no showing that
discovery of any evidence supporting those reasons has been
denied to Plaintiffs under a claim of privilege. Plaintiffs
repeatedly state that Defendant's attorney fired Mrs.
Mafille. [Dkt. 62');">62, p. 16]. Even if that were true, Plaintiff
have not shown that the identity of who fired Mrs. Mafille
has anything what-so-ever to do with establishing liability,
damages, or a defense against any claim asserted in this
court finds that Plaintiffs have not demonstrated any basis
for taking the deposition of Defendant's attorney.
Moreover, taking the deposition of an opponent's
attorney, either trial counsel or general counsel, often
encumbers the case with burdensome collateral issues which
unnecessarily increase the cost of litigation and delay the
progress of the case. In Boughton v. Cotter Corp.,
65 F.3d 823 (10th Cir. 1995), the Court considered whether
the trial court abused its discretion by entering a
protective order against the deposition of opposing counsel.
The trial court found that taking the deposition of opposing
counsel affects the quality of representation, adds to the
burdensome time and costs of litigation, and results in
delays to resolve collateral issues raised by the
attorney's testimony. Id. at 829. The Tenth
Circuit ruled that the trial court did not abuse its
discretion in granting a protective order to protect
defendants from an unnecessary burden. The Court approved of
the criteria set out in Shelton v. American Motors
Corp., 805 F.2d 1323, 1327 (8th Cir. 1986) which held
that depositions of opposing counsel should be limited to
circumstances where it has been shown that: 1) no other means
exist to obtain the information than to depose opposing
counsel; 2) the information sought is relevant and
nonprivleged; and 3) the information is crucial to the
preparation of the case. Boughton, 65 F.3d at 829.
The Tenth Circuit ruled that a trial court has the discretion
to issue a protective order where any one or more of the
Shelton criteria are not met. Id. at 830.
In the present case none of the Shelton criteria
have been met.
court has found that the subject email which communicates
attorney advice to Defendant's employees involved in the
termination of Mrs. Mafille's employment is privileged
attorney-client communication. As a result, Plaintiffs are
prohibited from making any further use of the information
concerning advice by counsel contained in the email. In
addition to being privileged, counsel's role is not
relevant. Plaintiffs are hereby required to return or destroy
any copies of the subject emails and are required to take
reasonable steps to retrieve the email if it has been
distributed. Further, the exhibit containing the subject
email, [Dkt. 40-1], will be sealed. The motion which the
offending email was offered to support was denied. [Dkt. 56].
No. appeal was taken of that order within the time frame