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Walker v. City of Pocatello

United States District Court, D. Idaho

March 27, 2017

JOHN WALKER, Plaintiff,
v.
CITY OF POCATELLO, et. al., Defendants.

          MEMORANDUM DECISION AND ORDER

          B. Lynn Winmill Chief Judge

         INTRODUCTION

         The Court has before it Defendants' Motion for Protective Order (Dkt. 18). The Court also has before it Defendants' response to the Court's earlier order requesting an in camera review of any emails from Bybee to Smith (including emails Smith was cc'd on) from September 2015 - January 2016, plus documents with the bates numbers 612-614, 639-643, 615 and 699. For the record, the response consists of the documents with the bates numbers just listed (but no additional documents), a copy of Defendants' privilege log, and a list of the individuals (and their employment position) who appear as senders or recipients of the emails. For the reasons explained below, the Court will grant the motion in part and deny the motion in part.

         LEGAL STANDARD

         State law governs privilege claims in this case. Fed.R.Civ.P. 501. Here, Idaho supplies the rule of decision, so Idaho privilege law applies. Id. Under Idaho law, the party wishing to withhold documents as privileged has the burden of establishing the privileged character of communications. Kirk v. Ford Motor Co., 116 P.3d 27, 34 (2005). Idaho Rule of Evidence 502(b) sets forth the general rule of privilege as follows,

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client which were made (1) between the client or the client's representative and the client's lawyer or the lawyer's representative, (2) between the client's lawyer and the lawyer's representative, (3), among clients, their representatives, their lawyers, or their lawyers' representatives, in any combination, concerning a matter of common interest, but not including communications solely among clients or their representatives when no lawyer is a party to the communication, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.

I.R.E. 502(b).

         The privilege may be waived. Idaho Rule of Evidence 510 sets forth the standard for waiver of the privilege as follows,

A person upon whom these rules confer a privilege against disclosure of the confidential matter or communication waives the privilege if the person or the person's predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the matter or communication. This rule does not apply if the disclosure is itself a privileged communication.

I.R.E. 510. Several years ago this Court addressed the question of how a defendant corporation can waive the attorney-client privilege. In that case, the Court noted that Idaho case law on the matter was undeveloped, and there was no authority addressing the issue of an employee's waiver of the attorney-client privilege held by the corporation for which she works. See Truckstop.net, LLC v. Sprint Corp., Case No. 1:04-cv-00561, BLW. Both parties have cited this case back to the Court, and the Court agrees that some of the analysis in that case is applicable here, where there is a question about whether certain city employees waived the attorney-client privilege.

         In Truckstop, the Court referenced persuasive authority regarding an employee's waiver of the attorney-client privilege. Specifically, the Court cited Denney v. Jenkens & Gilchrist, 362 F.Supp.2d 407 (S.D.N.Y. 2004), where the district court held that the partner of a defendant accounting firm had the authority to waive any attorney-client privilege that attached to a memorandum to outside counsel regarding tax shelters. The court also cited Jonathan Corp. v. Prime Computer, Inc., 114 F.R.D. 693 (E.D. Va.1987), where the district court held that the defendant's marketing representative, by voluntarily disclosing a memorandum to a customer during the ordinary course of business negotiations stemming from a contract dispute, waived any attorney-client privilege which the defendant may have had in the memorandum. The Court also referenced the Supreme Court's well-known Upjohn case, where the Supreme Court rejected a narrow “control group” test under which only a small group of management officials can be subject to attorney-client privilege. Upjohn v. United States, 449 U.S. 383, 396 (1981). In that case, the court acknowledged that the attorney-client privilege may extend to cover confidential legal communications between a corporation's attorneys and its employees at all levels. Id. But of note, the Virginia court in Jonathan applied Upjohn to conclude that “a corporation cannot enjoy the benefits of an expanded attorney-client privilege without likewise accepting the consequences that the privilege may well be waived by an employee who is outside of the ‘control group.” Jonathan, 114 F.R.D. 693.

         ANALYSIS

         Here, Defendants seem to want to eat their cake and have it too. They want to claim that Smith was entitled to attorney-client privileged information, but could not waive that privilege if she shared the information with Bristow, or that Bristow was entitled to attorney-client privileged information, but could not waive that privilege if she shared the information with Walker, or both. Upjohn does not allow this. Any City of Pocatello employee who was entitled to the attorney-client privilege regarding the Walker matter may also waive that privilege.

         Applying this holding to the facts, there is really no dispute that Smith, the city's HR director at the time, was entitled to the attorney-client privilege regarding her communications with the city attorney working on the Walker matter. Thus, Smith may assert the privilege, but she also may waive the privilege. The same is not true for Bristow. She was a lower ranking employee who, according to the evidence before the Court, was not copied on any of the emails or other ...


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