United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief Judge
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.
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
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.
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.
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.
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