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Hammer v. City of Sun Valley

United States District Court, D. Idaho

August 20, 2018

SHARON R. HAMMER and JAMES R. DONOVAL, husband and wife, Plaintiffs,
v.
CITY OF SUN VALLEY; NILS RIBI, in his individual and official capacity; and DeWAYNE BRISCOE, in his individual and official capacity, Defendants.

          MEMORANDUM DECISION AND ORDER RE: PLAINTIFFS' MOTION TO RE-OPEN AND EXPAND DISCOVERY BASED ON WAIVER OF PRIVILEGES (DOCKET NO. 110)

          RONALD E. BUSH, CHIEF U.S. MAGISTRATE JUDGE.

         Now pending before the Court is Plaintiffs' Motion to Re-Open and Expand Discovery Based on Waiver of Privileges (Docket No. 110). Having carefully considered the record, participated in oral argument, and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:

         BACKGROUND

         Plaintiff Sharon Hammer wants to re-open discovery, arguing that, (1) by attaching a Sun Valley internal disciplinary investigation report (the “Ball Report”) in support of their Motion for Summary Judgment, Defendants waived any previously-asserted attorney client privilege and/or work product protection relating to the Ball Report; and (2) because the Ball Report is integral to several of Plaintiff's claims against Defendants, discovery should be re-opened to permit additional discovery surrounding the investigation leading up to the Ball Report, including the Ball Report itself. This action has a long history with many moving parts; however, for the purpose of resolving the current Motion, the relevant facts informing the instant dispute include:

         1. Plaintiff initiated this action on May 3, 2013, asserting 14 Counts against Defendants, seeking relief under various federal and state statutes related to Plaintiff 's termination as the Sun Valley City Administrator in January 2012. See Compl. (Docket No. 1).

         2. On August 2, 2013, U.S. District Judge Edward J. Lodge entered a Scheduling Order, outlining a May 19, 2014 discovery deadline. See Sched. Order (Docket No. 13).

         3. On February 5, 2014, Defendants filed a Motion for Judgment on the Pleadings pursuant to FRCP 12(c), requesting the dismissal of certain identified Counts within Plaintiff's Complaint. See Defs.' 12(c) Mot. for J. on the Pldgs. (Docket No. 18).

         4. On June 17, 2014, Judge Lodge granted Defendants' Motion for Judgment on the Pleadings and dismissed Counts 1-8, 10, and 12-14 of Plaintiff's Complaint (leaving Counts 9 and 11 for trial). See 6/17/14 (Docket No. 41).

         5. On June 18, 2014, in a factually-related case in Idaho state court (identified by Plaintiff as the “Ball Report Public Records Case”), Plaintiff and Defendant City of Sun Valley entered into a “Stipulation for Dismissal.” wherein the parties addressed the Ball Report and agreed on the following terms:

¶ 5. Defendant City of Sun Valley recognizes that [the Ball Report] is a public record of the City but maintains that such record is exempt from a Public Records Request filed pursuant to I.C. § 9-342 upon the grounds that such report is attorney work product and, therefore, exempt from disclosure. the City will continue to maintain this position and will only release the report upon Court Order requiring it do so.
¶ 6. Both parties acknowledge that [the Ball Report] has been published and made available through the Idaho Mountain Express and is, therefore, in the public domain at the present time.
¶ 7. In the event that the City is ordered to release [the Ball Report] it will release, as well [a 28-page “Demand for Correction” in response to the Ball Report, a two-page letter from the Sun Valley City Attorney responding to the “Demand for Correction, ” and a one-page coversheet] contemporaneously, in one set of documents.

Stip., attached as Ex. M to Donoval Aff. (Docket No. 111, Att. 10).

         6. On June 27, 2014, Defendants moved for summary judgment on Counts 9 and 11 of Plaintiff's Complaint. See Defs.' MSJ (Docket No. 47). In support thereof, Defendants attached as an exhibit (filed under seal) the Ball Report and its accompanying exhibits ...


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