United States District Court, D. Idaho
SHARON R. HAMMER and JAMES R. DONOVAL, husband and wife, Plaintiffs,
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)
E. BUSH, CHIEF U.S. MAGISTRATE JUDGE.
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
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
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).
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).
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).
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).
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
¶ 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
Stip., attached as Ex. M to Donoval Aff. (Docket No. 111,
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 ...