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Hemingway v. Russo

United States District Court, D. Utah, Central Division

October 25, 2017

TRUDY HEMINGWAY, DANIEL MCGUIRE, MICHAEL MCGUIRE, and AARON CHRISTENSEN, individuals, Plaintiffs,
v.
E. ROBERT RUSSO, et. al., Defendants.

          District Judge Jill N. Parrish

          MEMORANDUM DECISION AND ORDER

          PAUL M. WARNER, Chief United States Magistrate Judge

          District Judge Jill N. Parrish referred this case to Chief Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. § 636(b)(1)(A).[1] Before the court is a Short Form Motion to Compel Answers to Three Interrogatories (the “Motion”) filed by Defendants E. Robert Russo, Christopher McHugh, Bradley Bailey, Daniel Bartlett, Daniel Morzelewski, Kevin Wyatt, and Cottonwood Heights City (collectively, the “Cottonwood Heights Defendants”).[2] The court has carefully reviewed the written memoranda submitted by the parties. Pursuant to civil rule 7-1(f) of the Rules of Practice for the United States District Court for the District of Utah, the court has concluded that oral argument is not necessary and will determine the motion on the basis of the written memoranda. See DUCivR 7-1(f).

         The Cottonwood Heights Defendants move the court for an order compelling Plaintiffs to answer Interrogatory Nos. 2, 3, and 5 requesting that Plaintiffs state the factual basis for certain allegations (the “Allegations”) set forth in Plaintiffs' amended complaint (the “Amended Complaint”).[3] The subject of Interrogatory No. 2 is the allegation that Defendant E. Robert Russo (“Chief Russo”) “has implemented a policy and practice that condones and encourages constitutional violation of the very type alleged by Plaintiffs.”[4] The subject of Interrogatory No. 3 is Plaintiffs' allegation that “Chief Russo instructs officers in his employ faced with constitutional search and seizure situations to stop, arrest or search first, and justify the action later.”[5] The subject of Interrogatory No. 5 is Plaintiffs' allegation that “Chief Russo commands loyalty and deters whistleblowers by gathering compromising information about his officers and testing the rank and file with questions like, ‘Are you a rat?'”[6]

         For each allegation, Interrogatory Nos. 2, 3, and 5 requests in relevant part, that Plaintiffs “state the factual basis for that allegation, . . . the identity of each person who has told you or your attorneys these things about Chief Russo, and state in detail what each such person said to you or your attorneys.”[7]

         Plaintiffs refused to identify the individuals who said these things about Chief Russo, and what each person said because, Plaintiffs allege, (1) the individuals'' identities and the content of their communications are protected by attorney-client privilege and the work-product doctrine;[8] and (2) the source of these allegations is a non-retained expert whose identity or views are not discoverable.[9] In their opposition to the Motion, Plaintiffs also claim the requested information is protected by the common-interest doctrine.[10]

         As an initial matter, the court notes that the allegations against Chief Russo in the Amended Complaint are serious. The court reminds Plaintiffs and their counsel that

[b]y presenting to the court a pleading . . . an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . the factual contentions have evidentiary support, or if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery[.]

Fed. R. Civ. P. 11(b). If the factual allegations in the Amended Complaint are not supported by evidence, “the court may impose an appropriate sanction on any attorney, law firm, or party that violated [Rule 11(b)] or is responsible for the violation.” Fed.R.Civ.P. 11(c)(1).

         Turning to the substance of Plaintiffs' objections, the court concludes that neither the identities of those individuals who made the statements corroborating the allegations in the Amended Complaint as identified by Interrogatory Nos. 2, 3, and 5 (the “Individuals”), nor the statements themselves (the “Statements”), are protected by the privileges and doctrines asserted by Plaintiffs.[11] The court will address each in turn.

         I. ATTORNEY-CLIENT PRIVILEGE

         Plaintiffs claim that some of the statements supporting the allegations identified in Interrogatory Nos. 2 and 3 were made by the Individuals in a consultation with Plaintiffs' attorney for the purpose of obtaining legal advice about pursuing a class-action lawsuit against Chief Russo. Consequently, Plaintiffs' argue, the Individuals' identities and communications with Plaintiffs' counsel are protected by the attorney-client privilege.

         To begin, the Individuals' identities are not protected by the attorney-client privilege as Plaintiff claims. See In re Grand Jury Subpoenas, 906 F.2d 1485, 1488 (10th Cir. 1990) (“It is well recognized in every circuit, including [the Tenth Circuit], that the identity of an attorney's client . . . [is] not normally protected by the attorney-client privilege.”)

         Next, “[b]ecause confidentiality is critical to the [attorney-client] privilege, it will be lost if the client discloses the substance of an otherwise privileged communication to a third party.” United States v. Ary, 518 F.3d 775, 782 (10th Cir. 2008) (quotations and citation omitted). Here, the substance of the communications between the Individuals and Plaintiffs' counsel, as they relate to Interrogatory Nos. 2 and 3, has since been shared with third parties. Indeed, the Allegations ...


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