United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER
M. WARNER Chief United States Magistrate Judge.
parties in this case have consented to Chief Magistrate Judge
Paul M. Warner conducting all proceedings, including entry of
final judgment, with appeal to the United States Court of
Appeals for the Tenth Circuit. See 28 U.S.C. §
636(c); Fed.R.Civ.P. 73. Before the court is Aubreanna
Hoopes' (“Plaintiff”) short form motion to
compel production of unredacted communications with
counsel. 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).
motion, Plaintiff requests an order compelling Owners
Insurance Company (“Defendant”) to produce all
documents and communications with its in-house counsel.
Plaintiff argues that Defendant should be required to produce
those communications because Defendant has asserted an
advice-of-counsel defense, thereby resulting in a waiver of
the attorney-client privilege with respect to the
communications. Plaintiff also appears to argue that because
Defendant has waived the attorney-client privilege for its
communications with outside counsel, that somehow results in
a waiver for its communications with in-house counsel.
response, Defendant maintains that it has asserted an
advice-of-counsel defense directed only to the advice of its
outside counsel, not its in-house counsel. Defendant admits
that it has waived the attorney-client privilege with respect
to its outside counsel and produced its communications with
outside counsel to Plaintiff. However, Defendant contends
that has not asserted reliance on any investigation or advice
given by its in-house counsel and has not named its in-house
counsel as a witness in this case. For those reasons,
Defendant argues that there has been no waiver of the
privilege for communications with its in-house counsel.
court is unpersuaded by Plaintiff's arguments. First, the
court finds meritless Plaintiff's contention that
Defendant's assertion of an advice-of-counsel defense
waives the attorney client-privilege for communications with
in-house counsel. It is true that, “[g]enerally, when a
party places privileged matters at issue in the litigation
that party implicitly consents to disclosure of those
matters.” Terry v. Bacon, 269 P.3d 188, 193
(Utah Ct. App. 2011) (quotations and citation
omitted). However, “[c]ommunications between
the attorney and client are placed in issue where the client
asserts a claim or defense, and attempts to prove that claim
or defense by disclosing or describing an attorney client
communication.” Id. (emphasis added)
(quotations and citation omitted). In this case, while
Defendant has asserted an advice-of-counsel defense, it is
directed only at the advice of its outside counsel. Defendant
has not attempted to prove that defense by “disclosing
or describing an attorney client communication” with
its in-house counsel. Id. (quotations and citations
omitted). Therefore, the court concludes that Defendant's
assertion of its advice-of-counsel defense does not waive the
attorney-client privilege for communications with its
the court concludes that Defendant's waiver of the
attorney-client privilege for communications with its outside
counsel has no bearing on whether Defendant has waived the
privilege for communications with in-house counsel. When a
party “volunteer[s] information concerning specific
attorney-client communications of a substantial nature,
” the attorney-client privilege is waived; however,
that waiver is “limited to the particular subject
matter and the conversation disclosed.”
Doe v. Maret, 984 P.2d 980, 987 (Utah 1999)
(emphasis in original), overruled on other grounds by
Munson v. Chamberlain, 173 P.3d 848 (Utah 2007). In this
case, Defendant admits that it has waived the attorney-client
privilege for its communications with outside counsel. At the
same time, Defendant has not volunteered any specific
attorney-client communications with its in-house counsel.
Consequently, it has not waived the privilege with respect to
those communications. See id.
on the foregoing, Plaintiff's short form motion to compel
production of unredacted communications with counsel is DENIED.
 See docket no. 8.
 See docket no. 37.
 Defendant correctly notes that Utah
law applies to the court's analysis of attorney-client
privilege. See ...