United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER ORDER GRANTING IN PART
AND DENYING IN PART THE REMAINDER OF THE MOTION TO QUASH
SUBPOENA (ECF NO. 39)
J. Furse Magistrate Judge
2017, Mr. Truman filed this civil rights action under 28
U.S.C. § 1983 against Defendants City of Orem, Orem City
Police Department, Officer Thomas Wallace, Officer William
Crook, Officer Orlando Ruiz, Officer Art Lopez, and Officer
Todd Ferre (collectively, “Orem City
Defendants”). (Compl., ECF No. 2.) His Amended
Complaint serves as the operative pleading in this case. (Am.
Compl., ECF No. 38.) Mr. Truman alleges the Orem City
Defendants engaged in various misconduct, including some that
resulted in his initial conviction on charges of domestic
violence homicide and obstruction of justice in state court.
(Id.) After the conviction, Mr. Truman hired new
counsel who conducted additional investigation into the case.
(Id., ¶¶ 392- 95, 401-409.) Mr.
Truman's new counsel filed an amended motion for a new
trial detailing instances of police and prosecutorial
misconduct and other alleged legal errors. (Id.,
¶¶ 396-97.) The court granted Mr. Truman's
amended motion for a new trial. (Id., ¶ 411.)
At the second trial, the jury found Mr. Truman not guilty.
(Id., ¶ 424.)
relevant to the Motion currently before the Court, attorney
Ronald J. Yengich represented Mr. Truman up to and including
that initial jury trial. (Mot. to Quash Subpoena, ECF No.
39.) Some of Mr. Truman's claims allege the Orem City
Defendants withheld and or failed to disclose evidence in
violation of the Due Process Clause and Brady v.
Maryland, 373 U.S. 83 (1963). (Compl. ¶¶
401-409, 516-526, ECF No. 38.)
defending this action, the Orem City Defendants subpoenaed
documents from Mr. Yengich's file on the first criminal
case. (Subpoena, ECF No. 44-1.) Third party Mr. Yengich moved
to quash the subpoena based on the attorney-client privilege
and work product doctrine. (Mot. to Quash Subpoena, ECF No.
39.) The Orem City Defendants opposed the Motion to Quash,
arguing that in this case, Mr. Truman waived the
attorney-client privilege and work product protection by
asserting that the Orem City Defendants withheld evidence in
violation of the Due Process Clause and Brady.
(Opp'n to Mot. to Quash 1-2, ECF No. 44.)
15, 2018, the Court held a hearing on the Motion to Quash.
(ECF No. 46.) The Court denied in part, granted in part, and
requested further briefing on the Motion. (Order Denying in
Part & Granting in Part Mot. to Quash (ECF No. 39), ECF
No. 50.) The Court denied the Motion to Quash “insofar
as Mr. Yengich must produce the documents within the scope of
the subpoena to [Mr. Truman's] current counsel” and
granted the Motion “insofar as Mr. Yengich need not
provide such documents directly to [the Orem City]
Defendants' counsel.” (Id., ¶ 1.) The
Court further ordered Mr. Truman to provide a privilege log
to the Orem City Defendants by June 22, 2018, and instructed
the parties to brief the issue of the scope of the waiver of
the attorney-client privilege and work product protection
after production of the privilege log. (Id.,
Orem City Defendants filed their Memorandum on the scope of
the waiver, (Orem Defs.' Mem. re Scope of Waiver of
Attorney-Client Privilege & Attorney Work Product
Protection (“Mem.”), ECF No. 53), which Mr.
Truman opposed, (Mem. in Opp'n to Orem Defs.' Mem. re
Scope of Waiver of Attorney-Client Privilege & Attorney
Work Product Protection (“Opp'n”), ECF No.
60). The Orem City Defendants subsequently filed a Reply,
(Orem City Defs.' Reply Mem. re Scope of Waiver of
Attorney-Client Privilege & Attorney Work Product
Protection (“Reply”), ECF No. 61), and the Court
heard further oral argument on the remaining part of the
Motion, taking it under advisement, (ECF No. 64).
considering the briefing, arguments of counsel, and
applicable law, the Court finds Mr. Truman did not waive the
attorney-client privilege and work product protection with
respect to materials relevant to the withholding of
information from Mr. Yengich and Mr. Truman. However, the
privilege log needs supplementation. Therefore, the Court
GRANTS in part and DENIES in part the remainder of the Motion
Orem City Defendants contend Paragraphs 401 to 409 and 516 to
526 of the Amended Complaint make the allegations of
withholding that waive the privilege and protection. (Mem.
12, ECF No. 52.) As explained below, the Court finds Mr.
Truman's allegations make some privileged and/or
protected materials relevant by asserting Brady
claims in this case. However, “by enacting 42 U.S.C.
§ 1983, Congress concluded that private enforcement of
individual rights is in the public interest. This important
public policy will not be advanced by presenting a party with
the Hobson's choice of either dropping its claim or
revealing all confidential communications related to a
criminal defense.'' Greater Newburyport Clamshell
All. v. Pub. Serv. Co., 838 F.2d 13, 22 (1st Cir. 1988).
Applying the relevant tests for waiver of the attorney-client
privilege and disclosure of work product, the Court declines
to find waiver or require disclosure and GRANTS the Motion to
Quash as to the privileged and protected materials. The Court
also declines to conduct an in camera review of
certain documents on the privilege log as the Orem City
Defendants request because the Orem City Defendants made the
request on the premise of waiver, which the Court has
rejected. The Court DENIES the Motion to Quash to the extent
that it ORDERS Mr. Truman to review the materials withheld
for compliance with this Order, produce additional materials
as appropriate, and supplement his privilege log to meet the
requirements of Federal Rule of Civil Procedure 26(b)(5)(A).
October 2012, Mr. Truman's wife, Heidy Truman, died from
a gunshot wound to the head, inflicted at their Orem, Utah
home. (Am. Compl., ¶¶ 23-25, ECF No. 38.) Only Mr.
Truman and Mrs. Truman were home at the time. (Id.,
¶ 26.) After an investigation, in July 2013, the State
of Utah charged Mr. Truman with a domestic violence homicide
and obstruction of justice. (Id., ¶ 374.) As
relevant to the Motion currently before the Court, Mr. Truman
asserts in his Amended Complaint that during their
investigation, his new counsel discovered facts that the Orem
City Defendants withheld from Mr. Truman and Mr. Yengich
prior to the first trial including:
• Evidence regarding the measurements of the house and
hallway where Mrs. Truman was found and who made them;
• A 96-slide PowerPoint given to Dr. Leis, the medical
• Evidence of and the lack of testing of gunshot
• An attempt to claim or freeze insurance benefits by
• Mrs. Truman's relationship with her family and her
• A forensic consultant team's conclusion that they
could not ascertain how or where Mrs. Truman was shot or Mr.
Truman's location at that time;
• Evidence related to Mr. Truman's call to Mrs.
Truman prior to the 911 call;
• Exculpatory statements from financial planner John
Engh regarding the Trumans' financial situation,
statements from first responders about the location of the
black handled gun, and others Mr. Truman contends were
• Police reports noting Mr. and Mrs. Truman's lack
of financial trouble.
(Id., ¶¶ 401-04, 406-07, 516, 524.)
Alleging that the Orem City Defendants suppressed evidence
bearing on these issues, Mr. Truman asserts a claim against
the Orem City Defendants for “Withholding Exculpatory
Evidence” in violation of the Due Process Clause.
(Id., ¶¶ 516-17, 524, 526.)
Mr. Truman alleges that:
(1) His new counsel discovered that the first responders
incorrectly measured the Truman house and the location of
Mrs. Truman's body. The Orem City Defendants allowed the
medical examiner and others to rely on the erroneous
information and then withheld evidence concerning the faulty
measurements and a 96-slide PowerPoint given to the medical
examiner containing the faulty measurements, and attempted to
cover-up the measurement errors, (Am. Compl., ¶¶
401, 403, 524(a), (g));
(2) Mr. Truman's new counsel discovered that gunshot
residue samples taken from Mr. and Mrs. Truman's hands
the night of the shooting were not sent for testing before
the first trial and that the Orem City Defendants failed to
disclose to Mr. Yengich that they had not sent the samples
for analysis and lost or destroyed other gunshot residue
samples, (Am. Compl., ¶¶ 406, 524(b), (j));
(3) New counsel also discovered that the Orem City Defendants
knew and failed to disclose that Mrs. Truman's mother,
Janet Wagner, attempted to claim and/or freeze Mrs.
Truman's life insurance, (Am. Compl., ¶¶ 326,
(4) The Orem City Defendants “[f]ail[ed] to disclose
and hid the fact that [Mrs. Truman] had a troubled
relationship with [her family] and her mother, had a hard
childhood, and had an adverse family upbringing which not
only is a suicide risk factor, but because the family was
somewhat estranged, discredited the [family's]
knowledge of [Mrs. Truman's] personal thoughts, feelings,
and potential conduct as well as their knowledge of [Mr.
Truman] and his relationship with [Mrs. Truman], ” (Am.
Compl., ¶ 524(d));
(5) At the second trial, the Orem City Defendants disclosed
that they had hired a forensic consulting team to review the
case prior to the first trial, and the team determined they
could not draw any conclusions about Mr. or Mrs. Truman's
locations but did find the blood spatter on Mr. Truman's
shirt consistent with giving CPR, (Am. Compl., ¶¶
329-331, 341-42, 524(e));
(6) New counsel discovered that the Orem City Defendants
withheld telephone records showing Mr. Truman's call to
Mrs. Truman before the gunshot was not a completed call, that
the call went to voicemail, and that Mrs. Truman accessed her
voicemail three minutes before Mr. Truman called 911, (Am.
Compl., ¶¶ 407, 524(f));
(7) New counsel discovered that the Trumans' financial
planner, John Engh, told the police that Mr. Truman did not
have a financial motive to kill Mrs. Truman and that officers
and first responders identified the location of the black
handled gun, but the Police failed to disclose this evidence,
(Am. Compl., ¶¶ 402(e), 404(d), 524(h));
(8) Mr. Truman's new counsel discovered that the Orem
City Defendants deleted a statement from the police report
indicating that the Trumans did not struggle financially,
(Am. Compl., ¶¶ 402(c), 524(i)).
Rule of Evidence 501 provides that privileges in
federal-question cases generally are ‘governed by the
principles of the common law as they may be interpreted by
the courts of the United States in the light of reason and
experience.'” In re Qwest Commc'ns
Int'l Inc., 450 F.3d 1179, 1184 (10th Cir. 2006)
(quoting Fed.R.Evid. 501)). “The attorney-client
privilege is ‘the oldest of the privileges for
confidential communications known to the common law.'
” Qwest, 450 F.3d at 1185 (quoting Upjohn
Co. v. United States, 449 U.S. 383, 389 (1981)).
“‘Its purpose is to encourage full and frank
communication between attorneys and their clients and thereby
promote broader public interests in the observance of law and
administration of justice.'” Id. (quoting
Upjohn, 449 U.S. at 389). A person may expressly or
impliedly waive the attorney-client privilege. See
Qwest, 450 F.3d at 1185 (stating that voluntary
disclosure by the client waives the attorney-client
privilege); Frontier Ref., Inc. v. Gorman-Rupp Co.,
136 F.3d 695, 699 (10th Cir. 1998) (identifying different
approaches to determine when implied waiver arises while
sitting in diversity and applying Wyoming law). The party
“assert[ing] the attorney-client privilege or the work
product doctrine as a bar to discovery has the burden of
establishing that either or both is applicable.”
Peat, Marwick, Mitchell & Co. v. West, 748 F.2d
540, 542 (10th Cir. 1984).
its core, the work-product doctrine shelters the mental
processes of the attorney, providing a privileged area within
which he can analyze and prepare his client's
case.'” Qwest, 450 F.3d at 1186 (quoting
United States v. Nobles, 422 U.S. 225, 238 (1975)).
Work product includes opinion work product and fact work
product. Id. An opposing party may discover fact
work product, otherwise discoverable, upon a showing of
substantial need and the difficulty of obtaining
substantially similar evidence elsewhere. Fed.R.Civ.P.
parties do not dispute that Mr. Truman-in alleging that the
Orem City Defendants suppressed evidence-asserts a Brady
v. Maryland, 373 U.S. 83 (1963) claim against the Orem
City Defendants in this case. (Mem. 1, ECF No. 53; Opp'n
2, ECF No. 60.) Mr. Truman also asserts the Orem City
Defendants fabricated evidence. (Am. Compl. ¶ 514, ECF
No. 38.) In response to the Motion to Quash, the Orem City
Defendants indicated they sought only information regarding
allegedly suppressed evidence. (Opp'n to Mot. to Quash
1-2, ECF No. 44.) In their further briefing on waiver, both
parties have treated the allegations of suppressed evidence
and fabricated evidence as interchangeable. (E.g.
Mem. 1, ECF No. 53; Opp'n 2, ECF No. 60.)
Scope of the Motion
clarity's sake, a Brady violation occurs when
police officers fail to turn over exculpatory evidence to
opposing counsel in a criminal case. United States v.
Bagley, 473 U.S. 667, 676 (1985). A Giglio
violation occurs when police officers fail to turn over
impeachment evidence to opposing counsel in a criminal case.
Id. Mr. Truman asserts the Orem City Defendants
withheld both exculpatory evidence, (Am. Compl. ¶
524(b), (d), (e), (f), (g), (h), (i), ECF No. 38), and
impeachment evidence, (id., ¶ 524(a), (c), (d),
(g)). Attorneys frequently refer to claims about these two
types of suppression as Brady claims. Fabrication of
evidence constitutes a separate constitutional violation
subject to a different test than either a Brady or a
Giglio violation. Pierce v. Gilchrist, 359
F.3d 1279, 1299 (10th Cir. 2004); Pyle v. Kansas,
317 U.S. 213, 216 (1942).
case law the Orem City Defendants rely upon to show a need to
know what Mr. Yengich knew relates to Brady
violations-“‘[A] defendant's independent
awareness of the exculpatory evidence is critical in
determining whether a Brady violation has occurred.
If a [criminal] defendant already has a piece of evidence,
the prosecution's disclosure of that evidence is
considered cumulative, rendering the suppressed evidence
immaterial.'” (Mem. 5, ECF No. 53 (quoting
United States v. Quintanilla, 193 F.3d 1139, 1149
(10th Cir. 1999))). The Orem City Defendants do not cite any
similar Tenth Circuit case law applicable to fabricated
of fabrication do not give rise to waiver of the
attorney-client privilege or work-product protection because
the attorney's knowledge of the fabrication does not
eliminate the harm of the fabrication in the way prior
knowledge of information not disclosed does. To prove a
fabrication claim, the plaintiff must show 1) the officers
fabricated the evidence, 2) the evidence was used against the
plaintiff in a criminal proceeding, and 3) the fabricated
evidence deprived the plaintiff of fair trial or otherwise
harmed him. See Warnick v. Cooley, 895 F.3d 746, 753
(10th Cir. 2018) (setting forth pleading requirements for a
for example a fabricated crime lab report purporting to
document the presence of a plaintiff at the scene of a crime.
That the plaintiff knows she was not at the scene of the
crime does not prevent the introduction of the evidence. Even
if the plaintiff forgoes her Fifth Amendment right not to
testify and testifies that she was not at the scene, her
testimony does not neutralize the fabricated crime lab
case the Orem City Defendants cite for this proposition,
Tennison v. City & Cty. of San Francisco, 226
F.R.D. 615, 622 (N.D. Cal. 2005), involved a § 1983
claim for suppression of exculpatory evidence and reliance on
perjured testimony. The California district court stated,
“[t]o succeed, [the plaintiff] must prove not only
these facts, but the lack of knowledge of such evidence on
the part of his attorney and himself.” Id. In
support of this statement, the court cites only to cases
involving suppression of evidence and not to any cases
involving fabrication of evidence. See Id. (citing
California v. Trombetta, 467 U.S. 479, 488-89,
(1984) (addressing destroyed evidence); United States v.
Dupuy, 760 F.2d 1492, 1502, n. 5 (9th Cir.1985)
(involving nondisclosure of witnesses statements from known
witnesses); United States v. Grossman, 843 F.2d 78,
85 (2d Cir.1988) (concerning failure to disclose potentially
exculpatory evidence); United States v. Gaggi, 811
F.2d 47, 59 (2d Cir.1987) (regarding failure to disclose
exculpatory evidence.”)). This Court does not find
persuasive an out- of-circuit, district court case, lacking
case law on the point of whether the plaintiff's and
attorney's knowledge about fabricated evidence acts as a
of these reasons, the Court only addresses waiver regarding
withheld information, that is Brady violations.