United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER DENYING DEFENDANTS'
RULE 26(C) MOTION
Nuffer, United States District Judge.
RaPower-3 LLC (“RaPower”), International
Automated Systems Inc. (“IAS”), LTB1 LLC, R.
Gregory Shepard, and Neldon Johnson (collectively, the
“Receivership Defendants”) filed a motion
(“Motion”) under Fed.R.Civ.P. 26(c) for “a
protective order . . . to prevent the unredacted disclosure
of client billings of the law firm Nelson, Snuffer, Dahle
& Poulsen, P.C., to the Receiver, Wayne Klein.”1
For the following reasons, the Motion is DENIED.
receivership order was entered appointing Wayne Klein as the
receiver (“Receiver”) for the estate of the
Receivership Defendants and any subsidiaries or affiliated
entities. That order gives the Receiver the power
and duty “[t]o assume all legal privileges, including
attorney-client . . . privileges, belonging to the
Receivership Defendant entities, and [to] determine in his
discretion whether and when to assert or . . . waive such
privileges.” “All attorneys . . . who have
represented any of the Entity Receivership Defendants”
are required to “cooperate fully with the Receiver in
providing the Receiver the contents of their files relating
to those representations.” The receivership order also
provides that “[a]ny claim of attorney-client . . .
privilege” must “be made on motion and include a
privilege log specifically identifying each document or item
withheld from production and provide sufficient foundational
information to allow an individualized assessment as to the
applicability of the claimed privilege.”
January 30, 2019, the Receiver sent the following request to
the law firm Nelson Snuffer Dahle & Poulsen
I am hereby requesting copies of all [NSDP] invoices that
show the work that was performed leading to these payments
from IAS and RaPower. In other words, please send me copies
of all invoices showing work that was performed by your firm
and paid for by IAS or RaPower.
response, the Receivership Defendants filed this Motion
asserting that the requested “invoices contain
information subject to the attorney-client
motion for a protective order under Fed.R.Civ.P. 26(c)
“must include a certification that the movant has in
good faith conferred or attempted to confer with other
affected parties in an effort to resolve the dispute without
court action.” The Motion here does not include this
certification, and it is undisputed that the Receivership
Defendants “did not confer or attempt to confer with
the Receiver before filing their Motion.” The Motion also
does not include a privilege log, as the receivership order
requires. These omissions render the Motion
procedurally deficient. As a result, it will be denied.
Motion will also be denied on substantive grounds because,
under the receivership order, any attorney-client privilege
of RaPower or IAS now belongs to the Receiver. However, as
set forth in the receivership order, the Receiver is
prohibited from waiving any such privilege without first
providing the Receivership Defendants with seven-days notice
of its intent to do so. Accordingly, absent the
Receiver's compliance with this requirement, the Receiver
cannot disclose any privileged information or materials to
the United States.
IT IS HEREBY ORDERED that the Motion is DENIED.