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Michael S. Johnson, Donna Dymkowski, Patricia Long-Correa, Antonio v. Nextel Communications

August 27, 2012

MICHAEL S. JOHNSON, DONNA DYMKOWSKI, PATRICIA LONG-CORREA, ANTONIO SAMUEL, VINCENT HALL, ANGELETTE WATERS, INDIVIDUALLY, AND ON BEHALF OF THE CLASS,
PLAINTIFFS,
v.
NEXTEL COMMUNICATIONS, INC., A DELAWARE CORPORATION;
LEEDS, MORELLI & BROWN, P.C., LENARD LEEDS, STEVEN A. MORELLI;
JEFFREY K. BROWN; JAMES VAGNINI;
FREDERIC DAVID OSTROVE; BRYAN MAZOLLA;
SUSAN FITZGERALD; AND JOHN AND JANE DOES 1-10, (A FICTITIOUS DESIGNATION FOR PRESENTLY UNKNOWN DEFENDANTS), DEFENDANTS.



The opinion of the court was delivered by: Kevin Nathaniel Fox United States Magistrate Judge

MEMORANDUM AND ORDER

Before the Court is a motion by Leeds, Morelli & Brown, P.C., Lenard Leeds, Steven A. Morelli and Jeffrey K. Brown (collectively "the movants") "for a Protective Order pursuant to Fed. R. Civ. P. 26(b)(5) and 26(c), forbidding the six individually named Plaintiffs from discovering any privileged and/or confidential information relating to [the movants'] representation of the absent putative subclass members on the grounds that such information is protected from disclosure under applicable attorney client privileges and confidentiality between clients and their counsel." The plaintiffs oppose the motion.

Movants' Contentions

The movants contend that: (1) "the named plaintiffs cannot waive privilege belonging to, or consent to disclosure of confidential information about, the absent former clients"; and (2) "because the named plaintiffs have not obtained waiver or consent from the absent former clients a protective order must be entered to protect their rights." The movants assert that with respect to them, "this is a putative Subclass action," and the plaintiff defined the putative subclass as "48 persons who opted out of the sealed Class Action Suit filed in the State of Colorado captioned Brewer v. Leeds & Morelli, Docket No. 02-CV-1484." They contend that, "as it pertains to [them], this case arises out of [the movants'] individual representation of the six named Plaintiffs as to their various respective individual employment claims against Nextel, [and] Plaintiff's [discovery] Requests implicate, inter alia, the intact attorney-client privilege and attorney-client confidentiality belonging to former clients of [the movants]." According to the movants, "[s]ince, with the exception of the six named Plaintiffs, [the movants'] former clients are absent, [the movants are] required by a variety of state statutes and state rules governing the conduct of attorneys to assert, on their behalf, their attorney-client privilege and attorney-client confidentiality rights." The movants contend that the number of putative subclass members includes 29 from Colorado, two from Georgia and six from New Jersey. According to the movants, the plaintiff's counsel "have not asserted they have received an express privilege waiver from any unnamed putative Subclass members, nor have Plaintiffs' counsel provided any express waiver to [the movants]."

The movants argue that the named plaintiffs cannot waive the privilege belonging to the movants' absent former clients, nor can they consent to disclosure of confidential information on the absent former clients' behalf and, under Georgia and Colorado law, "piercing the attorney-client privilege or attorney-client confidentiality requires affirmative action on the part of the client whose privacy interests are placed at issue by virtue of the information sought."

Moreover, "since it does not appear that there was any effort to obtain consent from any Absent Former Client, Colorado law precludes this Court from ordering the production of any documents relating to their representation," and the "Court should enter a protective order forbidding the six named Plaintiffs from discovering any privileged and/or confidential information relating to [the movants'] representation of the Absent Former Clients." The movants contend that Local Civil Rule 26.2(c) of this court provides that information regarding a privilege respecting multiple documents be provided "by category without individual identification of documents," which is "appropriate here, where there is no dispute as to the privileged nature of the attorney client file and individual identification of each document contained therein would not only be unduly burdensome and impracticable, but often destroy the very privilege that the log is supposed to reflect."

In support of their motion, the movants submitted, inter alia, Exhibit G, the movants' "Privilege Log Re: Files of Former Clients Who Opted Out of the Arapahoe County Case." The privilege log consists of a table with the following categories: (a) "Name"; (b) "State"; (c) "Doc Number"; and (d) "Basis." The following is an illustrative excerpt from the movants' privilege log:

Name State Doc Number Basis Beth Love Colorado JO-004986 through Colo. Rev. Stat. § 13-90-107(1)(b); Colo. JO-005317 R. Prof. Cond. 1.6.

Reanna Moore Colorado JO-007229 through Colo. Rev. Stat. § 13-90-107(1)(b); Colo. JO-007404 R. Prof. Cond. 1.6.

Gary Ashton Colorado JO-00271 through Colo. Rev. Stat. § 13-90-107(1)(b); Colo. JO-00539 R. Prof. Cond. 1.6.

Plaintiffs' Contentions

The plaintiffs contend they had never seen the movants' privilege log prior to the filing of this motion, and the movants' privilege log is inadequate to establish the existence of any privilege. According to the plaintiffs, the movants "assume that the attorney-client privilege applies to every document in [their] individual client files," and "there is no such thing as privileged 'file' under the Federal Rules -- there are certainly disputes about the applicability of the privilege to documents contained in those files." Moreover, the movants' privilege log does not provide the substantive information required by Local Civil Rules of this court, namely, the type of document, the date of the document, the author, the addressee and other recipients of the document, as well as the relationship among the persons involved in sending and receiving the document. The plaintiffs contend that the movants' argument that listing each document on the privilege log is unduly burdensome and impracticable "ignores that both[, the Federal Rules of Civil Procedure and Local Civil Rule 26.2] required disclosure to the degree sufficient to determine if the privilege exists," and if the movants' "burden claim were sufficient, no party would be required to produce [a privilege log]."

According to the plaintiffs, the movants failed to establish that the attorney-client privilege applies to all documents in its client files because they "only stated that the withheld documents were contained in individual client files." The plaintiffs assert that even if the movants' motion "is not premature," the movants "cannot use the attorney-client privilege to withhold documents because the relationship between [the movants] and [their] clients was a sham" and "it is unlikely that there are any communications of confidential advice to [the movants'] clients." However, the plaintiffs maintain that, "even if such communications exist," the relationship of the clients with the movants "was so tainted by conflict that [the movants were] incapable of giving independent advice to [their] clients," and "the attorney-client privilege cannot shield the disclosure of [the movants'] communications with [their] clients."

Alternatively, the plaintiffs contend, the attorney-client privilege does not apply because the movants' clients "were more akin to absent class members" because: (a) the movants "did not vigorously represent the individual interests of [their] clients and instead herded them into signing the [Dispute Resolution Settlement Agreement reached by the parties in the Colorado class action Brewer v. Leeds & Morrelli, Docket No. 02-CV-1484]"; and (b) "courts have expanded the fiduciary exception to the attorney-client privilege to hold that where, as ...


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