holding that attorney-client privilege was not waived where employer “did not attempt to justify its termination of [the employee] on the basis of advice of counsel”
How later courts described this case
- holding that attorney-client privilege was not waived where employer “did not attempt to justify its termination of [the employee] on the basis of advice of counsel”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ELIZABETH BLEY, )
)
Plaintiff, )
)
)
v. ) Case No. CIV-21-1026-R
)
INDEPENDENT SCHOOL DISTRICT NO. )
I-002 OF OKLAHOMA COUNTY, )
a/k/a, WESTERN HEIGHTS PUBLIC )
SCHOOLS, et al., )
)
Defendants. )
ORDER
Before the Court is Plaintiff’s Motion to Compel [Doc. No. 86]. The District has
responded in opposition and Plaintiff has replied.
This action involves claims under the Americans with Disabilities Act, 42 U.S.C.
§§ 12101, et seq., the Oklahoma Anti-Discrimination Act, Okla. Stat. tit. 25, § 1101, et
seq., the Family Medical Leave Act, 29 U.S.C. §§ 2601, et seq., the Fourteenth
Amendment’s Due Process Clause, and various claims under state law. In the present
motion, Plaintiff asks the Court to compel responses to three document requests seeking
communications between the District’s former counsel and the District, the District’s
former Superintendent, and the District’s Human Resources Director. The District objects
to production of these communications on the ground that they are protected by the
attorney-client privilege. Plaintiff does not dispute that these communications fall within
the scope of the attorney-client privilege but contends that the District waived the privilege
by putting the legal advice at issue in the case. Specifically, Plaintiff notes that the District’s
former Superintendent and School Board President testified at their respective depositions
that they relied on the advice of legal counsel in making certain decisions concerning
Plaintiff’s employment and that the District has included email communications from its
former legal counsel to Plaintiff’s counsel on its exhibit list.1
Federal Rule of Civil Procedure 26(b)(1) permits discovery of “any nonprivileged
matter that is relevant to any party’s claim or defense and proportional to the needs of the
case.” Pursuant to Federal Rule of Evidence 501, federal common law governs the scope
of attorney-client privilege in this federal question case.2 In re Qwest Commc'ns Int'l Inc.,
450 F.3d 1179, 1184 (10th Cir. 2006). The Tenth Circuit has identified three general
approaches that courts use to determine whether the attorney client privilege has been
waived by putting advice of counsel at issue:
The first of these general approaches is the “automatic waiver” rule, which
provides that a litigant automatically waives the privilege upon assertion of
a claim, counterclaim, or affirmative defense that raises as an issue a matter
to which otherwise privileged material is relevant.…The second set of
generalized approaches provides that the privilege is waived only when the
material to be discovered is both relevant to the issues raised in the case and
1 Notably, this testimony was provided while the Superintendent and Board President were
still named as individual defendants in this action.
2 The Tenth Circuit has indicated that courts “should look to state law in deciding privilege
questions” that relate to state law claims. Motley v. Marathon Oil Co., 71 F.3d 1547, 1551
(10th Cir. 1995). The Tenth Circuit has not, however, “confronted the issue presented in
this case, where evidence allegedly subject to a privilege is relevant to both the federal and
state-law claims.” Vondrak v. City of Las Cruces, 760 F. Supp. 2d 1170, 1176 (D.N.M.
2009). In those circumstances, district courts have concluded that federal privilege law
applies when the primary source of the court’s jurisdiction is the federal claim. Id. at 1177;
Tolbert v. Gallup Indian Med. Ctr., 555 F. Supp. 3d 1207, 1237 (D.N.M. 2021). This Court
concurs with that conclusion.
either vital or necessary to the opposing party’s defense of the case….Finally,
several courts have recently concluded that a litigant waives the attorney-
client privilege if, and only if, the litigant directly puts the attorney’s advice
at issue in the litigation.
Frontier Ref., Inc. v. Gorman-Rupp Co., 136 F.3d 695, 699–700 (10th Cir. 1998) (internal
citations omitted). Although the Tenth Circuit has not selected an approach for purposes of
federal common law, it has criticized the first approach as not adequately accounting for
the importance of the attorney-client privilege. Id. at 700. The second approach, which is
“the more liberal of the two approaches to waiver,” id. at 701, has been applied to claims
arising under Oklahoma state law and is the approach relied on by Plaintiff. Seneca Ins.
Co. v. W. Claims, Inc., 774 F.3d 1272, 1276 (10th Cir. 2014). This test requires three
conditions to find waiver of the attorney-client privilege: “(1) assertion of the privilege was
the result of some affirmative act, such as filing suit, by the asserting party; (2) through
this affirmative act, the asserting party put the protected information at issue by making it
relevant to the case; and (3) application of the privilege would have denied the opposing
party access to information vital to [its] defense.” Frontier Ref., Inc. v. Gorman-Rupp Co.,
136 F.3d 695, 701 (10th Cir. 1998) (quoting Hearn v. Rhay, 68 F.R.D. 574, 581
(E.D.Wash.1975)) (alteration in Frontier).
Those conditions are not met here. Although the District communicated through
legal counsel when responding to Plaintiff’s accommodations request and some of the
District’s personnel testified that they relied on the advice of counsel in making
employment decisions, the District has not attempted to justify its conduct on the basis of
advice of counsel. In fact, the District has repeatedly and unequivocally stated that it does
not intend to rely on advice of counsel to defend itself in this action. See Def. Br. 9, 11, 12.
The District has not asserted the attorney-client privilege as a result of some affirmative
act, such as a filing suit, or made the protected information relevant by its actions in this
litigation. See Motley v. Marathon Oil Co., 71 F.3d 1547, 1552 (10th Cir. 1995) (holding
that attorney-client privilege was not waived where employer “did not attempt to justify its
termination of [the employee] on the basis of advice of counsel”); Williams v. Solvay
Chemicals, Inc., No. 09-CV-037-J, 2009 WL 10695153, at *3 (D. Wyo. Aug. 21, 2009)
(finding that attorney-client privilege was not waived where the defendant “has not
affirmatively raised advice of counsel as a defense’’).
The Court therefore concludes that the District has not waived the attorney-client
privilege and Plaintiff's Motion to Compel [Doc. No. 86] is DENIED.
IT IS SO ORDERED this 9" day of May 2023.
UNITED STATES DISTRICT JUDGE