The opinion
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DEBORAH RUSSELL,
Plaintiff, Case No. 3:20-cv-01028
v. Judge Aleta A. Trauger
Magistrate Judge Alistair E. Newbern
CAROL ELAINE TANNER et al.,
Defendants.
MEMORANDUM ORDER
On November 4, 2021, the Court stayed these proceedings until pending criminal charges
against pro se Plaintiff Deborah Russell are resolved. (Doc. No. 160.) Excepted from that stay are
several motions filed by Russell challenging the production of her client file by her former counsel,
William C. Killian, including two motions for leave to file documents under seal (Doc. Nos. 153,
162), a motion to enforce the Court’s October 15, 2021 order requiring the production of her client
file (Doc. No. 157), and a motion to compel Killian’s deposition regarding the file’s production
(Doc. No. 167). (Doc. Nos. 160, 170.) Russell has also filed a request to schedule a hearing on
these motions. (Doc. No. 171.) For the reasons that follow, Russell’s motions to seal will be
granted, and her request for a hearing, motion for production of her client file, and motion to
compel Killian’s deposition will be denied.
I. Relevant Background
On September 7, 2021, the Court granted Killian’s motion to withdraw as Russell’s counsel
in this action. (Doc. No. 111.) On September 20, 2021, Russell moved for a court order requiring
Killian to produce her client file, stating that Killian had given her hard copies of his handwritten
notes and some exhibits and had also provided her client file in electronic form via a Dropbox link,
but that Russell was unable to access the electronic file on her laptop. (Doc. No. 118.) Killian filed
the affidavit of paralegal Jenny Burkhart, which confirmed that Burkhart had sent Russell “a
Dropbox link to her complete electronic case file” on September 8, 2021, and, when Russell
responded that she could not access the Dropbox files, Burkhart accessed the Dropbox link “and
was able to view every document on the link with the exception of the email files with . . . .pst
extensions.” (Doc. No. 121-1, PageID# 2172–73.) Burkhart determined that the email files could
be viewed with a free Microsoft Outlook conversion program and emailed Russell a link to that
program and instructions for viewing the email files. (Doc. No. 121-1.) On September 16, 2021,
at Killian’s instruction, Burkhart copied “the entirety of Ms. Russell’s electronic case file” and
“the free Outlook converter/viewer program” “to a newly purchased flash drive,” “double checked
that all files were accessible, including the email .pst files, and mailed the flash drive to” Russell.
(Id. at PageID# 2173.) On October 14, 2021, Russell filed a second motion for a court order
requiring Killian to produce her file, arguing that she had not been able to access the electronic
copies of her file and asking that Killian be required to provide her with a paper copy of her file.
(Doc. No. 139.)
On October 15, 2021, the Court granted Russell’s motions for production of her client file
in hard copy and ordered Killian “to provide to Russell a hard copy of the contents of her entire
client file by October 22, 2021.” (Doc. No. 140, PageID# 2412–13.) Killian filed an affidavit in
response stating that, “[o]n Wednesday, October 20, 2021, [he] mailed a package with a copy of
every document [he] ha[d] in [his] possession in electronic and paper form from Ms. Russell’s file
in this matter to Ortale Kelley Law Firm”;1 [t]he package was delivered to Ortale Kelley Law Firm
1 Attorneys from the Ortale Kelley Law Firm have entered a limited appearance on Killian’s
behalf in this action. (Doc. Nos. 141, 144.)
on Thursday, October 21, 2021”; and the Ortale Kelley Law Firm “confirmed receipt.” (Doc.
No. 152-1, PageID# 2463–64, ¶¶ 4–6.) Killian states that “[t]his package contains the entirety of
Ms. Russell’s file in” this case. (Id. at PageID# 2464, ¶ 7.) Killian also filed the affidavit of Scott
Clifton, an employee of Ortale Kelley Law Firm, stating that “[o]n Thursday, October 21, 2021, a
package from Cavett, Abbott, & Weiss, PLLC . . . was delivered . . . to Ortale Kelley Law Firm”;
he “delivered the package to Ms. Deborah Russell at her home” “[o]n Friday, October 22, 2021”;
and, “[i]n [his] presence, Ms. Russell executed a letter acknowledging receipt[.]” (Doc. No. 152-
2, PageID# 2465, ¶¶ 3–5.) Killian also filed a delivery confirmation letter signed by Russell and
dated October 22, 2021, which also includes a handwritten notation stating, “[t]his does not
constitute that I have received the full or complete contents of my file. It only represents that on
this date I have accept[ed] a box—contents are unknown at this time[.]” (Id. at PageID# 2467.)
On October 29, 2021, Russell filed a motion to enforce the Court’s October 15, 2021 order,
arguing that the box delivered to her on October 22, 2021, contained “a mish-mash of unorganized
random papers [and] redundant copies . . .” that did not constitute her complete file. (Doc. No. 157,
PageID# 2538.) Russell provided photographs of some of the box’s contents and selected
documents from her file (Doc. No. 156–156-3) with a motion to file those documents under seal
based on attorney-client privilege (Doc. No. 153) and an affidavit stating that she “ha[s] not waived
client privilege” and that she believes there are documents missing from the box. (Doc. No. 155-
1, PageID# 2483.)
On November 10, 2021, Killian filed a response to Russell’s motion to enforce the Court’s
prior order stating that, as articulated in Burkhart’s affidavit, Russell was sent a Dropbox link to
her entire electronic file on September 8, 2021; a flash drive containing her entire electronic file
and Killian’s file of emails related to her case on September 16, 2021; hard copies of handwritten
attorney notes; and hard copies of discovery received from Defendants Baker Donelson and
Jonathan Cole’s attorney, Dale Bay. (Doc. No. 161.) Killian further states that,
[o]n October 20, 2021, 7,769 pages of documents consisting of [Russell’s]
electronic file, attorney notes, discovery from Dale Ba[y], and Killian’s email file,
were printed. The client file copies were categorized according to each separate
electronic file folder and its contents by use of the Snip It capture tool. A copy of
the Snip It file capture was placed on top of each printed file folder along with
individual sticky notes labeling the sub-sections within each file folder. The hard
copies were mailed via Next Day Air to Ortale Kelley Law Firm. The package was
delivered to Ortale Kelley on October 21, 2021. On October 22, 2021, the package
was personally delivered to [Russell] at her home at her requested time of 2:00 p.m.,
and [Russell] signed a letter acknowledging receipt.
On November 4, 2021, out of an abundance of caution . . . Killian’s “Sent”
[email] folder was searched for [Russell’s] name, and emails were printed totaling
198 pages. These additional documents were mailed to Ortale Kelley Law Firm.
These documents were then mailed to [Russell] at her home address . . . .
(Id. at PageID# 2562–63 (citations omitted).)2 Killian argues that Russell’s motion for production
of her file should be denied because he has provided Russell with her entire client file “on three
(3) separate occasions” and because Russell has not identified any specific materials that have not
been produced. (Id. at PageID# 2563.)
On November 16, 2021, Russell filed a second motion for leave to file documents under
seal, again citing attorney-client privilege. (Doc. No. 162.) That motion states that Russell received
a FedEx delivery on November 11, 2021, containing a collection of Killian’s emails, but that
attachments referenced in some of the emails were “intentionally deleted and excluded” from that
2 Killian also filed a copy of a September 8, 2021 email from Burkhart to Russell containing
a Dropbox link and accompanying letter from Killian (Doc. No. 161-1); a September 13, 2021
email from Burkhart to Russell providing instructions for accessing the email files provided at the
Dropbox link (Doc. No. 161-3); a receipt for the purchase of a flash drive and file folders on
September 16, 2021 (Doc. No. 161-4); a screenshot image of various computer files and folders
(Doc. No. 161-6); a photograph of two boxes, with the top box open to show stacks of files bound
by rubber bands and labeled with sticky notes (id.); and receipts for shipments from Chattanooga
to Nashville dated September 8, September 16, October 20, and November 4, 2021 (Doc. No. 161-
2, 161-5–161-7).
delivery. (Id. at PageID# 2580.) Russell filed an affidavit, a photograph of the FedEx delivery, and
roughly fifty pages from Killian’s email under seal. (Doc. No. 165.) She also filed a second
affidavit reiterating that she believed the email file to be incomplete and that the emails “appear to
have been edited” (Doc. No. 166-1, PageID# 2652), and a motion to compel Killian’s deposition
so that she can obtain testimony about his production of her client file (Doc. No. 167). Killian
opposed the deposition (Doc. No. 169). On November 23, 2021, Russell filed a reply in support of
her motion to produce the client file, which reiterates her argument that she received an incomplete
copy of her client file.3 (Doc. No. 168.)
II. Analysis
A. Russell’s Motions for Leave to File Documents Under Seal
Russell has moved to seal documents filed in support of her motion for production of her
client file, arguing that those documents are protected by attorney-client privilege. (Doc. Nos. 153,
162). Neither Killian nor any other party to this action has opposed filing those documents under
seal.
“The public has a strong interest in obtaining the information contained in the court
record[,]” and there is a “‘strong presumption’” that court records be open. Shane Grp. v. Blue
Cross Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir. 2016) (alteration omitted) (quoting Brown
& Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1179–80 (6th Cir. 1983)). This
presumption of openness rest on the idea that, among other things, “the public is entitled to assess
for itself the merits of judicial decisions” and has a strong interest in viewing the evidence and
3 Russell, who receives service by mail, states that she did not receive Killian’s response in
opposition to her motion for production of the client file until November 19, 2021. (Doc. No. 168.)
Killian has not objected to the timeliness of Russell’s reply, and the Court will consider the reply
timely filed.
arguments on which courts base those decisions. Id. A party seeking to seal court documents
therefore bears a heavy burden: “Only the most compelling reasons can justify non-disclosure of
judicial records.” Id. (quoting In re Knoxville News-Sentinel Co., 723 F.2d 470, 476 (6th Cir.
1983)). In general, “only trade secrets, information covered by a recognized privilege (such as the
attorney-client privilege), and information required by statute to be maintained in confidence is
typically enough to overcome the presumption of public access.” M.D. Tenn. R. 5.03(a) (contents
of motion to seal). The party seeking to seal all or part of a record “must ‘analyze in detail,
document by document, the propriety of secrecy, providing reasons and legal citations.’” Shane
Grp., 825 F.3d at 305–06 (quoting Baxter Int’l, Inc. v. Abbott Lab’ys, 297 F.3d 544, 548 (7th Cir.
2002)); see also M.D. Tenn. R. 5.03(a) (requiring that motions to seal “specifically analyz[e] in
detail, document by document, the propriety of secrecy, providing factual support and legal
citations”).
The documents that are the subject of Russell’s motions to seal (Doc. Nos. 156–156-3,
165) contain communications and materials relating to Killian’s representation of Russell and
litigation strategy in this action. The attorney-client privilege protects confidential
communications between a lawyer and a client on matters relating to legal representation. Ross v.
City of Memphis, 423 F.3d 596, 600 (6th Cir. 2005). The work-product doctrine, which “‘is distinct
from and broader than the attorney-client privilege,’” protects documents prepared by a lawyer in
anticipation of litigation. In re Columbia/HCA Healthcare Corp. Billing Pracs. Litig., 293 F.3d
289, 304 (6th Cir. 2002) (quoting In re Antitrust Grand Jury, 805 F.2d 155, 163 (6th Cir. 1986)).
A client may waive either the attorney-client privilege or work-product protection “by conduct
which implies a waiver of the privilege or a consent to disclosure.” Id. at 294, 304 n.24.
While Russell has generally placed the sufficiency of Killian’s production of her client file
at issue in this case, her conduct does not imply that she has not waived attorney-client or work-
product privilege with respect to the substantive contents of her client file. See id. The Court finds
that Russell’s interest in maintaining the confidentiality of her communications with Killian and
Killian’s work on her behalf outweighs the public’s interest in disclosure. See, e.g., Abington
Emerson Cap., LLC v. Landash Corp., No. 2:17-cv-143, 2020 WL 5035452, at *2–3 (S.D. Ohio
Aug. 26, 2020) (finding that attorney-client privilege and work product doctrines justified granting
motion to seal documents that “‘show[ed] discussions regarding counsel’s mental impressions and
litigation strategy’”). Therefore, Russell’s motions to seal will be granted.
B. Russell’s Motion for Production of Her Client File and Related Filings
The Tennessee Supreme Court’s Rule of Professional Conduct 1.16(d)(4) requires an
attorney to provide a client with “papers and property to which the client is entitled and any work
product prepared by the lawyer for the client and for which the lawyer has been compensated[.]”
Tenn. Sup. Ct. R. 8, RPC 1.16(d)(4). The Board of Professional Responsibility of the Supreme
Court of Tennessee has adopted an “entire file” definition of “papers and property,” under which
“the client has an expansive general right to materials related to the representation and retains that
right when the representation ends.” Bd. of Pro. Resp. of the Sup. Ct. of Tenn., Formal Ethics
Opinion 2015-F-160 (Dec. 11, 2015), https://www.tbpr.org/ethic_opinions/2015-f-160-client-
files. “[T]he only file contents that the [Tennessee Court of Appeals has] found not to constitute
part of the client file were the law firm invoices that were held to be accounts receivable records
of the law firm.” Id. (citing Saroff v. Cohen, No. E2008-00612-COA-R3-CV, 2009 WL 482498
(Tenn. Ct. App. Feb. 25, 2009)).
In recognition of this right, the Court ordered Killian to produce a hard copy of Russell’s
client file. (Doc. No. 140.) Having reviewed all the evidence filed by Russell and Killian, the Court
finds that Killian has fully complied with that order by printing Russell’s entire “electronic file,
attorney notes, discovery from Dale Ba[y], and Killian’s email file” and causing those documents
to be delivered to Russell on October 22, 2021 (Doc. No. 161, PageID# 2562), and by
supplementing that production with additional emails that were delivered to Russell on November
11, 2021 (Doc. Nos. 161, 162). The selected portions of the client file that Russell has filed under
seal—which include fewer than one hundred of the nearly eight-thousand pages of documents
produced by Killian—do not show that Killian failed to comply with the court’s October 15, 2021
order by omitting email attachments or other portions of Russell’s client file. Nor is there any
support for Russell’s contention that the emails produced by Killian were edited before being
delivered to her. Therefore, Russell’s motion to enforce the Court’s October 15, 2021 order will
be denied.
Because the Court finds that neither additional discovery nor a hearing is necessary to
determine that Killian has adequately produced Russell’s client file, Russell’s motion to compel
Killian’s deposition and request for a hearing will be denied.
Til. Conclusion
For the foregoing reasons, Russell’s motions for leave to file documents under seal (Doc.
Nos. 153, 162) are GRANTED. Russell’s request for a hearing (Doc. No. 171), motion to enforce
the Court’s October 15, 2021 order (Doc. No. 157) and motion to compel Killian’s deposition
(Doc. No. 167) are DENIED.
This case remains STAYED until pending criminal charges against Russell are resolved.
Russell is reminded of her obligation to notify the Court that the criminal proceedings against her
have been resolved within seven days of their resolution.
It is so ORDERED.
ALISTAIR WBERN
United States Magistrate Judge