The opinion
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ACKERMAN MCQUEEN, INC., '
'
Plaintiff, '
'
V. ' No. 3:19-cv-3016-X
'
GRANT STINCHFIELD, '
'
Defendant. '
MEMORANDUM OPINION AND ORDER1
Plaintiff Ackerman McQueen, Inc. (“Ackerman” or “AMc”) has filed a Motion
to Compel, see Dkt. No. 21 (the “MTC”), in which it “asks the Court to compel
Defendant, Grant Stinchfield, to answer an interrogatory and produce certain
documents in response to AMc’s written discovery requests,” id. at 1.
Ackerman, more specifically, requests that the Court “1. Overrule
Stinchfield’s objections based on undue burden and overbreadth: Interrogatory No.
11, [Request for Production (“RFP”)] Nos. 2-4; 2. Overrule Stinchfield’s objections
based on the attorney-client privilege and work product doctrine: RFP Nos. 2-4; 3.
Overrule Stinchfield’s relevance objections: RFP Nos. 17-19; [and] 4. Compel
complete production of the requested documents and information within 10 days of
1 Under ' 205(a)(5) of the E-Government Act of 2002 and the definition of
Awritten opinion@ adopted by the Judicial Conference of the United States, this is a
Awritten opinion[] issued by the court@ because it Asets forth a reasoned explanation
for [the] court's decision.@ It has been written, however, primarily for the parties, to
decide issues presented in this case, and not for publication in an official reporter,
and should be understood accordingly.
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this Court’s Order.” Id. at 1-2; see also Dkt. No. 22 (brief in support). Ackerman
further contends that “Stinchfield might attempt to create a revisionist history of
the time period before, during, and after the execution of his written statement by
arguing, for example, that he anticipated that he would be sued by AMc as a result
of the statement and that he began seeking legal advice from the Brewer Firm from
day one” and requests that, if Stinchfield does so “in response to this Motion, … that
the Court compel Stinchfield to produce a privilege log for all documents for which
he claims a privilege” and “order an in camera inspection of these documents and
communications so the merits of Stinchfield’s privilege claims may be fairly
adjudicated.” Dkt. No. 22 at 17.
United States District Judge Brantley Starr has referred the MTC to the
undersigned United States magistrate judge for a hearing, if necessary, and
determination under 28 U.S.C. ' 636(b). See Dkt. No. 24.
Stinchfiled responded to the MTC, see Dkt. No. 28; see also Dkt. No. 29 (brief
in support), but Ackerman has not filed a reply, and its deadline in which to do so
has passed, see N.D. TEX. L. CIV. R. 7.1(f).
Background
The parties are familiar with the background of this case, and Judge Starr
very recently recounted it when denying Stinchfield’s motion to dismiss. See Dkt.
No. 37 at 1-4. So the Court will not repeat it here and will instead focus on the
background of disputed discovery requests and responses.
As to the discovery requests at issues, Ackerman explains as follows:
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5. On January 10, 2020, AMc served its First Set of
Interrogatories and First Request for Production on Stinchfield. The
discovery requests primarily focused on Stinchfield’s and the Brewer
Firm’s creation and public dissemination of Stinchfield’s written
statement, as well as Stinchfield’s net worth. On February 10, 2020,
Stinchfield served his responses to AMc’s discovery requests
(“Defendant’s Response”), a true and correct copy of which is included
in the Appendix at App. 9-13.
6. This dispute concerns the following discovery requests:
i. Interrogatory No. 11 – This interrogatory asks Stinchfield to
identify all persons to whom he or his counsel disseminated
Stinchfield’s written statement. Appendix at App. 17. Stinchfield has
indicated that he intends to amend his response and answer this
interrogatory, but has not done so yet.
ii. Request for Production (“RFP”) No. 2 – This request seeks all
drafts and prior versions of the Stinchfield’s written statement.
Appendix at App. 20. The identification number on the bottom of
Stinchfield’s statement indicates that it is the eighth version of the
so-called affidavit. See Appendix at pp. 6-8 (displaying document
number “482306952-0046, v. 8”).
iii. RFP No. 3 – This request seeks all communication between
Stinchfield and any member of the Brewer Firm that occurred prior to
Stinchfield’s retention of the Brewer Firm and/or the Brewer
Storefront as counsel. Appendix at App. 21.
iv. RFP No. 4 - This request seeks production of communications
between Stinchfield and any non-attorney employee in the Brewer
Firm’s public-relations group. Id.
v. RFP Nos. 17-19 – These requests seek information related to
Stinchfield’s net worth, including tax returns, checking, savings, and
brokerage account statements, and personal financial statements.
Appendix at App. 26-27. AMc is seeking exemplary damages in this
case. Compl. at ¶58.c.
Dkt. No. 22 at 3-4 (footnotes omitted). Ackerman asserts that, “[b]ecause
Stinchfield’s objections to these discovery requests are improper, the Court should
overrule them and compel Stinchfield to properly respond to each of the requests.”
Id. at 4.
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Stinchfield responds, explaining that, “[a]lthough Stinchfield argues that his
affidavit is protected by the litigation privilege doctrine, the parties have begun
limited discovery.” Dkt. No. 29 at 2. Judge Starr has now denied that motion to
dismiss, explaining that “arguments on whether the judicial proceedings privilege
applies or not to Stinchfield’s affidavit are premature at the motion to dismiss
stage” and that “[d]iscovery must happen before the Court can determine if the
privilege applies.” Dkt. No. 37 at 7.
But, even without the benefit of that ruling, Stinchfield responds to the MTC
by explaining:
On January 10, 2020, AMc served Stinchfield with its first set of
requests for production and its first set of Interrogatories, (“Requests”).
On February 10, 2020, Stinchfield served his answers to the
Requests, asserting proper objections.
On March 10, 2020, Stinchfield and AMc met and conferred
regarding the Requests.
During the meet and confer, Stinchfield agreed to produce
non-privileged documents that were responsive to AMc’s Requests.
Stinchfield produced documents that same day.
On September 22, 2020, AMc inquired further into information
it sought from Stinchfield. Its inquiry pertained to seven of its
discovery requests: Requests for Production 2-4, 17-19 and
Interrogatory Number 11. Stinchfield agreed to supplement his
answers to specific discovery requests and stated that he would
withhold documents based on privilege. On the same day, AMc filed
this motion to compel. AMc did not give Stinchfield time to produce a
privilege log or serve his supplemental answers as Stinchfield stated
he would during the meet and confer.
On September 28, 2020, Stinchfield served AMc with his
supplemental answers to AMc’s Interrogatory number 11 and Request
for Production number 4, 9 which fully resolved any issues pertaining
to these specific discovery requests.
Dkt. No. 29 at 2-3 (footnotes omitted).
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Stinchfield contends that he “withheld documents based on the proper
assertion of the work product and common interest privileges” and that the Court
should therefore deny Ackerman’s MTC and award Stinchfield his reasonable
attorneys’ fees in connection with this motion. Id. at 3.
Legal Standards
The Court has previously laid out standards that govern a Federal Rule of
Civil Procedure 37(a) motion to compel as to Federal Rule of Civil Procedure 34
requests for production and Federal Rule of Civil Procedure 33 interrogatories, and
those standards are incorporated, but will not be repeated, here, including as to the
general standards governing attorney work product as well as attorney-client
privilege under Texas law. See Zenith Ins. Co. v. Texas Institute for Surgery, L.L.P.,
328 F.R.D. 153, 162-163 (N.D. Tex. 2018); Lopez v. Don Herring Ltd., 327 F.R.D.
567, 573-86 (N.D. Tex. 2018); Total Rx Care, LLC v. Great N. Ins. Co., 318 F.R.D.
587, 595-96 (N.D. Tex. 2017).
As a threshold matter, although this is a diversity case in which the parties
agree that Texas substantive law applies, the issue of whether documents are
exempt from discovery under the attorney work product doctrine is governed by
federal law in diversity cases, such as this, because work product is not a
substantive privilege within the meaning of Federal Rule of Evidence 501. See
Zenith Ins., 328 F.R.D. at 162. Stinchfield, as the responding party seeking to
withhold responsive documents or materials, has the burden of demonstrating that
the work-product doctrine applies:
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Like all privileges, the work product doctrine must be strictly
construed. The burden is on the party who seeks work product
protection to show that the materials at issue were prepared by its
representative in anticipation of litigation or for trial. A general
allegation of work product protection is insufficient to meet this
burden. Instead, a clear showing must be made which sets forth the
items or categories objected to and the reasons for that objection. The
proponent must provide sufficient facts by way of detailed affidavits or
other evidence to enable the court to determine whether the documents
constitute work product. Although a privilege log and an in camera
review of documents may assist the court in conducting its analysis, a
party asserting the work product exemption still must provide a
detailed description of the materials in dispute and state specific and
precise reasons for their claim of protection from disclosure. In fact,
resort to in camera review is appropriate only after the burdened party
has submitted detailed affidavits and other evidence to the extent
possible.
Id. (citation and internal quotation marks omitted).
And federal common law governs the common interest doctrine=s application
to any work product protection. See Windsor v. Olson, No. 3:16-cv-934-L, 2019 WL
77228, at *7 (N.D. Tex. Jan. 2, 2019). As this Court has previously explained,
[r]epresentations involving multiple clients with separate counsel call
for the application of what have been called the joint-defense or
common-interest doctrine. The joint-defense or common-interest
doctrine extends certain privileges, typically the attorney-client
privilege and work product protection, to documents that are prepared
by parties sharing a common litigation interest that would otherwise
not enjoy such privilege. See FTC v. Think All Publishing, L.L.C., No.
4:07-cv-011, 2008 WL 687456, at *1 (E.D. Tex. Mar.11, 2008) (citing
Ferko v. NASCAR, 219 F.R.D. 396, 401 (E.D. Tex. 2003)). AThus, while
the attorney-client and work product privileges are typically waived
upon disclosure to a third party, where that third party >share[s] a
common legal interest= with the producing entity, such production does
not waive either privilege.@ Id. (quoting Ferko, 219 F.R.D. at 401).
The joint-defense or common-interest doctrine applies under
federal common law in the Fifth Circuit to A(1) communications
between co-defendants in actual litigation and their counsel and (2)
communications between potential co-defendants and their counsel.@
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[In re Santa Fe Intl Corp., 272 F.3d 705, 710 (5th Cir. 2001)] (internal
citations omitted). The joint-defense or common-interest doctrine
Aextends the attorney-client privilege to communications prompted by
threatened or actual civil or criminal proceedings and intended to
facilitate representation between potential co-defendants with a
common legal interest and their counsel.@ Autobytel, Inc. v. Dealix
Corp., 455 F. Supp. 2d 569, 576 (E.D. Tex. 2006) (citing Santa Fe, 272
F.3d at 710-11). The doctrine Aexists to protect communications
between two parties or attorneys that share a common legal interest,@
and, A[f]or example, courts have found that co-defendants, an insurer
and an insured, and a patentee and a licensee share a common legal
interest.@ Ferko v. NASCAR, 219 F.R.D. 403, 406 (E.D. Tex. 2003). But
the Adoctrine is to be narrowly construed because, although policy
considerations support its use in some circumstances, it is >an obstacle
to truth seeking.=@ Think All Publishing, 2008 WL 687456, at *1. For
communications between potential co-parties to be covered by the
doctrine, Athere must be a palpable threat of litigation at the time of
the communication, rather than a mere awareness that one=s
questionable conduct might some day result in litigation, before
communications between one possible future co-defendant and another
... could qualify for protection.@ Santa Fe, 272 F.3d at 711.
Nieman v. Hale, No. 3:12-cv-2433-L-BN, 2013 WL 6814789, at *2 (N.D. Tex. Dec. 26,
2013).
The United States Court of Appeals for the Fifth Circuit has more recently
explained in an unpublished opinion that
this court has not expressly held that the privilege is inapplicable to
co-plaintiffs. Several courts B including lower courts in this circuit B
have held that the privilege extends to co-plaintiffs in litigation.
But we need not reach this issue. Even if we were to conclude
that the common legal interest privilege extends to some
communications between Morgan Stanley and Safeguard's counsel, the
privilege does not apply to the remaining communication at issue.
Communications may be protected by the common legal interest
privilege only if those communications A>further a joint or common
interest.=@ In re Santa Fe Int'l Corp., 272 F.3d at 711-12 (quoting Aiken
v. Tex. Farm Bureau Mut. Ins. Co., 151 F.R.D. 621, 623 (E.D. Tex.
1993)) (emphasis added).... We have reviewed the parties' summaries
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of the remaining communication, and we conclude that it was not
made in furtherance of (but rather is diametrically opposed to) the
prosecution of the Insurance Litigation. As such, the common legal
interest privilege does not apply to this communication.
BCR Safeguard Holding, L.L.C. v. Morgan Stanley Real Estate Advisor, Inc., 614 F.
App=x 690, 703-04 (5th Cir. 2015) (citations, emphasis, and footnotes omitted). But
the Fifth Circuit also noted that, A[e]ven if the common legal interest privilege
extends to plaintiffs, we also question whether the privilege could apply to any of
the communications between Morgan Stanley and Safeguard, which were not
>co-plaintiffs= in the Insurance Litigation (Safeguard was the sole plaintiff)@ and
that, A[a]lthough Morgan Stanley had some interest in the litigation due to its
interest in Safeguard (via PPF), such an interest may be insufficient to give rise to
the privilege.@ Id. at 704 n.20; accord Windsor, 2019 WL 77228, at *10 (“Even
assuming that the federal common law common interest doctrine extends to
communications between counsel for these plaintiffs in separate actions, Windsor
has not met his burden to show or explain how each communication was made to
further a joint or common interest that he shared with Mark or Tammy Smith.”).
Stinchfield, here too, bears the burden of demonstrating any common interest
doctrine=s applicability to any withheld communications or documents. See Santa
Fe, 272 F.3d at 710.
And, as to waiver of work product protection, the Court has previously
explained that
[t]he work-product doctrine is very different from the attorney-client
privilege with regard to possible waiver. Although the attorney-client
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privilege exists to protect the confidential communications between an
attorney and client and, thus, is generally waived by disclosure of
confidential communications to third parties, the work-product
protection exists to Apromote the adversary system by safeguarding the
fruits of an attorney's trial preparations from the discovery attempts of
an opponent.@ Shields v. Sturm, Ruger & Co., 864 F.2d 379, 382 (5th
Cir. 1989). ATherefore, the mere voluntary disclosure to a third person
is insufficient in itself to waive the work product privilege.@ Id. That is,
Abecause the work product privilege looks to the vitality of the
adversary system rather than simply seeking to preserve
confidentiality, it is not automatically waived by the disclosure to a
third party.@ In re Grand Jury Subpoena, 220 F.3d 406, 409 (5th Cir.
2000). But such a Adisclosure does waive protection if it has
substantially increased the opportunities for potential adversaries to
obtain the information.@ Ecuadorian Plaintiffs v. Chevron Corp., 619
F.3d 373, 378 (5th Cir. 2010) (internal quotation marks omitted). And,
for example, Athe work product privilege is waived when the attorney
requests the witness to disclose the information or when the attorney
discloses the information to the court voluntarily or makes no objection
when it is offered.@ Shields, 864 F.2d at 382.
AUnlike the attorney-client privilege, the burden of proving
waiver of work product immunity falls on the party asserting waiver.@
[S.E.C. v. Brady, 238 F.R.D. 429, 444 (N.D. Tex. 2006)]; accord
Ecuadorian Plaintiffs, 619 F.3d at 379 & n.10 (party asserting
work-product protection is not required to prove non-waiver). AIf the
party is successful, waiver of work product immunity will be limited to
the materials actually disclosed.@ Brady, 238 F.R.D. at 444.
AWhat constitutes a waiver with respect to work-product
materials depends, of course, upon the circumstances.@ United States v.
Nobles, 422 U.S. 225, 239 n.14, 95 S. Ct. 2160, 45 L. Ed. 2d 141 (1975).
Mir v. L-3 Commns Integrated Sys., L.P., 315 F.R.D. 460, 467 (N.D. Tex. 2016).
Analysis
I. RFP No. 2
RFP No. 2 seeks “[a]ll drafts or prior versions of your affidavit.”
Ackerman notes in its opening brief that “[t]he identification number on the
bottom of Stinchfield’s statement indicates that it is the eighth version of the
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so-called affidavit” and further explains that “[t]his request calls for the production
of versions one through seven.” Dkt. No. 22 at 4, 6-7.
Ackerman explains that “Stinchfield objects that the request is ‘unduly broad
and overly burdensome since it requires production of ‘all documents,’’ which []
makes no sense in this context,” where “[p]roducing seven documents is not unduly
burdensome” and “[t]he drafts of the written statement, coupled with the
communications requested in RFP Nos. 3 and 4 discussed below, will enable AMc to
test Stinchfield’s perception and credibility, as they will show what changes were
made in the seven prior iterations of the written statement, why, and at whose
request,” and so “are relevant and ought to be produced.” Id. at 7.
Ackerman also asks the Court to overrule Stinchfield’s attorney-client
privilege and work product objections to RFP 2, as to which Ackerman contends:
RFP No. 2 seeks production of all drafts of Stinchfield’s written
statement. Neither the work product doctrine nor the attorney-client
privilege applies.
Stinchfield’s so-called affidavit is no different than any other
witness statement or questionnaire that purports to set out the
underlying facts of the lawsuit. It should therefore be devoid of any
legal strategy or attorney mental impressions that would otherwise be
protected by the work-product privilege. See Walker, 2008 U.S. Dist.
LEXIS 81919, at *17-19; Infosystems, Inc., 197 F.R.D. at 306-07. The
attorney-client privilege does not apply because Stinchfield’s written
statement was not a confidential communication with an attorney for
the purpose of securing legal advice. Moreover, this document was
created and executed before an attorney-client relationship began
between Stinchfield and his current counsel, further precluding
application of the attorney-client privilege per the cases cited above.
Dkt. No. 22 at 14-15.
Stinchfield responds that
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AMc seeks drafts of Stinchfield’s affidavit, which were prepared during
an ongoing litigation between the NRA and AMc. Stinchfield properly
objected to this request – and withheld documents responsive to it –
because the information is protected by the work product privilege.
AMc’s challenge to Stinchfield’s assertion of privilege is meritless.
Courts within this circuit hold that after a party properly
establishes the work product privilege, the party that seeks discovery
bears the burden to demonstrate waiver of work product. In general,
there are three distinct grounds on which a party may be entitled to
the production of work product: (1) disclosure to a third party, (2)
where the party asserting the work product places the material “at
issue,” and (3) “substantial need for the materials to prepare its case
without undue hardship.” AMc failed to establish any of these three
grounds to waive Stinchfield’s work product privilege.
First, there has been no disclosure to the third party. In
December of 2019 a few months after the NRA initiated a lawsuit
against AMc in the Northern District of Texas, Stinchfield – a former
host of NRA TV – approached Brewer with factual knowledge
regarding AMc’s operation. After meeting with Brewer, Stinchfield
supplied an affidavit to Brewer in connection with the NRA’s litigation
against AMc. As the NRA’s counsel, Brewer provided its mental
impressions and opinions to Stinchfield’s affidavit in preparation for
the litigation against AMc. The drafts were kept confidential and only
circulated within Brewer.
Second, AMc fails to establish that withholding these documents
are placing the material at issue. To place work product at issue in
litigation, courts hold that a party must “rely on” the work product “to
prove its claims in the case.” Stinchfield does not intend to
affirmatively rely on privileged communications to support its claim or
defense. Instead, Stinchfield argues that AMc’s claims against him are
barred by the ligation privilege doctrine and that his testimony is true.
Third, AMc has not proven that there is a substantial need for
the drafts of Stinchfield’s affidavit. Because of the nature of AMc’s
claims for defamation and business disparagement, AMc fails to
establish that without these drafts they will be unable to prepare its
claims. There is not a substantial need for the drafts of Stinchfield’s
affidavit nor is AMc injured in anyway if they do not receive the drafts.
Therefore, AMc’s request to compel Stinchfield to produce
documents responsive to request for production number 2 should be
denied.
Dkt. No. 29 at 4-6 (footnotes omitted).
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Stinchfield does not attempt to defend withholding the drafts of his affidavit
or written statement based on the attorney-client privilege. And Stinchfield has not
attempted to justify or press his undue burden or overbreadth objections in
response to the MTC, and those objections are therefore waived or, in any event,
overruled for failure to support them. See Lopez, 327 F.R.D. at 583.
As for work product protection, Ackerman’s argument, read in isolation,
suggests that that protection extends only to materials that reveal legal strategy or
attorney mental impressions. But materials reflecting attorney opinion
work-product are only subject to additional protections against disclosure under
Federal Rule of Civil Procedure 26(b)(3)(B). The doctrine more generally “provides
for the qualified protection of documents and tangible things prepared by or for a
party or that party’s representative ‘in anticipation of litigation or for trial,’” and
“[a] document need not be generated in the course of an ongoing lawsuit in order to
qualify for work product protection,” “[b]ut the primary motivating purpose behind
the creation of the document must be to aid in possible future litigation.” Zenith,
328 F.R.D. at 162 (internal quotation marks omitted).
But Stinchfield has met not his burden to establish the protection’s
prerequisites as to the drafts of his affidavit or written statement submitted in
connection with a separate case. Even assuming these materials prepared in
connection for another case – the dissemination of the final, signed version of which
forms the basis for the claims in this case – could be protected under Rule 26(b)(3)
from disclosure in this case, but see generally Wright, Miller, & Marcus, FED. PRAC.
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& PROC.: Civil 2d § 2024, Stinchfield’s brief does not attempt to explain how he has
met his burden to show each draft is protected from disclosure in this case as
attorney work product under Rule 26(b)(3), see Dkt. No. 29 at 4 (“AMc seeks drafts
of Stinchfield’s affidavit, which were prepared during an ongoing litigation between
the NRA and AMc. Stinchfield properly objected to this request – and withheld
documents responsive to it – because the information is protected by the work
product privilege. AMc’s challenge to Stinchfield’s assertion of privilege is
meritless.”); Dkt. No. 30-6 (“After my meeting with Brewer, I supplied the factual
testimony to Brewer and signed an affidavit that explained my view on NRA TV’s
viewership numbers.”).
Stinchfield does submit an affidavit from one of the NRA’s attorneys who
suggests that some portion of some draft of Stinchfield’s affidavit includes her
substantive revisions that reflect “mental impressions, legal theories, and
litigation-strategy outlook with respect to both the NRA-Ackerman Lawsuits and
several Other NRA Matters.” Dkt. No. 30-7. But that alone does not meet the
burden to show that the draft affidavits or written statements on the whole qualify
for work product protection in this case.
Stinchfield has not established that drafts of his affidavit or written
statement qualify for protection under Rule 26(b)(3). But, consistent with the
Court’s obligation under Rule 26(b)(3)(B), Stinchfield may be able to properly redact
certain materials in those documents to protect against disclosure of the mental
impressions, conclusions, opinions, or legal theories of an attorney concerning the
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litigation. If he does so, he must also properly support withholding (through
redaction) those portions of the documents in compliance with Federal Rule of Civil
Procedure 26(b)(5).
The Court grants in part the MTC as to RFP No. 2, overrules Stinchfield’s
objections to RFP No. 2 except to the limited extent explained above under Rule
26(b)(3)(B), and orders Stinchfield to, by January 13, 2021, serve an amended
response to, and, produce all previously unproduced, responsive documents in
Stinchfield’s possession, custody, or control in response to, RFP No. 2 in compliance
with Federal Rules of Civil Procedure 26(b)(5)’s and 34(b)’s requirements.
II. RFP No. 3
RFP No. 3 seeks “[a]ll documents and communications exchanged between
you and Brewer concerning your affidavit that pre-date your retention of Brewer as
counsel in this lawsuit. For point of reference, you represented to the undersigned
on January 2, 2020, that you had not yet retained counsel.”
Ackerman explains in its opening brief that “[t]his request seeks all
communication between Stinchfield and any member of the Brewer Firm that
occurred prior to Stinchfield’s retention of the Brewer Firm and/or the Brewer
Storefront as counsel” and notes that “Defendant’s answer was signed by William A.
Brewer III on behalf of the Brewer Firm” but that, “[s]ince then, Defendant’s
pleadings, discovery requests, discovery responses, etc. have been signed by Ian
Shaw on behalf of Brewer Storefront, PLLC, the self-professed pro bono arm of the
Brewer Firm.” Dkt. No. 22 at 4 & n.10.
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Stinchfield has objected that this request is unduly burdensome and overly
broad, but Ackerman asserts that these objections should be overruled where
“Stinchfield signed the written statement on or about December 10, 2019” and,
“[p]resumably there were some communications that took place before then given
that it is the eighth version of the written statement,” and where “[i]t seems
unlikely that the volume of communications could have possibly risen to the level of
being ‘unduly burdensome’ to produce in only a few weeks.” Id. at 7.
Ackerman also asks the Court to overrule Stinchfield’s attorney-client
privilege and work product objections to RFP 3, as to which Ackerman contends:
RFP No. 3 seeks production of all communications between
Stinchfield and the Brewer Firm concerning Stinchfield’s written
statement that pre-date Stinchfield’s retention of the Brewer Firm or
the Brewer Storefront as his counsel in this action. Stinchfield
executed his so-called affidavit on December 10, 2019. AMc filed suit
against Defendant on December 20, 2019, which is presumably the
first date that Stinchfield became aware that he even needed
representation. [See Doc. 1, Pl.’s Original Compl.] Yet even as of
January 2, 2020, Stinchfield firmly maintained that he had not yet
hired a lawyer and wanted to try to resolve matters himself. See
Appendix at App. 4-5. Accordingly, any communications that occurred
prior to the date Stinchfield approached the Brewer Firm about
representing him in this matter were simply the Brewer Firm’s
communications with a third-party witness – communications that are
not afforded protection under the attorney-client privilege. See Blum,
2003 U.S. Dist. LEXIS 2499, at *5.
Likewise, these communications should not protected by the
work-product doctrine because they theoretically should relate solely to
the underlying facts stated in Stinchfield’s affidavit, and any attempt
by counsel to “put words in the mouth” of Stinchfield would not be
protected by the work-product privilege. See Infosystems, 197 F.R.D. at
306-07; see also Walker, 2008 U.S. Dist. LEXIS 81919, at *17-19. AMc
is thus entitled to theses communications.
Dkt. No. 22 at 15-16 (footnote omitted).
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Stinchfield responds that
AMc’s request for production number 3 is protected by the common
interest privilege. Stinchfield and the NRA share a common issue,
which pertain to the AMc’s operation: NRA TV’s viewership numbers
were distorted, and as a result both Stinchfield and the NRA suffered
injury.
In Aiken v. Texas Farm Bureau Mutual Insurance Co., the court
explained that: “common interest privilege encompasses shared
communications between various co-defendants, actual or potential,
and their attorneys, prompted by threatened or actual, civil or criminal
proceedings, to the extent that they concern common issues and are
intended to facilitate representation in possible subsequent
proceedings, or whenever the communication was made in order to
facilitate the rendition of legal services to each of the clients involved
in the conference.”
Here, when Stinchfield – as a former employee of AMc –
approached Brewer as a witness, he supplied factual testimony in
connection with NRA’s dispute against AMc. Both Stinchfield and the
NRA had common issues with AMc regarding its distorted NRATV
viewership numbers.
Although he felt an obligation to the NRA to reveal his
knowledge by supplying an affidavit, Stinchfield believed an imminent
lawsuit by AMc would be filed against him. Only eight days after AMc
received Stinchfield’s affidavit with the NRA’s Second Set of Request
for Admissions, AMc filed this lawsuit.
From the outset, the NRA and Stinchfield shared common issues
and interests: establishing that AMc had deceived the NRA and
provided distorted NRA TV viewership analytics, and the information
shared was intended to facilitate representation in possible subsequent
proceedings.
Therefore, AMc’s request to compel Stinchfield to produce
documents responsive to request for production number three should
be denied.
Dkt. No. 29 at 6-7 (footnotes omitted).
Stinchfield has not met his burden to extend the attorney-client privilege or
work product protection to his pre-litigation, pre-hiring communications with the
Brewer firm. The common interest that he identifies is not the sort of common
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litigation interest between actual or potential co-defendants that the doctrines
cover. And Stinchfield cannot show a palpable threat of litigation at the time of the
communications in which he voluntarily engaged to produce a witness statement by
pointing to possible litigation that might result from disclosure of that witness
statement. Further, Stinchfield has not attempted to justify or press his undue
burden or overbreadth objections in response to the MTC, and those objections are
therefore waived or, in any event, overruled for failure to support them. See Lopez,
327 F.R.D. at 583.
The Court grants the MTC as to RFP No. 3, overrules Stinchfield’s objections
to RFP No. 3, and orders Stinchfield to, by January 13, 2021, serve an amended
response – without objections – to, and, produce all previously unproduced,
responsive documents in Stinchfield’s possession, custody, or control in response to,
RFP No. 3 in compliance with Federal Rule of Civil Procedure 34(b)’s requirements.
III. RFP No. 4
RFP No. 4 seeks “[a]ll documents and communications between you and the
public relations, crisis management, and political strategies group at Brewer
concerning your affidavit.”
Ackerman explains in its opening brief that Stinchfield has objected that this
request is unduly burdensome and overly broad, but Ackerman asserts that these
objections should be overruled where Stinchfield cannot meet his burden to show
that this request is overly broad, burdensome, or oppressive and where “he has
failed to comply with Rule 34 by failing to indicate what responsive materials, if
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any, are being withheld on the basis of his objections.” Dkt. No. 22 at 6. According to
Ackerman, “[t]he written statement is plainly at issue in this action and, therefore,
the request is not overly broad. With regard to the alleged burdensomeness of the
request, it is unlikely that the number of documents and communications he
exchanged with the public-relations division at the Brewer Firm could reach the
requisite amount to constitute an undue burden in such a short time.” Id. at 8.
Ackerman also asks the Court to overrule Stinchfield’s attorney-client
privilege and work product objections to RFP 4, as to which Ackerman contends:
These communications are highly relevant. As Stinchfield’s written
statement was provided to the media soon after its execution,
exchanges between Stinchfield and the public-relations group are
likely to reveal the level of knowledge and intent that both Stinchfield
and his counsel had regarding the intended use of the written
statement and the manner and method in which it would be
disseminated publicly. These communications are not protected by the
attorney-client privilege because, as the Public Affairs group employs
only non-lawyers who are not subordinates of any lawyers in a legal
capacity (as distinguished from, say, legal assistants or paralegals),
these individuals are not involved with the provision of legal services,
and therefore, any communications could not possibly be for the
purpose of obtaining or providing legal advice. See Kelly, 569 F.2d at
938; In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d at 807; Calvin
Klein, 198 F.R.D. at 55.
These communications with non-lawyer public-relations
employees are not protected by the work-product doctrine for the same
reason. These non-lawyer employees simply do not – and cannot –
engage in the type of legal strategy and other attorney mental
processes that fall within this privilege. See Nobles, 422 U.S. at 237-38.
Furthermore, the services they provided in this particular instance –
assisting Stinchfield in disseminating a defamatory press release
under the guise of a court document – were ordinary public relations
services unrelated to any attorney’s mental process. Calvin Klein, 198
F.R.D. at 54-55 (PR firm’s making calls to various media to comment
on developments in the litigation and “finding friendly reporters” were
ordinary public relations advice not protected by attorney-client
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privilege or work product doctrine, even if also helpful to attorney in
formulating legal strategy); see also Fed. R. Civ. P. 26(b)(2)(A).
Dkt. No. 22 at 16-17.
Stinchfield responds that he, on September 28, 2020, “supplied AMc with his
supplemental answers that properly and adequately answered AMc’s Request for
Production number 4”; that he “does not have any documents in his possession
responsive to this request”; and that the Court “should deny AMc’s request to
compel Stinchfield to answer AMc’s Request for Production number 4.” Dkt. No. 29
at 7.
Stinchfield’s supplemental answer and objections includes only an objection
that this RFP “is overly broad since it requires the production of ‘[a]ll documents’ no
matter how tangential they may be to issues in this case” but then answers, without
qualification, that Stinchfield “does not have any documents responsive to Request
Number 4.” Dkt. No. 30-5 at 4.
Based on this supplemental answer, the Court denies the MTC as to RFP No.
4.
IV. RFP Nos. 17-19
RFP No. 17 seeks “[y]our federal and state income tax returns, including
schedules, for the years 2018 to the present.” RFP No. 18 seeks “[a]ll monthly or
other periodic statements from January 1, 2019, to the present for all checking,
savings, and investment accounts held by you, in whole or in part.” And RFP No. 19
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seeks “[a]ny and all personal financial statements reflecting your assets and
liabilities at any time from January 1, 2018, to the present.”
Ackerman explains in its opening brief that
[t]hese requests seek information related to Stinchfield’s personal net
worth, including tax returns, bank accounts, and financial statements.
Stinchfield objects that this request is “unduly burdensome and
overbroad” due to his assertion that this information is irrelevant. AMc
is seeking exemplary damages in this case, making Stinchfield’s
financial condition and net worth relevant. See Hanan v. Crete Carrier
Corp., No. 3:19-cv-149-B, 2019 U.S. Dist. LEXIS 193409, at *22 (N.D.
Tex. Nov. 6, 2019) (permitting discovery concerning net worth as being
relevant and proportional to the needs of the case given the plaintiff’s
claim for exemplary damages); Curlee v. United Parcel Serv., Inc.
(Ohio), No. 3:13-cv-344-P, 2014 U.S. Dist. LEXIS 121536, 2014 WL
4262036, at *2 (N.D. Tex. Aug. 29, 2014) (“A defendant's net worth is
relevant in a suit involving exemplary damages.”). Thus, the request is
not overly broad.
Dkt. No. 22 at 8.
Stinchfield responds that “[n]umerous courts have held that because tax
returns are ‘highly sensitive documents,’ their discovery requires that the
requesting party demonstrate both: (1) that the requested tax information is
‘relevant’ to the subject matter of the action; and (2) that there is a ‘compelling need’
for the information because the information contained in the tax returns is not
‘otherwise readily obtainable’ through alternative forms of discovery such as
depositions or sworn interrogatory answers.” Dkt. No. 29 at 8 (footnote omitted).
According to Stinchfield, “AMc has not provided a compelling need for Stinchfield’s
highly sensitive documents,” where, “[i]n order to demonstrate a compelling need
for the disclosure of tax returns, a party must show that it has attempted to obtain
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the requested information through the use of less intrusive forms of discovery, and
AMc has failed to do so,” and where “AMc has not cited to any case law that
explains to the court its compelling need for Stinchfield’s personal financial
information.” Id. (footnotes omitted). “Instead AMc has sent one request for
production and now has filed the motion to compel.” Id.
As the Court has previously explained, “[t]ax returns are neither privileged
nor undiscoverable,” but “[t]hey do, however, contain sensitive information and
should be produced only after a showing of relevance by the party seeking
production, after which the burden shifts to the party opposing production to show
other sources exist from which the information contained in the returns may be
readily obtained.” Gondola v. USMD PPM, LLC, 223 F. Supp. 3d 575, 587 (N.D.
Tex. 2016) (internal quotation marks omitted). Here, Ackerman has explained why
discovery of information related to Stinchfield’s personal net worth, including tax
returns, bank accounts, and financial statements, is relevant, and Stinchfield has
not shown otherwise or shown that other sources exist from which the information
contained in these documents may be readily obtained.
The Court grants the MTC as to RFP Nos. 17-19, overrules Stinchfield’s
objections to these requests, and orders Stinchfield to, by January 13, 2021, serve
an amended response – without objections – to, and, produce all previously
unproduced, responsive documents in Stinchfield’s possession, custody, or control in
response to, RFP Nos. 17, 18, and 19 in compliance with Federal Rule of Civil
Procedure 34(b)’s requirements.
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V. Interrogatory No. 11
Interrogatory No. 11 asks Stinchfield to “Please identify all persons to whom
you disseminated the affidavit.”
Ackerman explains in its opening brief that “Stinchfield has indicated that he
intends to amend his response and answer this interrogatory, but has not done so
yet.” Dkt. No. 22 at 3. Ackerman also notes that “Stinchfield has objected to this
interrogatory as ‘unduly broad and overly burdensome since it requires
identification of ‘all documents,’ which is nonsensical on its face – the interrogatory
does not even ask for identification of documents,” and Ackerman asserts that “the
objection should be overruled.” Id. at 6.
In response to the MTC, Stinchfield explains that, “[o]n September 28, 2020,
[he] served AMc with his supplemental answer[] to AMc’s Interrogatory number
11,” “which fully resolved any issues pertaining to th[is] specific discovery
request[].” Dkt. No. 29 at 3; see also id. at 4, 9. Stinchfield asserts that “the court
should deny AMc’s request to compel Stinchfield to answer AMc’s Interrogatory
number 11.” Id. at 9.
The Court agrees. Although Stinchfield’s effort to incorporate his general
objections is invalid, see Heller v. City of Dallas, 303 F.R.D. 466, 483-84 (N.D. Tex.
2014); Lopez v. Don Herring Ltd., 327 F.R.D. 567, 591-92 (N.D. Tex. 2018),
Stinchfield appears to have now fully answered the interrogatory, see Dkt. No. 30-5
at 3.
The Court denies the MTC as to Interrogatory No. 11.
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VI. Award of expenses
Under Federal Rule of Civil Procedure 37(a)(5)(C), the Court determines that,
considering all of the circumstances here and the Court’s rulings above as to the
discovery requests at issue, the parties will bear their own expenses, including
attorneys’ fees, in connection with the MTC.
Conclusion
For the reasons and to the extent explained above, the Court GRANTS in
part and DENIES in part Ackerman’s Motion to Compel [Dkt. No. 21].
SO ORDERED.
DATED: December 22, 2020
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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