United States District Court, W.D. Kentucky, Paducah Division
For Burkhead & Scott, Inc, Plaintiff: Christopher Todd Davenport, David F. Broderick, LEAD ATTORNEYS, Broderick & Davenport, Bowling Green, KY; Dennis J. Conniff, Emily C. McKinney, LEAD ATTORNEYS, Frost Brown Todd LLC - Louisville, Louisville, KY.
For City of Hopkinsville, Kentucky, Defendant: C. Thomas Miller, James A. Sigler, LEAD ATTORNEYS, Whitlow, Roberts, Houston & Straub, PLLC, Paducah, KY.
For Hopkinsville Solid Waste Authority, Defendant: Stephen E. Underwood, LEAD ATTORNEY, Hopkinsville, KY; Timothy L. Mauldin, LEAD ATTORNEY, Bell, Orr, Ayers & Moore, PSC, Bowling Green, KY.
OPINION AND ORDER
Lanny King, Magistrate Judge.
Senior Judge Thomas B. Russell referred this matter to Magistrate Judge Lanny King for ruling on discovery motions. (DN 21). Before the court is a motion for a protective order to prevent the compelled disclosure of emails between the defendants: the City of Hopkinsville (the " City") and the Hopkinsville Solid Waste Authority (" HSWA"). (DN 24). While the defendants contend these emails are protected, the plaintiff, Burkhead & Scott, Inc. (" BSI"), contends any attorney-client privilege or work product protection was waived or otherwise inapplicable. The matter is now fully briefed and ripe for adjudication. The court will reserve ruling on the motion for a protective order (DN 24) pending the submission of a revised privilege log.
The plaintiff has brought both state law and federal constitutional claims against the defendants. The plaintiff argues the City and HSWA waived attorney-client privilege and/or work product protection over any communications between them because the two are separate entities. While an exception to waiver for communications between co-defendants exists, BSI argues these defendants do not have identical legal interests, and this exception should not apply. Further, it questions whether the content of the communication qualifies for attorney-client privilege or work-product protection.
The City and HSWA contend identical legal interests are unnecessary, and that the communications need not be entirely prepared to further legal advice to receive the privilege's protections. In any event, they contend the doctrine is unnecessary as the City and HSWA are a single entity for purposes of privilege.
None of the communications at issue are protected from discovery without a valid claim of privilege. In a government setting, not all communications with an attorney may fall within privilege's protections. Once privilege's availability has been established, its applicability to the communications at issue may be scrutinized. This court finds privilege available through the common interest doctrine, but likely waived or inapplicable in many instances. It is unnecessary to address at this time whether the City and HSWA are a single entity. Emails without an attorney recipient or sender are not privileged, nor are emails to or from non-parties. The doctrine does not excuse disclosure of the communications to third parties or extend protection to otherwise unprotected government communications. The work-product doctrine may extend protection to documents prepared by non-attorneys but is similarly waivable. Given these holdings, the privilege log submitted by the Defendants gives inadequate detail to allow evaluation of their claims of privilege and work product protection.
A. Attorney-Client Privilege
The attorney-client privilege safeguards from disclosure " confidential communications between a lawyer and his client in matters that relate to the legal interests of society and the client." In re Grand Jury Subpoena, 886 F.2d 135, 137 (6th Cir. 1989) (citation omitted). Both federal and state law recognize the privilege. Fed.R.Evid. 501 dictates federal common law govern privilege in federal court. However, " in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision." Fed.R.Evid. 501. State privilege law is not applicable here. Where a federal question is presented to a court with pendant state law claims, federal common law governs privilege disputes. Hancock v. Dodson, 958 F.2d 1367, 1373 (6th Cir. 1992).
The scope of the attorney-client privilege is construed narrowly. In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289 (6th Cir. 2002). The privilege " applies only where necessary to achieve its purpose and protects only those communications necessary to obtain legal advice." Id. at 294. In fostering clients' confidence in their lawyers, the privilege's purposes include facilitating full disclosure. " A fully informed lawyer can more effectively serve his client and promote the administration of justice." Reed v. Baxter, 134 F.3d 351, 356 (6th Cir. 1998). The Sixth Circuit has recognized attorney-client privilege for municipal governments and corporations. Ross v. City of Memphis, 423 F.3d 596 (6th Cir. 2005). A narrow construction is especially important in situations where governments claim privilege.
Courts and commentators have cautioned against broadly applying the privilege to governmental entities. The recognition of a governmental attorney-client privilege imposes the same costs as are imposed in the application of the corporate privilege, but with an added disadvantage... [because it] stands ...