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Production of documents waived privilege.

Byline: Virginia Lawyers Weekly

Because a school superintendent's production of documents waived the right of privilege on records produced before a certain date, a former employee claiming gender-based wage bias may review them.

Background

In this action by a former public school employee claiming gender-based pay discrimination, the matter now before the court is the plaintiff's second motion to compel discovery. The primary issue is whether certain documents subpoenaed by the plaintiff from lawyers who had advised defendant Dickenson County School Board are privileged from disclosure.

Scott Mullins served as the regular, but part-time, attorney for the Board. He advised the Board about the claim made by plaintiff and discussed with her on behalf of the Board a possible settlement. Paul Beers was consulted for advice by Mullins after suit was filed and was paid for his services by the Board. Neither lawyer has appeared as counsel in this action.

The plaintiff served a subpoena on Mullins, demanding production of all documents regarding the plaintiff dated between Jan. 1, 2015, and Aug. 1, 2015. The Board and the other defendants filed motions to quash the subpoena and in support of those motions, a privilege log prepared by Mullins was submitted. The court granted the motions to quash, after having reviewed in camera the documents listed on the privilege log.

However, Superintendent Robinson, who was then a defendant, produced documents in response to a document request, including privileged communications with Mullins. The plaintiff then moved for reconsideration of the court order quashing her subpoena. The court granted the motion for reconsideration and denied the motions to quash on the sole ground that the later production by Robinson constituted a waiver of the privileges as to the earlier documents.

The plaintiff then served a new subpoena on Mullins, seeking later-created documents from Aug. 2, 2015, to the present. The plaintiff also served a subpoena on Beers, seeking similar documents created from April 2015 to the present. The attorneys did not produce any documents in response to the subpoenas. As a result the plaintiff filed the present second motion to compel discovery.

Analysis

The plaintiff does not dispute that the documents sought are privileged. Rather, the issue is the plaintiff's contention that the privileges asserted have been waived, in light of the court's earlier oral ruling that the first subpoena was enforceable because of waiver. In other words, assuming that there was a waiver of privilege of the communications to and from Mullins because of the earlier disclosure of privileged material by Superintendent Robinson as the court held does that waiver bar the assertion of privilege for later-created material to and from Mullins and Beers?

Once a waiver has been determined, it is generally held that it applies to all other communications on the same subject matter. I find that there must be production of all of the claimed privileged documents created prior to the date of the filing of the present action. Any documents after the date of filing would clearly contemplate a different purpose and subject matter, even though they may be related to the pretrial communications. Moreover, disclosing attorney-client communications and attorney work-product occurring after the lawsuit was filed would create an intolerable risk to the interests for which these privileges were intended and would provide little, if any, prejudice to the opposing party.

The present motion also seeks an order requiring the Board to produce personnel documents relating to a Board employee to which the Board objected. For the reasons stated in the plaintiff's motion, I agree that this information is relevant to the plaintiff's claims and proportional to the needs of the case and should be produced. However, the documents likely contain sensitive information regarding the employee, and I will direct that they be kept confidential once produced

Motion granted in part.

Colley v. Dickenson County School Board, Case No. 17-cv-00003, Oct. 29, 2018. WDVA at Big Stone Gap (Jones). VLW 018-3-467. 11 pp.

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Publication:Virginia Lawyers Weekly
Date:Nov 11, 2018
Words:664
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