United States District Court, D. Colorado
ORDER
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE
This
matter is before the Court on Defendants' objection to
the magistrate judge's order compelling them to disclose
three e-mails that they contend are subject to the
attorney-client privilege. (ECF No. 40.) For the reasons
below, the objection is overruled.
I.
LEGAL STANDARDS
This
Court can modify or set aside a magistrate judge's order
on a nondispositive matter only if it is clearly erroneous or
contrary to law. 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P.
72(a); Hutchinson v. Pfeil, 105 F.2d 562, 566 (10th
Cir. 1997). The Court must have “a definite and firm
conviction that a mistake has been committed.”
Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458,
1464 (10th Cir. 1988) (quotation omitted).
“The
attorney-client privilege protects confidential
communications by a client to an attorney made in order to
obtain legal assistance from the attorney in his capacity as
a legal advisor.” In re Grand Jury
Proceedings, 616 F.3d 1172, 1182 (10th Cir. 2010)
(quotation omitted). But “the mere fact that an
attorney was involved in a communication does not
automatically render the communication subject to the
attorney-client privilege.” Motley v. Marathon Oil
Co., 71 F.3d 1547, 1550-51 (10th Cir. 1995). For the
privilege to apply, “a communication between a lawyer
and client must relate to legal advice or strategy sought by
the client.” United States v. Johnston, 146
F.3d 785, 794 (10th Cir. 1998). The party seeking to assert
the privilege bears the burden of establishing that it
applies. Motley, 71 F.3d at 1550.
II.
BACKGROUND
Plaintiff
is a former employee of Defendant Adams County School
District No. 14. He contends that Defendants fired him for
his association with INSPIRE, an organization that Defendants
believed was encouraging students to protest against the
school board, in violation of his First Amendment rights.
This
discovery dispute concerns a discussion over e-mail
concerning the implementation of new security measures at
school board meetings in which members of Defendant Adams
County School District No. 14 Board of Education and their
counsel participated. The magistrate judge reviewed in camera
five e-mails from the discussion and then invited briefing on
the issue of attorney-client privilege. Both sides filed
briefs. (ECF Nos. 35, 36.) The magistrate judge then
determined two of the e-mails-one sent by counsel and another
responding to it six minutes later-were privileged but the
first, second, and portions of the fifth were
not.[1]
Specifically, the magistrate judge found that the sender of
the first e-mail was forwarding a security plan proposed by a
third-party security provider and seeking input and direction
from all the decision-makers, as well as counsel, about
implementing it. The magistrate judge determined that the
sender's request was not privileged simply because the
attorney was included in the discussion.
The
magistrate judge found that the sender of the second e-mail
was expressing concerns about strategy, perception, and
public opinion and that the e-mail was not sent for the
purpose of giving or receiving legal advice.
And the
magistrate judge found that the sender of the fifth e-mail
reflected the sender's decision with respect to the
proposed security plan and her reasons for that decision;
thus, it was merely a business communication and not
privileged.
III.
ANALYSIS
The
Court has reviewed the disputed e-mails and discerns no error
with respect to the magistrate judge's conclusion that
Defendants have failed to meet their burden that the
attorney-client privilege applies. The privilege
“protects only those disclosures necessary to obtain
informed legal advice which might not have been made absent
the privilege.” Fisher v. United States, 425
U.S. 391, 403 (1976). The disputed e-mails do not directly
request or offer legal advice. Nor are they necessary to
obtain such advice. Instead, the disputed e-mails are part of
a broader discussion about increasing security at school
board meetings. Although legal considerations are one
component of that discussion, the disputed e-mails, on their
face, predominantly relate to other issues. The primary
purpose of the first e-mail is to address logistical issues
raised by a private security provider. The primary purpose of
the second e-mail is to share concerns about managing public
opinion. And the primary purpose of the fifth e-mail is to
announce and explain the decision that was reached. To the
extent legal issues are tangentially related to the broader
topic of security, that is not enough to bring the content of
these e-mails within the attorney-client privilege.
Defendants
argue that the e-mails should be presumed privileged because
counsel was included and participated in the discussion. But
the mere fact that counsel was included in these e-mails does
mean they were sent to him for the purpose of obtaining legal
advice. The disputed e-mails constitute part of the school
board's decision-making process with respect to
addressing security concerns at school board meetings, and
there is no indication that they would not have been sent if
the senders believed they were not privileged. Defendants
also argue that unrefuted affidavits by the senders of the
e-mails support their position that the e-mails were intended
to obtain legal advice. But Defendants cite no authority, nor
is the Court aware of any, for the proposition that the Court
is precluded from assessing the e-mails at face value and
based on the context in which they were sent. Nor is the
Court persuaded by Defendants' argument that chain
e-mails, which are now routine in a wide variety of
transactions, should be subject to the privilege, in their
entirety, merely because one or more links in the chain come
from legal counsel. Defendants have failed to show that the
attorney-client privilege applies to the disputed e-mails and
that the magistrate judge's ruling was clearly erroneous
or contrary to law.
IV.
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