United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE
26, 2017, Defendant City of Pine Lawn, Missouri ("Pine
Lawn") and Plaintiffs Lisa Schweppe and Jillian
Zurmuehlen filed a Joint Request for Emergency Telephonic
Conference, seeking the Court's guidance on a discovery
issue relating to certain written communications Defendant
Steven Blakeney had sent to Pine Lawn's counsel (Doc.
47). After a telephone conference with counsel for Plaintiffs
and counsel for Pine Lawn, the Court directed that the
communications be submitted to the Court for in
camera review to determine whether any privilege has
attached to the documents, and ordered Blakeney to submit in
writing his position on the privilege issue (Doc.
Pine Lawn's counsel thereafter submitted the
communications to the Court (Doc. 49).
8, 2017, Blakeney filed a written statement indicating that,
shortly before he sent the communications, he had received a
letter from Pine Lawn's counsel seeking information; and
that the information contained in the communications
"was in direct connection with [his] prior employment
with City of Pine Lawn" (Doc. 50). In his statement,
Blakeney also requests that the Court appoint him counsel to
assist him in defending this action (ld.\
Discussion Having reviewed Blakeney's
communications in camera, the Court concludes that
they are not protected by any privilege. Federal Rule of
Civil Procedure 26(b)(1) provides that civil litigants may
Discovery regarding any nonprivileged matter that is relevant
to any party's claim or defense and proportional to the
needs of the case, considering the importance of the issues
at stake in the action, the amount in controversy, the
parties' relative access to relevant information, the
parties' resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of
the proposed discovery outweighs its likely benefit.
Fed. R. Civ. P. 26(b)(1). Federal Rule of Evidence 501
supplies the general rule regarding the treatment of
privilege by federal courts: "the common law-as
interpreted by United States courts in the light of reason
and experience-governs a claim of privilege" unless the
United States Constitution, a federal statute, or Supreme
Court rule provides otherwise.
attorney-client privilege is the oldest of the privileges for
confidential communications known to the common law.
Upjohn Co. v. United States, 449 U.S. 383, 389
(1981). Under the attorney-client privilege,
"confidential communications between an attorney and his
client are absolutely privileged from disclosure against the
will of the client." Diversified
Industries, Inc. v. Meredith, 572 F.2d 596, 601 (8th
Cir. 1977). However, the communication must be
confidential-the moment a communication ceases to be
confidential, the privilege also ceases. Biben v.
Card, 119 F.R.D. 421, 426 (W.D. Mo. 1987).
"'[T]he voluntary disclosure of a communication,
otherwise subject to a claim of privilege, effectively waives
the privilege ....
the secrecy or confidentiality is destroyed by a voluntary
disclosure to a third party, the rationale for granting the
privilege ... no longer applies.'" Id.
(quoting Penn Central Comm. Paper Litis., 61 F.R.D.
453, 463-64 (S.D.N.Y.1973)); see also Paine Webber Grp.
v. Zinsmever Trusts P'ship, 187 F.3d 988, 992 (8th
Cir. 1999). The Court concludes that Blakeney's
communications are not protected by attorney-client privilege
because Pine Lawn's attorney is not representing
Blakeney, a fact of which Blakeney was clearly aware, given
the history of the case and his previous motions for
appointment of counsel.
the "work product doctrine, " information or
materials assembled by or for a person in anticipation of
litigation or in preparation for trial may be qualifiedly
privileged from disclosure to an opposing party."
Fed.R.Civ.P. 26(b)(3). "[Disclosure to an adversary
waives work product protection as to items actually
disclosed." Pittman v. Frazer, 129 F.3d 983,
987-88 (8th Cir. 1997) (citing In re Chrysler Motors
Corp. Overnight Evaluation Program Litig., 860 F.2d 844,
846 (8th Cir. 1988)). Blakeney's communications are not
protected by the work-product doctrine because, even assuming
his communications were work product, he waived any such
protection by voluntarily disclosing the communications to
Pine Lawn's counsel.
courts have recognized the "common law doctrine" as
an exception to the general rule that voluntary disclosure of
privileged material waives any applicable
privilege. See Progressive Cas. Ins. Co. v.
FDIC. 302 F.R.D. 497, 502 (N.D. Iowa 2014). Where
recognized, "the common interest doctrine applies when
multiple persons are represented by the same attorney.
Communications made to the shared attorney to establish a
defense strategy remain privileged." Id.
(internal quotation omitted). The doctrine is also applied
where "parties are represented by separate counsel that
engage in a common legal enterprise." IcL In determining
whether the doctrine applies to a communication, the
"key consideration" is whether the co- defendants
share an identical, not similar, legal interest. Id.
The parties must also establish that "any exchange of
privileged information was made in the course of formulating
that common legal interest and strategy." Id.
The Court concludes that, even assuming that the "common
law doctrine" is recognized in this jurisdiction, it
would not protect Blakeney's communications because
Blakeney and Pine Lawn do not share an identical legal
interest, and Blakeney did not send his communications to
Pine Lawn's counsel for the purpose of establishing a
common defense strategy.
Court also is not persuaded by Blakeney's assertion that
the communications are privileged because he prepared them in
connection with his employment with Pine Lawn. Notably, as
the communications themselves indicate, Blakeney's
employment with Pine Lawn terminated well before he authored
the communications. For these reasons, the Court concludes
that the communications submitted for in camera
review are not protected by any privilege.
the Court will deny Blakeney's renewed request for
appointment of counsel. There is no constitutional or
statutory right to counsel in civil cases. See Philips v.
Jasper Ctv. Jail, 437 F.3d 791, 794 (8th Cir. 2006). In
determining whether to appoint counsel in a civil case, the
Court should consider the factual complexity of the issues,
the ability of the indigent person to investigate the facts,
the existence of conflicting testimony, the ability of the
indigent person to present the claims, and the complexity of
the legal arguments. Id. (citing Edgington v.
Missouri Dep't of Corr., 85 F.3d 777, 780 (8th Cir.
1995)). Blakeney has demonstrated that he can adequately
present his defenses to the Court, his legal arguments are
not especially complex, and it is apparent that Plaintiffs
and Pine Lawn have been communicating with Blakeney and
engaging in discovery with him. Accordingly, IT IS HEREBY
DECLARED that the communications submitted to the Court for
in camera review (Doc. 49) are not privileged.
FURTHER ORDERED that Defendant Blakeney's request for
appointment of counsel as set forth in his June 8, 2017
statement to the Court (Doc. 50) is DENIED.