Martley v. Basehor

MEMORANDUM AND ORDER

HOLLY L. TEETER, UNITED STATES DISTRICT JUDGE

Plaintiff Lloyd Martley brings this Equal Pay Act (“EPA”) case against his former employer, Defendant City of Basehor, Kansas, and one of its officials, Defendant David Breuer. Martley alleges violation of the EPA and retaliation stemming from a criminal investigation into the reporting of his income to a state retirement system.

This is a contentious case that now includes a protracted discovery dispute about attorney billing records. The magistrate judge ordered that billing records generated by Defendants' counsel must be produced to Plaintiff. Defendants objected. Docs. 213-214. Because the records are work product and because Plaintiff has not shown substantial need for them under the applicable standard, the Court sustains the objections.

I. BACKGROUND

Although the history of this case is long and combative, the following facts are relevant to the current dispute. On November 17, 2020, Plaintiff served subpoenas on two law firms, Fisher Patterson Sayler & Smith (“FPSS”) and the Hinkle Law Firm (“Hinkle”). Docs. 119-120. Defendants are currently represented by Hinkle and were previously represented by FPSS. The subpoenas primarily sought certain billing records for time entries referencing Plaintiff's retirement contributions. This was based on Plaintiff's allegation that Defendants' counsel were

directly involved in the initiation of the criminal investigation into his retirement contributions, which is the basis of his retaliation claim. Defendants and their counsel moved to quash the subpoenas. Doc. 181 at 11-12.

The magistrate judge denied the motions to quash and ruled in a text order that “all billing records and/or any applicable privilege logs must be produced by 2/18/2021.” Doc. 149. The magistrate judge subsequently issued a written order finding that the subpoenas sought information that was relevant, appropriate in scope, and not overly burdensome. Doc. 181 at 20-22. Privilege issues were not addressed at the time because no privilege logs had been submitted yet. Id. at 18-19. Defendants' counsel ultimately did not produce any documents but produced privilege logs instead. Doc. 212 at 4.

The magistrate judge initially found the privilege logs to be sufficient and declined to conduct an in-camera review. Doc. 160. But it continued to be an issue between the parties. After Plaintiff sought to depose Defendants' counsel, the magistrate judge held an additional status conference and ordered Defendants' counsel to produce the billing records in camera to determine whether they had complied with the prior orders. Doc. 195; see also Doc. 212 at 5.

The magistrate judge subsequently granted Plaintiff's motion to compel the billing records and issued a written order regarding the claims of privilege as to eight billing records. See generally Doc. 212. The magistrate judge found that three of the billing records were not protected by the attorney-client privilege as claimed, and that none were protected by the work-product doctrine, except for two entries that were ordered produced with additional redactions. See id.

Defendants and their counsel now object to that ruling. Docs. 213-214. The magistrate judge permitted Defendants and their counsel to delay production of the billing records pending a ruling on the objections. Doc. 212 at 5.

II. STANDARD

Under Rule 72(a), a district judge may set aside a magistrate judge's order on a nondispositive matter “that is clearly erroneous or is contrary to law.” See also 28 U.S.C. § 636(b)(1)(A). Under the clearly erroneous standard, a reviewing court must affirm a magistrate judge's order unless it is “left with the definite and firm conviction that a mistake has been committed.” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (internal quotation and citation omitted). The “contrary to law” standard permits “an independent review of purely legal determinations.” Norwood v. United Parcel Serv., Inc., 2021 WL 75641, at *1 (D. Kan. 2021). Where an order fails to apply or misapplies relevant law, the order is “contrary to law.” Id. (citation omitted).

III. ANALYSIS

At issue are the narrative portions of eight billing records.^[1] FPSS's privilege log is attached to the objection. See Doc. 213-1. A separate privilege log from Hinkle is also attached to the objection, Doc. 213-2, but this appears to be a privilege log for different records. A privilege log for the billing entries was found at Doc. 189-2, and a functionally similar one was submitted to the magistrate judge's chambers with the records. The Court has reviewed the privilege logs and the underlying records submitted in camera.

A. Work Product

Defendants' counsel asserted work-product protection for all eight billing records. For six of these records, the magistrate judge ordered them produced without further redaction. For the

additional two billing records, the magistrate judge ordered production with additional redaction. Doc. 212 at 10-12.

The work product doctrine is codified in Fed.R.Civ.P. 26(b)(3). This rule states:

(A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) But, subject to Rule 26(b)(4), those materials may be discovered if:

(i) they are otherwise discoverable under Rule 26(b)(1); and

(ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

(B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.

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