Wilcox v. Andalusia City Sch. Bd. of Educ.

682 F.Supp.3d 1019

Kennadie Grace WILCOX, Plaintiff, v. ANDALUSIA CITY SCHOOLS BOARD OF EDUCATION, et al., Defendants.

CASE NO. 2:19-cv-650-RAH

United States District Court, M.D. Alabama, Northern Division

Signed July 18, 2023

Brandy Murphy Lee, Lee Law Firm, LLC, Birmingham, AL, Susan Nettles Han, Nettles Han Law, LLC, Birmingham, AL, Joshua Stemle, Stokes Stemle, LLC, Montgomery, AL, for Plaintiff.

Katherine Hortberg Watkins, Mark S. Boardman, Boardman, Carr, Petelos, Watkins & Ogle, P.C., Chelsea, AL, for Defendants.

MEMORANDUM OPINION AND ORDER

R. AUSTIN HUFFAKER, JR., UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Pending before the Court is Plaintiff Kennadie Grace Wilcox's Motion for Sanctions filed on April 27, 2023. (Doc. 120.) The motion is based in part on communications between William Alverson Jr., an attorney based in Andalusia, Alabama who has long served as the attorney for the Defendant Andalusia City Schools Board of Education (the Board), and nonparty witnesses Addy Gantt and Eva Kanaley. According to the Plaintiff, Ms. Gantt and Ms. Kanaley were cooperating witnesses who had information detrimental to the interests of the Defendants and were prepared to testify for the Plaintiff and against the Defendants at trial, but Mr. Alverson improperly intimidated, threatened, or tampered with these witnesses such that they will no longer communicate with Plaintiff's counsel and no longer wish to testify. The Defendants and Mr. Alverson have asserted that Mr. Alverson's communications with Ms. Gantt and Ms. Kanaley concerning the facts and issues involved in this litigation are protected by the attorney-client privilege and thus cannot be disclosed.

The Court held an evidentiary hearing on the Plaintiff's Motion on June 13, 2023. In attendance were Susan Han and Brandy Lee, Plaintiff's counsel of record; Mark Boardman and Katherine Watkins, Defendants' counsel of record; Defendant Dr. Daniel Shakespeare; Amy Dugger, Board member; Mr. Alverson; and Wallace Mills, Mr. Alverson's personal counsel. Portions of the hearing were conducted ex parte to allow the Court to inquire into the assertion of the privilege with Mr. Alverson and his counsel, Mr. Mills. The Court has also reviewed other evidentiary materials submitted by the parties, including: a declaration signed by Ms. Han; declarations signed by Ms. Gantt; and other materials submitted ex parte for the Court's in camera review, including text messages between Mr. Alverson and Ms. Gantt and Ms. Han's and Mr. Alverson's cellular telephone records.

This Order addresses whether certain communications between Mr. Alverson and Ms. Gantt, Ms. Kanaley, or both are attorney-client privileged, as well as whether the privilege has been waived and to what extent.

II. LEGAL STANDARD¹

"The attorney-client privilege exists to protect confidential communications between client and lawyer made for the purpose of securing legal advice." In re Grand Jury Matter No. 91-01386, 969 F.2d 995, 997 (11th Cir. 1992) (citation omitted); accord Knox v. Roper Pump Co., 957 F.3d 1237, 1248 (11th Cir. 2020); Cox v. Adm'r U.S. Steel & Carnegie, 17 F.3d 1386, 1414 (11th Cir. 1994). "The party invoking the attorney-client privilege has the burden of proving that an attorney-client relationship existed and that the particular communications were confidential." United States v. Schaltenbrand, 930 F.2d 1554, 1562 (11th Cir. 1991). Thus, to successfully invoke the privilege, the person asserting the privilege must prove that what is sought to be protected is (1) a communication, (2) made between privileged persons, (3) in confidence, (4) for the purpose of obtaining or providing legal advice or assistance. See In re Grand Jury Matter No. 91-01386, 969 F.2d at 997.

"[A] party asserting the privilege must not only claim it expressly but must demonstrate that each essential element of the privilege is present with respect to the specific communication or document whose disclosure is sought." Purdee v. Pilot Travel Ctrs., LLC, No. CV407-028, 2008 WL 11350099, at *1 (S.D. Ga. Feb. 21, 2008). "That burden is not, of course, discharged by mere conclusory or ipse dixit assertions, for any such rule would foreclose meaningful inquiry into the existence of the relationship, and any spurious claims could never be exposed." Bridgewater v. Carnival Corp., 286 F.R.D. 636, 639 (S.D. Fla. 2011) (quoting In re Bonanno, 344 F.2d 830, 833 (2d Cir. 1965)).

"The attorney-client privilege does not protect any and all communications between a client and a lawyer[,]" Banneker Ventures, LLC v. Graham, 253 F. Supp. 3d 64, 70 (D.D.C. 2017), because lawyers "do not always act in a legal capacity," Gaddy v. Terex Corp., No. 1:14-CV-1928-WSD, 2015 WL 13545486, at *3 (N.D. Ga. Oct. 28, 2015). Communications that "relate to matters other than the giving of legal advice . . . are outside the attorney-client privilege." United States v. Davis, 636 F.2d 1028, 1044 (5th Cir. Unit A 1981)²; see also In re Cnty. of Erie, 473 F.3d 413, 421 (2d Cir. 2007) ("When an attorney is consulted in a capacity other than as a lawyer, as (for example) a policy advisor, media expert, business consultant, banker, referee or friend, that consultation is not privileged."); Gaddy, 2015 WL 13545486, at *3 ("When an attorney serves a client in a way that is not legal in nature, the attorney-client privilege does not protect their communications."). Thus, "the proponent of the attorney-client privilege must show . . . that the communication was confidential and that the primary purpose of the communication was to relay, request or transmit legal advice." Baines v. City of Atlanta, No. 1:19-CV-0279-TWT-JSA, 2020 WL 10058115, at *1 (N.D. Ga. Oct. 2, 2020) (emphasis added).

The attorney-client privilege " 'belongs solely to the client,' who may waive it either expressly or by implication." Knox, 957 F.3d at 1248 (quoting Cox, 17 F.3d at 1417). A client may waive the privilege by disclosing her otherwise privileged communications to a third party. See, e.g., United States v. Suarez, 820 F.2d 1158, 1160 (11th Cir. 1987) ("[A]t the point where attorney-client communications are no longer confidential, i.e., where there has been a disclosure of a privileged communication, there is no justification for retaining the privilege. For that reason, it has long been held that once waived, the attorney-client privilege cannot be reasserted." (citations omitted)); Weil v. Inv./Indicators, Rsch. & Mgmt., Inc., 647 F.2d 18, 24 (9th Cir. 1981) ("[I]t has been widely held that voluntary disclosure of the content of a privileged attorney communication constitutes waiver of the privilege as to all other such communications on the same subject."); United States v. Cote, 456 F.2d 142, 144-45 (8th Cir. 1972) (explaining that a client may waive the attorney-client privilege by disclosing the substance of privileged communications).

III. BACKGROUND

In this lawsuit, the Plaintiff brings claims against the Board, Dr. Daniel Shakespeare, and Ted Watson³ under 20 U.S.C. § 1681 et seq. (Title IX), 42 U.S.C. § 1983, and Alabama state law. Her claims relate to an alleged sexual relationship between her and a high school teacher and coach, Anthony Clark, and alleged sexual harassment perpetrated by Dr. Shakespeare while she was a student at Andalusia High School. Ms. Kanaley was the Plaintiff's friend and classmate. Ms. Gantt is Ms. Kanaley's mother at whose home the Plaintiff stayed for a time during the Plaintiff's senior year and in whom the Plaintiff apparently confided concerning the details of Coach Clark's and Dr. Shakespeare's actions.

According to the Plaintiff, Ms. Gantt and Ms. Kanaley were cooperating witnesses who had information detrimental to the interests of the Defendants and were prepared to testify for the Plaintiff and against the Defendants at trial. Indeed, in June 2022, Ms. Gantt and Ms. Kanaley signed sworn declarations which the Plaintiff submitted with her brief in opposition to the Defendants' motion for partial summary judgment, and these declarations contain information and statements adverse to the Defendants. (See generally Docs. 68-7, 68-8.) But according to the Plaintiff, beginning in September 2022, Mr. Alverson improperly intimidated, threatened, or tampered with these witnesses in violation of federal law and the Alabama Rules of Professional Conduct such that they will no longer communicate with Plaintiff's counsel and no longer wish to testify at trial.

Although Mr. Alverson has not made a formal appearance in this case, he acknowledges that he is the long-time attorney for the Board; he has been "monitoring" this case on behalf of the Board; and he has participated in certain aspects of this case on behalf of the Board, including attending depositions, attending mediation, interviewing and meeting with witnesses, and advising the Board about the case during executive session. Mr. Alverson also acknowledges that he communicated with Ms. Gantt regarding this lawsuit, including in text messages with Ms. Gantt in September and October 2022; in a three-hour one-on-one meeting with Ms. Gantt on December 7, 2022; and in text messages with Ms. Gantt in the Spring of 2023. Additionally, he contends that he communicated with Ms. Gantt and Ms. Kanaley in April 2018 concerning Ms. Kanaley's participation in a police interview during the criminal investigation into the Plaintiff's alleged relationships with Coach Clark and Dr. Shakespeare. Mr. Alverson further contends that he has not communicated with Ms. Kanaley regarding the facts and issues involved in this lawsuit since April 2018, and that he did not communicate with Ms. Gantt regarding the facts and issues involved in this lawsuit between April 2018 and September 2022.

Mr. Alverson claims that he is Ms. Gantt's personal attorney and that any communications he may have had with her about the facts and issues involved in this lawsuit, including Ms. Gantt's role as a nonparty witness, were made in his...