Evanston Ins. Co. v. Murphy
| Decision Date | 23 November 2020 |
| Docket Number | No. CV-19-04954-PHX-MTL,CV-19-04954-PHX-MTL |
| Parties | Evanston Insurance Company, Plaintiff, v. Tracey Portee Murphy, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
Before the Court is the Motion for Protective Order filed by non-party Ryan McCarthy. (Doc. 112.) For the following reasons, the motion is granted in part and denied in part.1
As relevant to the pending motion,2 non-party Ryan McCarthy is an attorney at the law firm Jones, Skelton & Hochuli, PLC. He defended Pearce Lincoln Properties LLC ("Pearce Lincoln"), Par-Tech Limited Partnership ("Par-Tech"), and Art's Fisheries II, LLC ("Arts Fisheries"), in connection with the underlying wrongful death matter in the Superior Court of Arizona for Maricopa County (the "Underlying Action"). See Murphy v. Pearce Lincoln Props., LLC, No. CV2019-001932 (Ariz. Super. Ct. July 1, 2020). Mr.McCarthy's clients owned and operated the property at which Arthur Murphy, Jr. was fatally shot on April 6, 2017. An associate attorney, Sam Arrowsmith, who is no longer affiliated with Jones, Skelton & Hochuli, was also counsel to these entities.
Plaintiff/Counter-Defendant Evanston Insurance Company ("Evanston") filed its complaint for declaratory relief in the present action on August 13, 2019. (Doc. 1.) It initially named Mr. McCarthy's clients as defendants; they have since been dismissed. (Doc. 47.)
On November 25, 2019, the adverse parties in the Underlying Action entered into a Damron agreement.3 It assigned a $9 million stipulated judgment against the insureds, including Mr. McCarthy's clients, to Tracee Portee Murphy ("Murphy"), a defendant and counter-claimant in the present action.
Evanston issued a subpoena for Mr. McCarthy's deposition on July 17, 2020. (Doc. 72.) On July 31, Mr. McCarthy's counsel sent a letter to Evanston's counsel asserting, in part, that they had not received the deposition "topics, questions, or subject matter." (Doc. 112-1 at 7.) Mr. McCarthy's counsel intended "to object to any line of questioning that seeks to violate the attorney-client privilege, work-product privilege, or ER 1.6, Arizona Rules of Professional Conduct." (Id.) On August 20, Evanston's counsel sent an outline of anticipated deposition topics. Counsel also met and conferred that same day. (Id. at 12.)
Evanston's counsel deposed Mr. McCarthy on September 14, 2020. Although Mr. McCarthy answered multiple questions during the deposition, his counsel asserted privilege objections in response to 19 questions. Those objections are the subject of thepresent motion. Following the deposition, Evanston's counsel asserted that the privilege objections were improper. (Doc. 112 at 6.) The parties have since conferred "multiple times." (Id.)
Mr. McCarthy filed the present motion on October 30, 2020. (Doc. 112.) He attached, as Exhibit 10 to the motion, a numbered list of the 19 questions to which his counsel asserted privilege objections. (Doc. 112-1 at 63.) The motion is now fully briefed. (Docs. 121, 125.) Murphy also filed a joinder in support of the motion. (Doc. 118.)
Rule 45 of the Federal Rules of Civil Procedure governs discovery of non-parties by subpoena. Rule 45 provides, in relevant part, that a party may command a non-party to testify at a deposition. Fed. R. Civ. P. 45(a)(1)(A)(iii). The scope of discovery "through a subpoena under Rule 45 is the same as the scope of discovery permitted under Rule 26(b)." Intermarine, LLC v. Spliethoff Bevrachtingskantoor, B.V., 123 F. Supp. 3d 1215, 1217 (N.D. Cal. 2015). Under Rule 26(b), a party may obtain 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). The limitations set forth in Rule 26(b)(2)(C) apply to discovery served on non-parties. See Amini Innovation Corp. v. McFerran Home Furnishings, Inc., 300 F.R.D. 406, 409 (C.D. Cal. 2014).
A district court has "broad discretion" to permit or deny discovery. Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). The "discovery process in theory should be cooperative and largely unsupervised by the district court." Sali v. Corona Reg. Med. Ctr., 884 F.3d 1218, 1219 (9th Cir. 2018). Nonetheless, a party from whom discovery is sought may move for a protective order to prevent annoyance, embarrassment, oppression, or undue burden or expense. Fed. R. Civ. P. 26(c)(1). The party seeking a protective orderbears the burden of persuasion to show "good cause" for its issuance. U.S. E.E.O.C. v. Caesars Entm't, Inc., 237 F.R.D. 428, 432 (D. Nev. 2006).
Mr. McCarthy moves for a protective order shielding himself, and all other attorneys and staff associated with Jones, Skelton & Hochuli, from attempts to gather privileged information. As noted, he has provided 19 deposition questions to which his counsel objected on the basis of the attorney-client privilege and work-product doctrine. (Doc. 112 at 8; 112-1 at 64-68.) Evanston responds that Mr. McCarthy should be required to answer the questions for various reasons. The Court addresses these arguments in turn.
Mr. McCarthy identifies five deposition questions—designated as numbers 5, 6, 9, 10, and 16—to which his counsel asserted an attorney-client privilege objection. Evanston responds that the objections 4 (Doc. 121 at 2-3.) This is not accurate.
As identified in his motion, Mr. McCarthy's counsel invoked the attorney-client privilege in the following portions of his deposition:
(Doc. 121-1 at 65-67.5) These responses invoke the attorney-client privilege. Mr. McCarthy emphasizes in his reply that because Evanston did not address the attorney-client privilege argument, it has waived any objection. (Doc. 125 at 2-3.) See LRCiv 7.2(i); E.E.O.C. v. Walgreen Co., No. CIV 05-1400 PCTFJM, 2007 WL 926914, at *1 n.2 (D. Ariz. Mar. 26,2007) (). The Court agrees that Evanston failed to address this argument. Nonetheless, the Court will consider whether Mr. McCarthy's counsel properly raised the attorney-client privilege objection before issuing a protective order.
Federal courts look to state law to determine the applicability of evidentiary privileges in diversity actions. See Fed. R. Evid. 501. Under Arizona law, "an attorney shall not, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment." A.R.S. § 12-2234(A). The party asserting the privilege has the burden of making a prima facie showing that it applies to a specific communication. See State ex. rel. Babbitt v. Arnold, 26 Ariz. App. 333, 336 (1976). The proponent must show that "1) there is an attorney-client relationship, 2) the communication was made to secure or provide legal advice, 3) the communication was made in confidence, and 4) the communication was treated as confidential." Clements v. Bernini in & for Cty. of Pima, 471 P.3d 645, 651 ¶ 8 (Ariz. 2020). A court has broad discretion in reviewing an assertion of privilege. State Farm Mut. Auto. Ins. Co. v. Lee, 13 P.3d 1169, 1174 (Ariz. 2000).
First, the Court notes that the objections at issue were procedurally proper. Rule 30(c)(2) permits objections, "whether to evidence, to a party's conduct, to the officer's qualifications, to the manner of taking the deposition." Fed. R. Civ. P. 30(c)(2). Such objection "must be stated concisely in a nonargumentative and nonsuggestive matter." Id. Further, a "person may instruct a deponent not to answer only when necessary to preserve a privilege. . ." Id. A review of the...
To continue reading
Request your trial