Gammons v. Adroit Med. Sys.
| Docket Number | 3:21-CV-173-TAV-DCP |
| Decision Date | 15 March 2023 |
| Parties | SCOTT E. GAMMONS, Plaintiff, v. ADROIT MEDICAL SYSTEMS, INC., et al., Defendants. |
| Court | U.S. District Court — Eastern District of Tennessee |
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and Standing Order 13-02.
This matter is before the Court on Plaintiff's Motion for Leave and Motion to Compel [Doc. 82]. Defendants responded in opposition to the motion [Doc. 85], and Plaintiff filed a reply [Doc. 86]. The motion is ripe for adjudication. For the reasons set forth below, the Court DENIES Plaintiff's motion [Doc. 82].
The Court detailed the allegations in this case in a previous Memorandum and Order [Doc. 35]. To summarize, Plaintiff filed this action pursuant to the anti-retaliation whistleblower protection provision of the Taxpayer First Act (“TFA”), 26 U.S.C. § 7623(d)(2)(A)(ii); the Tennessee Public Protection Act (“TPPA”), Tenn Code Ann. § 50-1-304; and Tennessee common law [Doc. 1 ¶¶ 1 & 9]. Plaintiff generally alleges that in light of Gene Gammon's declining health, Defendants Grazyna Gammons (“Ms. Gammons”) and Kelley Patten (“Ms. Patten”) engaged in illegal activity by submitting false expense reports and using Adroit Medical Systems, Inc's (“Adroit”) funds for personal items [Id. ¶¶ 18-36]. Plaintiff reported these activities to law enforcement authorities in 2019 and in early 2020 and was advised to file an emergency conservatorship to protect his father and Adroit [Id. ¶ 35]. On March 5, 2020, Plaintiff filed a petition for a conservator to act in Mr. Gammons's corporate capacity and majority shareholder of Adroit [Id. ¶ 38]. The petition detailed Plaintiff's reports to state and federal authorities [Id. ¶ 39]. The court granted a limited conservatorship appointing Plaintiff as his father's emergency conservator to exercise Mr. Gammons's corporate capacity and president and majority shareholder of Adroit [Id. ¶ 40]. On March 10, 2020, the court conducted a hearing on the conservatorship, and the court dismissed the petition [Id. ¶ 45]. Subsequently, on March 11, 2020, Adroit's shareholders conducted a special meeting and removed Plaintiff from the board of directors [Id. ¶ 46]. On March 12, 2020, Ms. Gammons and Mr. Gammons sent a jointly signed letter terminating Plaintiff [Id. ¶ 47]. Plaintiff filed his Complaint on May 5, 2021.
Relevant to the instant dispute, the Court allowed Plaintiff to conduct a forensic examination of Ms. Gammons's and Ms. Patten's cellular phones in November 2022 [Doc. 51]. This forensic examination has been the subject of multiple disputes [See Doc. 77]. The Court allowed Plaintiff another forensic examination in February 2023, which is the subject of the instant motion. The forensic examiner uncovered three text messages (“Text Messages”) between Ms. Patten and her husband, Clarence Patten (“Mr. Patten”). Defendants claim the Text Messages are protected by the attorney-client privilege and Ms. Patten did not waive the privilege when she sent the Text Messages to her spouse. Specifically, Defendants' privilege log provides as follows:
Dates
Document
Kelley Patten's text with Clarence Patten regarding preparation for meeting with personal and corporate attorney, W. Edward Shipe.
Kelley Patten's text with Clarence Patten discussing action items from prior meeting with personal and corporate attorney, W. Edward Shipe.
Kelley Patten's text with Clarence Patten regarding gathering court documents for personal and corporate attorney, W. Edward Shipe.
[Doc. 83 p. 2].
On March 9, 2020, Attorney Edward Shipe, Defendants, and Mr. Patten met regarding the conservatorship proceeding that Plaintiff initiated [Doc. 83-4 p. 3]. Mr. Patten was not an employee of Adroit at this time [Doc. 23-10 ¶ 2]. In addition, Mr. Patten was not personally represented by Attorney Shipe [Doc. 83-4 p. 3]. Mr. Patten became a member of Adroit's board of directors on March 11, 2020 [Id. at 2]. During his deposition, Mr. Patten testified that he learned that he would be asked to become a board member in the late morning of March 11, 2020 [Id.]. During his first board meeting on March 11, 2020, Mr. Patten voted to terminate Plaintiff [Id.]. According to Mr. Patten's deposition, he met Ray Pinkstaff (“Pinkstaff”), Adroit's counsel, at the board meeting but never had communications with Pinkstaff prior to becoming a board member [Id. at 4].
Defense counsel, Attorney Shipe, filed a declaration in this case, stating as follows:
[Doc. 85-1 ¶¶ 1-6].
Plaintiff claims that “Defendants waived any information communicated between Defendants and Attorney Ed Shipe by permitting Mr. Patten to attend the March 9, 2020, meeting despite Mr. Patten not being Mr. Shipe's client nor being a [b]oard [m]ember as of that date” [Doc. 83 p. 4]. In addition, Plaintiff states that Ms. Patten “waived any privileged communications by disclosing the contents of the same to Mr. Patten who, again was not Mr. Shipe's client nor a [b]oard [m]ember before March 11, 2020” [Id.]. Thus, Plaintiff asserts that any purported claim of attorney-client privilege has been waived.
Defendants state that given the emergency conservatorship, “it was reasonable as of March 5, 2020, for Gene Gammons, Grazyna Gammons, Kelley Patten, and Clarence Patten to seek legal guidance” [Doc. 85 p. 1]. In a footnote, Defendants claim that “[o]n March 9, 2020, Clarence Patten was represented, along [with] the other individual defendants, by attorney Ray Pinkstaff” [Id. at 5 n.3]. At that time, Attorney Shipe represented Gene Gammons for the purpose of the emergency conservatorship, but Defendants claim that the “two groups of clients and counsel worked together on a joint defense” [Id.]. Defendants argue that the circumstances surrounding these messages prove the application of the attorney-client privilege, including that Mr. Patten “is and was part of the core group of individuals charged with running the operations of Adroit[,]” and his involvement made him a potential co-defendant [Id. at 12]. Defendants add that even if the Court disagrees that the attorney-client privilege independently applies to Mr. Patten, Defendants have not waived the privilege because “[a]n individual does not waive the attorney- client privilege by sharing the contents of the communications with her spouse [Id. (citation omitted)].
The Court has considered the parties' filings in this matter, and for the reasons explained below, the Court DENIES Plaintiff's motion [Doc. 82].
Jurisdiction in this case is governed under 28. U.S.C. § 1331, and therefore, questions of privilege are guided by Federal Rule of Evidence 501. Fed.R.Evid. 501; Reed v. Baxter, 134 F.3d 351, 355 (6th Cir. 1998) () (citing Fed.R.Evid. 501); see also Prudential Def. Sols., Inc. v. Graham, 517 F.Supp.3d 696, 701 (E.D. Mich. 2021) ( the same). The attorney-client privilege protects “confidential communications between a lawyer and his client in matters that relate to the legal interests of society and the client.” In re Grand Jury Subpoena, 886 F.2d 135, 137 (6th Cir. 1989) (quotation omitted). “The privilege's primary purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.” Ross v. City of Memphis, 423 F.3d 596, 600 (6th Cir. 2005); see also Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) ().
The elements of the attorney-clients are as follows:
(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived.
Reed, 134 F.3d at 355-56 (citation omitted). “The burden of establishing the existence of the privilege rests with the person asserting it.” Prudential Def. Sols., 517 F.Supp. at 702 (quoting United States v. Dakota, 197 F.3d 821, 825 (6th Cir. 1999)). “The privilege is ‘narrowly construed because it reduces the amount of information...
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