United States v. Dillard
| Decision Date | 07 January 2013 |
| Docket Number | Case No. 11-1098-JTM-KGG |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. ANGEL DILLARD, Defendant. |
| Court | U.S. District Court — District of Kansas |
Now before the Court is the Motion to Quash and/or Modify Subpoena and/or for Protective Order (Doc. 85) filed by Respondent Dr. Mila Means relating to a subpoena duces tecum served on her by Defendant in the above-captioned matter (Doc. 85-1.) Having reviewed the submissions of the parties, the Court GRANTS in part and DENIES in part Respondent's motion.
This is a civil action filed by the United States of America against Defendant Angel Dillard alleging a violation of the Freedom Access to Clinic Entrances Act ("FACE"), 18 U.S.C. § 248 (1994). (Doc. 1.) The United States alleges that it has"reasonable cause to believe: (1) Defendant . . . has committed, and is likely to continue to commit, violations of FACE; and (2) various persons are being, have been, and will continue to be injured, intimidated and/or interfered with by Defendant's conduct." (Id., at 1.)
The facts of this case relate to Respondent Dr. Mila Means, a family practitioner, who plaintiff alleges has been "training to provide abortion services in Wichita" (Id., at 2) following the May 31, 2009, murder of Dr. George Tiller, who previously provided abortion services in Wichita. Plaintiff alleges that Defendant made threats to Respondent "for the purpose of intimidating [her] from performing abortions in Wichita." (Id.)
Federal Rule of Civil Procedure 26(c) governs protective orders and provides, in relevant part:
The party seeking to quash a subpoena must show "good cause" for the requested protective order. Id.; Sloan v. Overton, No. 08-2571-JAR-DJW, 2010 WL 3724873 (D.Kan. Sept. 17, 2010). To establish "good cause" within the meaning of Rule 26(c), the party must clearly define the potential injury to be caused by dissemination of the information. Zhou v. Pittsburg State Univ., No. 01-2493-KHV, 2002 WL 1932538, at *2 (D.Kan. July 25, 2002).
Respondent raises various issues in regard to seven categories of documents requested in via a subpoena duces tecum. (See generally, Doc. 85.) The Court will address each category in turn.
Category No. 1 seeks "[a]ll documents which the witness reviewed, referred to, generated, and/or received in preparation for the deposition." Respondent contends that "[t]he basis of the motion is that production of documents discussed with her attorney which were neither shown nor used to refresh her memory invades the attorney client privilege." (Doc. 85, at 2-3.) The Court does not agree with Respondent's argument, which appears to be that the only documents usedduring deposition preparation that are discoverable are those which were used to refresh her memory. The Court is aware of no case law supporting such a position. Neither Fed.R.Evid. 612 nor the case law cited by Respondent create a privilege protecting documents shown to a witness by her attorney prior to a deposition. Indeed, Audiotext Commc'ns Network, Inc. v. U.S. Telecom, Inc, relied on by Respondent, expressly rejects such a privilege. 164 F.R.D. 250, 252-54 (D. Kan. 1993). Respondent continues that "pure discussions about the subjects of documents might be 'referred to' in deposition preparation, thus protected by the attorney client privilege [sic]." (Id., at 3.) Saying that unspecified "subjects of documents" are "protected" by the attorney client privilege as a result of merely being mentioned during discussions with counsel wholly fails to establish a showing of privilege.1 Simply stated, Respondent has failed to provide the required support for her claim of attorney-client privilege. Presbyterian Manors, Inc. v. Simplexgrinnel, L.P., No. 09-2656-KHV, 2010 WL 3880027, at *5 (D.Kan. Sept. 28, 2010). Respondent's motion is DENIED in regard to Category No. 1.
Category No. 2 seeks "[a]ll documents in the possession or control of deponent . . . which relate to, in any manner, the above-captioned matter." (Doc. 85, at 3.) Respondent objects that this category "fails to specify the documents requested with reasonable particularity and that it is overly broad and burdensome." (Id., at 4.) Defendant argues that the category is sufficiently particular as it seeks "'all notes, statements, reports, or other documents created or maintained by the witness' which 'relate to' this case." (Doc. 105, at 8.) Defendant apparently is of the opinion that because he has listed the format of documents requested, this is adequate. Defendant contends that the phrases "relates to" or "pertains to" have "long been upheld by courts as sufficient to describe the requested documents with reasonable particularity, so as not to constitute vague or overly broad [sic]." (Id.)
An example of a document request in Union Pacific that included an omnibus term but was found to have used that term to "modify a sufficiently specific type of information" was a discovery request seeking "all writings, recordings, and ESI relating in any way to any efforts by Union Pacific to repair or reconstruct the allegedly weakened track bed and structure." Id., at 4. The Union Pacific court held that the omnibus term "relating to" was permissible "[g]iven the clarified geographic and temporal scope Defendant previously supplied to Plaintiff," which further limited the request as to place and time. Id.
On the other hand, the Union Pacific court found that a request seeking all documents "relating to track maintenance" was not an appropriate use of the omnibus term. Id., at 5. In sustaining the plaintiff's overbreadth objection, thatCourt "agree[d] with Plaintiff that the use of the generic term 'track maintenance' coupled with the omnibus term 'relating to' is facially overbroad." Id.
The Court finds that Category No. 2 from the subpoena at issue is even less specific than the wording contained in the "track maintenance" request in Union Pacific. Defendant has made no effort to specify or narrow the subject matter of the documents requested. Rather, he has only enumerated formats of documents ("notes, statements, reports, or other documents"). This is clearly not the type of particularity required to withstand the objection to Defendant's use of the omnibus term "relate to." Defendant has failed to request a "sufficiently specific type of information," but instead seeks the most general categories of documents possible. Johnson, 238 F.R.D. at 658. Respondent's motion is, therefore, GRANTED in regard to Category No. 2.
Category No. 4 in the subpoena at issue requests documents "relating to any and all agreements, correspondence, statements and other documents or communications between [Respondent] . . . and the plaintiff in this matter." (Doc. 85, at 4.) Respondent objects that this category "calls for production of communications between her attorney and attorneys of the plaintiff on the grounds that such documents are privileged by virtue of a common interest privilege." (Id., at 4-5.)
The common interest doctrine 'affords two parties with a common legal interest a safe harbor where they can openly share privileged information' without risking the waiver of the privilege. U.S. Fire Ins. Co. v. Bunge N. Am. Inc., No. 05-2192-JWL-DJW, 2006 WL 3715927, at *1 (D. Kan. Dec. 12 2006) (citing Sawyer v. Southwest Airlines, No. 01-2385-KHV, 2002 WL 31928442, at *3 (D.Kan. Dec. 23, 2002)). The doctrine is not a separate privilege, but rather an exception to the waiver of a privilege. Id., at *2.
To continue reading
Request your trial