Wyman v. Wyman
Decision Date | 23 December 2020 |
Docket Number | Civil Action No. 19-cv-03437-NRN |
Parties | THOMAS LOUIS WYMAN, Plaintiff, v. LOUIS MILTON WYMAN, Defendant. |
Court | U.S. District Court — District of Colorado |
ORDER GRANTING DEFENDANT'S SECOND MOTION TO QUASH SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS DIRECTED TO THOMAS THORNBERRY (Dkt. #34)
This matter comes before me on Defendant Louis Milton Wyman's ("Defendant") Second Motion to Quash Subpoena to Produce Documents, Information, or Objects Directed to Thomas Thornberry. Dkt. #34. I heard argument on the Motion on December 18, 2020. See Dkt. #40.
I will assume the readers' familiarity with the background of this case as it was set forth in the November 12, 2020 Order on Discovery Dispute Relating to Alleged Inadvertent Disclosure of Privileged Communications. Dkt. #32. Briefly, this is a contract dispute between Plaintiff Thomas Louis Wyman ("Plaintiff") and his father, the Defendant, over Defendant's alleged failure to revise his estate plan for the benefit of his son in consideration of the son's forgiveness of a promissory note. Thomas Thornberry was Defendant's estate planning attorney at Keller Law, LLC. Mr. Thornberry provided estate planning legal services to Defendant and his wife.
In his response to the motion to quash, Plaintiff Dkt. #28 at 4-5. Plaintiff's response complained that Defendant had not provided a privilege log distinguishing which statements should be afforded the privilege. Id. at 5. But Defendant's reply attaches a privilege log and it appears that only privileged documents have been so designated. See Dkt. # 37-3. Non-privileged documents from Mr. Thornberry's file already have been produced.
The question before the me, then, is whether the withheld documents relating to Defendant's estate planning documents, including copies of his will and trust andcommunications related thereto, are protected by the attorney-client privilege. I find that they are.
Federal courts sitting in diversity jurisdiction must apply state substantive law and federal procedural law. KCOM, Inc. v. Employers Mut. Cas. Co., 829 F.3d 1192, 1196 (10th Cir. 2016). "Rule 501 of Federal Rules of Evidence provides that state law supplies the rule of decision of privilege in diversity cases." Frontier Refining, Inc. v. Gorman-Rupp Co., Inc., 136 F.3d 695, 699 (10th Cir. 1998).
"The attorney-client privilege applies to 'confidential matters communicated by or to the client in the course of obtaining counsel, advice, or direction with respect to the client's rights or obligations.'" People v. Madera, 112 P.3d 688, 690 (Colo. 2005) (citing People v. Lesslie, 24 P.3d 22, 26 (Colo. App. 2000)). The purpose of the attorney-client privilege is to secure the orderly administration of justice by insuring candid and open discussion by the client to the attorney without fear of disclosure. Losavio, 533 P.2d at 34. Wesp v. Everson, 33 P.3d 191, 197 (Colo. 2001). The attorney client privilege applies only to communications made "in circumstances giving rise to the reasonable expectation that the statements will be treated as confidential." Id. (internal citations omitted). See also D.A.S. v. People, 863 P.2d 291, 295 (Colo. 1993) ( ). Finally, the party asserting privilege bears the burden of establishing it. Wesp, 33 P.3d at 198.
As an initial matter, I reject Plaintiff's contention that Keller Law, by not responding to the subpoena, waived any objection it might have asserted, at least with respect to the issue before the court; that is, whether the documents sought are privileged. The client, in this case Defendant, is the holder of the attorney-client privilege. See State Farm Fire & Cas. Co. v. Griggs, 2018 CO 50, ¶ 16, 419 P.3d 572, 575. "Hence, the privilege may be waived only by the client." Losavio v. Dist. Court, 188 Colo. 127, 533 P.2d 32, 35 (1975). Defendant has standing to move to quash the subpoena served upon Keller Law. See Windsor v. Martindale, 175 F.R.D. 665, 668 (D. Colo. 1997) ( ). Accordingly, I will move on the merits of Defendant's motion.
"[T]here are few communications that are more confidential than those relating to the preparation, contents and execution of a will when made within the scope of the attorney-client relationship, not in the presence of a stranger and not made to the attorney with the intention that he communicate its contents to someone else." Will of Johnson, 488 N.Y.S.2d 355, 357 (N.Y. Sur. Ct. 1985). "The drafting of will, trust, and estate planning documents is an act undertaken by an attorney and client in confidence whereby the client discloses significant details regarding financial holdings and arrangements." Edwards v. Edwards, 2019-Ohio-5413, ¶ 14, 151 N.E.3d 6, 10. See also Krischbaum v. Dillon, 58 Ohio St. 3d 58, 62-63, 567 N.E.2d 1291, 1296 (1991) () ; In re Guardianship of York, 723 P.2d 448, 451 (Wash. App. 1986) ().
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