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Melissa Brinckerhoff v. Town of Paradise

July 15, 2011

MELISSA BRINCKERHOFF, PLAINTIFF,
v.
TOWN OF PARADISE, DEFENDANT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Previously pending on this court's law and motion calendar for July 14, 2011, was plaintiff's motion to compel further discovery, and for sanctions. Alden Knisbacher appeared for plaintiff. Douglas Thorn appeared telephonically for defendant, and Mark Habib appeared telephonically for witness Haunschild. Having heard oral argument and reviewed the papers, the court now issues the following order.

This motion concerns several discovery matters; however, the only matter which will be discussed at length herein, albeit expeditiously given the discovery cutoff in this matter, is the assertion of attorney-client privilege in regard to the management meeting at which the decision to terminate plaintiff was made. Due to the exigencies involved in completing discovery prior to the July 21, 2011 cutoff, the court will issue only a summary order in all other respects.

DISCUSSION

I. Chief Haunschild's Deposition

Defense counsel and retained counsel for this witness unnecessarily obstructed and over protectively coached this witness as described at hearing. Plaintiff will be permitted one more day to depose this witness. The further deposition is scheduled for Monday, July 18, 2011, at 10:00 a.m. in Paradise. The deposition will last a maximum of seven hours.

As discussed infra in regard to the management meeting in which the decision was made to terminate plaintiff, further deposition will be permitted concerning this meeting as the attorney-client privilege is found to have been waived for that meeting only.

In regard to questioning regarding the Captain Drake disciplinary and performance records (Issue 6), plaintiff's request for further documents on this subject is denied; however, plaintiff may depose the witness on this subject at the now scheduled further deposition. The parties shall utilize the present protective order, as appropriate, with respect to deposition questions on confidential matters.

II. Alleged Spoliation of December 19, 2008 Evaluation

The court finds that plaintiff, at this time, has failed to show misconduct/bad faith in support of this claim. The declaration submitted by defendant in support of search efforts made to locate this document is sufficient. Plaintiff's motion is denied without prejudice in this regard.

III. Communications at Town Management Meeting

Plaintiff seeks an order permitting counsel to question, inter alia, witnesses Haunschild and Rough about the meeting wherein the Town decided to terminate plaintiff's employment.

Plaintiff argues that defendant has improperly invoked the attorney-client privilege at these depositions, or at least did so prematurely, and defense counsel improperly instructed witnesses not to answer on the basis of attorney-client privilege. Plaintiff argues that the entire meeting cannot be cloaked in secrecy by the mere presence of an attorney at a meeting. The following standards guide the court's decision.

The party asserting the attorney-client privilege has the burden of establishing the relationship and privileged nature of the communication. United States v. Bauer, 132 F.3d 504, 507 (9th Cir.1997). The attorney-client privilege exists where: "(1) [ ] 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 ...


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