United States District Court, Northern District of Iowa, Western Division
LEONARD T. STRAND, UNITED STATES MAGISTRATE JUDGE
This case is before me on defendants’ motion (Doc. No. 37) for order directing destruction of an inadvertently-produced privileged document. Plaintiff has filed a resistance (Doc. No. 42). I heard oral arguments by telephone on April 22, 2014. Attorneys Michael Jacobsma and Judy Freking appeared on behalf of plaintiff while attorney Douglas Phillips appeared on behalf of defendants. The matter is fully submitted.
Plaintiff Steve Pick filed this case in the Iowa District Court for Plymouth County on or about April 19, 2013. His state court petition named six defendants: City of Remsen (City), Paige List, Rachael Keffler, Jeff Cluck, Craig Bartolozzi and Kevin Rollins. Pick asserted the following claims: (1) libel/slander, (2) violations of constitutional rights (brought pursuant to 42 U.S.C. § 1983), (3) intentional infliction of emotional distress, (4) wrongful termination (violation of employee manual), (5) wrongful termination (disability), brought pursuant to the Iowa Civil Rights Act, (6) wrongful termination (age), also brought pursuant to the Iowa Civil Rights Act and (7) retaliation. Doc. No. 2-2 at 3-16.
The defendants removed this action to this court on May 9, 2013, invoking federal question jurisdiction with regard to the constitutional claims and supplemental jurisdiction over the remaining, state law claims. Doc. No. 2. Defendants then filed an answer to the state court petition. Doc. No. 4. Following removal, plaintiff amended his complaint numerous times. He added federal disability and age discrimination claims as well as a gender discrimination claim under the federal and Iowa civil rights acts. Doc. No. 32 at 12-13. In their answer to Pick’s fourth amended complaint, defendants deny Pick’s allegation that he was discharged from employment and assert that the City’s Utility Board decided to eliminate Pick’s position, Operations Director, based on legitimate, non-discriminatory business purposes. Doc. No. 33 at 2, 8.
Pick served his first request for production of documents directed to the City on August 9, 2013. Pl.’s Ex. 1; Doc. No. 42-2. Among his requests were Utility Board minutes from October 2011 to the present and “all relevant non-privileged emails initiated by or received by the City of Remsen in regard to the Plaintiff and/or any of the issues set forth in Plaintiff’s complaint.” Id. Defense counsel produced responsive documents in electronic form on January 22, 2014. Pl.’s Ex. 2; Doc. No. 42-3.
On March 25, 2014, Pick served supplemental discovery responses, which indicated he intended to offer at trial an email communication dated July 14, 2012, from Doug Phillips to Utility Board members and others discussing the upcoming Utility Board meeting (the “Communication”). Doc. No. 37-3. Mr. Phillips responded within the hour, stating that the Communication had been inadvertently produced and was protected by attorney-client privilege. Doc. No. 37-4. He asked that any paper and digital copies of the Communication be destroyed. Id. Pick’s counsel suggested the Communication could be redacted to protect “advice relating to procedure, ” but indicated he intended to rely on the remainder of the Communication absent an order from the court. Doc. No. 37-5. He agreed to sequester the Communication until the issue is resolved. The Communication has been filed under seal as Defendants’ Exhibit A. Doc. No. 38.
As noted above, this court’s subject matter jurisdiction arises from the fact that Pick asserts claims under federal law, along with state law claims over which the court has supplemental jurisdiction. Because this is a federal question case, federal law governs all issues of privilege, including the alleged waiver thereof. See Fed. R. Evid. 501; accord Hansen v. Allen Memorial Hosp., 141 F.R.D. 115, 121 (S.D. Iowa 1992) (citing cases). Here, there is no dispute that the Communication was protected by the attorney-client privilege. However, Pick contends that the privilege was waived when the defendants produced the Communication to his counsel in the course of discovery.
Typically, the attorney-client privilege is waived “by the voluntary disclosure of privileged communications.” PaineWebber Group, Inc. v. Zinsmeyer Trusts Partnership, 187 F.3d 988, 992 (8th Cir. 1999), cert. denied, 529 U.S. 1020 (2000). However, Federal Rule of Evidence 502(b) provides:
(b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule ...