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Pick v. City of Remsen

United States District Court, N.D. Iowa, Western Division

September 15, 2014

STEVE PICK, Plaintiff,


MARK W. BENNETT, District Judge.

This case is before me on plaintiff Steve Pick's objections to United States Magistrate Judge Leonard Strand's order directing the destruction of an inadvertently-produced privileged document, an email from defense counsel to some of the defendants.


On April 19, 2013, plaintiff Steve Pick filed this case in the Iowa District Court for Plymouth County. In his state court petition, naming six defendants, Pick asserted the following seven 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.

Defendants removed this action to this court, invoking federal question jurisdiction with regard to the constitutional claims and supplemental jurisdiction over the remaining, state law claims. Following removal, Pick amended his complaint numerous times, adding federal disability and age discrimination claims as well as a gender discrimination claim under the federal and Iowa civil rights acts.

Pick subsequently served a request for production of documents on defendants requesting, inter alia, 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." Plaintiff's First Request For Production of Documents at 1. Defense counsel responded by producing responsive documents. Among the documents produced was an email, dated July 14, 2012, from defense counsel to Remsen Utility Board members and others discussing an upcoming Utility Board meeting ("the email"). Defense counsel only learned of the email's inadvertent disclosure on March 25, 2014, when Pick served supplemental discovery responses on defense counsel. Defense counsel contacted Pick's counsel within the hour, indicating that the email had been inadvertently produced and was protected by attorney-client privilege. Defense counsel asked that the email be destroyed. Pick's counsel suggested the email could be redacted to protect "advice relating to procedure, " but indicated he intended to rely on the remainder of the email unless ordered otherwise by the court. Defendants' rejected Pick's counsel's suggestion and filed a motion requesting that the court order the email's destruction as an inadvertently produced privileged document. Pick resisted defendants' motion. Following a hearing, Judge Strand granted defendants' motion. Judge Strand, applying a "middle of the road" standard for determining whether the inadvertent production of the email resulted in the waiver of attorney client privilege, see In Engineered Products Co. v. Donaldson Co ., 313 F.Supp.2d 951 (N.D. Iowa 2004), concluded that the email's attorney-client privilege had not been waived by its inadvertent disclosure and ordered Pick to destroy all copies of the email. Pick appeals Judge Strand's order, objecting to Judge Strand's analysis on multiple grounds. Defendants have filed a timely response to Pick's appeal, contesting his objections.


A. Standard Of Review

A district judge's review of a magistrate judge's order on a nondispositive matter is governed by Federal Rule of Criminal Procedure 59(a), which states:

A district judge may refer to a magistrate judge for determination any matter that does not dispose of a charge or defense. The magistrate judge must promptly conduct the required proceedings and, when appropriate, enter on the record an oral or written order stating the determination. A party may serve and file objections to the order within 14 days after being served with a copy of a written order or after the oral order is stated on the record, or at some other time the court sets. The district judge must consider timely objections and modify or set aside any part of the order that is contrary to law or clearly erroneous. Failure to object in accordance with this rule waives a party's right to review.

FED R. CRIM. P. 59(a); see also 28 U.S.C. § 636(b)(1)(A). A motion related to pretrial discovery is a nondispositive matter. See Franke v. AR UP Labs., Inc ., 390 Fed.App'x 822, 828 (10th Cir. 2010); Hall v. Norfold S. Ry. Co ., 469 F.3d 590 (7th Cir. 2006); Thomas E. Hoar, Inc. v. Sara Lee Corp ., 900 F.2d 522, 525 (2d Cir. 1990); see also Thai Lao Lignite (Thailand) Co., Ltd. v. Government of Lao People's Democratic Republic , 924 F.Supp.2d 508, 511 (S.D.N.Y.2013) ("A magistrate judge's ruling on a nondispositive matter, including a discovery dispute, may be set aside only if the district court determines the ruling to be clearly erroneous or contrary to law.") (internal quotations omitted)). Thus, I will reverse Judge Strand's order only if that ruling is "clearly erroneous or contrary to law." FED. R. CRIM. P. 59(a).

Although the Eighth Circuit Court of Appeals has not addressed the standard of review under Rule 59(a), it has observed, in another context, that "clear error" is a "deferential standard of review" that allows the reviewing court to reverse "only... when the entire record definitely and firmly illustrates that the lower court made a mistake." United States v. Marshall , 411 F.3d 891, 894 (8th Cir. 2005) (citing United States v. Quintana , 340 F.3d 700, 702 (8th Cir. 2003), and United States v. Causor-Serrato , 234 F.3d 384, 389 (8th Cir. 2000)). Other Circuit Courts of Appeals have provided comparable formulations of the "clearly erroneous" standard in the Rule 72(a) context. See, e.g., Allen v. Sybase, Inc ., 468 F.3d 642, 658 (10th Cir. 2006) ("In reexamining this question [upon objections to a magistrate judge's ruling on a non-dispositive matter], the district court was required to defer to the magistrate judge's ruling unless it [was] clearly erroneous or contrary to law.'" Hutchinson v. Pfeil , 105 F.3d 562, 566 (10th Cir. 1997) (citing 28 U.S.C. § 636(b)(1)(A); FED. R. CIV. P. 72(a); Grimes v. City & Cnty. of San Francisco , 951 F.2d 236, 240 (9th Cir. 1991)). Under the clearly erroneous standard, the reviewing court [must] affirm unless it "on the entire evidence is left with the definite and firm conviction that a mistake has been committed."' Ocelot Oil Corp. v. Sparrow Indus ., 847 F.2d 1458, 1464 (10th Cir. 1988) (quoting United States v. U.S. Gypsum Co ., 333 U.S. 364, 395 (1948))."); Phinney v. Wentworth Douglas Hosp ., 199 F.3d 1, 4 (1st Cir. 1999) ("Like the district court, we review these factual findings under the clearly erroneous' rubric. See 28 U.S.C. § 636(b)(1)(A); FED. R. CIV. P. 72(a). This means that we must accept both the trier's findings of fact and the conclusions drawn therefrom unless, after scrutinizing the entire record, we form a strong, unyielding belief that a mistake has been made.' Cumpiano v. Banco Santander P.R. , 902 F.2d 148, 152 (1st Cir. 1990)."); Weeks v. Samsung Heavy Indus. Co., Ltd ., 126 F.3d 926, 943 (7th Cir. 1997) ("The clear error standard [under Rule 72(a)] means that the district court can overturn the magistrate judge's ruling only if the district court is left with the definite and firm conviction that a mistake has been made.").

The Eighth Circuit Court of Appeals also has not opined on the meaning of the "contrary to law" prong of review under Rule 59(a). One federal district court has explained, however, that "[a]n order may be deemed contrary to law [within the meaning of Rule 72(a)] when it fails to apply or misapplies relevant statutes, case law or rules of procedure.'" Catskill Dev., L.L.C. v. Park Place Entm't Corp ., 206 F.R.D. 78, 86 (S.D.N.Y. 2002) (quoting Tompkins v. R.J. ...

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