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Wendt v. City of Denison

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

March 29, 2018

BRADLEY WENDT, Plaintiff,
v.
CITY OF DENISON, IOWA, Defendant. RAY OHL, Plaintiff,
v.
CITY OF DENISON, IOWA, Defendant.

          ORDER REGARDING MOTIONS TO QUASH DISCOVERY AND FOR A PROTECTIVE ORDER

          C.J. Williams, Chief United States Magistrate Judge

         I. INTRODUCTION

         This matter is before the Court pursuant to a Motion to Quash/Objection to Subpoenas filed by third party Derrick Franck (Franck) (Doc. 68) and defendant City of Denison's (City), Motion for a Protective Order (Doc. 70).[1] Both motions seek to bar plaintiffs from deposing Franck, who served as an attorney for the City. Plaintiffs resist the motions, arguing that the City has explicitly and implicitly waived the attorney-client privilege. For the reasons that follow, the Court grants both motions.

         II. BACKGROUND

         Plaintiffs were both police officers employed by the City. The City terminated the employment of both plaintiffs. Each has claimed wrongful termination. Specifically, plaintiff Bradley Wendt's petition alleges retaliation for Whistleblowing Violation of Iowa Code § 70A.29 (Count I), and retaliatory discharge violating his First Amendment rights, brought pursuant to Title 42, United States Code, Section 1983 (Count II). Plaintiff Ray Ohl's petition raised the same first two claims (Counts I and II) and added an abuse of process claim (Count III). Both officers claim the City fired them after each officer reported or were believed to have reported that former Chief Emswiler allegedly committed an illegal search and allegedly engaged in other misconduct. The City alleges that it fired both plaintiffs for cause and unrelated to the issues surrounding former Chief Emswiler. The City removed both cases to federal court, based on federal question jurisdiction. Although the City has alleged that it consulted the City Attorney for legal advice prior to firing the officers, the City has not defended itself based on having acted on the advice of counsel.

         Ohl was a police officer for the City from September 4, 2013, until his discharge on February 5, 2016. Wendt was a police officer for the City from December 28, 2008, until his discharge on February 14, 2017. Brad Bonner was the City's Mayor from January 2014 until December 2015, and continued to serve on the City Council after his term as Mayor ended. Dan Leinen succeeded Bonner as Mayor effective January 1, 2016. John Emswiler served as Chief of Police from April 2015 until he resigned on June 23, 2016. He was replaced by Dan Schaffer. At all times relevant to this litigation, Derrick Franck served as City Attorney for the City.

         During discovery in this case, plaintiffs deposed Mayor Dan Leinen. Mayor Leinen indicated that in making the employment decisions regarding plaintiffs, he obtained and relied upon advice from City Attorney Franck. (Doc. 70-3, at 14-15). Regarding the decision whether Wendt “was going to come back [from leave] after the charges were dropped, ” Mayor Leinen testified that he

didn't make that decision. That decision was made by an attorney saying anything-as far as his coming back, any change in the status of his work needed to go through an attorney. I did not make that decision. That decision, as far as I was concerned, was made for me [by the City Attorney].

(Doc. 70-3, at 23). Mayor Leinen testified that he relied upon instructions from the City Attorney about what decision-making authority he had, but that it was ultimately his decision to make, based on the recommendation of the Chief of Police and the advice of the City Attorney. (Id., at 14, 22, 23; 70-4, at 2). Mayor Leinen similarly testified at the preliminary injunction hearing in this case that he obtained the advice of the City Attorney in making employment decisions concerning plaintiffs. (Doc. 52-1, at 12, 17, 28).

         Former Chief Emswiler testified in a deposition that the City Attorney assisted him “with figuring out details or the justification for firing” Ohl. (Doc. 73-1, at 6).[2]Plaintiffs also deposed Chief Schaffer, who testified that he “presumed” the mayor and City Attorney were involved in the decision to keep Wendt on unpaid leave and that the decision-making authority regarding plaintiffs' employment rested in the Mayor's hands. (Doc. 71, at 8). At the preliminary injunction hearing held in this case, Chief Schaffer testified that he understood that he may be part of the conversation regarding employment decisions, but that “the decision would have to come through the mayor and the city attorney.” (Doc. 52-1, at 34). Because there was pending litigation, Chief Schaffer testified that he “was advised that any issues regarding Mr. Wendt's employment status should be vetted through counsel for the City . . ..” (Id.). Chief Schaffer further testified that when he became aware of a potential violation of department policy by Wendt, the City Attorney instructed him not to “do anything further” pending the outcome of charges against Wendt. (Id., at 44). Former Mayor Brad Bonner testified at the preliminary injunction hearing that he was not involved in the decision to fire Wendt because City Attorney Franck told him that he did not have the authority to do so as mayor pro tem. (Id., at 186).

         Asserting that the City waived the attorney-client privilege, plaintiffs served City Attorney Franck and his law firm with subpoenas, seeking to depose Franck and obtain documents reflecting, inter alia, “[a]ll communications with any employee or agent of the City of Denison regarding or related to Ray Ohl or Bradley Wendt before November 7, 2016 . . ..” (Doc. 70, at 3-8).

         III. STANDARD OF REVIEW

         “Generally, a party may obtain discovery regarding any nonprivileged matter that is relevant to any claim or defense.” Wells v. Lamplight Farms Inc., 298 F.R.D. 428, 433 (N.D. Iowa 2014). The party who claims the benefit of the attorney-client privilege has the burden of establishing the right to invoke its protection. Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 609 (8th Cir. 1978) (en banc).

         “‘The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.'” United States v. Yielding, 657 F.3d 688, 706-07 (8th Cir. 2011) (quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)). The attorney-client privilege protects confidential communications between a client and the attorney made for the purpose of facilitating the rendition of legal services to the client. Id. at 707. When a client communicates with an attorney, it is “prima facie committed for the sake of legal advice and [is], therefore, within the privilege absent a clear showing to the contrary.” Diversified, 572 F.2d at 610. “Generally, it is well established under common law that confidential communications between an attorney and a client are privileged and not subject to disclosure absent consent of the client.” United States v. Horvath, 731 F.2d 557, 562 (8th Cir. 1984). “Under federal common law, [3] the elements of the attorney-client privilege are: (1) a confidential ...


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