United States District Court, N.D. Iowa, Western Division
ORDER REGARDING MOTIONS TO QUASH DISCOVERY AND FOR A
Williams, Chief United States Magistrate Judge
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.
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.
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.
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.
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).
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).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).
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).
STANDARD OF REVIEW
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
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,  the elements of the attorney-client
privilege are: (1) a confidential ...