United States District Court, D. Nebraska
M. Gerrard United States District Judge.
matter is before the Court on the plaintiffs' Statement
of Objections to Magistrate Judge's Order and Certificate
of Service (filing 76), objecting to the Magistrate
Judge's Memorandum and Order (filing 67)
granting the defendant's motion to disqualify
plaintiffs' counsel (filing 31). The Court will
overrule the objection.
district court may reconsider a magistrate judge's ruling
on nondispositive pretrial matters only where it has been
shown that the ruling is clearly erroneous or contrary to
law. See, 28 U.S.C. § 636(b)(1)(A);
Fed.R.Civ.P. 72(a); Ferguson v. United States, 484
F.3d 1068 (8th Cir. 2007). Having reviewed the record and
considered the plaintiffs' objections, the Court finds
that the Magistrate Judge's order was neither clearly
erroneous nor contrary to law.
Magistrate Judge's memorandum and order, the Magistrate
Judge found first found that the communications between
McWhorter and Bourne were covered by attorney-client
privilege. Filing 67. The Magistrate Judge initially
noted that a government entity may invoke attorney-client
privilege in a civil case. Filing 67 at 12; see
United States v. Jicarilla Apache Nation, 564 U.S. 162,
169 (2011). Next, the Magistrate Judge found, based on the
record, that McWhorter contacted Bourne on behalf of the
Antelope County Board to seek legal advice, and that doing so
was within the scope of McWhorter's duties as outgoing
county assessor. Filing 67 at 13-14; Diversified
Indus., Inc. v. Meredith, 572 F.2d 596, 609 (8th Cir.
the Magistrate Judge found that McWhorter's disclosure of
the information did not waive the privilege. Filing
67 at 14. First, she concluded that the
attorney-client privilege in this case belonged to the
County, not to McWhorter personally. Filing 67 at
14. Then she found, based on the record, that the County
never authorized McWhorter to waive privilege on its behalf,
particularly with respect to any communications that occurred
after McWhorter was no longer county assessor. Filing
67 at 14; see United States v.
Chen, 99 F.3d 1495, 1502 (9th Cir. 1996). Finally, the
Magistrate Judge concluded disqualification was the
appropriate remedy. Filing 67 at 17-18.
plaintiffs take issue with the Magistrate Judge's
findings that the communications at issue were privileged,
that the privilege was not waived, and that plaintiffs'
counsel intended to use the communications at trial even
after it was known that they were privileged. Filing
77 at 2-13. The Court concludes that those findings
were neither contrary to law nor clearly erroneous. In
reaching that conclusion, the Court has considered the
evidence presented to the Magistrate Judge initially, as well
as the evidence provided to the Magistrate Judge on the
plaintiffs' motion for reconsideration (filing
68) and to this Court through the plaintiffs'
motion for leave (filing 75) to submit evidence in
support of their objection. The Magistrate Judge has
explained that additional evidence was not material to her
conclusion, see filing 83, and the
Magistrate Judge's findings in her June 13, 2016 and July
25, 2016 orders are not clearly erroneous.
plaintiffs also take issue with the Magistrate Judge's
conclusion that disqualification was required. Filing
77 at 13-14. In determining that
disqualification-rather than the exclusion of testimony
relating to the attorney-client communications-was the
appropriate remedy, the Magistrate Judge considered several
factors. In particular, she considered whether counsel knew
or reasonably should have known that the communications were
privileged, whether the privileged communications were
purposefully elicited or inadvertently disclosed, whether
counsel took measures to avoid receiving privileged
information, whether counsel promptly advised opposing
counsel that privileged information had been received and
took steps to rectify the disclosure, and whether counsel
intended to use the privileged information during case
preparation, negotiations, or trial. Filing 67 at
Magistrate Judge observed that plaintiffs' counsel did
not, upon learning that she had received privileged
information, immediately take steps to limit the prejudicial
effect of that disclosure. Filing 67 at 18. Rather,
plaintiffs' counsel continued to express an intention to
use the privileged communications at trial. Filing
67 at 19; see Gifford v. Target Corp., 723
F.Supp.2d 1110, 1117 (D. Minn. 2010) ("Courts also take
into account a party's interest in a trial free from even
the risk that confidential information has been
unfairly used against it.") (quoting Arnold v.
Cargill Inc., 2004 WL 2203410, at *5 (D. Minn. Sept. 24,
2004)). Based on those factors, the Magistrate Judge
concluded that disqualification was the appropriate remedy.
Filing 67 at 19.
Court is aware that disqualification motions should be
subjected to particularly strict scrutiny, and that because a
party's right to select its own counsel is an important
public right and a vital freedom that should be preserved,
the extreme measure of disqualifying a party's counsel of
choice should be imposed only when absolutely necessary.
See, Harker v. Commissioner, 82 F.3d 806, 808 (8th
Cir. 1996); Banque Arabe Et Internationale
D'Investissement v. Ameritrust Corp., 690 F.Supp.
607, 613 (S.D. Ohio 1988). But the Magistrate Judge found
that the plaintiffs' proposed motion in limine barring
admission of the privileged evidence would not sufficiently
account for the fact that the privileged communications would
remain known to plaintiffs' counsel. That finding was
supported by the law and not clearly wrong.
fully reviewed the Magistrate Judge's memorandum and
order, the Court cannot conclude that it was clearly
erroneous or contrary to law. Accordingly, the
plaintiffs' objection will be overruled.
plaintiffs' motion for leave (filing 75) is
plaintiffs' Statement of Objections to Magistrate