United States District Court, D. Nebraska
UNITED STATES OF AMERICA FOR THE USE OF DONALD B. MURPHY CONTRACTORS, a Washington corporation; Plaintiff,
TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, a Connecticut corporation Bond No. 041-SB-105826131; TRAVELERS INDEMNITY COMPANY, a Connecticut corporation Bond No. 041-SB-105826131; KIEWITPHELPS, a joint venture; and DRAKE-WILLIAMS STEEL, INC., Defendants.
M. Bazis, United States Magistrate Judge
matter is before the Court on KiewitPhelps'
(“KP”) Motion to Compel Production of Documents.
(Filing No. 183.) For the reasons set forth below,
the motion will be granted, in part.
discovery dispute centers around the production of documents
involving Plaintiff Donald B. Murphy Contractors'
(“DBM”) in-house attorney, Steven Stylos
(“Stylos”). KP contends that Stylos was acting in
his capacity as DBM's “risk manager, ” and
not corporate counsel, during the construction project at
issue in this litigation. Therefore, according to KP,
Stylos' communications are not shielded from disclosure
by the attorney-client privilege. Alternatively, KP argues
that DMB has waived the attorney-client privilege and
work-product protection by designating Stylos as an expert
witness who will testify “to the basis for, explanation
of, and his preparation of DBM's Request for Equitable
Adjustment (“REA”) as claimed by DBM in this
case.” (Filing No. 185-7.)
attorney-client privilege shields from disclosure
confidential communications made for the purpose of
facilitating the rendition of legal services. Neb. Rev.
Stat. § 27-503. The work product doctrine, which is
broader than the attorney-client privilege, shields from
disclosure documents prepared in anticipation of litigation
by or for another party or its representative, including the
other party's attorneys, consultants, insurers and
agents. Fed. R. Civ. P. 26. The test for determining
whether a document was prepared in anticipation of litigation
is whether, “in light of the nature of the document and
the factual situation in the particular case, the document
can fairly be said to have been prepared or obtained because
of the prospect of litigation.” Simon v. G.D.
Searle & Company, 816 F.2d 397, 401 (8th
Cir. 1987) (quotation omitted).
attorney-client privilege only applies to confidential
communications made to facilitate legal services, and does
not apply where a lawyer acts as a business advisor.
United States v. Horvath, 731 F.2d 557, 561 (8th
Cir. 1984). “Where business and legal advice are
intertwined, the legal advice must predominate for the
communication to be protected.” Neuder v. Battelle
Pacific Northwest National Laboratory, 194 F.R.D. 289,
292 (D.D.C. 2000). “[C]ommunications by a corporation
with its attorney, who at the time is acting solely in his
capacity as a business advisor, would not be
privileged.” Id. (quotation omitted).
“The party seeking to assert the privilege must show
that the particular communication was part of a request for
advice or part of the advice, and that the communication was
intended to be and was kept confidential.” Marten
v. Yellow Freight System, Inc., No. CIV. A. 96-2013-GTV,
1998 WL 13244, *7 (D. Kan. Jan. 6, 1998) (quotation omitted).
Court previously ordered DBM to submit the documents at issue
to the Court for in camera review. The Court has
carefully reviewed the documents and concludes that they are,
in most instances, attorney-client privileged communications.
Generally speaking, the documents deal with legal issues that
arose during the construction project. The documents reveal
that Stylos was acting in his capacity as DBM's
attorney-not risk manager-at the time of the communications,
and was included in the correspondence for the purpose of
securing and facilitating legal advice.
the email communications in which Stylos was only copied
pertain to legal advice and, under the circumstances here,
remain privileged. See Hepburn v. Workplace Benefits,
LLC, No. 5:13-cv-441, 2014 WL 12623294, *4 (E.D. N.C.
2014) (“[T]he fact that a corporate attorney is copied
on an email, rather than appearing as a direct recipient, is
not fatal to a claim of privilege . . . The ultimate question
is not how the email is addressed but whether the substance
of the communication involves receiving or acting upon legal
advice, or otherwise providing information necessary to
securing legal advice”) (internal citation omitted);
Simon v. G.D. Searle & Co., 816 F.2d 397, 404
(8th Cir. 1987) (“Client communications
intended to keep the attorney apprised of business matters
may be privileged if they embody an implied request for legal
advice based thereon”) (internal quotation omitted).
Therefore, the Court concludes that the documents are, in
fact, privileged communications.
the question now becomes whether DBM waived the
attorney-client privilege and work product protection as to
the documents by designating Stylos as an expert witness. KP
contends that, by naming Stylos as an expert, DBM waived
privilege as to documents identified on the privilege log as
concerning (1) schedule delay analysis, (2) look ahead
schedules, (3) scheduling and tieback installation
productivity, (4) ramp issues, (5) dewatering, (6) weather
impacts, (7) mass excavation plan, (8) tieback water supply,
(9) projected costs and (10) light plant rental. The Court
finds that DBM must produce some of these documents.
is well established that a party waives the attorney-client
and work product privileges whenever it puts an
attorney's opinion into issue, by calling the attorney as
an expert witness or otherwise.” The Herrick
Company, Inc. v. Vetta Sports, Inc., No. 94 CIV. 0905,
1998 WL 637468, *1 (S.D. N.Y. Sept. 17, 1998). The waiver is
generally limited to information within the scope of the
attorney's expert opinion. See Forever Green Athletic
Fields, Inc. v. Babcock Law Firm, LLC, No. CIV.A.
11-633-JJB, 2014 WL 29451, *11 (M.D. La. Jan. 3, 2014)
(“[B]y indicating their intent to offer [their
attorney's] testimony to prove their alleged desire to
avoid personal liability, Plaintiffs have waived the attorney
client privilege as to any communications on that subject
plans to testify regarding “the basis for, explanation
of, and his preparation of” DBM's REA. (Filing No.
185-7.) The REA provides a comprehensive overview of the
construction project and discusses DBM's work schedule
and work delays allegedly caused by certain events,
including, but not limited to, anchor installation, ramp
problems, defective dewatering efforts, weather shutdowns,
poor access conditions, slow rate of excavation ...