A. Factual and Procedural Background
The sequence of events of this dispute is somewhat complicated. In early 2007, Defendant Kathlyn Patton asked Anthony Sanders, a technology supervisor at defendant Coastal Bend College (CBC), to back up her files, including her e-mail. Sanders apparently made two DVD copies of Patton's e-mails, giving one to Patton and retaining the other. On April 30, 2007, Sanders, who is not a party in this case, filed two DVDs with the district court of Jim Wells County, Texas, seeking the appointment of a receiver.
CBC sought the return of the DVDs. While the application for a receiver was pending, the Jim Wells County district clerk made copies of the DVDs for members of the public, having determined that the material on the DVDs was public information and court records under Tex.R. Civ. P. 76(a). Plaintiffs in this case apparently received copies of some of the documents via members of the public, but did not request copies of the DVDs themselves. On June 20, 2007, CBC filed a motion to seal the records in Jim Wells County. In the summer of 2007, Judge Wellborn in the 36th District Court in Bee County ordered all DVDs and paper copies of the contested documents returned and put on file with the Jim Wells County district clerk
(D.E.38, Ex. A). On August 16, 2007, Judge Terrell of the 79th District Court in Jim Wells County ordered all contents of the DVDs and any hard copy sealed, and ordered plaintiffs' counsel to obtain the documents through discovery in anticipated litigation (D.E. 38, Ex. B; D.E. 41, Ex. 5). The order did not address the disposition of copies of the DVDs (D.E.41, Ex. 6).
*2 This case was filed in the United States District Court for the Southern District of Texas on December 3, 2007. The first motion relating to the documents at issue, Defendants' Motion for Protective Order, was filed on October 7, 2008 (D.E.38). In this motion, Defendants allege that Plaintiffs and their attorney have access to e-mails and other electronic files that were taken from Coastal Bend College (“CBC”) by a former employee, without authorization. Id.
Defendants allege that Plaintiffs have acknowledged that they continue to possess documents from the contested DVDs that were not provided by CBC in discovery. Defendants seek a protective order, arguing that the documents in question are protected by the attorney-client privilege or irrelevant to Plaintiffs' claims. Id.
In their response, Plaintiffs make three main arguments for the documents' admission and use—first, they argue that the documents were public information and properly available to the public (D.E.41). Second, they argue that Defendants waived any privilege argument by failing to assert it in a timely manner. Id.
Finally, Plaintiffs argue that the documents fall under the crime/fraud exception to the attorney-client privilege and are therefore admissible. Id.
On October 14, 2008, the District Court held a hearing on Defendants' motion for protective order relating to the contested documents. After the hearing, the Court ordered all exhibits filed from the contested DVD sealed (D.E.49). The Court additionally ordered the parties to confer about the admissibility of the sealed exhibits. If agreement could not be reached, Defendants were to file objections to specific exhibits which they wished to remain sealed. Defendants filed objections on October 31, 2008 (D.E.61). Plaintiffs responded on November 14, 2008 (D.E.67). At the hearing held before the undersigned on June 25, 2009, the parties indicated that they had reached agreement on most of the documents, leaving three groups of e-mails still contested, which were referred to in the hearing as Groups A, B, and C (Identified as Court Exhibits A, B, and C):
Group A: Documents bates-stamped JS 11–13; AR 92–93, 69, 81, 100, 95–96; MH 716; PH 52; JS 26; AR 4–6, 118, 7, 12–13, 27, 91, 74–75, 79–80, 97–99, 120; JS 27; MH 4–6, 707–09, 14; PH 20–21, 58–59; MH 7, 710, 8, 711, 9–12, 712–15, 13, 717; RICH 1832–34.
Group B: Documents bates-stamped RICH 1805–20; AR 23–25; RICH 1807 (included twice).
Group C: Documents bates-stamped AR 531–33, 539, 587–92, 594–96, 599–606, 614–618, 625–30, 635–36, 647–48, 657–59, 662–71, 674–76, 688, 696–699.
The parties have agreed that any objections to documents not contained in one of these three groups are waived. Therefore, it is ORDERED that the documents filed under seal as Docket Entries 41, 43–47, 51–57, and 64 be unsealed, except for those documents which are a part of Group A, B, or C.