This case originally comes before the Court on three related cases wherein each Plaintiff claims they were wrongfully terminated. In the instant Motion, Plaintiffs seek to compel the deposition of Defendant's Town Attorney Dana Lent (“Lent”). Plaintiffs claim that during the deposition of Defendants Rule 30(b)(6) representative, Kate Farmer (“Farmer”), testified that Lent advised her to retain any emails that would justify termination, and to then delete the accounts. Plaintiffs first argue, assuming the communications between Farmer and Lent were protected by the attorney-client privilege, that Defendant's disclosure of the advice to retain certain emails and then delete the accounts waived the privilege. Plaintiffs go on to claim employee emails are records kept by the employer and deleting them violated 29 C.F.R.§ 1602.14.

Defendant opposes Plaintiffs' Motion and requests it be denied. Defendant argues the communications between Farmer and Lent are protected legal advice wherein the Town representative was notifying the Town Attorney of employment issues and seeking legal advice on how to proceed. Defendant asserts 29 CFR § 1602.14 is not applicable to the email accounts at issue here. Defendant argues the statute does not require the preservation of all documents, but only of employment records. Defendant goes on to argue that even if the statue was applicable to email, that Plaintiffs have already received all relevant emails from the Town's administration and from the Town employees. Lastly, Defendant argues the requested sanction of piercing the attorney-client privilege is not proper given Defendant acted in good faith when deleting the email accounts.

Under Rule 26 of the Federal Rules of Civil Procedure, parties to a lawsuit “may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). After the 2015 amendments to Rule 26 the scope of discovery is no longer defined by any information that is “reasonably calculated to lead to admissible evidence.” Brandt v. Von Honnecke, No. 15-CV-02785-RM-NYW, 2018 WL 510277, at *3 (D. Col. Jan 3, 2018). The applicable test now consists of two parts: whether the discovery sought is relevant to any party's claim or defense, and whether the requested discovery is proportional to the needs of the case. Id.; Fed. R. Civ. P. 26(b)(1). Relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Brandt, 2018 WL 510277 at * 3; Fed. R. Evid. 401. Further, the burden of “addressing all proportionality considerations” is not on the party seeking discovery, rather, the burden to prove disproportionality remains with the party resisting discovery. See Fed. R. Civ. P. 26 (advisory committee notes to the 2015 amendments); Nat'l R.R. Passenger Corp. et al v. Cimarron Crossing Feeders, et al, 16-cv-1094-JTM-TJJ, 2017 WL 4770702, at *4 (D. Kan. Oct. 19, 2017) (discussing the change from the 2015 amendments was to restore “proportionality to the definition of the scope of discovery.”).

*2 The district court has broad discretion over the control of discovery. Cummings v. Gen. Motors Corp., 365 F.3d 944, 952 (10th Cir. 2004). “The purpose of this rule is to allow broad discovery of relevant information, even if that information is not admissible at trial.” Hedquist v. Patterson, 215 F. Supp. 3D 1237, 1243 (D. Wyo. 2016). Broad discovery is not unlimited however, and a court has considerable discretion to balance the rights of both the plaintiff and defendant. Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1520 (10th Cir. 1995); Fed. R. Civ. P. 37(a). “[A] party's right to obtain discovery of ‘any matter, not privileged, that is relevant to the claim or defense of a party,’... may be constrained where the court determines that the desired discovery is unreasonable or unduly burdensome given the needs of the case, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.” Simpson v. Univ. of Colo., 220 F.R.D. 354, 356 (D. Colo. 2004) (internal citations omitted).

If a party fails to provide documents through proper discovery, a non-responsive party may move to compel production under Rule 37. See Lane v. Page, 727 F. Supp. 2d 1214, 1236 n.15 (D.N.M. 2010); Fed. R. Civ. P. 37. Rule 37(a)(3)(B) provides: “[a] party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if ... (iii) a party fails to answer an interrogatory submitted under Rule 33; or (iv) a party fails to produce documents ... as requested under Rule 34.” Fed. R. Civ. P. 37(a)(3)(B). In short, Rule 37(a) provides an enforcement mechanism for Rule 33 and 34 and allows a party to move a court to compel a response in situations where the opposing party has failed to respond to an interrogatory or request for production. Landry v. Swire Oilfield Servs., L.L.C., 323 F.R.D. 360, 383 (D.N.M. 2018). Evasive or incomplete responses, answers, or disclosures are to be treated as a failure to respond, answer, or disclose. Id. Rule 37 vests broad discretion with the trial court. Woodworker's Supply, Inc. v. Principal Mutual Life Insurance Co., 170 F.3d 985, 993 (10th Cir. 1999).

The purpose of discovery is to “remove surprise from trial preparation so the parties can obtain evidence necessary to evaluate and resolve their dispute.” U.S. ex rel. Schwartz v. TRW, Inc., 211 F.R.D. 388, 392 (C.D. Cal. 2002). A trial court has broad discretion with respect to discovery and a reviewing court will not set aside a trial court's decision unless it abused its discretion. Shaklee Corp. v. Gunnel, 748 F.2d 548, 550 (10th Cir. 1984).

These consolidated actions are before the Court on both state law and federal claims. Based on Wyoming Statutes Annotated § 1-12-101(a)(i), the essential elements of the attorneyclient privilege are: (1) there is a communication; (2) between a client and an attorney; and (3) the communication is made in that attorney-client relation. Under the federal law of privilege, numerous district courts throughout the Tenth Circuit, including this Court[1], have stated the elements of the attorney-client privilege as follows: (1) where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his insistence permanently protected (7) from disclosure by himself or by the legal advisor, (8) except if the protection be waived. See, e.g., Roe v. Catholic Health Initiative Colo., 281 F.R.D. 632, 636 (D. Colo. 2012); New Jersey v. Sprint Corp., 258 F.R.D. 421, 425 (D. Kan. 2009). This Court has also utilized the test applied by the Restatement (Third) of the Law Governing Lawyers.[2] In order to establish the attorney-client privilege under this test, the party claiming the privilege must prove there was: (1) a communication; (2) between privileged persons; (3) made in confidence; and; (4) for the purpose of seeking, obtaining, or providing legal assistance. See generally In re Kellogg Brown & Root, Inc., 756 F.3d 754, 757 (D.C. Cir. 2014); In re Teleglobe Commc'ns Corp., 493 F.3d 345, 359 (3d Cir. 2007); United States v. Lopez, 777 F.2d 543, 552 (10th Cir. 1985); Restatement (Third) of the Law Governing Lawyers § 68 (2000); Edna Selan Epstein, The Attorney-Client Privilege and the Work-Product Doctrine 35 (3d ed. 1997).

*3 Because there is no real conflict between the federal and state law, the Court will analyze the attorney-client privilege issue under federal law. Privileged persons include attorneys, clients, and “any of their agents that help facilitate attorney-client communications or legal representation.” In re Teleglobe Commc'ns Corp., 493 F.3d at 345. The attorney-client privilege extends to individuals, corporations, and governmental entities and is meant to “encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” United States v. Jicarilla Apache Nation, 564 U.S. 162, 169-70 (2011); In re Qwest Commc'ns Int'l, Inc., 450 F.3d 1179, 1185 (10th Cir. 2006) (quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)); Ross v. City of Memphis, 423 F.3d 596, 601 (6th Cir. 2005). The party claiming privilege has the burden of proving all of its essential elements, and to establish the facts supporting the privilege. Frontier Ref., Inc. v. Gorman-Rupp Co., 136 F.3d 695, 700 (10th Cir. 1998); Rabushka v. Crane Co., 122 F.3d 559, 565 (8th Cir. 1997); Ali v. Douglas Cable Commc'ns, Ltd. P'ship, 890 F.Supp. 993, 994 (D.Kan.1995).

Defendant has shown the communication between Farmer and Lent is protected by the attorney-client privilege. First, there is no dispute Farmer reached out to Lent in her capacity as the Town Attorney to inform her of employment changes within the Town and to seek advice how to proceed. Second, the communication was between privileged persons. The attorney-client privilege applies to governmental entities such as the Town of Guernsey. Jicarilla Apache Nation, 564 U.S. at 169-70; Ross, 423 F.3d at 601. Farmer reached out to Lent in her official capacity as a representative of the Town of Guernsey to inform the Town Attorney of employment changes and to seek advice on how to proceed. Third, the communication was made in confidence as no other individuals or entities were present. Lastly, the communication was made for the purpose of seeking legal assistance on how to proceed after the Town had let employees go.

Plaintiffs argue even if the communication is protected that any claim to privilege has been waived by Farmer's deposition testimony addressing her communication with Lent. Waivers of the attorney-client privilege are to be narrowly construed in order to protect and foster an open discussion between a party and counsel. Milavetz, Gallop & Milavetz, P.A. v. U.S., 130 S.Ct. 1324, at n. 5 (2010). Courts within this circuit, including courts within this district, have adopted the waiver test applied in Hearn v. Ray, 68 F.R.D. 574 (E.D. Wash. 1975). See Frontier Ref., Inc. v. Gorman-Rupp Co., 136 F.3d 695, 701 (10th Cir. 1998); Williams v. Solvay Chemicals, Inc., No. 09-CV-037-J, 2009 WL 10695153, at *2 (D. Wyo. Aug. 21, 2009). Each of the following conditions must exist before finding a party waived the attorney-client privilege:

Frontier Ref., Inc., 136 F.3d at 701 (quoting Hearn, 68 F.R.D. at 581 (emphasis added)). Here, the first two conditions are present as Defendant's assertion of the privilege is based on its affirmative act in response to Plaintiffs' request to depose the Town Attorney. While the communications between Farmer and Lent are at least plausibly relevant, relevance is not the standard, the communicated information must also be vital. Id. These communications are between an attorney and a client by way of the Town's agent and are relevant to the claims and defenses in the related cases. However, the communications are not integral to the claim or defense itself. Legal advice obtained may be relevant, “[b]ut the issue here is not relevance, it is waiver.” Heglet v. City of Hays, Kan., No. 13-2228-KHV/KGG, 2014 WL 1094458, at *4 (D. Kan. Mar. 19, 2014) (citing Williams, 464 F.Supp.2d at 1105). Plaintiffs make no specific argument that the deleted email accounts contained information vital to its case. Rather, Plaintiffs make a general assertion that the emails would be helpful to Plaintiffs. It is unclear what new information Plaintiffs intend to obtain by deposing Lent. Plaintiffs have already deposed Farmer and asked a series of questions concerning the deletion of each of the Plaintiffs work email accounts. Farmer testified that she contacted Lent to inform her of changes to Town employees and seek legal advice how to proceed. Farmer further testified that Lent advised her to proceed with deleting each of the Plaintiff's email accounts and the accounts were deleted. Why Farmer acted as she did in deleting the emails offers little, if any, insight into the claims and defenses of this action.

*4 Similar to the waiver elements, special rules apply to depositions taken of opposing counsel. Epling v. UCB Films, Inc., 204 F.R.D. 691, 693 (D. Kan. 2001). Deposing opposing counsel should be limited to circumstances where: “(1) no other means exist to obtain the information except to depose opposing counsel; (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the case.” Id. (quoting Simmons Foods, Inc. v. Willis, 191 F.R.D. 625 at 630 (D.Kan.2000) (citing Shelton v. American Motors Corp., 805 F.2d 1323, 1326 (8th Cir. 1986))). First, the Court considers Lent as opposing counsel for purposes of this Motion. There is no per se rule that in-house counsel who are not counsel of record in the lawsuit are not opposing counsel. Id. The Court finds Lents service as Town Attorney is akin to in-house counsel for a corporation. “[T]he Court will examine the circumstances surrounding the in-house counsel's involvement in the litigation and the underlying events giving rise to the litigation.” Id. The Court finds Lent acted as a legal advisor to Defendant by communicating with Farmer regarding the underlying facts and circumstances of this litigation of how to address issues related to the termination of Town employees. Therefore, Lent is considered opposing counsel. As a result, the aforementioned elements must be established. First, the information is at least potentially relevant, but the communication is privileged communication as discussed above. Even if the communication was not protected, the information is obtainable from another source and Plaintiffs have not shown the information is crucial or vital to the case. Plaintiffs deposed Farmer and asked a series of questions concerning the deleting of each of the Plaintiff's work email accounts. Farmer testified that she contacted Lent to inform her of changes to Town employees and seek legal advice how to proceed. Farmer further testified that Lent advised her to proceed with deleting each of the Plaintiff's email accounts. It is unclear what information Plaintiffs seek to obtain by deposing Lent. It is undisputed the email accounts were deleted, and the contents of those accounts can no longer be recovered. Whether and how Lent advised Farmer to deal with Plaintiff's email accounts has no bearing on the ability to recover those accounts.

Plaintiffs go on to argue Defendants deletion of the email accounts amounts to failure to preserve evidence and is in violation of 29 C.F.R. § 1602.14. Consequently, Plaintiffs appear to argue the violation of a statue should subject Defendant to the sanction of voiding the attorney-client privilege associated with the communication. In relevant part, 29 C.F.R. § 1602.14 states:

The statue in question requires an employer to retain “personnel or employment” records that relate to certain specified topics. 29 C.F.R. § 1602.14. There is nothing to suggest the deleted email accounts contain any personnel or employment records. The statue only protects “official records, such as ‘application forms’ and ‘requests for reasonable accommodations,’ not routine email correspondence of a scheduling nature.” Nekich v. Wisconsin Cent. Ltd., No. CV 16-2399 (JNE/DTS), 2017 WL 11454634, at *4 (D. Minn. Sept. 12, 2017). Plaintiff makes no allegations that Defendant deleted any emails that could be considered part or any Plaintiff's personnel or employment record. Therefore, Defendant was not required to retain the complete email records pursuant to 29 C.F.R. § 1602.14. Nekich, 2017 WL 11454634, at *4 (holding 29 C.F.R. § 1602.14 does not protect routine email correspondence).

“Control of discovery is entrusted to the sound discretion of the trial courts and trial courts are granted broad discretion in fashioning the terms and conditions of discovery.” Punt v. Kelly Servs., 862 F.3d 1040, 1047 (10th Cir. 2017) (quoting Martinez v. Schock Transfer & Warehouse Co., 789 F.2d 848, 850 (10th Cir. 1986)); see also, e.g., Marsee v. U.S. Tobacco Co., 866 F.2d 319 (10th Cir. 1989). After careful consideration of the arguments, the Court finds the communications are protected from disclosure by attorney-client privilege. Defendant has not waived the privilege by Farmer testifying that she contacted Lent to inform her of employment changes with in the Town and to seek advise on how to proceed. Further, Plaintiffs have not shown Defendant was required to retain the complete email records pursuant to 29 C.F.R. § 1602.14. Rather, the statue in question only requires the retention of certain specified documents, and Plaintiffs have not shown the deleted email accounts contain any such information.

*5 Plaintiffs' attempt to depose the Town Attorney appears misplaced. If Plaintiffs believe Defendant's failure to retain Plaintiffs' work email accounts lead to spoliation of evidence, there are sanctions available under the federal rules to address such an issue. Plaintiffs have not shown why deposing the Town Attorney is an appropriate sanction. Plaintiffs' arguments focus on the timing of the deleted email accounts, and Plaintiffs offer little, if any, argument as to how deposing the Town Attorney will address this issue. When the email accounts were deleted in relation to preservation letters and Defendant's duty to preserve are all facts that can be obtained without destroying the attorney-client privilege by allowing Plaintiffs to depose the Town Attorney. Lastly, Plaintiffs make vague and unsupported assertions that Defendants were acting with criminal intent to deliberately destroy evidence. Such assertions are not supported by any proffered evidence and will not be considered in light of the Court's rulings in this Order.

NOW, THEREFORE, IT IS ORDERED on Plaintiffs' Motion to Compel the Deposition of the Town of Guernsey Town Attorney, Dana Lent [Doc. 22] is DENIED.

Dated this 12th day of March, 2021.

Hansen v. SkyWest Airlines, No. 13-CV-244-J, 2015 WL 13357608, at *2 (D. Wyo. June 1, 2015).

Hedquist v. Patterson, 215 F. Supp. 3d 1237, 1244 (D. Wyo. 2016), reconsideration denied, No. 14-CV-45-ABJ, 2016 WL 8453415 (D. Wyo. July 1, 2016).