Murphy v. Schaible, Russo & Co.
Murphy v. Schaible, Russo & Co.
2020 WL 12698695 (D. Colo. 2020)
November 20, 2020

Wang, Nina Y.,  United States Magistrate Judge

Medical Records
Redaction
Privilege Log
Third Party Subpoena
Attorney-Client Privilege
Failure to Produce
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Summary
The court found that Plaintiff had waived her psychotherapist-patient privilege for the period of January 1, 2017 to December 31, 2018, allowing for the subpoena of ESI related to her mental health treatment during this period. The court also ordered Plaintiff to execute a HIPAA-compliant release to facilitate the production of her records, including any ESI related to her mental health treatment.
Additional Decisions
DIANNA CHRISTINE MURPHY, Plaintiff,
v.
SCHAIBLE, RUSSO & COMPANY, C.P.A'S, LLP and THOMAS SCHAIBLE, Defendants
Civil Action No. 19-cv-02808-WJM-NYW
United States District Court, D. Colorado
Filed November 20, 2020

Counsel

Marc David Flink, Baker & Hostetler LLP, Denver, CO, Cory Murray Curtis, Baker & Hostetler LLP, Houston, TX, for Plaintiff.
Barry R. Temkin, Kate Elizabeth DiGeronimo, Mound Cotton Wollan & Greengrass LLP, New York, NY, Lidiana Rios, Mark E. Haynes, Ireland Stapleton Pryor & Pascoe, PC, Denver, CO, for Defendants.
Wang, Nina Y., United States Magistrate Judge

ORDER

*1 This matter comes before the court on two discovery motions:
(1) Plaintiff's Motion to Compel Document Production from Defendant Thomas Schaible (“Plaintiff's Motion to Compel”) [#101, filed August 14, 2020]; and
(2) Plaintiff's Motion to Quash Defendant Thomas Schaible's Notice of Subpoena to Dr. Charles “Chad” L. Page, Ph.D. (“Plaintiff's Motion to Quash”) [#138, October 5, 2020].
 
These Motions are referred to this Magistrate Judge pursuant to 28 U.S.C. § 636(b), the Order Referring Case dated October 9, 2019 [#4], and the Memoranda dated August 14, 2020 and October 6, 2020, respectively [#104]. After review of Plaintiff's Motion to Compel, this court ordered Defendant Thomas Schaible (“Defendant Schaible” or “Mr. Schaible”) to tender the outstanding communication between Mr. Schaible and non-party Michael Schaible for in camera review. [#170]. Upon review of the Parties’ briefing on Plaintiff's Motion to Compel [#121, #132] and Plaintiff's Motion to Quash, this court finds that oral argument will not materially assist in resolving these Motions. For the reasons stated herein, Plaintiff's Motion to Compel is GRANTED IN PART and DENIED IN PART and Plaintiff's Motion to Quash is DENIED.
 
BACKGROUND
The court has discussed the background in this action in other Orders, see, e.g., [#75], and therefore, will only set forth the most relevant facts to the pending Motions here. Plaintiff Dianna Christine Murphy (“Plaintiff” or “Ms. Murphy”) and her ex-husband, Michael Schaible, were clients of Defendants from 1998 until late 2017. See [#33 at ¶¶ 1, 23, 24, 27]. During that period, Defendant Schaible served as the former couple's financial advisor and was a general partner and agent of Defendant Schaible, Russo & Company, C.P.A.s, LLC (“SRC”). [Id.]. Mr. Schaible is the brother of Plaintiff's ex-husband, a non-party to this action. [Id. at ¶ 1].
 
In early 2017, Plaintiff and her ex-husband's “marriage began to fall apart[.]” [Id. at ¶ 2]. Once “divorce was imminent,” Mr. Schaible and SRC allegedly helped Michael Schaible “deceive, defraud and deprive Plaintiff of her interest in a $2,566,710.00 joint cash account ... that [Mr. Schaible] managed and controlled while a general partner of SRC and while owing fiduciary duties to Plaintiff.” [Id.]. Specifically, Plaintiff alleges that Mr. Schaible, in disregard of his fiduciary duties to her, facilitated the transfer of the entirety of the balance of the former couple's joint cash account to Michael Schaible—without her knowledge or consent “and contrary to her express intentions.” [Id. at ¶ 3].
 
On October 1, 2019, Plaintiff initiated this civil action against Defendants. See [#1]. After motions practice, one count of breach of fiduciary duty remains against both Defendants.[1] This court entered a Scheduling Order on December 3, 2019, and denied Defendants’ subsequent Motion to Stay Discovery [#55] pending the outcome of the early motions practice. [#75]. The Scheduling Order set, inter alia, a deadline for joinder of parties and amendment of pleadings of January 17, 2020; a discovery deadline of July 17, 2020; and a dispositive motions deadline of August 17, 2020. [#25 at 8]. On March 20, 2020, Judge Martinez issued a Minute Order directing the Parties to address the issue of standing. [#76]. On April 30, 2020, Defendants moved for an extension of the Scheduling Order due in part to the COVID-19 pandemic and in part to the anticipation of new counsel entering an appearance on behalf of SRC. [#83]. This court granted the extension, and reset deadlines for discovery to September 15, 2020; dispositive motions to October 16, 2020; and a Final Pretrial Conference on December 16, 2020 at 2:00 p.m. [#88].
 
*2 On August 4, 2020, Plaintiff filed this instant Motion to Compel, seeking communications between Mr. Schaible and Michael Schaible that had been withheld on the basis of attorney-client privilege and a common interest. Upon review of the Motion to Compel, this court ordered Defendant Schaible to submit the withheld documents for in camera review. [#170]. Defendant Schaible has submitted such documents for in camera review.
 
On August 24, 2020, the Parties appeared before this court to discuss a dispute that had arisen over Defendant Schaible's Request for Production No. 20 that sought to have Plaintiff execute releases to allow him to obtain complete medical records for the period from January 1, 2017 to the present, including but not limited to the psychiatrist referenced in Paragraph 16 of Ms. Murphy's Declaration tendered in response to Judge Martinez's Order of March 20, 2020. [#107]. This court found that Plaintiff had put her medical condition at issue in this litigation through her damages demands, but denied Defendant Schaible's request to have Plaintiff execute general medical releases. [#116]. Defendant Schaible then served a subpoena on Plaintiff's psychiatrist, Charles “Chad” L. Page, Ph.D., and the instant Motion to Quash followed. [#138].
 
LEGAL STANDARDS
I. Attorney-Client Privilege & Common Interest Doctrine
In this case, the court's subject matter jurisdiction is based on diversity. [#33 at ¶ 16]. Therefore, Colorado substantive law governs the scope and application of the attorney-client privilege. White v. Am. Airlines, Inc., 915 F.2d 1414, 1424 (10th Cir. 1990) (“In a civil action based upon a state cause of action, state law controls the determination of privileges.”).[2]
 
Colorado has codified the attorney-client privilege in pertinent part as follows:
An attorney shall not be examined without the consent of his client as to any communication made by the client to him or his advice given thereon in the course of professional employment ...
Colo. Rev. Stat. § 13–90–107(b). The law is clear that the attorney-client privilege inures to the benefit and protection of the client, to allow a client to gain counsel, advice or direction with respect to the client's rights and obligations confidentially. See Mt. States Tel. & Tel. Co. v. DiFede, 780 P.2d 533, 541 (Colo. 1989) (en banc). The party seeking to invoke the attorney-client privilege bears the burden of establishing that it attaches.
 
The attorney-client privilege is not absolute; it may be waived either expressly or impliedly. A waiver may be express, i.e., a party may affirmatively consent to disclosure of the information. See, e.g., Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 668 (10th Cir. 2006) (“The work-product privilege may be waived by the voluntary release of materials otherwise protected by it.”) (citation and quotation omitted). Waiver may also be implied through conduct. The burden of proving such waiver rests upon the party seeking to overcome the privilege. DiFede, 780 P.2d at 542; accord. H. ex rel. Holder v. Gold Fields Mining Corp., 239 F.R.D. 652, 655 (N.D. Okla. 2005) (“[T]he majority view is that the party claiming waiver has the burden of proof on that issue.”).
 
*3 The common interest doctrine works as an exception to waiver, allowing for parties to share information that is otherwise privileged, so long as such parties share a common legal interest. Frontier Refining, Inc. v. Gorman–Rupp Co., Inc., 136 F.3d 695, 705 (10th Cir. 1998). Before the common interest doctrine may attach, however, there must be some proper underlying privilege; the common interest doctrine is not an independent privilege. See Black v. Sw. Water Conservation Dist., 74 P.3d 462, 469 (Colo. App. 2003). Second, it is not enough to include an attorney on the correspondence to have the attorney-client privilege attach. Rather, the communication must reflect legal advice, a request for legal advice, or strategy sought by the client. Roe v. Catholic Health Initiatives Colorado, 281 F.R.D. 632, 635 (D. Colo. 2012); Sterling Const. Mgmt., LLC v. Steadfast Ins. Co., No. 09-CV-02224-MSK-MJW, 2011 WL 3903074, at *14 (D. Colo. Sept. 6, 2011) (holding that the attorney-client privilege does not protect communications between an attorney and client that are administrative in nature). Third, the shared interest must be legal; it is not enough to share a common financial interest, see Zepter v. Dragisic, 237 F.R.D. 185, 190 (N.D. Ill. 2006) (rejecting a common interest based on a common financial interest in settling the case) or a shared adversary.
 
II. Motion to Quash
A subpoena served on a third party pursuant to Rule 45 of the Federal Rules of Civil Procedure is considered discovery within the meaning of those Rules. Rice v. U.S., 164 F.R.D. 556, 556–57 (N.D. Okla. 1995). Accordingly, a subpoena is bound by the same standards that govern discovery between the parties and, to be enforceable, a subpoena must seek information that is relevant to a party's claims or defenses and proportional to the needs of the case. See Fed. R. Civ. P. 26(b)(1). On a timely motion, the court must quash or modify a subpoena that inter alia: (1) fails to allow a reasonable time to comply; (2) requires the disclosure of privileged or other protected matter, if no exception or waiver applies; (3) subjects a person to undue burden; or (4) requires the disclosure of a trade secret or other confidential research, development, or commercial information. Fed. R. Civ. P. 45(d)(3)(A), (d)(3)(B). Generally, “a party has no standing to quash a subpoena served upon a third party, except as to claims of privilege relating to the documents being sought[,]” or “upon a showing that there is a privacy interest applicable.” Windsor v. Martindale, 175 F.R.D. 665, 668 (D. Colo. 1997) (citations omitted) (“Absent a specific showing of a privilege or privacy, a court cannot quash a subpoena duces tecum.”). “Objections unrelated to a claim of privilege or privacy interests are not proper bases upon which a party may quash a subpoena.” Cobbler Nevada, LLC v. Does, No. 15-CV-02771-WYD-MEH, 2016 WL 300827, at *1 (D. Colo. Jan. 25, 2016) (citations omitted).
 
ANALYSIS
I. Motion to Compel
Three categories of documents appear on Defendant Schaible's Amended Privilege Log dated September 3, 2020: (1) withheld emails, (2) redacted emails, and (3) redacted text messages. In performing its analysis, this court is guided by certain principles worth repeating here. The party seeking to invoke the attorney-client privilege bears the burden of establishing that it attaches and the priviliege is not absolute; it may be waived either expressly or impliedly. A waiver may be express, i.e., a party may affirmatively consent to disclosure of the information. See, e.g., Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 668 (10th Cir. 2006) (“The work-product privilege may be waived by the voluntary release of materials otherwise protected by it.”) (citation and quotation omitted). Waiver may also be implied through conduct. The burden of proving such waiver rests upon the party seeking to overcome the privilege. DiFede, 780 P.2d at 542; accord. H. ex rel. Holder v. Gold Fields Mining Corp., 239 F.R.D. 652, 655 (N.D. Okla. 2005) (“[T]he majority view is that the party claiming waiver has the burden of proof on that issue.”).
 
*4 Withheld Emails. With those principles in mind, this court reviewed each withheld email reflected in the privilege log and can find no basis for withholding these documents on the basis of attorney-client privilege. As an initial matter, while this court finds that Mr. Schaible and Michael Schaible may share a common legal interest because Plaintiff's allegations inextricably link the two brothers in a purported scheme to deprive her of certain marital assets, see [#33], that common legal interest – standing alone – is insufficient to confer any privilege. Instead, this court must look to the communication to determine whether it reflects legal advice, a request for legal advice, or strategy sought by the client.
 
To the extent that Michael Schaible is communicating directly with Mr. Schaible's litigation counsel, Michael Schaible and Barry Temkin (“Mr. Temkin”) are not in an attorney-client relationship. And Michael Schaible's various reactions to this legal proceeding, or his voluntary commentary to Mr. Temkin and Mr. Schaible about this litigation, are simply not protected by the attorney-client privilege because these communications do not reflect legal advice, a request for legal advice, or strategy sought by Mr. Schaible. Next, as discussed above, under Colorado law, the attorney-client privilege inures to the benefit of the client to allow a client to gain counsel, advice, or direction with respect to the client's rights and obligations confidentially. See DiFede, 780 P.2d at 541. To the extent that Michael Schaible is sharing his communications with his own attorneys, even assuming such communications are privileged (which is not clear),[3] Mr. Schaible may not invoke the attorney-client privilege on behalf of his brother. Accordingly, this court finds that the withheld emails are not properly privileged, and must be produced no later than November 30, 2020.
 
Redacted Emails. With respect to the redacted emails, one redaction is not based on privilege but rather is based on relevance. See TS-003663. This redaction appears proper. However, the remainder of the redactions are not protected by the attorney-client privilege for the same reasons as stated above. Accordingly, this court finds that all redacted documents, except for TS-003663, must be produced in unredacted form no later than November 30, 2020.
 
Redacted Text Messages. With respect to the redacted text messages, this court agrees that the withheld text messages are not relevant to this action. Accordingly, no further production of the redacted text messages is required.
 
II. Motion to Quash
Defendant Schaible served a subpoena on Dr. Page on September 15, 2020, seeking, inter alia, records created and reflecting the scope of Ms. Murphy's treatment with Dr. Page from January 1, 2017 through December 31, 2018. [#138-1; #138-2]. Ms. Murphy seeks to quash the subpoena, forwarding three main objections: (1) such subpoena is untimely, (2) the subpoena seeks privileged information that is not subject to discovery, and (3) the response would necessarily harm Plaintiff. [#138]. Defendant Schaible responds by arguing that the subpoena is not untimely because it was served the day before discovery closed, and the fact that the return date falls outside of the period of discovery does not render it defective. [#146 at 3]. Defendant Schaible further argues that the operative Scheduling Order did not set a deadline for the issuance of subpoenas to non-parties. [Id. at 4]. Finally, to the extent that the subpoena was considered untimely, Mr. Schaible contends that good cause exists for the modification of the Scheduling Order to allow for the subpoena because: (1) the court has previously determined that Plaintiff had put her mental status at issue, (2) Dr. Page held relevant information with respect Plaintiff's claim of emotional distress and damages, and (3) the timing of Ms. Murphy's deposition denied Defendant Schaible the opportunity to issue a subpoena with a return date within the discovery period. [Id. at 5]. Because of the importance of relevance, this court addresses it first.
 
*5 Relevance. Plaintiff argues that the subpoena seeks privileged information that is not subject to discovery. While federal common law recognizes a psychotherapist-patient privilege, by asserting that she has “suffered non-economic damages, including but not limited to emotional distress and anxiety, caused by SRC's and [Mr. Schaible]’s breach of fiduciary duties; such damages are separate and distinct from any pecuniary losses suffered by Plaintiff and were caused by the wrongful conduct of SRC and [Mr. Schaible],” [#33 at ¶ 97] and by proffering statements under the penalty of perjury regarding such emotional distress and her treatment for it in response to the court's March 20, 2020 order raising concerns regarding the injury-in-fact element of standing [#76, #78-1 at ¶ 16], consistent with its prior holding [#116], this court finds that Ms. Murphy has waived such privilege for the purposes of this action for the period of January 1, 2017 to December 31, 2018.[4] See Simpson v. Univ. of Colorado, 220 F.R.D. 354, 364 (D. Colo. 2004).
 
Harm. Rule 26(c) provides that a court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Fed. R. Civ. P. 26(c)(1). To the extent that Plaintiff contends that Rule 45 “requires the Court to quash or modify the Subpoena because it demands Dr. Page to disclose protected health information involving Plaintiff,” [#138 at 4], this court respectfully disagrees. As discussed above, Ms. Murphy has waived her psychotherapist-patient privilege for the period from January 1, 2017 to December 31, 2018 based on her affirmative claims in this action. Second, to the extent that Plaintiff argues that the subpoena must be quashed because this information implicates protections under the Health Insurance Portability and Accountability Act (“HIPAA”) and she has not executed HIPAA-compliant releases, this court finds that Rule 26(c)(1)(B) contemplates that this court could specify terms to facilitate discovery, including but not limited to the execution of a HIPAA-compliant protective order. Having used her emotional distress as a sword to claim non-economic damages, Ms. Murphy cannot now wield the psychotherapist-patient privilege as a shield to preclude discovery into her claim of emotional distress and the resulting mental health treatment.
 
Timeliness of Subpoena. Finally, this court considers Plaintiff's first argument, i.e., that the subpoena should be quashed merely on its untimeliness. As discussed above, a subpoena served on a third party pursuant to Rule 45 of the Federal Rules of Civil Procedure is considered discovery within the meaning of those Rules. See Rice, 164 F.R.D. at 556–57. Therefore, like other discovery, it must be completed – not merely initiated – by the discovery deadline. See Grant v. Otis Elevator Co., 199 F.R.D. 673, 675 (N.D. Okla. 2001); Rice, 164 F.R.D. at 558. Pursuant to Rule 45.1 of the Local Rules of Civil Practice for the District of Colorado, a subpoena must be served at least seven days prior to its return date. D.C.COLO.LCivR 45.1. Given that the subpoena is dated September 14, 2020, the day before the close of discovery, but was not served until September 15, 2020, this court finds that Defendant's subpoena to Dr. Page is untimely.
 
Good Cause for Amendment of Scheduling Order. As noted by Ms. Murphy, a court may quash a subpoena that is not compliant with the court's Scheduling Order. [#138 at 3]. But a court may also extend or reopen discovery, which is left to the sound discretion of the court.[5] “Good cause” requires the movant to show the “scheduling deadlines cannot be met despite [the movant's] diligent efforts.” Gorsuch, Ltd., B.C. v. Wells Fargo Nat. Bank Ass'n, 771 F.3d 1230, 1240 (10th Cir. 2014). This requirement may be satisfied, for example, if a plaintiff learns new information through discovery. Id. This standard focuses on diligence, rather than the bad faith of the moving party or the prejudice to the opposing part. Pumpco, Inc. v. Schenker Int'l, Inc., 204 F.R.D. 667, 668 (D. Colo. 2001).
 
*6 Based on the record before it, this court finds that there is good cause to allow for the return of the subpoena out of time. Defendant Schaible propounded Request for Production No. 20 on June 12, 2020, seeking a HIPAA-compliant release directed to “the psychiatrist referenced in paragraph 16 of the Murphy Declaration, that treated or examined the Plaintiff at any time during the period from January 1, 2017 through the present.” See [#146-1 at ¶ 2; #116 at 1; #107]. Plaintiff's deposition was originally scheduled for August 7, 2020, but she was directed to quarantine based on her exposure to an individual who tested presumptively positive for COVID-19. [#98]. While Defendant was willing and able to proceed with the deposition scheduled for August 7, Plaintiff declined to proceed without her counsel's physical presence and was not prepared to proceed remotely. [Id.]. Accordingly, this court ordered defense counsel to provide dates for deposition availability for the remainder of August and September 2020, and that Plaintiff and her counsel were required to choose one such available date. [Id.]. If no such date could be accommodated, the court ordered the deposition to proceed by fully remote means on August 7, 2020. [Id.]. Per this court's Minute Order, the Parties agreed to reschedule Plaintiff's deposition for September 4, 2020. [#99].
 
In the interim, the Parties raised the issue of Request for Production No. 20 to this court on August 24, 2020. [#107]. This court took the issue under advisement, and issued an order on August 28, 2020 declining to require Ms. Murphy to execute releases in the first instance. [#116]. Defendant Schaible represents, and Plaintiff does not contest, that Dr. Page was not identified until Ms. Murphy's September 4 deposition. [#146-1 at ¶ 7]. Defendant Schaible then gave notice of the subpoena to Dr. Page to Plaintiff on September 14, 2020, and served Dr. Page on September 15, 2020. [#146-5]. Based on the record before it, this court finds that Defendant Schaible has been diligent in pursuing the records of Dr. Page as they relate to Ms. Murphy's mental health condition between January 1, 2017 and December 31, 2018 to allow for the return of the subpoena directed at Dr. Page out of time. And though it need not reach these issues, this court further notes that no trial date in this matter has been set, and no prejudice to Plaintiff has been established that cannot be addressed, as discussed below.
 
Appropriate Remedy. Finally, this court turns to the appropriate remedy. Having served a subpoena on Dr. Page with a return date of October 5, 2020, this court finds that it is appropriate for Dr. Page to respond to the subpoena no later than November 30, 2020 to provide adequate time for their inclusion into the proposed Final Pretrial Order, if appropriate. To the extent that Dr. Page objects to providing Ms. Murphy's records without an executed release and waiver, Ms. Murphy shall execute a HIPAA-compliant release no later than November 27, 2020 to facilitate the production of her records. In addition, such records may be designated under the Stipulated Protective Order [#28] if appropriate. The Parties are reminded, however, that the United States Court of Appeals for the Tenth Circuit has observed that filed documents should not be reflexively restricted from the public record, particularly if they form the basis of the Parties’ substantive arguments for relief. See Lucero v. Sandia Corp., 495 F. App'x 903, 913 (10th Cir. 2012)
 
Attorney's Fees and Costs. Finally, this court addresses Plaintiff's request for attorney's fees and costs associated with both the Motion to Compel and the Motion to Quash. See [#101 at 8; #138 at 5]. With respect to the failure to produce responsive documents, Rule 37(d) provides that a court may sanction a party in any manner delineated under Rule 37(b)(2)(A)(i)–(iv), but “must” require the party refusing to act, the attorney advising that party, or both to pay reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(d)(3). Rule 45 does not provide a basis for Plaintiff's request for attorney's fees and costs, Fed. R. Civ. P. 45, though such sanctions might be within the court's inherent powers. Given the mixed outcome of the Motions before the court, and the lack of any substantive arguments regarding the award of expenses or costs, this court finds that the record does not warrant the award of attorney's fees or costs for either party.
 
CONCLUSION
*7 For the reasons set forth herein, IT IS ORDERED that:
(1) Plaintiff's Motion to Compel Document Production from Defendant Thomas Schaible [#101] is GRANTED IN PART and DENIED IN PART;
(2) Defendant Schaible is ORDERED to PRODUCE withheld and redacted documents consistent with this Order no later than November 30, 2020;
(3) Plaintiff's Motion to Quash Defendant Thomas Schaible's Notice of Subpoena to Dr. Charles “Chad” L. Page, Ph.D. [#138] is DENIED;
(4) Discovery is RE-OPENED for the limited purpose of allowing for the return of Defendant Schaible's subpoena to Dr. Page no later than November 30, 2020;
(5) To the extent that Dr. Page informs any Party that he requires an executed release from Plaintiff Dianna Murphy, Plaintiff shall EXECUTE such release no later than November 27, 2020; and
(6) Each party shall bears its own costs and fees associated with these Motions.

Footnotes
Initially, Plaintiff asserted in her original Complaint a single claim against both Defendants for breach of fiduciary duty. [Id.]. Defendants filed a “Motion to Dismiss Complaint Pursuant to Fed. R. Civ. P. 12(b)(1), (2) & (6)” on December 2, 2019. See [#20]. On December 23, 2019, Plaintiff filed a First Amended Complaint as a matter of right, asserting the original count of breach of fiduciary duty against Mr. Schaible and SRC and an additional count of fraud against Mr. Schaible alone. See [#33]. Defendants subsequently filed a second “Motion to Dismiss Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(1), (2) & (6)” (“Second Motion to Dismiss”) on January 15, 2020, which the presiding judge, the Honorable William J. Martinez, granted in part and denied in part. [#51, #82].
By contrast, “the work product privilege is governed, even in diversity cases, by a uniform federal standard embodied in Fed. R. Civ. P. 26(b)(3).” Frontier Refining, Inc. v. Gorman–Rupp Co., Inc., 136 F.3d 695, 702 n.10 (10th Cir. 1998) (citation and quotation omitted). The work product doctrine generally protects “documents and tangible things that are prepared in anticipation of litigation or for trial by or for a party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent).” Fed. R. Civ. P. 26(b)(3)(A). But because Mr. Schaible does not invoke the work product doctrine, this court does not consider it herein. See generally [#120].
Indeed, it is not briefed, nor is it clear, that any communication that Michael Schaible had with his Mexican counsel are protected by an attorney-client privilege or what the contours of such a privilege might entail if such communications occurred exclusively in Mexico.
This timeframe is based on the representation by Plaintiff's counsel during the August 24, 2020 Telephonic Discovery Conference that Plaintiff's claim for non-economic damages was limited to the period between 2017-2018. See [#107]. To the extent that Plaintiff seeks non-economic damages for a period beyond December 31, 2018 arising from Defendants’ alleged breach of fiduciary duty, Defendant Schaible would be entitled to seek information about Ms. Murphy's mental health treatment after 2018.
Rule 45 also provides alternatives to quashing the subpoena. Specifically, Rule 45(d)(3)(C) contemplates that the court may, instead of quashing or modifying the subpoena, order production under specified conditions if the serving party shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and ensures that the subpoenaed person will be reasonably compensated. Fed. R. Civ. P. 45(d)(3)(C). Defendant Schieble does not invoke Rule 45(d)(3)(c), and accordingly, this court limits its consideration to Mr. Schiable's argument under Rule 16(b)(4).