Martley v. City of Basehor
Martley v. City of Basehor
2022 WL 943350 (D. Kan. 2022)
February 1, 2022

Teeter, Holly L.,  United States District Judge

Failure to Produce
Attorney-Client Privilege
Attorney Work-Product
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Summary
The Court denied Plaintiff's motion for reconsideration of a previous order sustaining Defendants' objection to the production of attorney billing records. The Court found that the billing records were protected under the work-product doctrine and that Plaintiff had not demonstrated a substantial need for the records or that he could not obtain the information through other means without undue hardship.
Additional Decisions
Lloyd MARTLEY, Plaintiff,
v.
BASEHOR, KANSAS, CITY OF, et al., Defendants
Case No. 2:19-cv-02138-HLT-GEB
United States District Court, D. Kansas
Signed February 01, 2022

Counsel

Patrick G. Reavey, Reavey Law LLC, Kevin C. Koc, The Meyers Law Firm, LC, Kansas City, MO, for Plaintiff.
Michelle R. Stewart, Suzanne Renea Bruss, Hinkle Law Firm LLC, Lenexa, KS, for Defendants City of Basehor Kansas, David Breuer.
Teeter, Holly L., United States District Judge

ORDER

*1 Plaintiff Lloyd Martley brings this Equal Pay Act (“EPA”) case against his former employer, Defendant City of Basehor, Kansas, and one of its officials, Defendant David Breuer. Martley alleges violation of the EPA and retaliation stemming from the initiation of a criminal investigation into the reporting of his income to a state retirement system. The matter is now before the Court on Plaintiff's motion to reconsider a previous order sustaining Defendants’ objection to the production of attorney billing records. Doc. 232. For the reasons stated below, the Court denies the motion.
I. BACKGROUND
As outlined in the underlying order, Doc. 229, this dispute centers on Plaintiff's attempt to secure attorney billing records. The history of the dispute is detailed in the order. See id. at 1-2. Highly summarized, the magistrate judge granted Plaintiff's motion to compel attorney billing records after finding that they were not protected by the attorney-client privilege or work-product doctrine. See generally Doc. 212. Defendants objected. Docs. 213-214. The undersigned sustained the objection after finding that the applicable legal standard required a showing by Plaintiff that he had a substantial need for the billing records and could not obtain the information through other means without undue hardship. Doc. 229 at 4-7. Because this was not addressed in the order compelling production of the records, and because it was questionable as to how Plaintiff could meet this standard particularly given the issues in this case, the undersigned concluded that the records were protected under the work-product doctrine on the instant record. Id. at 8.
Plaintiff now moves for reconsideration of that order. Doc. 232.
II. STANDARD
Under D. Kan. Rule 7.3(b), motions to reconsider non-dispositive orders must be based on (1) an intervening change in controlling law; (2) new evidence; or (3) the need to correct clear error or prevent manifest injustice.
III. ANALYSIS
Plaintiff does not specify which grounds for reconsideration he is relying on under D. Kan. Rule 7.3(b). But because he does not allege a change in controlling law or new evidence, the Court presumes he seeks reconsideration to correct clear error or prevent manifest injustice. Plaintiff makes six arguments, but none persuade the Court to reconsider its order.
Plaintiff's first argument is that the undersigned should have reviewed the magistrate judge's order under the “clearly erroneous” standard instead of the “contrary to law” standard, see Fed. R. Civ. P. 72(a), because the magistrate judge “employed the correct legal standard and this Court did not hold otherwise.” Doc. 232 at 2. But this is precisely what the undersigned did find—that the underlying order did not address whether Plaintiff has shown a substantial need for the billing records, which is required for discovery of work product. Doc. 229 at 5-7. This falls under the “contrary to law” standard. See Norwood v. United Parcel Serv., Inc., 2021 WL 75641, at *1 (D. Kan. 2021) (“A magistrate judge's order is contrary to law if it fails to apply or misapplies relevant statutes, case law or rules of procedure.” (internal quotation and citation omitted)). Accordingly, there are no grounds to reconsider based on the standard applied.
*2 Plaintiff's second argument is that the billing records at issue are not work product because Defendants have denied the documents were prepared in anticipation of litigation, and thus he was not required to show a substantial need. Doc. 232 at 3-7.[1] On this point, however, Plaintiff conflates the question of whether Defendants had a retaliatory motive for initiating an investigation with whether the billing records were created as part of this litigation. In other words, because Defendants deny that the investigation was done with retaliatory intent, Plaintiff argues they cannot also claim that the billing records relating to that investigation are work product. The Court disagrees with Plaintiff that the alleged lack of a retaliatory motive shows that the billing records at issue were not prepared in anticipation of litigation.
Plaintiff's third argument is that it would be manifestly unjust to protect the billing records as work product because Defendants’ attorneys were involved in the investigation underlying Plaintiff's retaliation claims. Id. at 7-13. According to Plaintiff, he is entitled to know “the full extent of the investigations (which includes knowing what the attorneys were doing and saying)” to rebut Defendants’ arguments that their actions were taken in good faith and were not willful. Id. at 10. But, again, the undersigned struggles to understand how billing records are relevant to the motivations of Defendants, or why evidence of the same cannot be obtained through other means such as communications with KPERS or interrogatories.[2] This was the point of the underlying order—that the record is silent as to whether Plaintiff ever demonstrated a substantial need for these records and that he could not obtain the information through other means (e.g., discovery from KPERS, targeted interrogatories about communications with third parties, etc.). A motion for reconsideration of the order sustaining Defendants’ objections is not the time or place to make this showing.[3]
*3 Plaintiff's fourth argument is that it was clearly erroneous or manifestly unjust to set aside the magistrate judge's order for not addressing substantial need because the magistrate judge “held the documents were not work product,” and therefore the burden never shifted to Plaintiff. Id. at 13-15. The Court disagrees. The magistrate judge did not hold that the documents were not work product. Rather, she held that the billing records did not reveal the mental processes of the attorneys, with the exception of two records that required additional redaction. See Doc. 212 at 9-12. As explained in the underlying order, this third step—protection of mental processes—only comes after a substantial need has been shown. See Doc. 229 at 4-5. Plaintiff also argues on this point that the magistrate judge “cannot be inculpated for allegedly failing to apply or misapply relevant law on the issue of substantial need where she did not address, made no findings, cited no laws, and made no Order regarding substantial need.” Doc. 232 at 14. But again, the lack of any discussion of substantial need was the reason for sustaining the objections. Doc. 229 at 5-7.[4]
Plaintiff's fifth argument is that Defendants did not object regarding substantial need. Doc. 232 at 15-16. While that is correct, the undersigned was tasked with determining whether the magistrate judge failed to apply or misapplied relevant law in determining whether work product shielded production of the billing records. See Norwood, 2021 WL 75641, at *1. The parties’ application of the wrong standard does not absolve the undersigned of that duty. Nor can it be clear error or manifestly unjust to apply the correct legal framework.
Plaintiff's sixth and final argument is that the undersigned should defer to the magistrate judge's implicit finding of substantial need. Doc. 232 at 16-18. On this point, Plaintiff argues both that the magistrate judge found that substantial need didn't have to be shown because she found the billing records were not work product and also that evidence of substantial need was shown to the magistrate judge via email. Id. at 17. But this logically tenuous position overlooks, again, the primary point of the underlying order: that the record was effectively silent on the question of substantial need, which is a required step in any work-product analysis. Doc. 229 at 4-5.
IV. CONCLUSION
Based on the above, the undersigned does not discern any clear error or manifest injustice that would warrant reconsideration of the prior order.
THE COURT THEREFORE ORDERS that Plaintiff's Motion to Reconsider (Doc. 232) is DENIED.
IT IS SO ORDERED.

Footnotes

Plaintiff's reply lays out a timeline that attempts to disprove Defendants’ assertions that they learned of the retirement-contribution issue while gathering documents for disclosures or discovery in this case, ostensibly to dispute the contention that the billing records were prepared in anticipation of litigation. Doc. 248 at 6-18. Plaintiff's arguments, however, ignore the fact that a party might start gathering documents before formal discovery requests are served, including pay records in an EPA case. The third amended complaint states that Plaintiff notified the mayor about the impending EPA lawsuit as early as February 6, 2019. Doc. 150 at 5. Thus, the fact that the city was gathering documents about Plaintiff's pay shortly thereafter does not seem all that strange. To the extent Plaintiff contends that the mayor may have suspected irregularities regarding Plaintiff's retirement contributions before then, Doc. 248 at 12-13, that does not mean that records created after this case was anticipated are somehow not work product.
Plaintiff also relies on Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975). Hearn discussed waiver of attorney-client privilege where a defendant raises a good-faith defense. Id. at 580-81. But the issue in this dispute is whether attorney billing records are protected work product and whether Plaintiff can discover them. Even to the extent Hearn applies to work product, it's unclear how any good-faith defense by Defendants could put attorney billing records at issue. Plaintiff's reply only obliquely refers to defenses based on “legal advice,” Doc. 248 at 5-6, which is generally not found in attorney billing records, see Doc. 212 at 8 (noting that legal advice is not relayed to clients via monthly bills). The Court notes that the magistrate judge has addressed Plaintiff's waiver argument under Hearn in a related dispute involving the underlying communications referenced in the billing records. Doc. 236 at 17-20. Plaintiff is currently seeking review of that order. Doc. 239. Thus, given that Plaintiff's argument under Hearn does not seem germane to the issues in this order, the Court defers consideration of that issue until it takes up Plaintiff's motion for review.
The order sustaining the objection specifically contemplated that Plaintiff might seek to revisit this issue with the magistrate judge. See Doc. 229 at 7 (noting that further attempts on this issue should focus on the appropriate legal framework). The order was limited to the record before it.
Plaintiff states that “the proper course of action would be to send the matter back to Magistrate Birzer to develop the record and decide whether substantial need exists.” Doc. 232 at 15. Again, see supra note 3, nothing in the undersigned's order prohibits Plaintiff from revisiting the issue, though the undersigned remains dubious that this is the best use of anyone's time and satisfies the proportionality envisioned by Rule 26.