Wolpert v. Branch Banking Trust & Co.
Wolpert v. Branch Banking Trust & Co.
2023 WL 6614626 (E.D. Tenn. 2023)
August 3, 2023

Poplin, Debra C.,  United States Magistrate Judge

Attorney-Client Privilege
Failure to Produce
Waiver
In Camera Review
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Summary
The Court found that Defendant had inadvertently disclosed the March 5 Letter, but had not inadvertently disclosed the Email Strings. The Court found waiver of the attorney-client privilege with respect to these documents, but declined to address Defendant's arguments regarding Rule 502(a). The Court ultimately denied Plaintiffs' Motion to Compel Discovery and granted Defendant's Motion to Clarify the Court's March 30, 2023 Order.
Additional Decisions
GEOFFREY WOLPERT, et al., individually and on behalf of all others similarly situated, Plaintiffs,
v.
BRANCH BANKING TRUST & COMPANY, Defendant
No. 3:19-CV-138-TRM-DCP
United States District Court, E.D. Tennessee, Northern Division
Filed August 03, 2023

Counsel

Gregory Brown, Gregory Alan Rawls, William Scott Hickerson, Lowe, Yeager and Brown, Knoxville, TN, Donald K. Vowell, Vowell and Associates, Knoxville, TN, for Plaintiffs Sevier County Schools Federal Credit Union, Susanne Munson, Geoffrey Wolpert, Charles McGaha, Charlene McGaha, Robin Nichols, Gregory Nichols, Rex Nichols, Sarah Morrison.
Donald K. Vowell, Vowell and Associates, Knoxville, TN, Gregory Alan Rawls, William Scott Hickerson, Lowe, Yeager and Brown, Knoxville, TN, for Plaintiff April Galyon.
John S. Hicks, Christopher E. Thorsen, Baker, Donelson, Bearman, Caldwell & Berkowitz, Nashville, TN, Taylor Andrew Williams, Paine Tarwater & Bickers LLP, Knoxville, TN, Nicholas Warren Diegel, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Knoxville, TN, Allexia B. Arnold, Pro Hac Vice, Danielle Chattin, Pro Hac Vice, Jonathan Kaufman, Pro Hac Vice, Ronni D. Solomon, Pro Hac Vice, Zachary A. McEntyre, King & Spalding, LLP, Atlanta, GA, Kristine L. Roberts, Pro Hac Vice, Robert F. Tom, Baker, Donelson, Bearman Caldwell and Berkowitz, PC, Memphis, TN, for Defendant.
Poplin, Debra C., United States Magistrate Judge

MEMORANDUM AND ORDER

*1 This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and Standing Order 13-02.
Now before the Court is Plaintiffs' Motion to Compel Discovery [Doc. 203] and Defendant's Motion to Clarify the Court's March 30, 2023 Order Granting Plaintiffs' Motion to Determine Claim of Privilege (“Motion to Clarify”) [Doc. 204]. Both motions are ripe for adjudication. See E.D. Tenn. L.R. 7.1(a). For the reasons explained below, the Court DENIES Plaintiffs' motion [Doc. 203] and GRANTS Defendant's motion [Doc. 204] to the extent it seeks clarification of the Court's Memorandum and Order [Doc. 188].
I. BACKGROUND
The parties' motions relate to the Court's Memorandum and Order [Doc. 188] entered on March 30, 2023 (“March 30 Order”). The original dispute related to Defendant's claim that certain documents were protected pursuant to the attorney-client privilege. First, Defendant claimed that a letter dated March 5, 2018 (“March 5 Letter”) [Doc. 138-1][1] was protected by the attorney-client privilege and inadvertently produced to Plaintiffs [Doc. 188 p. 3]. In support of its argument that Defendant had waived the privilege, Plaintiffs filed several emails (“Email Strings”) [Doc. 135-4 pp. 2–5 and 42][2] to argue that “Defendant disclosed favorable or beneficial information on the same subject and that Defendant was using the attorney-client privilege as a sword and shield” [Doc. 188 p. 9]. Defendant also relied on the Email Strings to argue otherwise [Id.]. Later, Defendant claimed that the Email Strings were also protected by the attorney-client privilege and that it inadvertently disclosed them too [Id. at 9–10].
While the Court found that Defendant inadvertently disclosed the March 5 Letter, the undersigned found that Defendant did not inadvertently disclose the Email Strings [Id. at 17]. Given that the March 5 Letter contained the same subject matter as the Email Strings, the Court found waiver of the attorney-client privilege with respect to those documents [Id. at 17–18].
Plaintiffs now move for an order compelling Defendant to produce “discussion of advice from the legal department about the [subject] accounts” [Doc. 203 p. 2]. Plaintiffs argue that matters included in Defendant's privilege log that relate to legal advice regarding the Subject Accounts are not protected given the Court's March 30 Order [Id. at 4]. Plaintiffs state, “[T]he 100+ documents in question have all been redacted ... to conceal legal advice or discussion of advice from the legal department about the accounts” [Id. at 5 (footnote omitted)]. While they “are prepared to submit the documents [for an in-camera review], and will do so if the Court so requests,” Plaintiffs do not believe the Court needs to conduct an in-camera review given that the “privilege log is sufficient” [Id. at 6]. Plaintiffs also seek an award of attorney's fees [Id. at 7].
*2 Defendant responds that Plaintiffs are “mov[ing] to expand the scope of the Court's Order far beyond its plain language” [Doc. 207 p. 1]. Arguing that the Court “limited its holding of a privilege waiver to three specific documents[,]” Defendant states that “Plaintiffs now move to impermissibly compel 112 documents on [its] privilege log, proffering an interpretation of the Court's order that would have broader implications for additional documents identified as responsive and privileged in future productions, to deposition testimony, and to privileged communications with experts” [Id.]. Defendant also claims that “Plaintiffs' interpretation of the Court's Order would run afoul of Federal Rule of Evidence ... 502(a)” [Id. at 2]. Claiming that “[g]ranting Plaintiffs' motion would have sweeping consequences[,]” Defendant asserts that they “appear to seek a privilege waiver that could encompass every privileged, relevant document and communication in this case” [Id. at 3]. Defendant states that “Plaintiffs' statement that the Court need not review the documents in camera because the privilege log descriptions are sufficient to identify the documents in the scope of the Court's Order ... proves the point” [Id. at 7 (internal citation omitted)]. Defendant submits that the “denial of Plaintiffs' motion and clarification of the Court's prior order is necessary to avoid imminent and irreparable harm from the forced disclosure of attorney work product and attorney-client privileged communications” [Id. at 4].
Plaintiffs reply that the Court found that Defendant waived the privilege with respect to the March 5 Letter, the Email Strings, and “held that the waiver of the privilege extends to all other documents on the same subject matter” [Doc. 211 p. 1]. Plaintiffs claim that the Court defined “subject matter” as the “discussion of advice from the legal department about the accounts” [Id. at 2 (citing Doc. 188 p. 7)]. Plaintiffs request that “the Court take the small step of declaring that this waiver also applies to the rest of the documents on the same subject matter” [Id.]. With respect to Defendant's argument regarding Rule 502(a), Plaintiffs state that in the original dispute, the parties focused on Rule 502(b) due to Defendant's efforts to claw back the documents [Id. at 6]. In any event, Plaintiffs state that the Court relied on the relevant factors in Rule 502(a) in finding waiver [Id.]. Plaintiffs also argue that Defendant's Motion to Clarify is inappropriate [See id. at 4–9].
Defendant's Motion to Clarify requests that the Court clarify its March 30 Order “[i]n light of Plaintiffs' interpretation” thereof [Doc. 204 p. 11]. According to Defendant, Plaintiffs interpret the Court's March 30 Order as Defendant having waived the attorney-client privilege with respect to all entries on the privilege log that state “subject accounts” or “customer accounts” [Id. at 2]. But Defendant argues that Plaintiffs' interpretation is incorrect and inconsistent with Rule 502. Defendant states that the Court never applied Rule 502(a) in the March 30 Order, and the parties did not brief Rule 502(a). Defendant states that the March 30 Order does not:
(1) discuss how [its] production of the Email Strings to comply with its discovery obligations in this matter is one of those rare instances that requires production of the 112 documents identified on [its] privilege log (and potentially other documents determined to be privileged in future document productions) to prevent a selective, misleading and affirmative presentation of evidence;
(2) mention how the 112 documents relate to the same subject matter as the Email Strings; or,
(3) describe how the disclosure of the Email Strings was an “intentional” waiver within the meaning of FRE 502(a)(1).
[Id. at 3]. Defendant asserts, “The omission of FRE 502(a) analysis and these key findings in the Order is fatal to Plaintiffs' interpretation of the Order regarding subject matter waiver” [Id.]. Defendant adds that the “Court did not confer a broad subject matter waiver” [Id.]. Defendant maintains that the Court's March 30 Order was limited to the specific documents at issue.
Plaintiffs respond that there are several procedural issues with Defendant's motion [Doc. 205 p. 2]. First, Plaintiffs argue, “[T]he motion raises no justiciable issue, dispute, or controversy that would require court attention” [Id. at 3]. Second, Plaintiffs contend that “the applicable rules do not recognize a ‘motion to clarify’ ” [Id.]. Instead, according to Plaintiffs, Defendant should have filed a motion under Rule 54, Rule 59, or Rule 60, or an objection under Rule 72 of the Federal Rules of Civil Procedure. Third, Plaintiffs state that regardless of the title, Defendant's filing is actually an untimely Rule 72 objection. Fourth, Plaintiffs argue that Defendant's “[m]otion appears to be an effort to circumvent the normal briefing schedule and file an additional unrecognized brief in response to Plaintiffs' Motion to Compel” [Id. at 6]. Plaintiffs request that the Court “summarily deny the instant motion and require [Defendant] to simply respond to Plaintiffs' Motion to Compel as required by the Rules of Civil Procedure and Local Rule 7.1” [Id.].
*3 Defendant replies that Plaintiffs have not responded to their legal argument that Plaintiffs' interpretation of the March 30 Order is inconsistent with the order itself and Rule 502(a) [Doc. 208 p. 1]. Defendant argues that the motion is proper and that “[w]ell-established case law debunks Plaintiffs' argument” otherwise [Id.]. Addressing Plaintiffs' fourth argument, Defendant contends that it informed Plaintiffs that it intended to file its motion and offered to streamline the process, but Plaintiff declined [Id. at 4].
II. ANALYSIS
The Court has considered the parties' positions on the motions, and for the reasons explained below, the undersigned DENIES Plaintiffs' Motion to Compel Discovery [Doc. 203] and GRANTS Defendants' Motion to Clarify [Doc. 204] to the extent it seeks clarification of the March 30 Order.
As an initial matter, Plaintiffs argue that Defendant's Motion to Clarify is improper for several reasons as outlined above. But as Defendant points out, the Sixth Circuit Court of Appeals “has endorsed the use of motions to clarify” [Doc. 208 p. 2 (citing United States v. Riley, 609 F. App'x 837, 841 n.2 (6th Cir. 2015) (“We note that if the Bank were concerned only with clarifying the scope of the district court's Order, it could have filed a motion for clarification with the district court.”); Nat'l Ecological Found. v. Alexander, 496 F.3d 466, 481 (6th Cir. 2007) (reversing a trial court's denial of a motion to clarify a party's obligations under a consent order and remaining with instructions to grant the motion)]. Other courts have followed suit. See, e.g., United States v. Troutman, No. 1:11-cr-00472, 2022 WL 326523, at *1 (N.D. Ohio. Feb. 3, 2022) (“[A] motion for clarification is properly used to clarify the scope of the district court's prior order.”).
Here, the parties' motions [Docs. 203 and 204] demonstrate that they have disagreements over the scope of the March 30 Order, which is causing additional discovery disputes. The Court will therefore clarify the scope of the March 30 Order. The Court will not, however, allow the parties to re-litigate their previous positions or engage in new arguments on the prior issues. Rule 72 allows parties to appeal rulings to the Chief District Judge within fourteen (14) days and neither party did so. See Fed. R. Civ. P. 72.
As mentioned above, the March 30 Order explained the “unique circumstances of this case and how the[ ] issues were brought before the Court” [Doc. 188 p. 9]. Defendant argued that it inadvertently produced the March 5 Letter to Plaintiffs during discovery [Id.]. In the parties' briefs, Plaintiffs relied on the Email Strings to argue that Defendant waived the attorney-client privilege with respect to the March 5 Letter, and Defendant relied on the Email Strings to show it did not waive the attorney-client privilege as to the March 5 Letter [Id.]. Later, Defendant clawed back the Email Strings, claiming they too were protected by the attorney-client privilege [Id. at 9– 10]. In summary, Defendant claimed that the March 5 Letter and the Email Strings were both inadvertent disclosures.
The Court found that while the March 5 Letter appeared to be an inadvertent production, Defendant intentionally produced the Email Strings [Id. at 8–17]. The Court concluded that Defendant waived the attorney-client privilege with respect to the March 5 Letter “given that [it] intentionally disclosed the Email Strings, which discusses the same subject matter” [Id. at 17].
Plaintiffs contend that the March 30 Order “extends much farther and applies to all documents containing the same subject matter of the [E]mail [S]trings” [Doc. 203 p. 3]. Pointing to page seven of the March 30 Order, Plaintiffs define the “same subject matter” as “discussion of advice from the legal department about the accounts” [Id.]. According to Plaintiffs, the following entries in the privilege log are not protected:
*4 a. “reflecting legal advice provided by in-house counsel regarding the Subject Accounts,” approximately 5 times;
b. “reflecting the legal advice provided by in-house counsel regarding the Subject Accounts,” approximately 21 times;
c. “reflecting legal advice of in-house counsel regarding the Subject Accounts,” approximately 2 times;
d. “reflecting the legal advice provided by in-house counsel regarding customer account,” approximately 2 times;
e. “regarding legal advice related to Subject Accounts,” approximately 41 times;
f. “regarding legal advice related to customer account,” approximately 21 times;
g. “regarding legal advice related to a customer account,” approximately 1 time;
h. “legal advice regarding the Subject Accounts,” approximately 1 time;
i. “legal advice of in-house counsel regarding Subject Accounts,” approximately 6 times, and
j. “legal advice regarding a customer account,” approximately 9 times.
[Doc. 203 pp. 4–5].
Arguing that “the Court unmistakably defines the subject matter” [Doc. 211 p. 2], Plaintiffs primarily rest their argument on the following sentence in the March 30 Order: “The Emails strings contain the same subject matter, i.e., discussion of advice from the legal department about the accounts” [Doc. 188 p. 7]. But Plaintiffs do not appreciate that at the time of the March 30 Order, the March 5 Letter and the Email Strings were under seal [See Docs. 152 and 166]. The Court did not define the subject matter as “discussion of advice from the legal department about the accounts” [Doc. 118 p. 7]. Instead, the Court was simply maintaining the confidentiality of matters filed under seal pending the outcome of the parties' dispute, including any appeals. Plaintiffs' interpretation is beyond the scope of the March 30 Order and would result in an extraordinary broad waiver, which is contrary to the principal that waiver of the “ ‘same subject matter’ is to be viewed narrowly.” United States v. Skeddle, 989 F. Supp. 905, 909, n.2 (N.D. Ohio 1997) (citations omitted). The Court therefore finds Plaintiffs' request that the Court compel Defendant to “produce all documents that it has withheld or redacted that contain the same subject matter as the [March 5 Letter] and the Email Strings, ‘i.e.[,] discussion of advice from the legal department about the subject accounts’ ” [Doc. 211 p. 8 (citation omitted)] not well taken.
The Court agrees with Defendant's position that the March 30 Order “was limited to the specific documents at issue[.]” [Doc. 204 p. 9 (emphasis omitted)]. Specifically, the March 30 Order adjudicated the parties' disputes regarding (1) whether the March 5 Letter and Emails Strings were protected by the attorney-client privilege, and if so, (2) whether Defendant waived the privilege with respect to those documents. “[I]t would be inappropriate for this Court to prospectively” find that Defendant waived the privileged (should it even exist) with respect to other documents that the Court has not reviewed nor have the parties sufficiently briefed, as such would be an impermissible advisory opinion. Doe v. Rausch, 461 F. Supp. 3d 747, 778 (E.D. Tenn. 2020); see also United Pub. Workers of Am. (C.I.O.) v. Mitchell, 330 U.S. 75, 89 (1947) (“As is well known the federal courts established pursuant to Article III of the Constitution do not render advisory opinions.”). Indeed, in the March 30 Order, the undersigned concluded, “The Court has reviewed these documents, and they discuss the same subject matter” [Doc. 188 p. 18]. The Court declines to address Defendant's arguments regarding Rule 502(a) as they appear to be an attempt to re-litigate and/or raise new arguments with respect to the original issues.
III. CONCLUSION
*5 For the reasons stated above, the Court DENIES Plaintiffs' Motion to Compel Discovery [Doc. 203] and GRANTS Defendant's Motion to Clarify the Court's March 30, 2023 Order Granting Plaintiff's Motion to Determine Claim of Privilege [Doc. 204] to the extent it requests that the Court clarify the March 30 Order.
IT IS SO ORDERED.
ENTER:

Footnotes

The March 5 Letter was from Rhonda Parton, a former bank employee who held a Money Market Investment Account (“MMIA”), to Becky Beeler, who was at the time Defendant's employee [Doc. 138-1]. The Court originally placed the March 5 Letter under seal given the nature of the dispute [Doc. 152]. The Court later unsealed the March 5 Letter [Doc. 216].
Plaintiffs originally filed the Email Strings [Doc. 135-4] in the public record, but later, the Court placed these records under seal pending a determination of whether Defendant waived the attorney-client privilege as to these documents [See Doc. 166]. The Bates Nos. of the Email Strings are as follows: BBT-011219-011220, BBT-011249-011250, and BBT-012049 [See Doc. 164 p. 2].