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In re Subpoenas for Documents Issued to ThompsonMcMullan, P.C.

United States District Court, E.D. Virginia, Richmond Division

March 17, 2016

IN RE SUBPOENAS FOR DOCUMENTS ISSUED TO THOMPSONMCMULLAN, P.C.

MEMORANDUM OPINION

ROBERT E. PAYNE, SENIOR UNITED STATES DISTRICT JUDGE.

This matter is before the Court on three interrelated motions: NON-PARTY THOMPSONMCMULLAN, P.C.'S MOTION TO QUASH SUBPOENAS FOR DOCUMENTS (Docket No. 1), BONA FIDE CONGLOMERATE, INC.'S MOTION TO COMPEL (Docket No. 9), and SOURCEAMERICA'S MOTION TO QUASH SUBPOENAS ISSUED TO THOMPSON MCMULLAN, P.C. (Docket No. 12). All three motions pertain to Bona Fide Conglomerate, Inc. ("Bona Fide") seeking documents from ThompsonMcMullan, P.C. ("ThompsonMcMullan") for use in Bona Fide's underlying suit against SourceAmerica ("SourceAmerica") in the Southern District of California.

For the reasons stated below, NON-PARTY THOMPSONMCMULLAN, P.C.'S MOTION TO QUASH SUBPOENAS FOR DOCUMENTS (Docket No. 1) will be granted. BONA FIDE CONGLOMERATE, INC.'S MOTION TO COMPEL (Docket No. 9) will be denied. SOURCEAMERICA'S MOTION TO QUASH SUBPOENAS ISSUED TO THOMPSON MCMULLAN, P.C. (Docket No. 12) will be granted.

PROCEDURAL HISTORY

A coherent explanation of the dispute before this Court requires a brief examination of the relationships between the interested parties.

The "AbilityOne" program is a federal procurement program that requires that the federal government exclusively obtain some goods and services from non-profit organizations ("Affiliates") which employ legally blind or severely disabled persons. (Bona Fide's Mem. in Opp. to ThompsonMcMullan's Mtn. to Quash, Docket No. 5, 2-3) ("Bona Fide's TMM Opp."). SourceAmerica is a "Central Non-Profit Agency" ("CNA") responsible for awarding contracts for such goods and services among Affiliates. (Bona Fide's TMM Opp. 3). Bona Fide is one such Affiliate. (Bona Fide's TMM Opp. 3). Between 2009 and 2012, SourceAmerica and Bona Fide were embattled over allegations that SourceAmerica improperly awarded a Las Vegas-based contract to a different Affiliate, when Bona Fide claimed that it was the most qualified vendor under the stated criteria. (Bona Fide's TMM Opp. 3-5). That dispute settled out of court on July 27, 2012. (Bona Fide's TMM Opp. 5). The Settlement Agreement included a provision that SourceAmerica must use its best efforts to treat Bona Fide fairly going forward. (Bona Fide's TMM Opp. 5). The office of SourceAmerica's General Counsel was in charge of monitoring this fair treatment. (Bona Fide's TMM Opp. 5). Jean Robinson ("Robinson") was, at that time, General Counsel for SourceAmerica. (Bona Fide's TMM Opp. 5).

Despite the Settlement Agreement, SourceAmerica did not award any new contracts to Bona Fide. (Bona Fide's TMM Opp. 5). Beginning in May 2013, Bona Fide's CEO, Ruben Lopez ("Lopez"), began speaking to Robinson about SourceAmerica's award decisions. (Bona Fide's TMM Opp. 5). Lopez recorded "many" of these conversations. (Bona Fide's TMM Opp. 5). Allegedly, Robinson told Lopez that SourceAmerica used a "variety of schemes" to routinely allocate the majority of its contracts, including high value contracts, to a select "club" of Affiliates whose executives or directors had recently sat on SourceAmerica's Board of Directors. {Bona Fide's TMM Opp. 5). "Based largely upon the information gained from Ms. Robinson, " Bona Fide brought suit against SourceAmerica in the Southern District of California on April 4, 2014, for breach of the Settlement Agreement (the "California litigation"). (Bona Fide's TMM Opp. 6).

On December 2, 2014, SourceAmerica filed suit against Robinson in the Circuit Court of Fairfax County: case CL-2014-15501. (Bona Fide's TMM Opp. 6). Bona Fide characterizes CL-2014-15501 as "related to [Robinson's] disclosures of SourceAmerica activities to outside sources ... including legal malpractice, conspiracy ... and breach of fiduciary duty." (Bona Fide's TMM Opp. 6). SourceAmerica disputes this characterization, and claims that CL-2014-15501 stemmed from several instances of malpractice by Robinson, of which the Bona Fide issue was a small part. (SourceAmerica's Mem. in Supp. of Mtn. to Quash Subpoenas Issued to ThompsonMcMullan, P.C., Docket No. 12, 8, 11) ("SourceAmerica's SA Mem."). In CL-2014-15501, Robinson was represented by ThompsonMcMullen. SourceAmerica and Robinson settled CL-2014-15501 on September 11, 2015. (Bona Fide's TMM Opp. 6). The order of dismissal mandated that

[Robinson] shall be permanently enjoined from disclosing SourceAmerica's privileged and/or confidential information, as defined in the Settlement Agreement and Release ... except as provided for by the Confidential Settlement Agreement and Mutual Release.

(Bona Fide's TMM Opp. 6).

On October 1, 2015, SourceAmerica brought a second suit against Robinson in the Circuit court of Fairfax County: CL-2015-013033. (Bona Fide's TMM Opp. 6-7). ThompsonMcMullen did not represent Robinson in the second suit. (ThompsonMcMullen's Mem. in Supp. of Mtn. to Quash, Docket No. 2, 2) ("ThompsonMcMullen's TMM Mem.").

Meanwhile, in the California litigation, SourceAmerica requested to leave to amend its pleadings (October 30, 2015) and subsequently amended its pleadings (January 7, 2016) to bring counterclaims and third-party claims against Bona Fide and Lopez for violations of California privacy and unfair competition statutes. (Bona Fide's TMM Opp. 7). The amended claims related to Lopez's communications with Robinson and Lopez's recording of those conversations. (Bona Fide's TMM Opp. 7).

Given [Robinson's] manifest importance to both [Bona Fide's] claims and [SourceAmerica's] counterclaims, [Bona Fide] subpoenaed ThompsonMcMullen's non-privileged records regarding SourceAmerica's suits against her, with the knowledge that the subject matter of those lawsuits significantly overlapped with this one. Additionally, [Bona Fide] was aware that the first of these suits resulted in the aforementioned Settlement Agreement that could affect Ms. Robinson's future testimony.

(Bona Fide's TMM Opp. 7).

Initially, Bona Fide issued a subpoena to ThompsonMcMullen seeking documents in ThompsonMcMullen's files relating to the CL-2015-13033 case, in which ThompsonMcMullen was uninvolved. On January 4, 2016, Bona Fide served an Amended Subpoena seeking documents related to both the CL-2015-13033 case and the CL- 2014-15501 case. (Bona Fide's TMM Opp. 7-8). The Amended Subpoena demanded:

REQUEST FOR PRODUCTION NO. 1:
Any and all non-privileged DOCUMENTS, including, but not limited to any and all COMMUNICATIONS, RELATED TO case numbers CL-2015-13033 and CL-2014-15501 filed in the Circuit Court of Fairfax County, Virginia.
REQUEST FOR PRODUCTION NO. 2:
Any and all written agreements between Jean Robinson and SOURCEAMERICA whereby one or both parties, in whole or in part, agreed to settle claims RELATED TO case number CL-2015-13033 or CL-2014-15501 filed in the Circuit Court of Fairfax County, Virginia.
REQUEST FOR PRODUCTION NO. 3:
Any and all non-privileged COMMUNICATIONS to which SOURCEAMERICA is a party that are in YOUR custody or control.
REQUEST FOR PRODUCTION NO. 4:
Any and all COMMUNICATIONS to which YOU and ...

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