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Colley v. Dickenson County School Board

United States District Court, W.D. Virginia, Big Stone Gap Division

April 18, 2018

DEBRA COLLEY, Plaintiff,

          John P. Fishwick, Jr. and Monica L. Mroz, Fishwick & Associates PLC, Roanoke, Virginia, for Plaintiff;

          Jim H. Guynn, Jr., Guynn & Waddell, P.C., Salem, Virginia, for Defendant Dickenson County School Board, Haydee Robinson, John Skeen, Don Raines, and R.E. Nickles; Melissa W. Robinson and Johneal M. White, Glenn Robinson Cathey Memmer & Skaff, PLC, Roanoke, Virginia, for Defendants Susan Mullins and Rocky Barton.



         In this employment discrimination case by a former public school teacher under both the Equal Pay Act and 42 U.S.C. § 1983, as well as a pendent state claim of breach of contract, the defendants moved to quash a subpoena duces tecum served by the plaintiff on the school board's attorney, relying upon the attorney-client and work-product privileges.[1] The motions were referred to the magistrate judge, who denied them on the ground that the defendants had not met their burden to show that the documents in question were in fact subject to the privileges, and had simply made the conclusory statement that they were protected by the privileges. Mem. Order 6, Nov. 22, 2017, ECF No. 40.[2] The defendants filed timely objections to the magistrate judge's decision. I then directed the defendants to submit the documents in question for the court's in camera review. Op. & Order 2, Dec. 18, 2017, ECF No. 44. The documents have been submitted and the objections to the magistrate judge's Memorandum Order are now ripe for decision.


         A magistrate judge's ruling as to nondispositive matters may be reversed only upon a finding that the order is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). An order is clearly erroneous when “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Minyard Enters., Inc. v. Se. Chem. & Solvent Co., 184 F.3d 373, 380 (4th Cir. 1999) (internal quotation marks and citation omitted). An order is contrary to law “when it fails to apply or misapplies relevant statutes, case law, or rules of procedure.” United Mktg. Solutions, Inc. v. Fowler, No. 1:09-CV-1392-GBL-TCB, 2011 WL 837112, at *2 (E.D. Va. Mar. 2, 2011) (citation omitted).

         Because federal law claims are made in this case, the privileges asserted here are governed by “the principles of the common law as interpreted by the courts of the United States in the light of reason and experience.” Fed.R.Evid. 501 advisory committee note to 1974 enactment; see Virmani v. Novant Health Inc., 259 F.3d 284, 286 n.3 (4th Cir. 2001) (“We agree with our sister circuits that in a case involving both federal and state law claims, the federal law of privilege applies.”).

         The attorney-client privilege applies when the person claiming the privilege has, as a client, consulted an attorney to secure legal services, and in connection with those services, information intended to be confidential has been communicated. In re Grand Jury Proceedings, 727 F.2d 1352, 1355 (4th Cir. 1984). The essence of the privilege is protection of what was expressly made confidential or should have been reasonably assumed by the attorney as so intended. United States v. Jones, 696 F.2d 1069 (4th Cir. 1982).

         In the corporate context, the protections of the attorney-client privilege extend to employees. Upjohn Co. v. United States, 449 U.S. 383, 391-95 (1981). The attorney-client privilege protects intra-corporate communications transmitting legal advice to employees, see Deel v. Bank of Am., 227 F.R.D. 456, 460 (W.D. Va. 2005), and communications between employees in preparation for seeking legal advice, see Burlington Indus. v. Exxon Corp., 65 F.R.D. 26, 38-39 (D. Md. 1974). Only if the third party is a “stranger” to the entity is the privilege waived. Deel, 227 F.R.D. at 458 (citation omitted).

         The work-product doctrine protects materials prepared in anticipation of litigation. Collins v. Mullins, 170 F.R.D. 132, 134 (W.D. Va. 1996). The probability of litigation must be substantial and imminent, or fairly foreseeable at the time the document was prepared. Id. The privilege encompasses both fact work product and opinion work product. Opinion work product contains an attorney's mental impressions, conclusions, opinions, or legal theories. Better Gov't Bureau Inc. v. McGraw (In re Allen), 106 F.3d 582, 607 (4th Cir. 1997). Fact work product, which consists of documents that do not contain the attorney's mental impressions, is not entitled to absolute protection. Id.

         An existing attorney-client relationship does not alone warrant a presumption of confidentiality. Id. The circumstances in which the communication was made must show the intention of secrecy. In re Grand Jury Proceedings, 727 F.2d at 1356. Communications intended to be conveyed to others are not entitled to attorney-client protection. Id. at 1357.


         The plaintiff in this case, Debra Collins, worked as supervisor of instruction for the Dickenson County, Virginia, public school system from 2007 until her retirement in 2015. She contends that during her employment there was an unlawful disparity between her salary and that of comparable male employees. She alleges that at the time of her pending retirement in 2015, she brought this issue to the attention of the Dickenson County School Board (the “School Board”) and that Scott Mullins, the lawyer for the School Board, indicated to her a range of compensation the School Board would pay her in order to correct the eight years of disparity. She claims that she agreed to any figure within that range but that in July of 2015 the School Board decided not to offer her any compensation. This lawsuit followed. The defendants deny any liability to the plaintiff.

         The subpoena served by the plaintiff on Mullins, the School Board's attorney, requested production of the following ...

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