United States District Court, W.D. Virginia, Big Stone Gap Division
P. Fishwick, Jr. and Monica L. Mroz, Fishwick &
Associates PLC, Roanoke, Virginia, for Plaintiff;
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.
OPINION AND ORDER
P. JONES UNITED STATES DISTRICT JUDGE.
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. 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. 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.
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).
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.”).
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.
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).
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.
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.
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.
subpoena served by the plaintiff on Mullins, the School
Board's attorney, requested production of the following