United States District Court, W.D. Virginia, Big Stone Gap Division
P. Fishwick, Jr., Fishwick & Associates PLC, Roanoke,
Virginia, for Plaintiff;
Guynn, Jr., Guynn & Waddell, P.C., Salem, Virginia, for
Defendant Dickenson County School Board.
OPINION AND ORDER
P. JONES UNITED STATES DISTRICT JUDGE
action by a former public school employee claiming
gender-based pay discrimination, the matter now before the
court is the Plaintiff's Second Motion to Compel
Discovery. The primary issue is whether certain documents
subpoenaed by the plaintiff from lawyers who had advised
defendant Dickenson County School Board (“School
Board” or “Board”) are privileged from
disclosure. A second issue is whether the defendant is
obligated to produce additional unprivileged documents which
the defendant contends are not relevant to the
attorney privilege issue has an involved history in the case,
made more prolonged and difficult by inadequate attention to
the matter by defense counsel and plaintiff's
counsel's insistence on pursuing an issue
disproportionate to its importance and the cost to the
parties and judicial resources. This history is as follows.
plaintiff, Debra Colley, was employed by the School Board
from 2007 to her retirement in 2015, as one of a small group
of supervisors in the school division's Central Office.
In April of 2015 Colley announced her intention to retire.
Before she left, she complained to the Board that she had
recently learned that her salary during her tenure had been
lower than comparable male supervisors. The Board's staff
developed options for a financial settlement with Colley,
which were discussed with her. Eventually, however, the Board
took no action on Colley's request and she voluntarily
retired as scheduled on July 31, 2015. This lawsuit was
thereafter filed on March 7, 2017. In her Amended Complaint,
Colley sued the Board and all of its five members, as well as
the division superintendent, Haydee Robinson. As a result of
a recent summary judgment ruling by the court, Colley v.
Dickenson Cty. Sch. Bd., No. 2:17CV00003, 2018 WL
4266864 (W.D. Va. Sept. 6, 2018), the only remaining
defendant is the School Board, facing claims under the Equal
Pay Act and Title IX of the Educational Amendments of 1972.
Discovery has long been closed in the case, but this
privilege issue lingers on.
lawyers' communications are involved. One, Scott Mullins,
served as the regular, but part-time, attorney for the School
Board. He advised the Board about the claim made by Colley
and discussed with her on behalf of the Board a possible
settlement. The other lawyer, Paul Beers, was consulted for
advice by Mullins after suit was filed and was paid for his
services by the School Board. Neither lawyer has appeared as
counsel in this action.
record indicates that on August 14, 2017, the plaintiff
served discovery requests on Superintendant Robinson, then a
defendant in this action, and represented in the case by the
same law firm as represents the School Board. The plaintiff
sought in Interrogatory No. 18 the identification and
description of all communications to and from Board attorney
Mullins regarding the plaintiff's compensation, including
her claims of pay disparity. The plaintiff also sought
production in Request for Production No. 14 all documents to
and from Mullins concerning the plaintiff's compensation.
addition to the discovery requests to Superintendant
Robinson, the plaintiff served a subpoena on Mullins,
demanding production of all documents regarding the plaintiff
dated between January 1, 2015, and August 1, 2015. The Board
and the other defendants filed motions to quash the subpoena
and in support of those motions, a privilege log prepared by
Mullins was submitted. The magistrate judge denied the
motions to quash. Mem. Order, Nov. 22, 2017, ECF No. 40. On
objections by the defendants, I vacated the magistrate
judge's order and granted the motions to quash, after
having reviewed in camera the documents listed on the
privilege log. Op. & Order, Apr. 18, 2018, ECF No. 64.
meantime, the discovery request served on Superintendant
Robinson had not been fully complied with, and on January 19,
2018, the plaintiff filed a Motion to Compel, which was heard
by the magistrate judge on February 9, 2018, and partially
granted by her. The magistrate judge ordered the production
of all documents by Robinson that were not included
on the Mullins privilege log previously submitted. Mem.
Order, Feb. 12, 2018, ECF No. 52. Unfortunately, that
privilege log only covered communications up to July 21,
2015, while the document request had no ending date.
Accordingly, without objection by defense counsel, and in
accord with the magistrate judge's order, Superintendant
Robinson produced privileged documents from attorney Mullins
dated between December 16, 2015, and April 14, 2016, which
documents included defense strategy and advice to the Board.
Pl.'s Mem. Supp. Mot. Reconsider Exs. E, F, G, H, I, J,
K, ECF Nos. 70-5, -6, -7, -8, -9, -10, -11. Robinson even
produced privileged emails to and from the law firm
representing her in this case, which emails were created
after the present lawsuit was filed. Fishwick Letter Suppl.
Exs. A & B, ECF No.112.
after a hearing, I granted a Motion for Reconsideration filed
by the plaintiff as to the subpoena to Mullins and denied the
motions to quash on the sole ground that the later production
by Robinson constituted a waiver of the privileges as to the
earlier documents. Oral Order, July 17, 2018, ECF No. 87.
Waiver had not been an argument previously asserted by the
plaintiff, but I excused any default on the ground that the
plaintiff did not have knowledge of the factual basis for
waiver prior to the magistrate judge's decision and the
Motion for Reconsideration. However, I pointed out that
having reviewed in camera the disputed material, I did not
find any communication that would be helpful to the plaintiff
or detrimental to the defendants and I urged plaintiff's
counsel to be proportionate in their discovery efforts.
meantime, the plaintiff served a new subpoena on attorney
Mullins, seeking later-created documents from August 2, 2015,
to the present. The plaintiff also served a subpoena on
attorney Beers, seeking similar documents created from April
2015 to the present. The attorneys did not produce any
documents in response to the subpoenas, and as a result the
plaintiff filed the present Second Motion to Compel
Discovery. In connection with the second subpoena on Mullins,
he produced a second updated privilege log listing claimed
attorney-client or work product privileged documents from
August 2, 2015, up to June 30, 2018. Pl.'s Mem. Ex B, ECF
No. 102-2. The parties are uncertain whether attorney Beers
possesses any requested documents. It is represented by the
plaintiff that Mullins communicated with Beers to obtain
outside legal advice on the case and that the School Board
paid Mr. Beers about $1, 500. Tr. 17, 18, July 17, 2018, ECF
No. 102-3. ...