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Colley v. Dickenson County School Board

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

October 29, 2018

DEBRA COLLEY, Plaintiff,

          John P. Fishwick, Jr., Fishwick & Associates PLC, Roanoke, Virginia, for Plaintiff;

          Jim H. Guynn, Jr., Guynn & Waddell, P.C., Salem, Virginia, for Defendant Dickenson County School Board.



         In this 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 plaintiff's claim.


         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.

         The 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.

         Two 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.

         The 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.

         In 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.

         In the 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.[1]

         Later, 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.

         In the 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. ...

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