United States District Court, D. Arizona
G. Campbell United States District Judge
assert that six documents produced by Defendants Union
Pacific and Kinder Morgan in this litigation are not
privileged and should be available as evidence. Following a
telephone conference, the Court directed the parties to
submit the documents for in camera review and to
provide the Court with memoranda on the issue. Doc. 190. The
Court has reviewed the documents and memoranda (Docs. 213,
215, 217, 225), and holds that the privilege applies and has
not been waived.
documents reviewed in camera are referred to by the
parties as Exhibits A through F. Exhibits A, B, C, and D are
memoranda written by in-house attorney Roy Jerome between
1966 and 1976, and were addressed to officers or employees of
Union Pacific's and Kinder Morgan's predecessor
corporations. Doc. 215 at 3. Mr. Jerome was employed as a
lawyer by Southern Pacific Company, the former parent of
Union Pacific's and Kinder Morgan's predecessors.
Exhibit E is a 1976 internal memorandum written to several
individuals, including Mr. Jerome. Exhibit F is a 1957
document written by Engineering Management, Inc.
(“EMI”) that discusses legal advice provided by
Paul DeFord, an in-house attorney employed by Southern
Pacific Company. Doc. 217 at 3-4. Union Pacific asserts the
attorney-client privilege with respect to Exhibits A-C, and
Kinder Morgan asserts the privilege with respect to Exhibits
D-F. Doc. 213 at 2.
parties' request, the Court previously entered a
stipulated order which provides that “[t]he production
of any privileged or otherwise protected or exempted
Information shall not be deemed a waiver or impairment of any
claim of privilege or protection, including, but not limited
to, the attorney-client privilege or the protection afforded
to work product materials, or the subject matter thereof, as
to the produced Information, or any other Information.”
Doc. 110 at 2. As a result, Plaintiffs do not contend that
the production of Exhibits A-F waived the attorney-client
privilege. They instead argue that the documents are not
privileged in the first instance, that subject matter waiver
has occurred through the production and use of related
documents, and that Defendants waived the privilege by taking
certain positions in this case and by failing to make timely
objections when the documents were used in a deposition. Doc.
cite Arizona privilege law in support of their arguments.
Id. at 2. Kinder Morgan argues that California law
applies. Doc. 217 at 2-3. Union Pacific cites both Arizona
and California law. Doc. 215. All parties cite Federal Rule
of Evidence 502. The Court need not engage in a choice-of-law
analysis because Rule 502 resolves most of the issues and,
where state law is relevant, the result would be the same
under Arizona and California law.
Are the Documents Privileged?
make only cursory arguments that Exhibits A-F are not
privileged. Doc. 213 at 4. They assert that the documents do
not provide legal advice based on confidential information,
but Exhibits A-E are written either by or to an attorney,
Exhibit F recounts the advice of an attorney, and the
significance of all six documents, in Plaintiffs' view,
is their legal advice - their statements about the legal
status of the railroad's ownership interest in the
railroad right-of-way. Plaintiffs contend that the privilege
does not extend to both Union Pacific and Kinder Morgan, but
do not dispute Defendants' assertion that they were
sister corporations at the time of the communications, owned
by a single corporate parent. Nor do Plaintiffs dispute that
the attorneys involved were employed by the parent. Finally,
Plaintiffs contend that Exhibit F was written by EMI, an
unrelated third-party, but do not dispute that EMI was
retained by Kinder Morgan's predecessor as its
right-of-way agent. Both Arizona and California law include
agents within the corporate attorney-client privilege.
See A.R.S. § 12-2234(B) (corporate privilege
includes agents); Nemirofsky v. Seok Ki Kim, 523
F.Supp.2d 998, 1002 (N.D. Cal. 2007), as amended (Nov. 24,
2007) (privilege “includes communications with the
entity's agent, at least where the agent is acting within
the scope of his agency.”).
Pacific and Kinder Morgan provided detailed responses to
Plaintiffs' arguments on this issue, and the Court
afforded Plaintiffs an opportunity to reply, but the reply
said nothing more about this issue. Doc. 225. The Court finds
that Exhibits A-F satisfy the requirements for privileged
Subject Matter Waiver under Rule 502.
argue that Defendants waived the attorney-client privilege
with respect to Exhibits A-F by disclosing three other
letters or memoranda - Exhibits G, H, and I - which address
the same subject matter (the status of the railroad's
right-of-way title) and were written by Defendants'
in-house lawyers. Although Plaintiffs initially suggested
that the waiver occurred when Exhibits G-I were used in
related California litigation referred to by the parties as
the Rent Action, Plaintiffs narrowed their position in their
reply, asserting that the Court need not consider the Rent
Action. Plaintiffs instead claim that Defendants waived the
privilege by failing to object to Plaintiffs' use of
Exhibits G-I in this litigation, both in Plaintiffs'
complaint and in depositions. Doc. 225 at 4.
assert an argument for subject-matter waiver - that
Defendants' waiver of the privilege with respect to
Exhibits G-I constitutes a waiver of the privileged for other
documents addressing the same subject matter (Exhibits A-F).
In support, Plaintiffs rely on Federal Rule of Evidence
When the disclosure is made in a federal proceeding . . . and
waives the attorney-client privilege or work-product
protection, the waiver extends to an undisclosed
communication or information in a federal or state proceeding
(1) the waiver is intentional;
(2) the disclosed and undisclosed communications or
information concern the same ...