Wilbur et al v. City of Mount Vernon et al, No. 2:2011cv01100 - Document 179 (W.D. Wash. 2012)
Court Description: ORDER Granting Plaintiffs' 165 Motion to Compel Richard Sybrandy's Compliance with Subpoena Duces Tecum, by Judge Robert S. Lasnik. (CL)
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Wilbur et al v. City of Mount Vernon et al Doc. 179 1 2 3 4 5 6 7 8 9 10 11 12 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE _________________________________ ) ) ) Plaintiffs, ) v. ) ) CITY OF MOUNT VERNON, et al., ) ) Defendants. ) _________________________________ ) JOSEPH JEROME WILBUR, et al., No. C11-1100RSL ORDER COMPELLING RICHARD SYBRANDY TO COMPLY WITH SUBPOENA 13 This matter comes before the Court on “Plaintiffs’ Motion to Compel Richard 14 Sybrandy’s Compliance with Subpoena Duces Tecum.” Dkt. # 165. Plaintiffs issued a Rule 45 15 subpoena duces tecum to Mr. Sybrandy in August 2011. Decl. of Matthew J. Zuchetto (Dkt. 16 # 166), Ex. A at 1. Through a series of conferences, the original subpoena has been substantially 17 narrowed and there are only a few categories of documents at issue here. Plaintiffs seek to 18 compel the production of three types of documents, each of which is considered below. 19 Having reviewed the memoranda, declarations, and exhibits submitted by the 20 parties, the Court finds as follows: 21 (1) Plaintiffs seek production of a report or other documents that reflect the total number 22 of public defense and non-public defense cases that Mr. Sybrandy handled on a year-by-year 23 basis from 2006 through 2011 and the total number of hours billed to those two categories of 24 cases during each year. This information goes to a key issue in the case, namely Mr. Sybrandy’s 25 work load. Mr. Sybrandy does not, however, address this request in his response. Dkt. # 169. 26 ORDER COMPELLING RICHARD SYBRANDY TO COMPLY WITH SUBPOENA Dockets.Justia.com 1 After the motion to compel was filed, Mr. Sybrandy produced information 2 regarding the total hours billed between March 2008 and December 2011 on non-public 3 defender cases. This is insufficient for the needs of this litigation. Mr. Sybrandy suggested in an 4 email to plaintiff’s counsel that his computerized billing system contained only records from 5 March 2008 on and that there are no electronic or paper billing records prior to that date. Decl. 6 of Matthew J. Zuchetto (Dkt. # 174), Ex. A at 1. Plaintiffs, however, seek any documents or 7 reports that would enable them to determine how many public defense and non-public defense 8 cases Mr. Sybrandy handled in any give year after 2005, along with the total number of hours 9 billed to those two categories. The fact that Mr. Sybrandy’s computerized billing system is 10 limited does not mean that there are no other documents responsive to this request. In fact, Mr. 11 Sybrandy was apparently willing and able to provide defendants with information regarding the 12 number of public defense cases he closed on an annual basis as of December 2011. Further 13 production shall be ordered. 14 (2) In their motion, plaintiffs sought to compel the production of public defense client 15 files that were active at any point during the month of June 2010. Dkt. # 165 at 5. The 16 requested files are relevant in that they would provide a snapshot of the number of cases Mr. 17 Sybrandy was handling at a given time, the complexity of those cases, and/or the level of 18 attention Mr. Sybrandy was able to give each case. Mr. Sybrandy objects on three grounds: 19 first, that his filing system does not allow him to determine which cases were pending in June 20 2010; second, that his ethical obligations preclude him from producing client files unless the 21 client individually consents; and third, that locating and reviewing client files for production 22 would take too much time and effort. Dkt. # 169 at 3-4. 23 (a) Mr. Sybrandy asserts that his files are stored in file boxes using a “hybrid 24 alphabetical system” that would require individual review to locate files pending in a particular 25 month. While the details of the storage system are not explained, plaintiffs are willing to modify 26 ORDER COMPELLING RICHARD SYBRANDY TO COMPLY WITH SUBPOENA -2- 1 their request so that Mr. Sybrandy does not have to hunt through every box to find those files 2 that were pending in June 2010. Plaintiffs now request that Mr. Sybrandy review the first box in 3 which files beginning with “S” are located and pull all case files that were pending at any point 4 in 2010, continuing through the alphabet until he has pulled fifty 2010 files. Although this 5 exercise may not enable plaintiffs to evaluate the number of cases Mr. Sybrandy was handling at 6 any one time, it is a reasonable compromise given the nature of the objection. (b) Mr. Sybrandy’s assertion that an attorney’s client files are never discoverable 7 8 is simply incorrect. See Pappas v. Holloway, 114 Wn.2d 198 (1990) (ordering production of 9 client files where attorney client privilege had been waived and work product doctrine did not 10 prevent disclosure). Plaintiffs’ theory of the case is that the public defenders in Mount Vernon 11 and Burlington were so overworked that they did not have time to communicate with or develop 12 litigation strategy for some or all of their clients. Not only is Mr. Sybrandy’s claim that all of his 13 client files contain privileged communications and/or confidential information completely 14 unsupported, but its truth or falsity represents one of the main issues in this litigation. The 15 materials and information sought by plaintiffs through this subpoena cannot be obtained from 16 other sources. In the circumstances presented here, the Court will not simply assume that the 17 attorney client privilege or work product doctrine bars the requested discovery in its entirety. 18 Nevertheless, some consideration must be given to the possibility that the fifty 19 2010 client files that will be produced contain information that is either privileged and/or should 20 be protected from public disclosure. Mr. Sybrandy, as keeper of the privilege, shall review each 21 of the fifty files and withhold from the production any documents that reveal communications 22 and advice between the attorney and the client.1 If a document is withheld or redacted on 23 24 25 26 1 To the extent the files contain work product, the material sought is central to plaintiffs’ claims and, being entirely within the control of Mr. Sybrandy, cannot be obtained from other sources. It is, therefore, discoverable. See Pappas, 114 Wn.2d at 212. Use and further disclosure of the confidential and work product materials contained in these files is subject to the terms and conditions set forth ORDER COMPELLING RICHARD SYBRANDY TO COMPLY WITH SUBPOENA -3- 1 account of the attorney/client privilege, the withholding must be indicated in the production and 2 a privilege log sufficient to allow interested parties to evaluate each claim of privilege must be 3 provided. At a minimum, the privilege log must identify the nature of the document, its date and 4 subject, the parties thereto (and their connection to this litigation, if not apparent), and any other 5 information necessary to show that the attorney/client privilege applies. The production ordered herein will be subject to the following terms and 6 7 conditions: (I) Confidentiality: The fifty files produced by Mr. Sybrandy shall be 8 9 considered confidential. Any copies, excerpts, charts, summaries, or deposition testimony 10 regarding the files that contain names (or other identifying information) of victims or witnesses 11 or medical information related to any person shall also be considered confidential. The 12 protections afforded these materials do not, under any circumstance, extend to information that is 13 in the public domain, including the name of the client and any information maintained in Mount 14 Vernon’s and Burlington’s public records. (ii) Access to and Use of Confidential Material: Plaintiffs’ counsel may 15 16 use confidential material only for prosecuting or attempting to settle this litigation and shall store 17 and maintain the confidential material in a secure manner. Unless otherwise ordered by the 18 Court or permitted in writing by the client associated with the file, plaintiffs’ counsel shall 19 restrict access to confidential material to their employees to whom it is reasonably necessary to 20 disclose the information, the client associated with the file, the Court and its personnel, Mr. 21 Sybrandy, and plaintiffs’ experts and copy service personnel who sign the “Acknowledgment 22 and Agreement to be Bound” attached as Exhibit A to this order. To the extent confidential 23 material is disclosed at a deposition, each person in attendance other than those described above 24 (but including defense counsel) shall sign the “Acknowledgment and Agreement to be Bound.” 25 26 below. ORDER COMPELLING RICHARD SYBRANDY TO COMPLY WITH SUBPOENA -4- 1 (iii) Filing Confidential Material: If confidential material is to be filed with 2 the Court, the material should be redacted if it is not necessary for the resolution of the 3 underlying dispute. Otherwise, a motion to seal must be filed. Local Civil Rule 5(g) sets forth 4 the procedure that must be followed and the standards that will apply when a party seeks 5 permission to file confidential materials under seal. In addition, a copy of the motion to seal 6 shall be served on Mr. Sybrandy. 7 (c) There is no doubt that document production and privilege review activities are 8 burdensome. Access to relevant documents is, however, necessary to the search for truth. The 9 question under Fed. R. Civ. P. 45(c)(2)(B)(ii) and (3)(A)(iv) is whether the proposed production 10 exposes Mr. Sybrandy to “significant expense” or “undue burden.” On the current record, the 11 Court concludes that it does not. Plaintiffs have agreed to streamline the file selection process 12 and to limit the number of files that need to be produced. Although a privilege review of fifty 13 case files by a single individual could, in some circumstances, be onerous, Mr. Sybrandy 14 presents no evidence suggesting that his files are particularly voluminous or that they contain a 15 great number of privileged documents. While the review will undoubtedly take some amount of 16 time and distract the recipient from his normal operations, there is nothing novel about that 17 situation. Courts do not usually shift the legal fees associated with a document review and 18 production to the requesting party, and there is no reason to do so here. The only out-of-pocket 19 expense identified (other than the cost of a pen) is copying costs. Mr. Sybrandy may, at his 20 option, use his own or plaintiffs’ copy service and have those expenses paid by plaintiffs. 21 (3) Two former clients of Mr. Sybrandy signed releases authorizing him to produce their 22 complete, unredacted files to plaintiffs. The Court assumes, based on counsel’s representations, 23 that Mr. Wilbur’s and Ms. Martineau’s files have now been produced. 24 25 For all of the foregoing reasons, plaintiffs’ motion to compel is GRANTED. 26 ORDER COMPELLING RICHARD SYBRANDY TO COMPLY WITH SUBPOENA -5- 1 Mr. Sybrandy shall, within fourteen days of the date of this order, produce to plaintiffs any 2 documents or reports which, when considered separately or in compilation, would enable 3 plaintiffs to determine how many public defense and non-public defense cases Mr. Sybrandy 4 handled in any give year from 2006 to 2011, along with the total number of hours billed to each 5 of those categories. Documents tending to show how many cases Mr. Sybrandy handled or 6 hours he worked on an annual basis, as well as open- and/or closed-case reports are deemed 7 responsive. Mr. Sybrandy shall also, within twenty eight days of the date of this order, produce 8 fifty case files and, if necessary, a privilege log as described in paragraph (2). 9 10 11 12 Dated this 27th day of June, 2012. A Robert S. Lasnik United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER COMPELLING RICHARD SYBRANDY TO COMPLY WITH SUBPOENA -6- Exhibit A 1 2 3 4 5 6 7 I, ____________________________ [print or type full name], of ______________________________________ [print or type full address], declare under penalty of perjury that I have read in its entirety and understand paragraphs (2)(b)(I)-(iii) governing the use and disclosure of confidential materials in this litigation. I agree to comply with and to be bound by all the terms of those paragraphs. I agree not to further disclose in any manner any confidential material to any person or entity. 8 9 10 11 Dated: ___________________ City and State where sworn and signed: _____________________________________ 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Printed Name: __________________________ Signature: _____________________________
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