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Hostetler v. Dillard

United States District Court, S.D. Mississippi, Northern Division

December 3, 2014



MICHAEL T. PARKER, Magistrate Judge.

THIS MATTER is before the Court on Plaintiffs' Motion to Compel [151]. Having considered that parties' submissions, the Court finds that the Motion [151] should be granted in part and denied in part.


This action arises from Plaintiffs' claims that Defendants breached certain farm lease contracts. On September 25, 2014, Plaintiffs served attorneys John Garrard and Cham Trotter with subpoenas requesting the production of all documents related to the leasing of William Dillard's farmland. See Notice [139]. Garrard and Trotter provided legal services to the Dillard Defendants[1] in connection with the underlying farm lease contracts. The parties agreed that Trotter should provide the Dillard Defendants with a copy of the Garrard and Trotter file.

On October 6, 2014, after reviewing the attorneys' file, the Dillard Defendants supplemented their response to Plaintiffs' request for production of documents by producing the attorneys' file, less and except privileged information described in their privilege log. See Supplemental Response [151-6]. The privilege log contains fifteen documents withheld on the basis of attorney-client privilege and/or the work product doctrine. On October 30, 2014, Plaintiffs filed their Motion [151] seeking to have this Court compel the Dillard Defendants to produce all of the contents listed in their privilege log.

As an initial matter, while not raised by the Dillard Defendants, the Motion to Compel is arguably untimely, as the discovery deadline was November 7, 2014, and the Motion was filed on October 30, 2014. See L.U. Civ. R. 7(b)(2)(B) ("A party must file a discovery motion sufficiently in advance of the discovery deadline to allow response to the motion, ruling by the court and time to effectuate the court's order before the discovery deadline."). However, there is good cause for considering the merits of the Motion. This case was recently reassigned to Judge Bramlette and the undersigned, which necessitated an extension of the trial date, and the Court is currently considering other discovery disputes. See Motion [176]. Additionally, Plaintiffs have presented evidence demonstrating that until recently they were unaware that the Dillard Defendants were withholding information. See Declaration [167-1]. Accordingly, the Court will extend the discovery deadline for the purpose of addressing the Plaintiffs' request.


Attorney-Client Privilege

Pursuant to Federal Rule of Evidence 501, state law determines the applicability of a privilege in diversity actions such as the case sub judice. Thus, Mississippi law governs the attorney-client privilege issue. Pursuant to the Mississippi Rules of Evidence, "[a] client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client...." M.R.E. 502(b).

"The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law. Its purpose is to encourage full and frank communication between attorneys and their clients and thereby to promote broader public interests in the observance of law and administration of justice.'" Hewes v. Langston, 853 So.2d 1237, 1244 (Miss. 2003) (quoting Upjohn Co. v. U.S., 449 U.S. 383, 389 (1981)). The Mississippi Supreme Court has interpreted the scope of the attorney-client privilege broadly. The privilege protects "all information regarding the client received by the attorney in his professional capacity and in the course of his representation of the client." Barnes v. State, 460 So.2d 126, 131 (Miss. 1984).

"The privilege does not require the communication to contain purely legal analysis or advice to be privileged. Instead, if a communication between a lawyer and client would facilitate the rendition of legal services or advice, the communication is privileged." Dunn v. State Farm Fire & Cas. Co., 927 F.2d 869, 875 (5th Cir. 1991). The Dillard Defendants must establish that the subject communications are privileged. See Baker Donelson Bearman Caldwell & Berkowitz, P.C. v. Seay, 42 So.3d 474, 494 (Miss. 2010) ("The burden of proof rests with the party asserting the attorney-client privilege.").

At the heart of this discovery dispute is a May 11, 2011, meeting between Dillard, his wife, Byron Seward, Garrard, and Trotter. Garrard and Trotter were acting as attorneys for the Dillard Defendants. They did not represent Seward, whom Dillard wished to conduct business with regarding Dillard's property. During this meeting, the attendees discussed the Dillard Defendants' options for leasing, or otherwise utilizing, their property.

Plaintiffs argue that certain documents listed on the Dillard Defendants' privilege log are not protected by the attorney-client privilege because they relate to the May 11, 2011, meeting. Although the Plaintiffs request an order from this Court compelling the Dillard Defendants to produce all of the contents of their ...

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