Free Order on Motion to Seal - District Court of Colorado - Colorado

Case 1:04-cv-01099-JLK-DW

Document 106

Filed 10/27/2005

Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Magistrate Judge David L. West Civil Action No. 04-CV-01099-JLK-DLW WOLF CREEK SKI CORPORATION, INC., Plaintiff, vs. LEAVELL-McCOMBS JOINT VENTURE, d/b/a THE VILLAGE AT WOLF CREEK, Defendant.

MEMORANDUM OPINION AND ORDER

ENTERED BY MAGISTRATE JUDGE DAVID L. WEST This matter is before me on Plaintiff' Motion Regarding Documents Produced by Third-Party s Thomas Glass, Defendant' Response and Plaintiff' Reply. On November 1, 2004, Judge Kane s s signed a Stipulated Protective Order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure detailing the procedures to be followed in the event either party made a good-faith determination that documents subject to discovery were " confidential" Attached to Plaintiff' Motion is Exhibit B, . s which was filed under seal pursuant to D.C. Colo. LCivR. 7.2 and 7.3, and are the documents which are the subject of Plaintiff' Motion. s I. BACKGROUND

1

Case 1:04-cv-01099-JLK-DW

Document 106

Filed 10/27/2005

Page 2 of 8

Tom Glass (" Glass" works for Western Land Group and was an independent contractor and ) third party consultant regarding environmental and lobbying issues for the Defendant from 1999 to 2002. As far as the Court can determine, Glass' contact person with the Defendant, a joint venture, s was Bob Honts (" Honts" who acted as the development coordinator, but was not a member of the ), joint venture. On December 27, 2004, Plaintiff served Glass with a subpoena for the production of records related to Wolf Creek Ski Area, The Village at Wolf Creek, Leavell-McCombs Joint Venture, and communications between various related individuals. On December 29, 2004, Plaintiff gave Defendant' counsel a copy of the subpoena and on January 14, 2005 Glass produced the documents s subject to the subpoena to Plaintiff. On January 19, 2005, Plaintiff gave a copy of the Glass documents to Defendant' counsel and on March 8, 2005, Defendant contacted Plaintiff' counsel s s and requested that said documents (Exhibit B, now under seal) be destroyed, claiming they were confidential, subject to attorney-client privilege. The documents in Exhibit B can generally be defined as (1) lobbying communications regarding the Defendant' efforts to obtain an access road from the s United States Forest Service and (2) a December 4, 2001 Draft Default letter from Honts to Wolf Creek Ski Corporation. II. DOCUMENTS IN EXHIBIT B THAT ARE DISCOVERABLE AND NOT SUBJECT TO A CLAIM OF ATTORNEY CLIENT PRIVILEGE I have reviewed Exhibit B in camera and find that the Defendant has not shown the following documents to be subject to an attorney-client privilege, as they are not communications between an attorney and a client, or are in the public domain: 1) WC Tg 00013, memo 04/11/02 from Honts to Steve Quarles. No indication whether Quarles is an attorney.
2

Case 1:04-cv-01099-JLK-DW

Document 106

Filed 10/27/2005

Page 3 of 8

2)

WC Tg 00014, 04/02/02, cover letter from Honts to Glass. No attorney-client communication. WC Tg 00015, 12/05/01, cover letter from Alexis Strachan to Honts. No attorneyclient communication. WC Tg 00019, a letter 04/02/02 from Honts to Pete Leavell, a member of the Defendant joint venture WC Tg 00018, a fax record of WC Tg 00019. WC Tg 00060, 11/09/01 illegible document. WC Tg 00061, 12/05/01, fax record from Western Land Group. WC Tg 00224, 08/18/00 letter to Honts from Randall Burgess, District Ranger of United States Forest Service with a copy to Wolf Creek Ski Area and Colorado Wild. WC Tg 00225, undated, the fifth page of twenty-four on United States Forest Service stationery. WC Tg 00229-30-31-32, letter 07/17/00 from Randall Burgess, District Ranger United States Forest Service to Mineral County. WC Tg 00239, article entitled Endangered Species and Wetlands Report, an article of unknown origin about lynx. WC Tg 00240-1-2-3-4, Federal Register Volume 65 No. 60. WC Tg 00245-6-7-8-9, article in year 2000 by Leonard F. Ruggiero, et al, entitled Ecology and Conservation of Lynx in the United States. WC Tg 00250-1-2-3-4, March 2000 article, United States Forest Service lynx letter. WC Tg 00258-9-60-61-62, July 17, 2000 letter from Burgess (USFS) to Mineral County already reviewed (#7 above).

3)

4)

5) 6) 7) 8)

9)

10)

11)

12) 13)

14) 15)

3

Case 1:04-cv-01099-JLK-DW

Document 106

Filed 10/27/2005

Page 4 of 8

III. STIPULATED PROTECTIVE ORDER The Stipulated Protective Order (" SPO" paragraph 8 states that: ), " inadvertent production or disclosure of any document which is the subject to a legitimate claim that the document is a privileged attorney-client communication or attorney work product shall not constitute a waiver of any privilege if the producing party requests, in writing, the return of the documents that was inadvertently produced or disclosed within thirty (30) (Emphasis added) days after the producing party discovers the inadvertent production or disclosure." Glass complied with Plaintiff' subpoena and gave the documents (Exhibit B) to Plaintiff. s - December 27, 2004 - December 29, 2004 Glass served with subpoena Plaintiff gave Defendant' counsel a copy of the Glass s subpoena Glass produced documents Plaintiff gave copy of Glass documents to Defendant' s counsel (Exhibit B) Defendant' counsel contacted Plaintiff and claims s documents privileged and should be destroyed

- January 14, 2005 - January 19, 2005

- March 8, 2005

Is the " party"in paragraph 8 of the SPO the same as the " Party"found throughout the SPO? In Defendant' Response and particularly in Exhibit 8 attached to that Response, Defendant, through s Bob Honts (whose actual relationship to the Defendant, joint venture, has not been established by Defendant) details Glass' relationship as a consultant to develop legal strategy, and a representative s of the joint venture. The Court finds that Defendant' assertion that Glass is tied to the hip of s Defendant' counsel is good enough for this Court to include Glass within paragraph 8 of the SPO, s

4

Case 1:04-cv-01099-JLK-DW

Document 106

Filed 10/27/2005

Page 5 of 8

and finds that Defendant failed to timely respond within the thirty (30) days required, thereby waiving the privilege. If Glass were not a " party"per paragraph 8, Defendant still had notice of the subpoena and the nature of documents requested by Plaintiff, as well as the actual documents submitted by Glass at least six (6) weeks prior to claiming the privilege. The Court finds that Defendant has waived any privilege that might apply to all documents in Exhibit B. IV. DRAFT DEFAULT LETTER WC Tg 00016-17 This is a draft default letter from Honts to Kingsbury Pitcher (owner of Wolf Creek Ski Area) alleging various violations by the Plaintiff of the July 13, 1999 Agreement for Ski Utilities, Road and Parking Easement for The Village at Wolf Creek. According to Defendant' Response, page one, s " Glass was a necessary advisor to - and representative of - the Joint Venture in connection with Mr. its efforts to obtain reasonable access to The Village property through governmental and administrative action." Given that scope of work, Defendant has not shown that Glass was hired to provide legal or other advice related to Plaintiff' alleged breach of the 1999 Agreement. Therefore, s Honts forwarding of the draft default letter to Glass was outside of Glass' scope of consultation for s the Defendant. Alliance Construction Solutions, Inc. v. Department of Corrections, 54 P.3d 861 (Colo. 2002) relies on In Re: Bieter Co., 16 F.3d 929 (8th Cir. 1994), Alliance presents a four pronged test: (1) (2) the consultant has a significant relationship with the client and the transaction the information (Draft Default letter) was provided to the consultant for the purposes of seeking or providing legal assistance

5

Case 1:04-cv-01099-JLK-DW

Document 106

Filed 10/27/2005

Page 6 of 8

(3)

the information (Draft Default letter) was within the scope of the duties provided by the consultant the information (Draft Default letter) was treated as confidential and only disseminated to those persons with a specific need to know its contents.

(4)

The Draft Default letter was outside the scope of Glass' consultation, which was to " s contact various officials in connection with the possible governmental and administrative action concerning reasonable access to The Village property." (See Honts Affidavit, Exhibit 8, Defendant' Response), and s therefore disseminated by Defendant to Glass without any specific need for Glass to know its contents, and therefore no expectation of confidentiality. Denver Post Corp. v. University of Colorado, 739 P.2d 874 (Colo. App. 1987), Wesp v. Everson, 33 P.3d 191 (Colo. 2001). If there was a privilege attached to this document, it has been waived by the Defendant. Additionally, Defendant has failed to provide an affidavit from Glass or Defendant' counsel that would indicate s the Draft Default letter was within Glass' scope of duties. Therefore, the Court finds that this s document was also waived for its failure to comply with Alliance. V. DOCUMENTS SUBJECT TO ATTORNEY-CLIENT PRIVILEGE PER ALLIANCE, HOWEVER WAIVED PURSUANT TO STIPULATED PROTECTIVE ORDER Tom Glass was a third-party consultant to Defendant in its efforts to obtain reasonable access to The Village property through governmental and administrative action. The following sealed documents in Exhibit B are within the scope of Glass' lobbying-consultation per Alliance and are s privileged attorney-client communications, however waived pursuant to the Stipulated Protective Order:

6

Case 1:04-cv-01099-JLK-DW

Document 106

Filed 10/27/2005

Page 7 of 8

1) 2) 3) 4) 5) 6) 7) 8) 9) 10) 11) 12)

WC Tg 00049-50-, 12/05/00 letter from Honts to attorney Sansonetti WC Tg 00051-2-3-4, 11/30/01 letter Honts to attorney Ferguson WC Tg 00056, 12/04/01 memo attorney Ferguson to Honts WC Tg 00057-8-9, duplicate already reviewed #2 WC Tg 00068-9-70, duplicate already reviewed #2 WC Tg 00071, 11/27/01 attorney Ferguson to Honts WC Tg 00072-3-4-5, 11/27/01 letter attorney Ferguson to Honts WC Tg 00173, 11/16/00 letter Honts to attorney White WC Tg 00223, 08/25/00 letter Honts to attorney White WC TG 00226-7-8, 07/18/00 letter Honts to attorney White WC Tg 00235-6-7-8, 07/25/00 letter Honts to attorney White WC Tg 00255-6-7, duplicate already reviewed #10 VI. LOCAL RULE 7.1(A) - DID PARTIES CONFER?

Local Rule 7.1(A) provides that " [t]he court will not consider any motion...unless counsel for the moving party...before filing the motion, has conferred or made reasonable, good-faith efforts to confer with opposing counsel...to resolve the disputed matter. The moving party shall state in the motion, or in a certificate attached to the motion, the specific efforts to comply with this rule" . Defendant' position is that the Plaintiff failed to indicate in its motion or in a certificate the s specific efforts to comply with this Rule. In reviewing Plaintiff' motion, I agree with Defendant that s the motion does not indicate what efforts were taken to comply with this rule. In Plaintiff' Reply, s Page 12, it states that on March 24, 2005, Denise Riley of Hogan and Hartson, attorney for Plaintiff,
7

Case 1:04-cv-01099-JLK-DW

Document 106

Filed 10/27/2005

Page 8 of 8

conferred with Jonathan Bender of Holland and Hart, attorney for Defendant, and that Bender confirmed that the Joint Venture would not change its position regarding the Glass documents. Additionally, Plaintiff references a March 23, 2005 e-mail, Exhibit F to Plaintiff' Reply, wherein s Plaintiff states its position. The Court finds that the parties were at a stalemate after having adequately conferred, prior to the filing of this motion and the spirit of the Local Rule has been met. NOTICE: Pursuant to Fed. R. Civ. P. 72(a), " [w]ithin 10 days after being served with a copy of the magistrate' order, a party may serve and file objections to the order; a party s may not thereafter assign as error a defect in the magistrate judge' order to which objection s was not timely made. The district judge to whom the case is assigned shall consider such objections and shall modify or set aside any portion of the magistrate judge' order found to s be clearly erroneous or contrary to law." See 28 U.S.C. § 636(b)(1)(A) (" judge of the court a may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate' order is clearly erroneous or contrary to law." s ). DATED: October 27, 2005 BY THE COURT:

s/David L. West United States Magistrate Judge

8