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Bivins v. Rogers

United States District Court, S.D. Florida

April 27, 2017

JULIAN BIVINS, as personal representative of the ancillary estate of Oliver Wilson Bivins, Plaintiff,
v.
CURTIS CAHALLONER ROGERS, JR., as former guardian, et al., Defendants.

          OMNIBUS ORDER ON DISCOVERY MOTIONS

          William Matthewman, Judge

         THIS CAUSE is before the Court on Plaintiff, Julian Bivins' ("Plaintiff) Motion to Compel Defendant Crispin's Deposition Responses [DE 205]; Plaintiffs Amended Motion to Compel O'Connell's Deposition Responses [DE 209]; and Plaintiffs Motion to Compel Stephen Kelly's Deposition Responses [DE 210');">210]. These matters were referred to the undersigned by United States District Judge Kenneth A. Marra. See DE 51. The motions have been fully briefed, and the Court held a hearing on the matter on April 25, 2017.

         I. BACKGROUND

         The basic underlying facts of this case are that Defendants Brian M. O'Connell and Ashley N. Crispin, as well as their law firm Defendant Ciklin Lubitz & O'Connell, were and are attorneys for the guardians appointed by the Florida state probate court to act for the interest of the ward, Oliver Bivins, Sr. Defendant Stephen Kelly was appointed as an emergency temporary guardian in 2011, Defendant Curtis Rogers was appointed guardian later in 2011, and Defendant Kelly was reappointed in 2014. Of course, the guardians were appointed for the ward, Oliver Bivins, Sr., while he was alive, and the guardians hired attorneys and accountants to assist them in handling the guardianship.

         After Oliver Bivins, Sr., passed away, Plaintiff, one of his children, was appointed personal representative of the estate and then brought this action against the guardians and their attorneys based on alleged acts and omissions committed during the guardianship. Plaintiff generally alleges that the Defendants did not properly administer the guardianship to maximize its assets. Plaintiff has also been litigating against the guardians in state court.

         In Plaintiffs Amended Complaint [DE 18], he alleges (1) breach of fiduciary duty against Defendants Rogers, O'Connell, Crispin, Ciklin, Stein, Beys, and Stein Law Firm; (2) breach of fiduciary duty against Defendants Kelly, O'Connell, Crispin, Ciklin, Stein, Beys, and Stein Law Firm; (3) negligence against Defendant Rogers; (4) negligence against Defendant Kelly; (5) professional negligence against Defendant O'Connell; (6) professional negligence against Defendant Crispin; and (7) professional negligence against Defendant Stein.

         On January 20, 2017, Defendant Curtis Rogers filed a Notice of Settlement [DE 198]. On January 30, 2017, Plaintiff filed a Motion to Reopen Discovery and to Renew Motions to Compel as to Defendants and Motion to Compel as to Third Party Subpoenas to the Law Offices of Bill T. Smith, Jr. and Templeton Smithee Hayes Henri ch and Russell, LLP [DE 201]. Plaintiff explained in the motion to reopen discovery that Curtis Rogers had executed a waiver of the attorney-client privilege with respect to the legal representation he received as Guardian.

         United States District Judge Kenneth A. Marra held a hearing on the motion to reopen discovery [DE 201] and issued an Order [DE 275]. Judge Marra concluded that Defendant Stephen Kelly is the only guardian who has the authority to waive the privileges at issue. [DE 275, p. 1');">p. 1]. Judge Marra stated that "any issues as to whether the work product privilege or the attorney client privilege has been properly invoked require factual inquiries best handled by the Magistrate Judge in the first instance." Id. at p. 2');">p. 2');">p. 2');">p. 2. Judge Marra then ruled that the motion [DE 201] would be held in abeyance until the remaining issues are resolved. Id.

         The discovery deadline and dispositive motions deadlines have passed. The case is set for trial on July 10, 2017. Motions for summary judgment are pending.

         II. MOTIONS, RESPONSES, AND REPLIES

         In each of the three motions, Plaintiff is moving to compel responses to certain deposition questions for which Defendants Ashley Crispin, Esq., Brian M. O'Connell, Esq., and Stephen Kelly asserted the attorney-client and/or work-product privilege. See DEs 205, 209, and 210');">210. Plaintiff argues that, since Defendant Stephen Kelly, as guardian, testified at his January 11, 2017 deposition that he relied upon the advice of legal counsel in acting for the deceased ward, privilege has been waived based on the principles of sword and shield and issue injection. [DE 205, p. 4');">p. 4; DE 209, p. 4');">p. 4; 210');">210, p. 4');">p. 4]. Plaintiff points out that Defendants have the burden of establishing the attorney-client privilege and that Defendant Rogers signed a waiver of attorney-client privilege. [DE 205, p. 5');">p. 5');">p. 5');">p. 5');">p. 5');">p. 5');">p. 5');">p. 5; DE 209, p. 4');">p. 4; DE 210');">210, p. 5');">p. 5');">p. 5');">p. 5');">p. 5');">p. 5');">p. 5');">p. 5]. In each motion, Plaintiff also makes certain arguments regarding the specific deposition questions at issue.

         In response, Defendants Crispin, O'Connell, and Kelly first argue that Plaintiffs motions were untimely filed "as he failed to complete the depositions with sufficient time to bring these motions before the deposition cut-off and Plaintiff has not shown good cause to modify the scheduling order. [DE 216, pp. 1');">p. 1-2; DE 217, pp. 1');">p. 1-2; DE 218');">218, pp. 1');">p. 1-2]. Defendants also argue that they did not waive privilege as they did not inject the issue into this case; instead, Plaintiff injected the issue into the proceeding in the Amended Complaint. [DE 216, p. 2');">p. 2');">p. 2');">p. 2; DE 217, p. 2');">p. 2');">p. 2');">p. 2; DE 218');">218, p. 3]. Defendants point out that the guardians "never stated that they believed their actions were legal because of the advice of counsel. Rather, they merely explained in deposition that certain actions taken, which the Guardianship Court approved, were done with the advice of counsel." [DE 216, pp. 2');">p. 2');">p. 2');">p. 2-3; DE 217, p. 3');">p. 3; DE 218');">218, p. 3');">p. 3]. Defendants argue that the guardians have not alleged advice of counsel as a defense and that none of the defendants need "the information that is claimed as privileged to establish their defenses." [DE 216, p. 3');">p. 3; DE 217, p. 3');">p. 3; DE 218');">218, p. 3');">p. 3]. Next, Defendants contend that Stephen Kelly holds the attorney-client privilege, not Defendant Rogers, so Rogers could not have waived the privilege. [DE 216, pp. 3');">p. 3-4; DE 217, pp. 3');">p. 3-5; DE 218');">218, pp. 3');">p. 3-5]. Defendant Crispin makes an additional argument that Plaintiff has moved to compel both opinion and fact work product, but has not established substantial need for either. [DE 216, p. 5');">p. 5');">p. 5');">p. 5');">p. 5');">p. 5');">p. 5');">p. 5]. Defendant Kelly makes an additional argument that Plaintiff is seeking information regarding Kelly's conversations with his attorneys about conflicts of interest in representation in the current federal action and that such conversations are clearly protected by the attorney-client privilege. [DE 218');">218, p. 2');">p. 2');">p. 2');">p. 2].

         In reply, Plaintiff argues that his motions to compel are not untimely because the expert witness deposition deadline was March 30, 2017, so discovery was not closed until that date. [DE 221, p. 1');">p. 1; DE 222, p. 1');">p. 1; DE 224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224, p. 1');">p. 1]. Plaintiff contends that, even if his motions were untimely, the trial court has broad discovery to modify pretrial orders to prevent manifest injustice. [DE 221, p. 2');">p. 2');">p. 2');">p. 2; DE 222, p. 2');">p. 2');">p. 2');">p. 2; DE 224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224, p. 2');">p. 2');">p. 2');">p. 2]. Plaintiff next asserts that the Rule 26 Expert Report of Defendants O'Connell, Crispin, Kelly, and Ciklin Lubitz & O'Connell "shows that their expert relied on certain matters about which Crispin refused to respond in her deposition based upon attorney-client privilege and/or work product privilege." [DE 221, p. 3');">p. 3; DE 222, p. 3');">p. 3; DE 224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224, p. 3');">p. 3]. Plaintiff contends that Defendants therefore waived any privilege. [DE 221, pp. 3');">p. 3-4; DE 222, pp. 3');">p. 3-4; DE 224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224, p. 4');">p. 4]. Next, Plaintiff argues that Kelly and Rogers are both still active guardians and that Rogers had the power to waive privilege. [DE 221, pp. 4');">p. 4-5; DE 222, p. 5');">p. 5');">p. 5');">p. 5');">p. 5');">p. 5');">p. 5');">p. 5; DE 224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224, p. 5');">p. 5');">p. 5');">p. 5');">p. 5');">p. 5');">p. 5');">p. 5]. Finally, Plaintiff asserts that it is "unable without undue hardship to obtain the substantial equivalent by other means" and that in camera review of the information sought is necessary. [DE 221, p. 5');">p. 5');">p. 5');">p. 5');">p. 5');">p. 5');">p. 5');">p. 5; DE 222, p. 5');">p. 5');">p. 5');">p. 5');">p. 5');">p. 5');">p. 5');">p. 5; DE 224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224');">224, p. 5');">p. 5');">p. 5');">p. 5');">p. 5');">p. 5');">p. 5');">p. 5].

         III. L ...


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