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WDVA: Subpoena for attorney emails, work product quashed

In a teacher’s pay discrimination suit, emails and salary-comparison documents created by the school board’s attorney were privileged, even if created for pre-litigation settlement discussions.


Plaintiff Debra Colley worked for Defendant Dickenson County public school system from 2007 until her retirement in 2015. She contends that during her employment, there was an unlawful disparity between her salary and that of comparable male employees. She alleges that, after she brought this issue to the attention of the School Board, the Board’s lawyer, Scott Mullins, conveyed to her a range of compensation that the School Board would pay her in order to correct the eight-year disparity. She claims that she agreed to any figure within that range but that the Board subsequently decided not to offer her any compensation. This lawsuit followed.

Colley served a subpoena on Mullins seeking various communications from and to him, as well as documents related to her claims.  The defendants moved to quash, asserting attorney-client and work-product privileges. The motions were referred to the magistrate judge, who denied them on the ground that the defendants had not met their burden to show that the documents were privileged, simply stating summarily that the privileges applied. The defendants timely objected to the magistrate’s decision, and this court subsequently conducted an in camera review of the documents at issue.

The documents are all dated following Colley’s letter of April 30, 2015 explaining to the superintendent her claim of disparate salary treatment and requesting “redress of financial suffering.” The documents all relate to Colley’s claim and include emails to and from Mullins, the superintendent, and the Clerk of the School Board, as well as emails from Mullins to the Board members collectively. All of Mullins’ emails contain a notice that they are a “confidential and privileged communication,” and in some instances the subject line of the email contains similar language. Three of the emails were also copied to Mullins’s paralegal.

The documents show Mullins’s receipt and initial advice to the Board concerning Colley’s claim; the evidence he compiled about the validity of the claim; his advice as to applicable law and the Board’s possible alternatives in resolving the claim; and his exploration and advice concerning a possible settlement of the claim.

Attorney-client privilege

For most of the communications, Mullins’s intention to keep the subpoenaed documents confidential is obvious. There’s no indication that any of the emails were intended to be conveyed to a third party. Mullins explicitly warned the School Board not to share the contents of the emails with anyone else and that doing so would result in losing the attorney-client privilege.

The fact that Mullins discussed the pay disparity issue with Colley and provided her with salary data does not constitute a waiver of the privilege with respect to all other attorney-client communications on the issue. Attorneys regularly share with opposing counsel their decisions to take or not take certain action; this doesn’t break the attorney-client privilege for communications that led to those decisions.

Colley’s argument that any communications to the superintendent and clerk aren’t protected because they’re not members of the Board is misguided. Those individuals are School Board employees, and it’s only natural that they would have the relevant information needed by counsel if he is adequately to advise his client.

Colley next argues that Mullins was acting as a negotiator or business advisor and therefore his communications pertaining to such negotiations are not privileged. But the documents in this case demonstrate that the Board was seeking legal advice from Mullins and that he prepared work product in conjunction with this advice. These were not documents simply addressing business decisions or used in factoring positions to be taken in the market place. While he may have attempted to facilitate a resolution with Colley on the Board’s behalf, Mullins was clearly providing legal services regarding her claim, not acting purely as a non-attorney negotiator.

Work product

Colley contends that the emails described as “salary comparisons” on the privilege log are not protected by the attorney-client privilege, which does not apply to underlying facts. But the facts at issue here appear in documents prepared by Mullins (or at his request) as part of his legal advice to the Board. They are work product. Some of these attachments are fact work product, and others contain legal opinions or impressions concerning Colley’s claim. The question is whether this work product was prepared in anticipation of litigation.

Colley argues that the documents were actually prepared to assist in the negotiations to correct the pay disparity and that litigation was not imminent in April 2015 because the Board said it would correct the disparity. The court disagrees. By that time, if not before, it was clear to the Board and its counsel that Colley was asserting a claim against it. She’d written a formal letter requesting that the Board correct the alleged pay disparity. She’d also retained an attorney and attended a Board meeting on the salary issue with her lawyer present, indicating that litigation was fairly foreseeable. Accordingly, the documents include protected work product prepared in anticipation of litigation.

Nevertheless, Colley argues that she has a substantial need for the salary comparisons that the privilege log indicates were attached to certain emails and that she can’t get a substantial equivalent without undue hardship. But she already has some salary comparisons previously provided to her, and she can obtain any other relevant information about School Board employees through the normal discovery process.

Under the circumstances, because the magistrate judge didn’t have access to the documents in question and based upon in camera review of those documents, the magistrate judge clearly erred in denying the motions to quash.

Colley v. Dickenson Cnty. Sch. Bd., Case No. 2:17cv3, Apr. 18, 2018. WDVA at Big Stone Gap (Jones). VLW No. 018-3-152, 12 pp.