The opinion of the court was delivered by: John E. Simko United States Magistrate Judge
Pending is a motion to quash a subpoena and for Protective Order (Doc. 1).*fn1
The pending Motion was referred to the Magistrate Judge pursuant to Judge Schreier's Order of Referral dated December 31, 2009 (Doc. 11) and pursuant to 28 U.S.C. § 636(b)(1)(A) and Judge Piersol's Standing Order dated November 29, 2006.A new Standing Order was filed by Chief Judge Karen Schreier on March 18, 2010.
StudentCity served a subpoena on Gregory P. Grajczyk commanding him to testify at a deposition in the captioned case. The subpoena commanded production of:
1. All documents that refer or relate, in whole or in part, to the death of Duane Snaza on March 6, 2005 including, without limitation, documents reflecting communications with (a) Jacqueline and Wayne Snaza; (b) U.S. Consular authorities; and (c) Mexican governmental authorities relating to the repatriation of Duane Snaza's body to the U.S.
2. All non-privileged documents that refer or relate, in whole or in part, to Duane Snaza's DUI conviction in December 2004.
Gregory Grajczyk moved to quash the subpoena. He stated he is a licensed lawyer practicing in South Dakota. He has represented Jacqueline and Wayne Snaza over the years and in this case. He represented Duane Snaza regarding the DUI charge mentioned in the subpoena. Gregory Grajczyk is the brother of Jacqueline Snaza and uncle of the deceased Duane Snaza. His name does not appear on pleadings in captioned case. He attended the depositions of Jacqueline and Wayne Snaza in this case. In his motion to quash he asserted the attorney/client privilege under SDCL 19-13-3. In his supporting brief he asserted the work product doctrine as well. Gregory Grajczyk represents that "any information sought by Defendants, that would not be privileged has been provided by Plaintiffs as part of the discovery in the pending matter, or is easily obtainable from the governmental agents or courts conducting the various proceedings."
StudentCity, without citing any precedent, argues that Gregory Grajczyk acted as a family member as distinguished from an attorney; that the attorney/client privilege was waived when Jacqueline and Wayne Snaza answered certain questions at their depositions; and that the fact of Gregory Grajczyk's representation and the 90 day no alcohol condition attached to Duane Snaza's sentence are not covered by the attorney/client privilege. StudentCity asserts "it is simply improper to seek to prevent a deposition from occurring in its entirety merely because some questioning may impact upon a privilege."
The person claiming the attorney/client privilege carries the burden to establish all elements necessary to invoke the privilege. State v. Rickabough, 361 N.W.2d 623 (SD 1985). The burden of establishing waiver of the lawyer/client privilege is on the party asserting the waiver. State v. Catch the Bear, 352 N.W.2d 640 (SD 1984). Protection afforded by the work product doctrine is broader than that created by the attorney/client privilege. Kaarup v. St. Paul Fire and Marine Ins. Co., 436 N.W. 2d 17 (SD 1989). A client is not required to be a party to a lawsuit in order to claim a lawyer/client privilege. Catch the Bear, 352 N.W.2d 640 . The elements of the privilege are: a client, a confidential communication; the communication was made to facilitate the rendition of professional legal services to the client; and the communication was made in one of five statutorily enumerated relationships. SDCL ...