The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge
Non-parties, the Gonzalez law firm ("Law Firm"), the Oglala Sioux Tribe ("OST") and Joseph Red Cloud (collectively the "Tribe"), filed motions to quash subpoenas duces tecum (Dockets 1 and 3) served by plaintiff Alltel Communications, LLC ("Alltel").*fn1 After briefing, a hearing was held on December 2, 2010 (the "December 2 Hearing"). During the hearing, the court ordered further briefing. The motions are now ripe for resolution.
Attorney Eugene DeJordy ("DeJordy") was employed by Alltel and its predecessors-in-interest from 1995 until November 2007. (Docket 19, ¶¶ 4 and 5). In August of 2000, DeJordy negotiated the Tate Woglaka Service Agreement ("TWSA") with the Tribe and was the signatory on behalf of Western Wireless, as its Vice President. Id.; see also Docket 13-1.
By a Separation and Release Agreement effective November 2, 2007, DeJordy left his employment with Alltel Communications, Inc., and received a severance package totaling $2,039,983, which was paid in a lump sum. (Docket 13-2). As part of the consideration for that agreement, DeJordy agreed to not recruit Alltel employees for one year or support or assist legal actions against Alltel or its successors. Id.
In February of 2010, Alltel sued DeJordy in federal district court in the Eastern District of Arkansas ("DeJordy litigation"). (Docket 13-6). The allegations, among other things, included the following:
A. In August of 2008, DeJordy recruited another Alltel employee, Tom Reiman, and they formed a new company--Native American Telecom Enterprises, LLC. Id. at ¶¶ 19 and 20.
B. DeJordy represented to Verizon and the Federal Communication Commission that the Tribe had established a telecommunication plan and wanted the divested assets from the Alltel-Verizon divestiture transferred over to the Tribe. Id. at ¶¶ 26 and 27.
C. DeJordy "support[ed] and assist[ed]" the Tribe in the lawsuits against Alltel over the TWSA, both in the federal district court and the OST Tribal Court case. Id. at ¶¶ 28-31.
Alltel seeks the return of the $2 million severance package, attorney's fees, and other damages under the Severance and Release Agreement. Id. at p. 13. Trial in the DeJordy litigation is set for July 2011. See Alltell Communications, LLC v. DeJordy, Eastern District of Arkansas, No. 4:10-cv-0130-BSM, Docket 16.
As part of the discovery in the DeJordy litigation, Alltel issued subpoenas to, among others:
1. The Gonzalez Law Firm (and Attorney Debora DuBray);
2. Joseph Red Cloud, individually and as an employee of the Oglala Sioux Tribe; and
3. The Oglala Sioux Tribe. ("Subpoenaed Parties"). By agreement of counsel amended subpoenas were issued by Alltel following the December 2 Hearing adding one additional South Dakota limited liability company, Native American Telecom-Pine Ridge, LLC, within the definition of "Native American Telecom." See Dockets 26, 27, and 29.*fn2
The subpoenas seek documents for the time period of January 1, 2007, to June 22, 2010. Id. Although the three subpoenas request different combinations of groups of documents, they all focus on DeJordy, Mr. Reiman, Dakelyn Consulting,*fn3 and Native American Telecom (collectively the "DeJordy Group"), and concern the TWSA, the assets used to provide telecommunication services on the Pine Ridge Indian Reservation, disputes between the Tribe and any person concerning the TWSA, and the Tribe's efforts to secure ownership of the telecommunication assets on the reservation (collectively the "TWSA Litigation and Assets"). The subpoenas all concern the TWSA Litigation and Assets and are summarized as follows:
1. All communications, including e-mails, between the Subpoenaed Parties and the DeJordy Group;
2. All offers, proposals . . . or statements of work made to the Subpoenaed Parties by the DeJordy Group;
3. All contracts . . . and memoranda between the Subpoenaed Parties and the DeJordy Group;
4. All reports . . . advice or documents provided to the Subpoenaed Parties by the DeJordy Group;
5. All documents prepared on behalf of the Subpoenaed Parties by the DeJordy Group;
6. All memoranda . . . records and/or notes from meetings or telephone conversations between the Subpoenaed Parties and the DeJordy Group;
7. The Subpoenaed Parties' telephone records to show outgoing and incoming calls to and from the DeJordy Group.
THE MOTIONS TO QUASH THE LAW FIRM
The Law Firm states that "[s]ince November 2009, the Firm has been advising and representing the Tribe in matters relating to issues involving the [TWSA], Eugene DeJordy, Native American Telecom, LLC and Alltel
. . . ." (Docket 7, p. 1). It claims, however, that any documents in the Law Firm's possession are attorney-client privileged between the Tribe and the Law Firm. Id. at 2. On that basis, Attorney Gonzalez filed a privilege log. (Docket 7-1). At the December 2 Hearing, Mr. Gonzalez represented that none of the documents identified in the privilege log are documents responsive to the subpoenas. On the face of the privilege log it appears that Mr. Gonzalez's representation is complete. However, Mr. Gonzalez agreed and the court ordered that he should respond in writing regarding any Law Firm computer records.
I am going to ask Mr. Gonzalez that you file a declaration by the close of business on December 8 also responding to each of the numbered paragraphs, Requests For Production 1 through 3, and a subpoena served on the Gonzalez Law Firm in this matter. And if you have any further claims of privilege, that a log be filed in addition under 45(d)(2). (Transcript of December 2 Hearing, p. 50:13-19 ("HT p. ___:______")). Mr. Gonzalez subsequently submitted a declaration (Docket 31-2) and a revised privilege log (Docket 31-1). His declaration stated:
That any documents created by the Firm after the reassignment [from Attorney Dubray to Attorney Gillis to Attorney Shultz] that have any relevance to Eugene DeJordy have been to inform the Oglala Sioux Tribe of his questionable dealings and potential conflicts of interest with regard to the [TWSA] that he negotiated on behalf of Western Wireless, LLC in 2001. (Docket 31-2, ¶ 5).
THE TRIBE AND MR. RED CLOUD
Attorney Shultz represents OST and Mr. Red Cloud, individually, and as an employee of the tribe. The Tribe claims sovereign immunity protects it from being compelled to comply with the subpoenas. (Docket 4, p. 3). Because of the significant legal issues a sovereign immunity claim presents, the court ordered Mr. Shultz to confer with the Tribe and confirm its intention to assert sovereign immunity as a defense to the subpoenas. (HT p 29:10-19). Consistent with those instructions, on December 3, 2010, Mr. Shultz advised the court and counsel the Tribe intended to assert the claim of sovereign immunity.
The Tribe's other claims are that any documents in the possession of the Tribe, including documents in the possession of Mr. Red Cloud in his capacity as an employee of the Tribe, are privileged as they relate to communications with DeJordy, a licensed attorney, who has "acted as a consultant to the Tribe, advising the Tribe on certain telecommunications issues on the Pine Ridge Indian Reservation." (Docket 4, p. 3). All communications relate to "the Tribe's relationship with Mr. DeJordy and/or the legal services and advice Mr. DeJordy provided to the Tribe." Id. Thus, it claims "all requested information is protected under the attorney-client privilege and/or the work product doctrine." Id.
The Tribe claims the first request*fn4 "communications . . . between [the Tribe] and . . . DeJordy" are protected by the attorney-client privilege. Id. at p. 3-4. "Such communications were between the Tribe and its attorney, Eugene DeJordy, and were made for the express purpose of provide [sic] legal advice to the Tribe regarding certain telecommunications issues." Id. at p. 5. The Tribe asserts the other documents requested*fn5 relate to "Mr. DeJordy's employment by the Tribe." Id.
At the December 2 Hearing, the Tribe asserted Mr. DeJordy was a non-testifying expert consulting with the Tribe in the litigation between Alltel and the Tribe in both federal and tribal court. (HT, pp. 24:25-25:1-7). "The documents . . . were all prepared by the Tribe or Mr. DeJordy, and all relate to the pending litigation [OST Tribal Court, Federal District Court (South Dakota) and the American Arbitration Association]." (Docket 4, p. 5). The Tribe claims these documents are "protected from disclosure under the work product doctrine." Id.
At the hearing, Mr. Shultz suggested Mr. Red Cloud possessed no documents in his individual capacity. (HT pp. 22:24-25-25:1-9). Rather, all documents were obtained or created in Mr. Red Cloud's official capacity as an employee of the Tribe. Id. Again, out of an abundance of caution, the court ordered Mr. Shultz and Mr. Red Cloud to complete a further review of the Red Cloud subpoena, to determine if Mr. Red Cloud as an individual possessed any documents which may be subject to discovery. (HT pp. 39:19-41:22). Mr. Red Cloud's declaration was subsequently filed. (Docket 30-1). As part of his declaration, Mr. Red Cloud stated "[a]ll documents sought by Alltel . . . are documents kept and maintained by me only in my official capacity as an employee and representative of the Tribe . . . ." Id. at ¶ 7.
Rule 1 of the Federal Rules of Civil Procedure provides "[t]hese rules govern the procedure in all civil actions and proceedings in the United States district courts . . . . They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding." Rule 34 is the starting point for the production of documents in any litigation. The rule states that "[a]s provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection." Fed. R. Civ. P. 34(c). Rule 45 provides that any subpoena is required to "(i) state the court from which it issued; (ii) state the title of the action, the court in which it is pending, and its civil-action number; (iii) command each person to whom it is directed to do the following at a specified time and place; . . . produce designated documents . . . ; and (iv) set out the text of Rule 45(c) and (d)." Fed. R. Civ. P. 45 (a)(1)(A). For the production of documents, the subpoena must be issued "from the court for the district where the production . . . is to be made." Fed. R. Civ. P. 45(a)(2)(C). These requirements have been met by Alltel in the issuance of the subpoenas presently before the court. See Dockets 1-1, 13-7, 13-8, 26, 27, and 29.
Rule 45(c)(3)(A) establishes the method by which non-parties may challenge a subpoena. "On timely motion, the issuing court must quash or modify a subpoena that . . . (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies . . . ." Fed. R. Civ. P. 45(c)(3)(A). The motions to quash were timely filed. When a motion to quash is filed,
[a] person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must:
(i) expressly make the claim; and
(ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.
Rule 45(d)(2)(A). Neither Mr. Red Cloud nor the Tribe submitted a privilege log as required by Rule 45(d)(2)(A). Mr. Shultz argued during the hearing that a privilege log was not filed because sovereign immunity trumps any obligation to comply with Rule 45(d)(2)(A). (HT 24:18-24).
"A party receiving a discovery request who asserts a privilege . . . but fails to disclose that claim is at risk of waiving the privilege . . . ." Fed. R. Civ. P. 45 advisory committee's note (1991). "The person claiming a privilege . . . cannot decide the limits of that party's own entitlement." Id. The "purpose [of the rule] is to provide a party whose discovery is constrained by a claim of privilege or work product protection with information sufficient to evaluate such a claim and to resist if it seems unjustified." Id. "A person claiming a privilege . . . who fails to provide adequate information about the privilege . . . claim to the party seeking the information is subject to an order to show cause why the person should not be held in contempt under subdivision (e)." Id.
Alltel objects to the Tribe's motion to quash for failure to file a privilege log. (Docket 13, p. 2). Plaintiff did not, however, seek the contempt authority vested in the court by Rule 45(e) for this deficiency. Rather, Alltel argues that none of the three asserted privileges provide any protection to the Tribe in its relationship with the DeJordy Group. (Docket 13).
There is a split of authority over the implications of the failure to file a privilege log. "Rule 45(d)(2) (A)'s requirement of a privilege log is mandatory . . . . " Mosley v. City of Chicago, 252 F.R.D. 445, 449 (N.D. Ill. 2008). "[N]on-parties under Rule 45 have a choice: they can either prepare a privilege log or waive any claim of privilege." Id. at 449, n. 5. "Without producing a privilege log, [the subpoenaed nonparty] cannot avail itself of the attorney-client privilege and its attempt to resist the Subpoena on this basis is also unsuccessful." Teton Homes Europe v. Forks RV, No. 1:10-CV-33, 2010 WL 3715566 * 3 ( N.D. Ind. Sept. 14, 2010). "Waiver is appropriate where ...