United States District Court, D. Oregon
A.M., a minor, by and through her Conservator, Tim Nay; and R.M., a minor, by and through his conservator, Beagle and Associates of Oregon, Inc., Plaintiffs,
Physicians' Medical Center, P.C.; Brent W. Heimuller, M.D.; and United States of America, Defendants.
Paulson, Paulson Coletti Trial Attorneys PC, Of Attorneys for
K. Olson, Law Office of Erin Olson, PC, Of Attorneys for
Elkins McKelvey and Joanna C. Robinson, Lindsay Hart, LLP, Of
Attorneys for Defendants Physicians' Medical Center, P.C.
and Brent W. Heimuller, M.D.
J. Williams, United States Attorney, and Susanne Luse,
Assistant United States Attorney, Of Attorneys for Defendant
United States of America.
Hoyt, Garrett Hemann Robertson, PC, Of Attorneys for
Third-Party Jenelle Johnson.
OPINION AND ORDER
MICHAEL H. SIMON, UNITED STATES DISTRICT JUDGE
Physicians' Medical Center, P.C. and Brent W. Heimuller,
M.D. have moved to compel the production of documents
relating to the legal representation of Plaintiffs in
Washington County Circuit Court Nos. J110071 and J110072 by
attorney Jenelle Johnson and to compel Johnson to answer
deposition questions about her representation of Plaintiffs
in those cases, notwithstanding the attorney-client
privilege. Defendant United States of America joins that
motion. For the following reasons, Defendants' motion to
compel is denied.
26(b)(1) of the Federal Rules of Civil Procedure provides
that parties “may obtain discovery regarding any
nonprivileged matter that is relevant to any
party's claim or defense.” Fed.R.Civ.P. 26(b)(1)
(emphasis added). When a party fails to provide requested
discovery that falls within the scope of Rule 26(b)(1), Rule
37(a)(1) allows the requesting party to “move for an
order compelling disclosure or discovery.” Fed.R.Civ.P.
37(a)(1). In federal court, the application of the
attorney-client privilege in the adjudication of claims
arising under federal law is governed by federal common law.
See Fed. R. Evid. 501; see also United States v.
Ruehle, 583 F.3d 600, 608 (9th Cir. 2009). Even when
both federal claims and related state claims are present, the
federal common law of privilege governs. See Roberts v.
Legacy Meridian Park Hosp., Inc., 299 F.R.D. 669, 672
(D. Or. 2014). The burden of proving that attorney-client
privilege applies is on the party asserting the privilege.
See Weil v. Inv./Indicators, Research and Mgmt.,
Inc., 647 F.2d 18, 25 (9th Cir. 1981).
are minors. Under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 1346 et seq.,
they assert a claim of negligence against the United States
based on the actions of a medical clinic that is a
federally-deemed entity. This claim arises under federal law.
They also assert a state law claim against a private medical
center and one of its doctors. After Plaintiffs filed this
lawsuit in state court, the United States removed the case to
Johnson is an attorney practicing in Oregon. In 2011, an
Oregon state court appointed Johnson to represent A.M. and
R.M. in their county juvenile dependency cases after their
removal from parental custody. Johnson represented the
children both before and after they were placed in the foster
care custody of John and Danielle Yates. The children were in
the custody of the Yates' from May 2012 to December 2014.
After the children were removed from the Yates' custody,
John and Danielle Yates were prosecuted in state court for
child abuse. During the criminal proceedings, including while
plea and settlement discussions were occurring, the Oregon
Department of Human Services (“ODHS”) and the
Oregon Department of Justice (“ODOJ”) produced
documents and audio recordings from the Plaintiffs'
dependency hearings in state court for use in the pending
criminal cases as well as in any future civil cases.
point, Plaintiffs notified Johnson that they were considering
filing claims against her for negligence (legal malpractice)
in connection with her representation of Plaintiffs in the
juvenile dependency proceedings. Ultimately, Plaintiffs did
not file a lawsuit against Johnson. Instead, they entered
into a settlement agreement with Johnson and agreed not to
sue Johnson, her law firm, or the Oregon State Bar. Johnson
admitted no fault or liability.
discovery in the pending action, Plaintiffs' counsel
initially identified Johnson as a witness likely to have
discoverable information. Indeed, Plaintiffs' counsel
said that Johnson likely would be a “critical
deponent.” The parties began discussing dates for when
Johnson might be available for deposition. Defendants sought
to clarify that Plaintiffs would not be asserting the
attorney-client privilege relating to Johnson's
representation of A.M. and R.M. in the ...