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A. M. v. Physicians' Medical Center, P.C.

United States District Court, D. Oregon

December 3, 2018

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,
v.
Physicians' Medical Center, P.C.; Brent W. Heimuller, M.D.; and United States of America, Defendants.

          Jane Paulson, Paulson Coletti Trial Attorneys PC, Of Attorneys for Plaintiff A.M.

          Erin K. Olson, Law Office of Erin Olson, PC, Of Attorneys for Plaintiff R.M.

          Connie Elkins McKelvey and Joanna C. Robinson, Lindsay Hart, LLP, Of Attorneys for Defendants Physicians' Medical Center, P.C. and Brent W. Heimuller, M.D.

          Billy J. Williams, United States Attorney, and Susanne Luse, Assistant United States Attorney, Of Attorneys for Defendant United States of America.

          Kim E. Hoyt, Garrett Hemann Robertson, PC, Of Attorneys for Third-Party Jenelle Johnson.

          OPINION AND ORDER

          MICHAEL H. SIMON, UNITED STATES DISTRICT JUDGE

         Defendants 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.

         STANDARDS

         Rule 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).

         BACKGROUND

         Plaintiffs 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 federal court.

         Jenelle 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.

         At some 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.

         During 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 ...


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