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Kasper v. AAC Holdings, Inc.

United States District Court, M.D. Tennessee, Nashville Division

September 7, 2017

DR. JOSEPH F. KASPER, Individually and on Behalf of All Others Similarly Situated, Plaintiff,
v.
AAC HOLDINGS, INC., et al., Defendants.

          ORDER

          JEFFERY S. FRENSLEY, UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court upon Plaintiff's “Renewed Motion to Compel Defendants' Production of Documents Under Rule 37 of the Federal Rules of Civil Procedure.” Docket No. 147. Plaintiff has also filed a Supporting Memorandum of Law. Docket No. 148. Defendants have filed a Response in Opposition. Docket No. 131.[1] Plaintiff has filed a Reply. Docket No. 135-1. For the reasons discussed below, Plaintiff's Motion is DENIED.

         I. THE DISCOVERY MATTERS AT ISSUE

         In this securities class action, Plaintiff seeks to compel production of certain documents withheld by Defendants on the basis of attorney-client privilege and work product protection, that Plaintiff contends are responsive to Plaintiff's First Set of Requests for Production. Docket No. 148.

         Plaintiffs cite the following document requests as the basis for their Motion to Compel. Document Request No. 36: “All documents concerning the CA DOJ Investigation;” Document Request No. 38: “All documents concerning the August 29, 2013 declaration of California Deputy Attorney General Hardy R. Gold filed in the Hill Litigation;” and Document Request No. 39: “All documents concerning the September 18, 2013 letter from Barry P. King to California Chief Deputy Attorney General Nathan R. Barankin.”[2] Id. at 18-20. Defendants object to these requests, inter alia, “to the extent that the request seeks documents subject to the attorney-client privilege, the work product doctrine, or other immunities from discovery.” Id. at 19-20. Regarding these objections, Plaintiffs assert that:

Plaintiffs object to Defendants' objections to requests for production numbers 36, 38, and 39 based on the grounds that Defendants have waived privilege as to documents concerning the CA DOJ Investigation by asserting a reliance on advice of counsel defense, and also by producing privileged documents reflecting communications between Defendants and their lawyers regarding the CA DOJ investigation.

Id. at 20.

         Plaintiffs contend that:

Defendants have asserted a reliance on advice of counsel defense and have voluntarily produced documents concerning the CA DOJ investigation that operate as a waiver of privilege. As such, per the subject matter waiver rule, Court [sic] should find that Defendants have waived both attorney-client and work product privileges as to all documents concerning the CA DOJ investigation and compel Defendants to produce these documents, including documents reflecting communications between Defendants and Attorney King, Attorney Greer, BCO and other attorneys that represented Defendants concerning the CA DOJ investigation.

Id. 28-29.

         Plaintiffs assert that “[a] core question of fact in discovery involves what Defendants knew and when about the criminal investigation by the CA DOJ . . . .” Id. at 12. Plaintiffs argue that despite the fact that Defendants stated that “they did not intend to assert reliance on an advice of counsel defense” with regard to this issue, Defendants later “raised a defense that they were told by Attorney Greer, an attorney acting on behalf of AAC and former AAC president (Defendant Jerrod N. Menz) that the CA DOJ was no longer investigating AAC or any of its employees.” Id. at 13. As a basis for this assertion, Plaintiffs point to Defendants' Responses to Interrogatories Nos. 12 and 14, from Defendants' Responses and Objections to Plaintiff's Third Set of Interrogatories, attached to the instant Motion as Exhibit M (Docket No. 149-13). Plaintiffs specifically point to Defendants' response that they did not disclose the existence of the CA DOJ investigation during the critical time period because “Barry King, a lawyer acting for AAC (‘Attorney King'), sent a letter to the CA DOJ complaining about the investigation and allegedly received no response.” Id. at 7. Plaintiffs also argue that Defendants have objected to Plaintiffs' attempts to solicit “actual pure facts” by claiming the protection of the attorney-client privilege during Defendants' 30(b)(6) deposition. Id. at 25-26.

         Plaintiffs contend that Defendants have “voluntarily produced several documents reflecting privileged communications involving Attorney Greer, Attorney King, Defendant Menz, and others concerning the CA DOJ investigation.” Id. at 13-15, referencing Docket Nos. 149-3 and 149-15. Plaintiffs argue that these documents reflect Mr. Greer's privileged legal advice, instead of Mr. Greer's lobbying activities on behalf of Defendants, as Defendants maintain. Id. at 16-18. Plaintiffs further argue that Defendants are improperly engaging in selective waiver, producing only the documents that they wish to disclose in an effort to use privilege “as a sword and a shield.” Id. at 26-27.

         Plaintiffs contend that Defendants' voluntary production of privileged documents constitutes a waiver of attorney-client privilege as to all documents concerning the CA DOJ investigation. Id. at 23. Plaintiffs argue that the privilege is waived for, and Defendants should therefore produce:

[A]ll documents concerning the CA DOJ investigation, including Defendants' communications with Attorneys King, Greer, Bass, Berry & Sims PLC; Beach, Cowdrey, Owen LLP; Manatt, Phelps & Phillips, LLP; Bird Marella P.C.; Scheper, Kim & Harris LLP, as well as BDO USA LLP (AAC's outside auditor); and William Blair & Company, L.L.C.; Raymond James & Associates, Inc.; and Avondale ...

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