Opinion
Civil Action No. 00-2334-JAR
March 21, 2002
MEMORANDUM ORDER GRANTING MOTION TO REVIEW AND SET ASIDE MAGISTRATE'S ORDER
Flint Hills Scientific, LLC ("FHS") brings suit against Ruslan L. Davidchack for breach of fiduciary duty, misappropriation of trade secrets, unfair competition, breach of contract and injunctive relief. This matter comes before the Court on Plaintiff's Motion To Review Magistrate's Order (Doc. #154) filed December 14, 2001. For reasons set forth below, plaintiff's motion is granted and the Magistrate's Order is set aside.
Factual Background
FHS is a limited liability company with its principal place of business in Kansas. FHS specializes in real-time advanced signal processing, analysis and control methods. In 1996, FHS hired Davidchack, a Ukranian citizen, as a consultant. A consulting agreement dated January 7, 2000 governed the relationship between the parties. The parties allegedly agreed that the contract would retroactively cover Davidchack's work. Alexei V. Nikitin, another FHS employee and intervenor in this suit, was employed by FHS from September 22, 1998 to February 9, 2000. On April 3, 2000, Davidchack and Nikitin allegedly applied for a patent which was based on trade secrets they had learned from their work at FHS. FHS asserts that the patent application violates its consulting agreement with Davidchack.
On October 3, 2001, FHS filed a Motion For Order Disqualifying Blackwell Sanders Peper Martin From Representing Defendant Intervenor Nikitin (Doc. #116) with Magistrate Judge David Waxse. In its motion, FHS asserted that it recently became aware of a conflict of interest regarding Blackwell Sanders Peper Martin's ("Blackwell Sanders") representation of Nikitin because Kyle Elliot, an attorney who now works for Blackwell Sanders, previously represented FHS and its operating manager Mark Frei in a matter allegedly related to the one currently pending in this lawsuit. Apparently Elliot represented FHS while he was employed as an attorney by the law firm of Hovey, Williams, Timmons Collins ("Hovey Williams").
On October 19, 2001, FHS submitted a box containing a substantial number of documents to Judge Waxse for in camera review in support of its motion. FHS attached a memorandum to the box which stated that the contents were protected by attorney-client and attorney work product privilege. FHS did not, however, submit a privilege log with the documents that stated the exact basis for withholding discovery of each particular document.
On October 16, 2001, Nikitin filed a motion to compel FHS to produce the documents that it gave to the Court which allegedly demonstrated the existence of a privilege. See Motion To Compel Discovery Of Documents And Information Withheld As Privileged And Necessary To Respond To Plaintiff's Motion To Disqualify, And Alternative Motion To Exclude Such Evidence (Doc. #125). Nikitin argued that the attorney-client privilege either didn't apply to the documents or that FHS had waived explicitly by statute or implicitly by placing the documents at issue. Nikitin did not address the applicability of any attorney work product privilege. FHS filed a responsive brief addressing the attorney-client privilege issue, but it did not discuss its alternative grounds for withholding the documents — the attorney work product privilege.
On November 14, 2001, Judge Waxse entered a Memorandum And Order (Doc. #143) holding that the K.S.A. § 60-426(b)(3) statutory exemption to attorney-client privilege did not apply to the documents, but that any attorney-client privilege which FHS may have had in the documents had been waived since FHS had put the confidential communications at issue in its lawsuit. FHS did not present sufficient information to the court, however, to determine whether the attorney work product privilege might protect any of the documents. Judge Waxse therefore deferred ruling on Nikitin's motion to compel, because the court did not have a privilege log or sufficient information to determine which documents FHS was attempting to shelter under the attorney work product privilege. Judge Waxse directed FHS to file a privilege log and also gave FHS leave to file a motion for a protective order if it sought to protect any of the documents at issue from disclosure on grounds of confidentiality.
Although FHS bore the burden of establishing work product protection and its blanket claim of privilege may not have been sufficient, Nikitin had not addressed any possible work product claim at all in his motion to compel.
On November 19, 2001, FHS filed a privilege log (Doc. #146) and a Motion For Protective Order (Doc. #145) pursuant to the Court's order. In its privilege log, however, FHS did not argue that any of the documents were protected by the attorney work product privilege.
On December 3, 2001, Judge Waxse completed his ruling on Nikitin's motion to compel and FHS' motion for a protective order. See Memorandum And Order (Doc. #149). In accordance with his earlier order, Judge Waxse reiterated that any document withheld solely on the basis of attorney-client privilege were subject to discovery due to the fact that FHS had implicitly waived the privilege by putting the information in the documents at issue. Since FHS no longer attempted to assert its attorney work product privilege, the court did not have to address its applicability. Judge Waxse found that FHS' conclusory declaration of potential harm from defendants due to disclosure of the information fell short of "the particular and specific demonstration of fact required to establish that disclosure of the documents will result in a 'clearly defined and very serious injury'" as required by Fed.R.Civ.P. 26(c)(7) (citation omitted). The court further held that even if FHS' allegation of impending harm satisfied the specificity requirement, disclosure of the material would still be required because the relevancy and need for the information exceeded any need to maintain complete confidentiality. Thus, the court granted Nikitin's motion to compel and overruled FHS' motion for a protective order.
FHS now seeks review of Judge Waxse's decisions in Memorandum And Order (Doc. #143) and Memorandum And Order (Doc. #149). FHS argues that the mere filing of a motion to disqualify does not waive the attorney-client privilege. Nikitin disagrees, and argues in the alternative that Judge Waxse erred in holding the K.S.A. § 60-426(b)(3) did not provide a statutory exception to the attorney-client privilege.
Standard of Review
Pursuant to D. Kan. Rule 72.1.4, the procedure for obtaining review of a magistrate's order in a nondispositive matter is set forth in Fed.R.Civ.P. 72(a). Under Rule 72(a), "[t]he district judge to whom the case is assigned shall consider such objections and shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law." The clearly erroneous standard requires the Court to affirm the magistrate judge's order unless it has the definite and firm conviction from all the evidence that error has occurred.
See Ocelot Oil Corp. v. Sparrow Indutries., 847 F.2d 1458, 1464 (10th Cir. 1988) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 3 95 (1948)); see also Smith v. MCI Telecommunications Corp., 137 F.R.D. 25, 27 (D. Kan. 1991) ("Because a magistrate is afforded broad discretion in the resolution of nondispositive discovery disputes, the court will generally grant the magistrate at deference and overrule the magistrate's determinationonly if this discretion is clearly abused.").
Rule 72(a) also states that "[w]ithin 10 days after being served with a copy of the magistrate judge's order, a party may serve and file objections to the order; a party may not thereafter assign as error a defect in the magistrate judge's order to which objection was not timely made." If a party fails to file objection under Rule 72(a), it waives the right to appeal on that basis.
International Surplus Lines Ins. Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir.1995).
Analysis
1. Timeliness of appeal.As an initial matter, the Court considers whether FHS timely appealed Judge Waxse's decision that it waived the attorney-client privilege. Under Fed.R.Civ.P. 6(e), FHS received an additional three days to file its motion due to service by mail. In addition, Rule 6(a) excludes intermediate Saturdays, Sundays and legal holidays from the computation of time because the time for action was under 11 days. Plaintiff therefore had until December 4, 2001 to appeal from Judge Waxse's first order and until December 20, 2001 to appeal from his second order.
Judge Waxse determined that the attorney-client privilege had been waived in his Memorandum And Order (Doc. #143) of November 14, 2001. Judge Waxse deferred issuing a final ruling on Nikitin's motion to compel, however, until FHS provided a privilege log for the documents it submitted and a motion for a protective order. The final order granting the motion to compel was entered on December 3, 2001. Accordingly, the Court finds that FHS's attempt to seek review of the first order on December 14, 2001 is timely.
2. Waiver of attorney-client privilege.
FHS contends that Judge Waxse's order that the mere filing of a motion to disqualify places the otherwise privileged information "at issue" and thereby ordering it disclosed to the other party should be modified and/or set aside by this Court. Nikitin counters that the standards for disqualification under MRPC 1.9 and 1.10(b) support Judge Waxse's decision. Controlling Law
Fed.R.Evid. 501 provides that state law supplies the rule of decision on privilege in diversity cases. Kansas law thus controls this issue. Pursuant to D. Kan. Rule 83.6.1, "The Code of Professional Responsibility and the Model Rules of Professional Conduct ("Model Rules") as adopted by the Supreme Court of Kansas" govern the standards of conduct for attorneys practicing in this court. The Kansas Supreme Court has adopted the Model Rules. Thus, the Model Rules, and Kansas case law construing them, control this action.
See Frontier Refining Inc. v. Gorman-Rupp Co., Inc., 136 F.3d 695, 699 (quoting Wylie v. Marley Co., 891 F.2d 1463, 1471 (10th Cir. 1989).
1996 Kan. Ct. R. anno. Rule 226.
Marten v. Yellow Freight System, Inc., 1996 WL 568840 (D. Kan 1996) (citing Graham v. Wyeth Laboratories, 906 F.2d 1419, 1422-23 (10th Cir. 1990)).
K.S.A. 60-426(a) sets forth the general rule of Kansas regarding the attorney-client privilege: "Subject to K.S.A. 60-437, and except as otherwise provided by subsection (b) of this section communications found by the judge to have been between lawyer and his or her client in the course of that relationship and in professional confidence, are privileged. . . ." The manner in which Kansas courts consider the attorney-client privilege is summarized as follows:
(1) where legal advice is sought (2) from a professional legal advisor in his capacity as such, (3) communications made in the course of that relationship (4) made in confidence (5) by the client (6) are permanently protected (7) from disclosures by the client, the legal advisor, or any other witness (8) unless the privilege is waived.
State v. Maxwell, 10 Kan. App. 2d 62, 63 (citing 8 John Henry Wigmore, Wigmore on Evidence 2292 (McNaughton rev. 1961)).
"'[C]ommunication' includes advice given by the lawyer in the course of representing the client and includes disclosures of the client to a representative, associate, or employee of the lawyer incidental to the professional relationship." The party objecting to discovery on the basis of the privilege has the burden of establishing that it applies. This burden includes showing that the privilege has not been waived. "At issue" waiver of privilege
Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 425 (2000).
See Johnson v. Gmeinder, 191 F.R.D. 638, 642 (D. Kan. 2000) (holding that the absence of waiver is one of the eight essential elements that must be established under Kansas law).
Judge Waxse ruled that FHS had waived the attorney-client privilege as to those documents submitted to the court in camera in support of its motion to disqualify. He held that FHS directly put the confidential and privileged communications at issue when it filed the motion to disqualify Blackwell Sanders and accordingly, FHS had waived the attorney-client privilege with regard to the confidential communications issue.
Judge Waxse analyzed the three general approaches which courts have taken to determine whether an implied waiver of the attorney-client privilege has occurred during litigation, citing Frontier Refining, Inc. v. Gorman-Rupp Co., Inc. As a general rule, courts have followed three different approaches: 1) the automatic waiver rule; 2) a test to evaluate the need for discovery versus the importance of the privilege; and 3) if the litigant directly puts the attorney's advice at issue in the litigation.
136 F.3d 695, 701 (10th Cir. 1998) (determining how Wyoming would evaluate whether implied waiver occurred).
Id. at 700.
Judge Waxse noted that Kansas courts have not spoken to which of these three approaches should be followed with respect to the "at issue" waiver of the attorney-client privilege. Accordingly, he analyzed how he believed the Kansas Supreme Court would rule if confronted with the question, assisted by Frontier. First, Judge Waxse concluded that Kansas would not adopt the "automatic waiver" rule as too harsh. The second approach, enunciated in Hearn v. Rhay, provides that the privilege is waived only when the material to be discovered is both (1) relevant to the issues raised in the case and (2) either vital or necessary to the opposing party's case. Finally, in the most conservative approach to finding a waiver, a litigant waives the attorney-client privilege if, and only if, the litigant directly puts the attorney's advice at issue in the litigation. Judge Waxse held that it was unnecessary to address the more liberal "Hearn" approach because Nikitin sufficiently demonstrated waiver under the more conservative third approach.
Id. (the rule "has been roundly criticized in the circuits, does not adequately account for the importance of the attorney-client privilege to the adversary system, and is more applicable to constitutional, rather than attorney-client, privileges.").
68 F.R.D. 574 (E.D. Wash. 1975) (evaluating the need for discovery against the importance of the privilege).
Frontier, 136 F.3d at 699.
Frontier applied the second approach as d d Judge Waxse in a previous opinion, Simmons Foods, Inc. v. Willis, 191 F.R.D. 625, 635 (D. Kan. 2000) (action by creditor against debtor's bankruptcy counsel for negligence; debtor's counsel asserted affirmative defense of comparative negligence).
In determining when the attorney's advice is put at issue, Judge Waxse cited the approach set forth in Rhone-Poulenc Rorer, Inc. v. Home Indemnity Co., which discussed in detail the scope of the "at issue" waiver doctrine. In that case, the Third Circuit specifically rejected the proposition that a party impliedly waives the privilege merely by asserting a defense that would make an attorney's advice relevant. Rather, the Third Circuit held that "[t]he advice of counsel is placed in issue where the client asserts a claim or defense, and attempts to prove that claim or defense by disclosing or describing an attorney-client communication." Examples of such waiver include filing a malpractice suit against a lawyer and asserting reliance on the advice of counsel as an affirmative defense. In explaining its ruling, the Third Circuit used the example of a patent case in which a defendant denies the charge of willful infringement. The court explained that while the advice of the alleged infringer's lawyer may be "relevant to the question of whether the infringer acted with a willful state of mind . . . the advice of the infringer's counsel is not placed in issue, and the privilege is not waived, unless the infringer seeks to limit its liability by describing that advice and by asserting that he relied on that advice."
32 F.3d 851 (3d Cir. 1994).
Id. at 863.
Id.
Id.
Judge Waxse agreed with Nikitin's assertion "that the substance of the confidential communications between FHS with its counsel are relevant and at issue as a direct result of FHS's affirmative decision to file its Motion to Disqualify," stating:
FHS initiated this lawsuit and subsequently filed the pending Motion to Disqualify. In its Motion to Disqualify, FHS alleges Blackwell Sanders has conflict of interest in representing Nikitin because Elliott [sic], a lawyer currently working for Blackwell Sanders, formerly represented FHS and thus possesses material and confidential information regarding issues relevant in this lawsuit. FHS does not want to disclose the substance of the information known by Elliott, however, because it asserts such information is protected from disclosure by privilege. . . . Based on these facts, the Court finds FHS directly put the confidential and privileged communications at issue when it filed the pending Motion to Disqualify. Accordingly, the Court holds FHS has waived the attorney-client privilege with regard to the confidential communications at issue.
This Court agrees with Judge Waxse's analysis of the law on waiver of privilege under Frontier. The Court questions, however, whether the application of at-issue waiver should be extended to motions to disqualify an attorney. A review of the standards for disqualification under Model Rules of Professional Conduct and Kansas case law sheds light on what is "at issue" in such motions. Model Rules of Professional Conduct
See Polyagro Plastics, Inc. v. Cincinnati Milacron, Inc., 903 F. Supp. 253, 259 (D.P.R. 1995).
In its motion, FHS moves for the imputed disqualification of Blackwell Sanders under Model Rules of Professional Conduct (MRPC) 1.9(a) and 1.10(b). The applicable provisions of MRPC 1.9(a), which governs direct disqualification of a lawyer for conflict of interest, provide:
A lawyer who has formerly represented a client in a matter shall not thereafter:
(a) represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation."
Kan.Ct.R.Annot. 320 (emphasis added).
The pertinent provisions of MRPC 1.10(b), which governs imputed rather than direct disqualification, provide:
(b) When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by Rule 1.6 and 1.9(b) that is material to the matter.
Kan.Ct.R.Annot 321-22 (emphasis added).
Burden of Proof
As the party moving for disqualification, FHS has the burden under Model Rule 1.9(a) to show that:
(1) an actual attorney-client relationship existed between the moving party and the opposing counsel;
(2) the present litigation involves a matter that is "substantially related" to the subject of the movant's prior representation; and
(3) the interests of the opposing counsel's present client are materially adverse to the movant.
Cole v. Ruidoso Mun. Schools, 43 F.3d 1373, 1383 (10th Cir. 1994); see also Koch v. Koch Industries, 798 F. Supp. 1525, 1532 (D. Kan 1992).
In Chrispins v. Coastal Refining Marketing, Inc., the Kansas Supreme Court conducted a thorough review of the law surrounding whether a substantial relationship exists between representations. The court concluded that there is no single standard test for substantial relationship so that determinations are to be made on a case-by-case basis. The court stated that the "underlying concern is the possibility, or appearance of the possibility, that the attorney may have received confidential information during the prior representation that would be relevant to the subsequent matter in which disqualification is sought."
257 Kan. 745 (199 5).
Id. at 754.
Id. at 753 (quoting Trone v. Smith, 621 F.2d 994, 999 (9th Cir. 1980).
In Parker v. Volkswagenwerk Aktiengesellschaft, the Kansas Supreme Court held that when an imputed motion to disqualify based on MRPC 1.10(b) has been filed, the district court must have a full hearing to determine whether the attorney in question acquired material and confidential information during the course of his former employment. Parker also states that the district court must determine such motions on a case-by-case basis and that the burden of proof lies with the attorney or firm who is sought to be disqualified; if it is determined that the attorney gained material and confidential information during the course of his previous employment, then both the attorney and the firm with whom he is presently associated are disqualified. Presumptions
245 Kan. 580 (198).
Id. at 589.
If disqualification is sought solely under Model Rule 1.9(a), the movant's satisfaction of its burden gives rise to an irrebuttable presumption that the attorney acquired confidential information in the former representation and is disqualified from representing the latter client. The district court, when dealing solely with a motion under Model Rule 1.9(a), should not hold a hearing. To hold a hearing under these circumstances would be "to frustrate the reason underlying the rule, which is to prevent disclosure of the confidential information the rule is designed to protect." Similarly, when a motion to disqualify is brought under Rule 1.9(a) and 1.(10)(a), disqualification is imputed to lawyers practicing together without regard to whether client confidences actually have been shared.
Koch, 798 F. Supp at 15 36; Chrispens, 257 Kan. at 756.
Chrispens, 257 Kan. at 759.
MRPC 1.10(a) governs the imputed disqualification of other lawyers in the same, current firm of a disqualified lawyer.
See Monroe v. City of Topeka, 232 Kan. (1999).
However, in Chrispens, the Kansas Supreme Court held that motions for disqualification advanced under both Model Rule 1.9(a) and 1.10(b) are not entitled to an automatic irrebuttable presumption. Rather, the determination of disqualification "will depend upon whether material, confidential information has been acquired by the attorney in his or her former representation." Under these circumstances, the district court must have a full hearing to determine whether the attorney in question acquired material and confidential information during the course of the attorney's former employment. As the Chrispen court stated, "[t]he hearing will result in the disclosure of the very information MRCP 1.9(a) was designed to protect from disclosure." The party best able to bear the burden of showing that the attorney did not gain material and confidential information is the firm with whom the attorney is currently associated, and the burden of proof rests with the party against whom imputed disqualification is alleged. The Kansas Supreme Court has held that the use of "screening devices" or a "Chinese wall" is unavailable as a remedy when faced with a Rule 1.10(b) problem.
Id. at 760 (emphasis added).
Id. at 759.
Id. at 760.
See Lansing-Delaware Water Dist. v. Oak Lane Park, Inc., 248 Kan. 563, 573 (1991); Parker, 245 Kan. at 589.
Kansas Case Law
Review of Kansas cases involving MRPC 1.10(b) motions to disqualify present a paradox: courts have ruled that the moving party waives its attorney-client privilege, while at the same time consistently encouraged and allowed in camera review of the privileged documents in attorney disqualification cases.Graham v. Wyeth Laboratories, is an MRCP 1.9(b), 1.10(b) case. Wyeth, the defendant vaccine manufacturer, sought to disqualify plaintiff's counsel, Michaud Hutton, because Randall Fisher had recently joined the Michaud firm. Fisher had formerly been employed by Wyeth's counsel, McDonald, Tinker, Skaer, Quinn Herington (McDonald, Tinker) at a time when McDonald, Tinker was defending Wyeth in the Graham case. Wyeth sought disqualification of both Fisher and the firm. After a Parker evidentiary hearing, the court denied the motion, concluding: "Fisher was never exposed to any material or confidential information . . . which pertained to Wyeth's DTP process or defenses." The court was frustrated by Wyeth's attempt to claim attorney-client privilege as to the alleged confidential communications between Wyeth and Fisher. The court felt it was placed in the position of attempting to decide whether material confidential information had been disclosed without disclosure to the court of the actual information. The court decided that Wyeth had waived any such privilege because the "material and confidential information allegedly revealed in the course of those dealings is the very subject matter of this dispute." It appears, however, that the court's frustration was with counsel's refusal to disclose the information to the court.
760 F. Supp. 1451 (D. Kan 1991).
Under MRPC 1.10(b), imputed disqualificaiton of the new firm only applies if it is shown that at the former firm, the attorney "acquired information protected by Rules 1.6 and 1.9(b) that is material to the matter." 1997 Kan. Ct. R. Annot. 305, 306.
Pacific Employers Insurance Co. v. P.B.Hoidale Co., Inc., is an MRPC 1.10(b) case. The court stated that it was "cognizant of the dilemma posed by the holding of Parker: in order to establish that the former attorney had actual knowledge of material and confidential information, some cases may require disclosure of the very information that the movant seeks to maintain as confidential. . . . In an effort to give [defendant] every benefit of the doubt, the court offered [defendant] the opportunity for in camera review of any information that it considered material and confidential." The defendant submitted some information, but could produce no evidence that the attorney sought to be disqualified saw any of it.
789 F. Supp. 1112 (D. Kan. 1992).
Id.1117.
Id.
Barragree v. Tri-County Electric Cooperative, Inc., involved a motion to disqualify under MRPC 1.7(a) and 1.9(b). The Kansas Supreme Court discussed the similarities between MRCP 1.9(b) and 1.10(b), noting that in a 1.9(b) motion to disqualify, an evidentiary hearing is required on the question of whether relevant confidential information was acquired during the former representation and that the type of factual inquiry is similar to a 1.10(b) motion to disqualify evidentiary hearing. The court stated that "[t]he factual inquiry will necessarily involve disclosure of the alleged confidential information. Tools such as conducting a portion of the hearing out of the presence of the party against whom confidentiality is to be protected or an in camera inspection are available to the district court to prevent disclosure of the information to adverse parties and counsel. The court held that "[f]or the purposes of their motion to disqualify, the [plaintiffs] waived any attorney-client privilege as to contents of confidential information they claim [the former law firm] acquired. Otherwise, the court must decide whether the alleged information could be used to the disadvantage of the [plaintiffs], without ever knowing what the information was." The court noted that the plaintiffs did not seek either a hearing out of the presence of the party against whom confidentiality is to be protected or in camera inspection.
263 Kan. 446, 468 (1997).
Id. at 462-63.
Id. at 463.
Id. at 468 (citing Graham, 760 F. Supp at 1456).
Id.
In Monroe v. City of Topeka, counsel for the city filed a motion to disqualify under MRPC 1.9 and 1.10(b). Although the court ultimately ruled that the motion should have been brought under MRPC 1.10(a), it states in its analysis that counsel "incorrectly argued that when Rules 1.9 and 1.10 are both involved, there can be no 'in camera' inspection and that all relevant confidential information becomes part of the public record." The court remanded the case with directions to the district court to examine in camera the materials submitted by the plaintiff for the purpose of determining whether a substantial relationship existed between the present case and the former matter.
267 Kan. 440 (1999).
Id. at 445.
Id. at 450.
Finally, the case of Zimmerman v. Mahaska Bottling Co. applied MRPC 1.10(b) to non-lawyer support staff. The district court took in camera testimony, and the Supreme Court reviewed the in camera testimony, noting that discussion of specific testimony is not feasible.
270 Kan. 810 (200 1).
Id. at 812, 815.
Thus, in Kansas, it appears that the disclosure required under MRPC 1.10(b) is limited to the court, not the adversary. Conclusion
The "at issue" waiver principle provides that, "the attorney-client privilege is waived only to the extent that waiver is necessary to prevent the shield from being used as a sword. One must consider the nature of the sword and the extent of the wounds the litigant claiming the privilege seeks to inflict with it." A motion to disqualify is distinguishable from an "advice of counsel" defense, or a medical malpractice claim. In those examples, the litigant claiming the privilege is seeking to prove a claim or defense based on the advice of counsel. In contrast, the Court does not believe that a former client should have to disclose such confidences to the adversary as the price of obtaining disqualification. To so require would defeat the purpose of the motion to disqualify: to protect the confidential information provided to an attorney from being used against the client in another case. Accordingly, the Court concludes that Judge Waxse's order that FHS waived its attorney-client privilege by filing its motion for disqualification is in error.
IMC Chemicals, Inc. v. Niro Inc., 2000 WL 1466495, at *23 (D. Kan. 2000) (quoting SEC v. H.K. Freeland Co., 1992 WL 1 10748, at *1 (S.D. N. Y. 1992)).
See id. (plaintiff intended to challenge contract at issue with extrinsic evidence of its intent and interpretation, thus making it necessary to enforce waiver against all attorney-client communications relative to interpretation of the contract by plaintiff and attorneys, intent behind contract and negotiations and drafting of contract).
Judge Waxse has already reviewed the documents in camera and determined them to be confidential communications subject to the attorney-client privilege. Accordingly, he can also review the documents in camera to make his determination of whether FHS has met its burden of proving the matters are substantially related. If the court so finds, then the burden shifts to Nikitin to show whether Elliot acquired material and confidential information during the course of his employment with Hovey Williams. Although Nikitin objects to in camera submission because it is unable to respond to the documents, Judge Waxse will take this into account when weighing the evidence.
Nikitin contends that there is a second basis for affirming Judge Waxse's order, specifically, the exception to the attorney-client privilege for a communication relevant to an issue of breach of duty by the lawyer found at K.S.A. 60-426(b)(3). Because the Court sets aside Judge Waxse's order on the at issue waiver on other grounds, it is not necessary to address this argument.
IT IS SO ORDERED.