Opinion
No. 4-476 / 03-0715.
August 26, 2004.
Appeal from the Iowa District Court for Linn County, Kristin L. Hibbs, Judge.
United Fire Casualty Company appeals a district court order compelling corporate counsel's answers to questions propounded during a discovery deposition. REVERSED AND REMANDED.
Donald G. Thompson and Kevin C. Papp of Bradley Riley, P.C., Cedar Rapids, for appellant.
Edward J. Krug of Krug Law Firm, P.L.C., Cedar Rapids, for appellee.
Considered by Huitink, P.J., and Hecht and Eisenhauer, JJ.
I. Background Facts Proceedings
In this case, United Fire Casualty Company sued Swiss Reinsurance America Corporation and its subsidiary, North American Specialty Insurance Corporation (NASIC), for breach of contract. In the course of discovery Swiss Reinsurance propounded interrogatories to United Fire, the answers to which were signed by Neal Scharmer, United Fire's general counsel. The interrogatories listed Scharmer as a person with knowledge of the facts at issue.
As a result, Swiss Reinsurance deposed Scharmer. During the deposition United Fire objected to several questions posed to Scharmer, citing his attorney-client relationship with United Fire and resulting privilege. United Fire additionally claimed the questions propounded to Scharmer required disclosure of his work product.
Swiss Reinsurance moved to compel Scharmer's answers to the questions asked during his deposition. United Fire resisted the motion and requested a protective order preventing further privileged inquiries. After a hearing, the district court determined that United Fire had waived its attorney-client privilege on those matters for which Scharmer was identified as a person with knowledge of the facts. The court sustained the motion to compel. The supreme court granted United Fire's application for an interlocutory appeal.
II. Standard of Review
In considering a district court's ruling on a discovery matter, we review for an abuse of discretion. Exotica Botanicals, Inc. v. E.I. Du Pont de NeMours Co., 612 N.W.2d 801, 804 (Iowa 2000). "A reversal of a discovery ruling is warranted when the grounds underlying a district court order are clearly unreasonable or untenable." Id. A ruling based on an erroneous interpretation of a rule of discovery may constitute an abuse of discretion. Brandon v. West Bend Mut. Ins. Co., 681 N.W.2d 633, 638 (Iowa 2004).
III. Attorney-Client Privilege
United Fire claims the district court abused its discretion by ordering Scharmer to testify to matters which should be protected by the attorney-client privilege. Under Iowa Code section 622.10(1) (2003), a practicing attorney may not "disclose any confidential communication properly entrusted to the person in the person's professional capacity. . . ." Also, under Iowa common law, "any confidential communication between an attorney and the attorney's client is absolutely privileged from disclosure against the will of the client." Squealer Feeds v. Pickering, 530 N.W.2d 678, 684 (Iowa 1995) (quoting Shook v. City of Davenport, 497 N.W.2d 883, 886 (Iowa 1983)). Privileged matters are specifically excluded from the scope of permissible discovery. Iowa R. Civ. P. 1.503(1); Squealer Feeds, 530 N.W.2d at 683.
A client may waive the attorney-client privilege. Iowa Code § 622.10(2). Waiver occurs when the person holding the privilege discloses or plans to disclose privileged matters. Brandon, 681 N.W.2d at 642. A person, such as the general counsel to a corporation, does not waive the privilege by verifying the accuracy of answers to interrogatories or by participating in framing the answers. Id. Instead, waiver occurs only if the actual content of the answers to interrogatories reveals privileged communications. Id. Thus, United Fire did not waive its attorney-client privilege simply because Scharmer signed the answers to interrogatories.
The district court found United Fire waived the attorney-client privilege by identifying Scharmer as a person having knowledge about the basis of the company's claims of (1) breach of the duty of good faith; (2) usurpation of corporate opportunity; and (3) trade secret appropriation. In Squealer Feeds, 530 N.W.2d at 684, the supreme court determined that a company waived its attorney-client privilege when it designated its prior counsel as an expert witness. This was because the company planned to offer his opinion on matters within the scope of his employment as the company's attorney. Squealer Feeds, 530 N.W.2d at 684-85.
Contrary to the situation in Squealer Feeds, Scharmer was never identified as a witness in this case. He was merely listed as one of several persons with knowledge of the basis for United Fire's suit against Swiss Reinsurance. There is no indication United Fire intended to waive its attorney-client privilege by having Scharmer testify to matters he became privy to due to his position as general counsel. We conclude United Fire has not waived its attorney-client privilege in regard to Scharmer. We determine the district court abused its discretion by compelling Scharmer to answer questions about those answers to which he was designated as a person with knowledge.
IV. Attorney Work Product Doctrine
United Fire contends the district court abused its discretion by not finding certain matters were protected by the attorney work product doctrine. The district court did not rule on this issue. In order to preserve error, a party seeking to appeal an issue presented to, but not decided by, the district court must call the district court's attention to the issue. Meier v. Senecaut, 641 N.W.2d 532, 540 (Iowa 2002). Here, no post-trial motion was filed, and we determine this issue has not been preserved for our review. See id.
V. Motion to Strike
Swiss Reinsurance filed a motion to strike a statement in United Fire's reply brief to the effect that Swiss Reinsurance had subsequently been able to obtain through the depositions of other witnesses the information it had attempted to obtain from Scharmer. Swiss Reinsurance asserted the information should be stricken because it was outside the record. The supreme court ordered this issue submitted with the appeal.
We do not consider matters outside the record. See Iowa R. App. P. 6.10(1); Squealer Feeds, 530 N.W.2d at 685 n. 5. We have not considered any statements by either party in the briefs concerning matters outside the trial court record. We also reject Swiss Reinsurance's alternative motion to expand the record for purposes of this appeal.
We reverse the trial court's ruling and order to compel.