Free Response to Motion - District Court of Arizona - Arizona

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Brian Holohan (009124) [email protected] Darrell S. Dudzik (016465) [email protected] Attorneys for Defendants UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Ronald Craig Fish, a law corporation, a California corporation, vs. Plaintiff, ) ) ) ) ) ) ) ) ) ) ) Court No. CIV-03-67-PHX-SMM DEFENDANTS RESPONSE MEMORANDUM RE PLAINTIFF S MOTION TO QUASH

Thomas G. Watkins, III, an individual; et al., Defendants. Attorney Client Privilege At the outset, the

should

bear

in

mind

that

Plaintiff was dismissed from basis of personal

the underlying action on the Why that purportedly lawsuit1 generated 14 banker s

jurisdiction.

groundless in fact and law

boxes of documents2 and over $375,000 in legal fees on its face creates substantial questions about both the necessity and reasonableness of the attorney fees incurred. The seeming
1 2

Plaintiff s amended complaint, ¶38. Falk 1/6/06 declaration, ¶3.

Case 2:03-cv-00067-SMM

Document 117

Filed 01/20/2006

Page 1 of 6

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unreasonableness of the bills is especially troubling given the billing attorney's claims to experience and knowledge of the substantive issues. As in all discovery disputes, we cannot pinpoint exactly what we will find until we are given the documents. this reason the standard in discovery is It is for "reasonably

calculated to lead to the discovery of admissible evidence." Under the correct standard, there can be little doubt that the fourteen banker s boxes are "reasonably calculated the "discovery of admissible evidence" to lead to the

rebutting

reasonableness of a $375,000 legal bill.

Beyond that, in a

wrongful institution of civil proceedings case, probable cause has an objective component. Bradshaw v. State Farm Mut. Auto.

Ins. Co., 157 Ariz. 411, 417, 758 P.2d 1313, 1319 (1988). "Objective," by definition, means what a third person thought of the merits. What more direct evidence of the objective

reasonableness of the claim against Fish, P.C. could there be than those fourteen banker's boxes? Plaintiff's papers, with declarations of his trial

attorneys expounding their personal experience in California and Texas, ignores Arizona law. It has been Arizona s long-

favored practice of allowing full cross-examination of expert witnesses, including inquiry about the expert s sources,

relations with the hiring party and counsel, possible bias and prior opinions. See The Arizona Independent Redistricting

Commission v Fields, 206 Ariz. 130 at 143, 75 P.2d 1088 at 2
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1101 (App. 2003). Plaintiff chose to disclose Mr. Falk as his non-retained expert calculated" standard, in this matter. Under the "reasonably

Mr. Falk's file became fair game by

virtue of Plaintiff's choice. Plaintiff attorney also ignores Arizona s Rather then statutory address basis the for

client

privilege.

actual

language of the statute, Plaintiff instead cites cases outside Arizona. So for example, he cites, Fischel & Kahn v Van

Straaten, 189 Ill.2d 579, 727 N.E.2d 240, Ill. Dec. 941 (2000) and Rutgard v Hayes, 185 F.R.D. 596 (S.D. Calif.1999), neither of which control in Arizona. State Farm v Lee, 199 Ariz. 52,

61, ¶23, 13 P.3d 1169, 1178 (2000) unquestionably acknowledges (based on several prior precedents beginning with Hearn v. Rhay, 68 F.R.D. 574 (E.D.Wash 1975)) that a waiver can be

implied when a party injects a matter that, in the context of the case, creates such a need for the opponent to obtain the information allegedly protected by the privilege that it would be unfair to allow that party to assert that privilege .

Plaintiff dismisses Elia v Pfifer, 194 Ariz. 74, 977 P.2d 796 (App. 1998) as having no application to our case. While

Plaintiff offers a short summary of Elia, he does not offer any explanation as to why an Arizona case discussing waiver of the attorney-client privilege should be ignored in favor of the Illinois case he offers as an alternative. Elia stands

for the rule that a fairness approach should be taken by the court when determining whether to applied the implied waiver 3
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doctrine and thus has direct applicability to the case at hand. Finally, Plaintiff contends that the Defendants cited

Hearn v. Rhay, supra., in its memorandum.

This case was never However, as

cited and so this contention is simply not true.

noted above, it has been followed in Arizona and even the Plaintiff acknowledges that the three factors to consider when determining whether a waiver has occurred apply here.

Plaintiff s Memorandum, p. 2, lines 6-10. Because the assertion of the privilege by Plaintiff was the result of the Plaintiff s own lawsuit, the information sought was put at issue when the Plaintiff sought excessive attorney fees, and the Defendants need the information in

order to properly defend against the claim for attorney fees, Hearn supports Defendants this case. Work Product Privilege In his brief, which is actually more of a reply to our simultaneously filed brief, Plaintiff melds the issues of There is argument and directly applies to

attorney client privilege and attorney work product.

no real effort to analyze Mr. Falk's litigation file under the different rules applicable to work product. In any event,

attorney work product protection in this diversity case is governed by Federal, not state, law. because it is an Illinois state For that reason, and Fischel is utterly

case,

irrelevant to the Court's analysis. 4
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Rutgard,

Plaintiff's

other

authority,

supports

our

position. There, the Magistrate Judge held that the attorney's work product was relevant to reasonable whether the damages claimed are

and ordered production of the relevant materials. The Magistrate further found that the

185 F.R.D. at 601.

only sources for these materials were in the attorney s file. Sound like this case? Finally, Falk s Plaintiff argues that the production billing of Mr. be

otherwise

privileged

detailed

should

sufficient production and that Defendants should be capable of cross-examining alone. Mr Falk at trial based on those documents

Of course, the billings records do not document the

same things as the attorney's file, and therefore are the "substantial equivalent," but the Rutgard court strongly

disagreed with such a claim.

Directly quoting Handgards v

Johnson & Johnson, 413 F.Supp 969, 929 (1976), the Rutgard court observed: [A] party may not insist on the protection of the attorney-client privilege for damaging communication while disclosing other selected communications because they are self serving. Voluntary disclosure of part of a privileged communication is waiver as to the remainder of the privileged communications about the same subject. 185 F.R.D. at 601. So long as Plaintiff proposes to offer Mr. Falk's billing records as evidence, and then have him testify to the

reasonableness of the billings, Rutgard compels the production of Mr. Falk's file. 5
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For the reasons stated, the Defendants request the Court compel Plaintiff to produce the documents requested. DATED this 20th day of January, 2006. HINSHAW & CULBERTSON LLP

By /s/ Brian Holohan Brian Holohan Darrell S. Dudzik Attorneys for Defendants CERTIFICATE OF SERVICE I certify that on January 20, 2006, I electronically transmitted the attached document to the Clerk s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Robert Hardy Falk, Esq. [email protected] Attorney for Plaintiff Michael G. Ackerman, Esq. [email protected] Co-counsel for Plaintiff By
/s/ Brian Holohan

6
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