155 F.R.D. 546 | S.D.W. Va | 1994
MEMORANDUM OPINION AND ORDER
Pending before this Court are the cross-objections of the parties, Plaintiff, Hanley C. Clark, Commissioner of Insurance for the State of West Virginia, as Receiver of George Washington Life Insurance Company, and Defendant Arthur W. Milam, to the Order of Magistrate Judge Hogg entered February 4, 1994.
I.
The standard of review of a Magistrate Judge’s order, pursuant to objections made under Rule 72(a) of the Federal Rules of Civil Procedure, is typically deferential:
“The Federal Rules of Civil Procedure provide magistrate judges with broad discretion in resolving discovery disputes. A magistrate judge’s ruling on a nondispositive matter may be reversed only on a finding that the order is ‘clearly erroneous or contrary to law.’ Fed.R.Civ.P. 72(a). Courts have consistently found routine discovery motions to be ‘nondispositive’ within the meaning of Rule 72(a). See, e.g., Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir.1990), cert. denied, [498] U.S. [846], 111 S.Ct. 132, 112 L.Ed.2d 100 (1990); Johnson v. Old World Craftsman, Ltd., 638 F.Supp. 289, 291 (N.D.Ill.1986). ‘A finding is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ United States v. United States Gypsum, 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).” Bobkoski v. Board of Education, 141 F.R.D. 88, 90-91 (N.D.Ill.1992).
See, Wahad v. Federal Bureau of Investigation, 132 F.R.D. 17, 20 (S.D.N.Y.1990); Federal Saving & Loan Ins. Corp. v. Commonwealth Land Title Ins. Co., 130 F.R.D. 507, 508-09 (D.D.C.1990); Laxalt v. McClatchy, 602 F.Supp. 214, 216 (D.Nev.1985); Note 2, supra. See also, LaRouche v. National Broadcasting Co., Inc., 780 F.2d 1134, 1139
II.
A.
Defendant Milam contends that the documents ordered to be produced pursuant are immune from discovery due to attorney-client privilege. Previously, by Order entered September 17, 1993, the Magistrate Judge found that the privilege asserted had been waived. Judge Hogg recognized his previous ruling, stating:
“The Court finds ... that any privilege or immunity that might otherwise attach to the documents was held waived by this Court’s order of September 17, 1993. The Court, therefore, GRANTS plaintiff’s motion directed to defendant Milam and ORDERS Milam to produce all documents identified in plaintiffs counsel’s letter to Milam’s counsel of October 23, 1993[.]”
The gist of Milam’s argument is that the September 17, 1993 Order Judge Hogg did not include the disputed documents. Judge Hogg, the author of both Orders, has come to a contrary conclusion. To reverse the Order of Judge Hogg, this Court must be left with a definite and firm conviction that a mistake has been made. Harman v. Levin, supra. As Milam admits, it is well-established that the scope and conduct of discovery are well within the sound exercise of a trial court’s discretion.
It is not clear any mistake has been made in the February 4, 1994 Order, much less an error that leaves one with a definite and firm conviction of a mistake. Upon the entire evidence, this Court does not conclude that the February 4,1994 Order was clearly erroneous in this regard. Therefore, as to Mi-lam’s objections, the February 4,1994, Order of Judge Hogg is AFFIRMED.
B.
Plaintiff objects to Judge Hogg’s ruling denying his motion to compel the production of documents of Defendant Lamm based upon the work-product doctrine. Plaintiffs argument, inter alia, is that the disputed documents were created during the course of Lamm’s representation of GW LIFE (the privileges of which are now held by the Plaintiff, as Receiver of GW LIFE
This issue is similar to that addressed in this Court’s recent Order of March 15, 1994 (Clark v. Milam, 847 F.Supp. 424 (S.D.W.Va. 1994) “Clark V”). This judge held, “a lawyer may not invoke work product immunity against his own client in regard to work product created during the course of representing that client.” 847 F.Supp. at 427. On the other hand, this Court affirmed the Order of the Magistrate Judge insofar as it held that the work product doctrine applied where Lamm asserted the work product doctrine against one client in regard to documents created for a different client. 847 F.Supp. at 426-427. Plaintiff contends that the documents he seeks were created during the course of Lamm’s representation of GW LIFE.
If the work product documents were created during the course of Lamm’s representation of GW LIFE, they are discoverable pursuant to Clark V. If they were created
“The production of documents relating to GW LIFE to the Plaintiff from any and all former attorneys, shall not be withheld on the basis of attorney-client privilege asserted on behalf of GW LIFE; provided, however, that this order does not apply to any privilege or immunity asserted on behalf of any other entity or individual.”
Judge Hogg was presented with evidence from both parties on the issue of who Lamm represented when she created the disputed documents. This Court finds the holding of Judge Hogg was not clearly erroneous on this issue. Ample evidence was provided to show Lamm was not representing GW LIFE when she created the disputed documents. This Court has no firm and definite conviction a mistake has been made. Thus, the February 4, 1994 Order of Judge Hogg is hereby AFFIRMED.
III.
Based upon the foregoing, it is hereby ORDERED that the February 4, 1994 decision of Judge Hogg is ADOPTED and AFFIRMED.
The Clerk is directed to send a copy of this Order to the Magistrate Judge, counsel of record and all pro se parties.
. As noted in Doe v. American Nat. Red Cross, 151 F.R.D. 71, 73 n. 2 (S.D.W.Va. 1993) pursuant to 28 U.S.C. § 636(b)(1)(A), and a Standing Order of this Court entered November 25, 1991, all discovery issues arising in Charleston Division civil actions are referred to the Honorable Jerry D. Hogg, United States Magistrate Judge.
. The objections are made pursuant to Rule 72 of the Federal Rules of Civil Procedure. Rule 72 states, in pertinent part: “Within 10 days after being served with a copy of the magistrate's order [on a nondispositive matter], a party may serve and file objections to the order; a party may not thereafter assign as error a defect in the magistrate’s order to which objection was not timely made. The district judge to whom the case was assigned shall consider such objections and shall modify or set aside any portion of the magistrate’s order found to be clearly erroneous or contrary to law,"
. Discovery disputes in this case have been referred to Judge Hogg for the exercise of his discretion. See Note 1, supra.
. In an Order entered April 5, 1993, this Court concluded, "Plaintiff Hanley C. Clarke, as Receiver of George Washington Life Insurance Company, owns and controls the attorney-client privilege as to any and all communications between George Washington Life Insurance Company ('GW LIFE') and any and all of its former attorneys for purposes of this action."
. Plaintiff has filed a Motion to Strike Supplemental Response of Defendant Carolyn B. Lamm in Opposition to Plaintiff's Objections to February 4, 1994 Order of Magistrate Judge Denying Plaintiff's Motion to Compel. That Motion is hereby DENIED.
