United States District Court, W.D. Washington, Tacoma
ORDER ON DEFENDANTS' MOTION FOR
J. BRYAN United States District Judge
matter comes before the Court on the Defendants' Motion
for Reconsideration. Dkt. 29. The Court has considered the
pleadings filed regarding the motion and the remaining file.
December 15, 2015, Plaintiff, a gay man, filed this case
asserting that he was hired by Defendant Lewis County
Hospital District No. 1 (“Hospital District”) as
the Chief Financial Officer of Morton General Hospital
(“Morton”) on November 21, 2014 by Hiram Whitmer,
the Chief Executive Officer of Morton. Dkt. 1, at 3.
Plaintiff maintains that his employment at the hospital was
improperly terminated less than two months later based on his
sexual orientation. Id. Plaintiff asserts claims for
violation of his procedural due process and equal protection
rights under the U.S. Constitution and for violations of the
Washington Law Against Discrimination, RCW 49.60, et.
seq. Dkt. 1. Plaintiff seeks damages, attorney's
fees, and costs. Id.
BACKGROUND FACTS AND PENDING MOTION
the background facts are in the February 7, 2017 Order on
Plaintiff's Motion for Order of Partial Summary Judgment,
and are adopted here. Dkt. 73, at 2-13.
December 14, 2016, the Plaintiff's motion for an order
finding that Defendants waived the attorney-client privilege
was granted. Dkt. 28. That order granted the Plaintiff's
motion to compel the Defendants to respond to Plaintiff's
First Interrogatories and Requests for Production and produce
all documents related to the evaluation of how to terminate
Plaintiff's employment, including those that contained
the advice of counsel. Id.
Defendants move for reconsideration and/or clarification of
that order. Dkt. 29. The Defendants argue that the Court
based its conclusions on the premise that Mr. Whitmer
accurately described his communications with the
hospital's lawyers, and request that the Court conduct an
in camera review of the documents at issue.
Id. Pursuant to Local Rule W.D. Wash. 7(h)(3), the
undersigned offered an opportunity for Plaintiff to file a
response to the Defendants' motion for reconsideration;
and Defendants were offered an opportunity to file a reply.
Dkt. 33. In Plaintiff's response to the motion for
reconsideration, he argues that Defendants do not offer
anything new in their motion, and so are not entitled to
relief under Local Rule 7(h). Dkt. 36. In their reply,
Defendants assert that they committed no affirmative act
placing attorney-client privilege at issue. Dkt. 40. They
again reiterate that they “agree not to rely on
privileged communications in defending this case.”
January 10, 2017, Defendants' Motion for Reconsideration
(Dkt. 29) was granted, in part. Defendants were granted leave
to file, under seal, the documents that they were ordered to
provide in the December 14, 2016 order - that is: “all
documents related to the evaluation of how to terminate
Plaintiff's employment, including those that contained
the advice of counsel.” Dkt. 45. On January 12, 2017,
Defendants filed declarations and several pages of pleadings
under seal, including emails from attorneys Jared Van Kirk
and Julie Kebler regarding the termination of Plaintiff's
employment with the hospital. Dkts. 46-50.
January 17, 2017 a hearing was held regarding the motion for
reconsideration and argument was heard on whether the
attorney client privilege had been breached. Dkt. 51. The
parties were informed that while the Court did not find
anything discoverable in the documents provided in
camera, no final decision on the motion for
reconsideration could be made until after the deposition of
Mr. Whitmer. Dkt. 68, at 3-4 and 19-25. Parties at the
hearing indicated that they were hoping to take Mr.
Whitmer's deposition in February. Dkt. 68, at 26.
early February, the parties made various efforts to take Mr.
Whitmer's deposition in Seattle, Washington in accord
with prior discussions between the parties and Mr. Whitmer.
Dkt. 78, at 5-20. (It appears that Mr. Whitmer now resides
Missouri. Id.) On February 12, 2017, Mr.
Whitmer's attorney notified the Plaintiff and Defendants
that Mr. Whitmer was “not available for
deposition.” Dkt. 78, at 21. Defendants wrote to Mr.
Whitmer's counsel on February 13, 2017, to discuss how to
move forward with the deposition. Dkt. 78, at 31.
Defendants' counsel sent a revised notice and subpoena,
setting Mr. Whitmer's deposition for February 28, 2017,
in Kansas City, Missouri. Dkt. 78, at 31-38. On February 14,
2017, Mr. Whitmer's lawyer emailed Defendants'
attorneys and, as is relevant here, indicated that “Mr.
Whitmer is not available for deposition, neither here nor in
Missouri. . . Mr. Whitmer is now firm in his decision to
protect his family and is backing away from testifying in Mr.
Carlson's lawsuit.” Dkt. 78, at 43. Defendants'
attorneys forwarded this email to Plaintiff's lawyer that
same day. Dkt. 78, at 45. It appears from the pleadings that
Mr. Whitmer has not yet been deposed. Id.
discovery deadline is March 17, 2017 and trial is set to
begin on May 22, 2017. Dkt. 73, at 23.
Rule W.D. Wash. 7(h)(1) provides: “[m]otions for
reconsideration are disfavored. The court will ordinarily
deny such motions in the absence of a showing of manifest
error in the prior ruling or a showing of new facts or legal
authority which could not have been brought to its attention
earlier with reasonable diligence.” The Court has
informed the parties that it could not make a complete
decision on the motion for reconsideration regarding the
question of waiver of the attorney client privilege until
after Mr. Whitmer's deposition. The parties are having
difficulty getting Mr. Whitmer's deposition. The December
14, 2016 Order on Plaintiff's Motion to Compel Discovery
and for Waiver of Attorney Client Privilege (Dkt. 28) should
be stayed, and, if necessary, a motion to lift the stay
should be filed only after the deposition of Mr. Whitmer. The
Defendants' Motion for Reconsideration (Dkt. 29) should
be denied, without prejudice, to be renoted with the addition
of Mr. Whitmer's testimony and argument related thereto,
if necessary, if the stay on the December 14, 2016 Order on
Plaintiff's Motion to Compel Discovery and for Waiver of
Attorney Client Privilege (Dkt. 28) is lifted.