HTP Inc v. First Merit Group Holdings Inc
This text of HTP Inc v. First Merit Group Holdings Inc (HTP Inc v. First Merit Group Holdings Inc) is published on Counsel Stack Legal Research, covering District Court, W.D. Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE
9 HTP, INC., a Washington Corporation No. 2:21-cv-00732-BJR 10 Plaintiff, ORDER GRANTING JOINT MOTION TO 11 COMPEL v. 12 FIRST MERIT GROUP HOLDINGS INC., a 13 Canadian provincial corporation, et al.
14 Defendants.
I. INTRODUCTION 16
17 This matter comes before the Court on a joint motion to compel brought by all parties
18 to this lawsuit, Plaintiff HTP, Inc., and Defendants (the “Parties”). The motion seeks an order
19 compelling a third party, Western Washington Law Group (“WWLG”), to comply with a
20 subpoena issued by the Parties. The subpoena directs WWLG to produce files belonging to 21 WWLG’s former clients, Plaintiff HTP and Defendant Evan Johnson, who are now on 22 opposite sides in the instant dispute. Having reviewed the briefs and exhibits filed in support 23
of the motion, and the objection thereto filed by WWLG, the Court finds and rules as follows. 24
25 ORDER GRANTING MOTION TO COMPEL 2:21-cv-00732 26 1
27 1 II. BACKGROUND 2
WWLG attorney Dennis McGlothlin filed this lawsuit on behalf of HTP. On May 26, 3
4 2023, McGlothlin withdrew his representation in response to Defendants’ motion to disqualify,
5 which was based on McGlothin’s prior representation of Defendant Johnson. Through its new
6 counsel, HTP subsequently requested its client files from WWLG, including documents held
7 by WWLG related to this lawsuit. Talevich Decl., ¶ 4. McGlothlin responded by asking HTP 8 to formalize its request in a subpoena. Id., Ex. A. McGlothlin also set out additional conditions 9 (or “protocol”) on which production of the files depended, including that his former clients bear 10
11 the cost of such production. HTP and Defendants issued a subpoena to WWLG on March 20,
12 2024, while stating it was “not in agreement with the protocol [McGlothlin] requested and does
13 not believe that a subpoena should be necessary to obtain relevant documents from its former
14 counsel.” Id., Ex. B.
15 Rather than produce the files, McGlothlin responded with an objection, stating that he 16 required a written waiver of attorney-client privilege from both HTP and Johnson, and repeting 17
his demand for compensation for expenses related to the production. Id., Ex. C. In response, 18
19 HTP provided signed requests for the documents and stated “[n]o costs of reproduction should
20 be necessary.” Id., Ex. D. McGlothlin did not produce the requested documents by the return
21 date provided by the subpoena, claiming he was in the process of getting a quote for the cost of
22 reproducing the files. Over the following weeks, McGlothlin did not produce the files, despite 23
25 ORDER GRANTING MOTION TO COMPEL 2:21-cv-00732 26 2
27 1 representations that he would do so, and instead made excuses for that failure. To date, the files 2
have not been produced. 3
4 III. DISCUSSION
5 WWLG does not deny that it has documents that are responsive to the Parties’
6 subpoena, or claim that it is unable to access those documents. Instead, in response to the
7 Parties’ motion, WWLG has objected to production of McGlothlin’s former clients’ files 8 based on several frivolous grounds. For example, it argues that the subpoena was not properly 9 served, and that Federal Rule 45, which governs the subpoena of documents to third parties, 10
11 requires that the cost of producing such documents be borne by the requesting party.
12 However, production of the client files at issue here is not governed by Federal Rule
13 45 or subject to that rule’s protections.1 Under Washington Rules of Professional Conduct
14 1.16(d), “[u]pon termination of representation, a lawyer shall ... surrender[ ] papers and
15 property to which the client is entitled.” As the WSBA’s Advisory Opinion 181 explains, in 16 the absence of “an express agreement to the contrary,” an attorney has an obligation to turn 17
over files belonging to a client at the client’s request, with any copies to be retained by the 18
19 attorney made at the attorney’s expense:
20 II. Responding to a former client’s request for files
23 1Furthermore, the Parties have submitted evidence that they delivered the subpoena to WWLG by email, in precisely the manner McGlothlin requested. See Talevich Decl., Ex. A. WWLG cannot now 24 be heard to complain of service in a manner it prescribed.
25 ORDER GRANTING MOTION TO COMPEL 2:21-cv-00732 26 3
27 1 A. Issue: When a former client requests the file and no lien is asserted, what 2 copying costs can a lawyer charge and what papers and files must be delivered?
3 B. Conclusion: At the conclusion of a representation, unless there is an express 4 agreement to the contrary, the file generated in the course of representation, with limited exceptions, must be turned over to the client at the client’s request, and 5 if the lawyer wishes to retain copies for the lawyer’s use, the copies must be made at the lawyer’s expense. 6
7 WSBA Rules of Prof'l Conduct Comm., Advisory Opinion 181 (rev. 2009). WWLG has not
8 claimed there was “an express agreement to the contrary,” and does not otherwise attempt to
9 explain why the Washington Rules of Professional Conduct do not govern the circumstances
10 here. While it claims it will take “dozens of hours” to extract the “targeted” material the Parties
11 have requested, it has failed to demonstrate that this may be attributed to any unreasonableness 12 in the request, or to anything other than an inadequate filing and/or document retention system 13 on its part. Indeed, by imposing excessive conditions and engaging in unreasonable delay in the 14
15 return of client files, McGlothlin and WWLG are potentially exposing themselves to discipline
16 for violations of the rules of professional ethics. See In re Disciplinary Proceeding Against
17 Eugster, 166 Wn. 2d 293, 327 (2009), as corrected (Sept. 23, 2009) (affirming suspension of
18 attorney for, among other things, “refus[ing] to turn over his client's files and important papers 19 as requested.”). 20 Another of WWLG’s objections to the Parties’ request for the former clients’ files is 21
that the method of delivery described in the subpoena differs from the method agreed upon in 22
23 subsequent correspondence. The Parties fail to address this “objection” in their reply brief, but
24 it is a frivolous one in any event. WWLG shall produce the documents in whatever reasonable
25 ORDER GRANTING MOTION TO COMPEL 2:21-cv-00732 26 4
27 1 3 manner its former clients request and in the absence of indication to the contrary, should 3 || follow its former clients’ most recent directions. 4 IV. CONCLUSION 5 For the foregoing reasons, the Parties’ Joint Motion to Compel is GRANTED. The 6 discovery deadline in this matter is September 4, 2024, and has already been continued at 7 least once. The Parties are on notice that absent truly extraordinary circumstances, this matter 8 9 will not be continued again. To that end, Western Washington Law Group is ORDERED to
10 produce all responsive documents requested in the March 13, 2024 Subpoena for Documents 11 (Exhibit B to the Declaration of Peter A. Talevich) within five (5) judicial days of this Order, 12 a deadline that is reasonable given the amount of time this request has been pending.” 13 Dated: August 6, 2024. 14 15 Asner eu, 16 Barbara Jacobs Rothstein 47 US. District Court Judge 18 19 20 21 22 23 || >. □□□ oe This Order does not relieve WWLG and McGlothlin of their obligation to maintain privileges held 24 by third parties not involved in this lawsuit.
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