Telquist McMillen Clare PLLC v. Clare

District Court, E.D. Washington·Decided November 16, 2021·No. 4:18-cv-05045·Unknown

Opinion

EASTERUN. SD.I SDTIRSITCRTI COTF CWOAUSRHTI NGTON Nov 16, 2021 SEAN F. MCAVOY, CLERK ANDREA J. CLARE, individually, Plaintiff, No. 4:18-CV-05045-SAB v. KEVIN P. CLARE, individually, ORDER GRANTING MOTION Defendant. FOR PROTECTIVE ORDER; Before the Court is Third Party Benjamin Dow’s Motion for Protective Order Re: Plaintiffs’ Deposition Subpoena, ECF No. 99, and the parties’ Stipulated Motion for Extension of Time to Complete Limited Discovery, ECF No. 97. The motions were considered without oral argument. Plaintiff Andrea Clare is represented by George E. Telquist. Defendant Kevin Clare is proceeding pro se. Third Party Benjamin Dow is represented by Christopher Kerley. Mr. Dow requests the Court issue a protective order preventing his deposition in this action. Mr. Dow represented Defendant Kevin Clare in his pending marriage dissolution proceeding, which is related to Ms. Clare’s allegations in this case. Plaintiff Andrea Clare argues that his testimony is necessary to discern the extent of damages warranted, as Mr. Dow would provide testimony on how he knew certain information he presented in the dissolution proceedings. In contrast, Mr. Dow contends that a deposition on this subject matter would necessarily entail disclosure of information and strategy protected by the attorney-client and work product privileges. The parties also request a limited extension of the discovery deadline to depose Mr. Dow, subject to the Court’s decision on the Motion for Protective Order. Facts Plaintiff Andrea Clare and Defendant Kevin Clare were once a married couple. During their marriage, Ms. Clare became a licensed attorney in Washington. She left their marital home on February 6, 2016, and filed a petition for dissolution in Walla Walla County on May 12, 2016. A subsequent petition was filed in Franklin County on August 11, 2016. The dissolution proceeding is still pending on appeal and awaiting a decision from the Washington State Court of Appeals, Division III. ECF No. 108-3 at 14. Ms. Clare alleges that after she left their martial home, Mr. Clare unlawfully accessed her personal and professional email, text messages, and the contents of her personal iPhone and iPad for nearly two years. Ms. Clare alleges that she discovered and learned that Mr. Clare was utilizing her credentials to access her private and confidential information on March 19, 2018. She asserts that Mr. Clare used this information to learn about her whereabouts and plans, and also gave information to his attorney for purposes of advancing his position in the dissolution proceedings. In the present motion, she specifically alleges that Mr. Clare’s attorney, Mr. Dow, made statements of fact to the state court about Ms. Clare’s contingency cases, her whereabouts and actions, and whom she was spending time with, which could have only been known through reviewing her private correspondence. Relevant here, Ms. Clare and her former law firm, Telquist McMillen Clare, PLLC, initially filed this action on March 21, 2018. ECF No. 1. The first Complaint named both Mr. Clare and Benjamin Dow as defendants. ECF Nos. 1, 18. Christopher Kerley and John Riseborough were retained to represent Mr. Dow and to assist with his eventual dismissal. Mr. Riseborough jointly represented Mr. Clare at that time. By the voluntary motion of then-Plaintiffs, Mr. Dow was dismissed from the action with prejudice on November 8, 2018. ECF No. 47. On February 18, 2021, Ms. Clare’s counsel sent Mr. Dow a letter requesting to take his deposition. Mr. Dow again retained Mr. Kerley to respond to the request. Mr. Kerley and Mr. Telquist stipulated to a limited extension of discovery after Mr. Kerley had an opportunity to file the present Motion for a Protective Order. Procedural History Plaintiff Andrea Clare brings this lawsuit under the Stored Communications Act, 18 U.S.C. § 2707. The action was filed on March 21, 2018, ECF No. 1, and Defendants filed an Answer on April 20, 2018, ECF No. 9. The Court granted Plaintiffs’ Motion to Amend the Complaint on July 17, 2018, ECF No. 17, and Plaintiffs filed their First Amended Complaint on July 25, 2018, ECF No. 19. Defendants filed their Answer to the First Amended Complaint on July 25, 2018. ECF No. 19. Defendants also filed a Motion to Dismiss for Failure to State a Claim on July 25, 2018. ECF No. 20. Plaintiffs filed a Motion to Certify certain questions to state court on August 6, 2018. ECF No. 22. The Court granted the Motion to Dismiss on September 7, 2018 and denied Plaintiffs’ Motion to Certify, but granted leave to file an amended complaint. ECF No. 34. Mr. Dow was voluntarily dismissed as a defendant on November 8, 2018. ECF No. 47. In the Second Amended Complaint filed on October 10, 2018, Ms. Clare was named as the sole Plaintiff. ECF No. 41. Defendant Kevin Clare filed an Answer on October 29, 2018. ECF No. 46. The Court issued a Jury Trial Scheduling Order on September 11, 2019. ECF No. 51. Defendant filed a Motion for Summary Judgment on September 24, 2019. ECF No. 52. The Court granted the motion on December 2, 2019, ECF No. 60, but the Ninth Circuit reversed and remanded on December 8, 2020, ECF No. 68. The Court held a status conference, ECF No. 74, and issued a new Amended Jury Trial Scheduling Order, ECF No. 78. The parties filed a Stipulated Motion for Protective Order, ECF No. 81, which the Court denied on April 7, 2021, ECF No. 82. Plaintiff filed a Motion to Compel and for Attorney Fees on April 8, 2021. ECF No. 83. Defendant also filed a Motion for Confidentiality and Protective Order. ECF No. 87. The Court granted the Motion to Compel and denied the Motion for Confidentiality on June 11, 2021. ECF No. 96. On September 7, 2021, the parties filed the pending Stipulated Motion for Extension of Time to Complete Discovery (Limited). ECF No. 97. Third Party Benjamin Dow filed the pending Motion for Protective Order Re: Plaintiffs’ Deposition Subpoena on September 16, 2021. ECF No. 99. On September 28, 2021, Plaintiff filed a Motion for Partial Summary Judgment on Liability; the motion is noted for hearing on November 18, 2021. ECF No. 11. Legal Standard Federal Rules of Civil Procedure Rule 26(b)(1) defines the scope of discovery. It provides that [p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. . . . Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. Fed. R. Civ. P. 26(b)(1). Protective orders may be issued under Rule 26(c), provided that “good cause” is shown. Therefore, the burden is upon the movant to show the necessity of its issuance, which contemplates “a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements . . . .” Id. Attorneys are not automatically exempt from being subjected to a subpoena to produce documents or to testify. Shelton v. Am Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986). Indeed, the Federal Rules of Civil Procedure contemplate that discovery of material known to an attorney is permissible in certain circumstances. Fed. R. Civ. Pro. 26(b)(3); Fed. R. Civ. P.

Telquist McMillen Clare PLLC v. Clare, (E.D. Wash. 2021).

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