United States District Court, D. South Carolina, Beaufort Division
Jacqueline L. Craft, Trustee of the Jacqueline L. Craft Trust U/T/D June 30, 1998, and Jacqueline L. Craft, individually, Plaintiffs,
South Carolina State Plastering, LLC, Peter Conley, Del Webb Communities, Inc., and Pulte Homes, Inc., Defendants.
PATRICK MICHAEL DUFFY, United States District Judge.
matter is before the Court on Plaintiffs' motion to quash
subpoenas (ECF No. 40), and Defendants' motion to
bifurcate discovery (ECF No. 42). For the reasons set forth
herein, Plaintiffs' motion is held in abeyance and
Defendants' motion is granted.
& PROCEDURAL HISTORY
action arises out of construction defects with homes in Sun
City Hilton Head. Defendants removed this case from state
court on December 22, 2015. Plaintiffs filed their first
motion to quash on October 12, 2016. The Court denied that
motion without prejudice because the parties failed to
conduct a Local Civil Rule 7.02 consultation before filing
it. After engaging in the required consultation, Plaintiffs
renewed their motion on November 18. Defendants filed a
response on December 5. Defendants filed their motion to
bifurcate on November 23, and Plaintiffs responded on
December 9. Accordingly, these matters are now ripe for
Motion to Quash Subpoenas
Rule of Civil Procedure 45(c) sets forth the conditions that
warrant quashing a subpoena. As it applies here, Rule 45(c)
provides that the Court must quash a subpoena that
“requires disclosure of privileged or other protected
matter, if no exception or waiver applies.”
counsel moves to quash these subpoenas on the grounds that,
with the exception of two PowerPoint presentations, the
requested documents do not exist. Plaintiffs' counsel
asserts that those presentations are attorney-client
privileged and that they were prepared in anticipation of
state-court litigation. Judge Edgar Dickson is examining a
virtually identical motion to quash in state court. As a
result, Plaintiffs' counsel urges this Court to refrain
from deciding the matter, as it will be moot if Judge Dickson
orders production of the presentations.
the merits of the motion, Plaintiffs' counsel also argues
that these presentations were prepared for the express
purpose of giving legal advice to persons seeking to become
class members and are therefore protected by attorney-client
privilege. Plaintiffs' counsel gave these presentations
at meetings in 2009, 2010, and 2012, and they assert that in
order for the privilege to be waived, the Defendants must
show that some of those attendees are not class members.
Additionally, Plaintiffs' counsel claims that these
presentations are covered by the work-product doctrine
because they were prepared in anticipation of litigation.
Court agrees that the decision of whether these materials are
subject to attorney- client privilege or protected under the
work-product doctrine ought to be made by the state court.
Plaintiffs cite Rule 501 of the Federal Rules of Evidence as
support for their argument that the matter should be decided
in state court. That rule states that “in a civil case,
state law governs privilege regarding a claim or defense for
which state law supplies the rule of decision.”
Fed.R.Evid. 501. Plaintiffs note that state law supplies the
rule of decision in a construction defect case.
not directly implicated here, the abstention doctrines'
underlying federalism principles suggest that the Court
should refrain from issuing a decision on the motion to quash
at this time. Because the identical issue is presently
pending before the state court, the Court sees no reason to
interject its opinion on state law. Moreover, Plaintiffs have
stated that if the state court does not quash the subpoenas,
Defendants in this case will receive all of the materials
sought. Therefore, Plaintiffs' motion to quash is held in
Motion to Bifurcate Discovery
have moved to bifurcate discovery in this case. First, the
parties would conduct discovery on the question of whether or
not the Court should certify a class. If the Court certifies
a class, the parties would then proceed to merits discovery.
Plaintiff opposes Defendants' motion on the grounds that
the majority of the relevant discovery has already been
performed in a related state-court case. Plaintiffs assert
that Defendants' true motivation for bifurcation is to