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). For the reasons set forth herein,
Plaintiffs' motion is denied.
& 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.
first filed their motion to quash on October 12, 2016. The
Court initially denied it without prejudice because the
parties failed to conduct a Local Civil Rule 7.02
consultation before filing. After engaging in the required
consultation, Plaintiffs renewed their motion on November 18.
Defendants filed a response on December 5. Then, on December
27, the Court held Plaintiffs' motion in abeyance because
Plaintiffs represented to the Court that a materially
identical motion was pending in state court. Defendants now
inform the Court that they withdrew their state-court
subpoenas on November 3, 2016. Thus, by the time that
Plaintiffs re-filed their motion to quash, and the time that
Defendants filed their response, the matter was no longer
pending in state court. Thus, had it been timely informed,
the Court could have decided the matter at the time it issued
its December 27 Order. Because the state-court subpoenas have
been withdrawn, this matter is again ripe for consideration.
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.”
served subpoenas on Plaintiffs' counsel's law firms,
seeking production of documents and recordings related to
town hall meetings Plaintiffs' counsel conducted in
advance of the Sun City litigation. Plaintiffs move to quash
these subpoenas on the grounds that, with the exception of
two PowerPoint presentations, the requested materials do not
exist. As for the presentations, Plaintiffs assert that
counsel prepared those presentations 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. They assert, without
citation, that in order for the privilege to be waived, the
Defendants must show that some of the meetings' attendees
were not class members. Additionally, Plaintiffs claim that
these presentations are covered by the work-product doctrine
because they were prepared in anticipation of related
disagree about the existence of the requested materials and
about whether any privilege applies to them. Although
Plaintiffs raised the non-existence of the requested
materials as a basis for their motion to quash, the Court
believes it is premature to deal with whether the requested
materials exist until Plaintiffs make the requested
production. Plaintiffs are strongly encouraged to thoroughly
search for the requested materials and for information that
could lead to those materials.
whether the two existing presentations are privileged or
protected, Defendants argue that Plaintiffs' counsel gave
the presentations at town hall meetings that were expressly
open to the public and to the media. Additionally, Defendants
contend that Plaintiffs' counsel published a website
where they posted presentations and documents about the
stucco defects in Sun City. Because those meetings and the
website were open to the public, Defendants contend that the
requested materials cannot be attorney-client privileged or
protected under the work- product doctrine.
Court will begin with the attorney-client privilege.
“Under South Carolina law, the attorney-client
privilege protects against the disclosure of confidential
communications between a client and an attorney.”
Wellin v. Wellin, __ F.Supp.3d __, No.
2:13-cv-1831-DCN, 2016 WL 5539523, at *9 (D.S.C. Sept. 30,
2016). “‘In general, the burden of establishing
the privilege rests upon the party asserting it.'”
Id. (quoting State v. Love, 271 S.E.2d 110,
112 (S.C. 1980)). In support of their claim that the two
PowerPoint presentations are subject to attorney-client
privilege, Plaintiffs' counsel assert that they prepared
these presentations for the express purpose of giving legal
advice to persons seeking to become class members in the
related state-court litigation. However, Defendants have
undercut that assertion by demonstrating that the meetings
were open to the public and could be attended by non-clients.
In order for the attorney-client privilege to apply, the
communications must be confidential. Id. Based on
the evidence Defendants have presented about the meetings, as
well as the paucity of evidence to the contrary presented by
Plaintiffs, the Court concludes that the presentations were
not communicated in confidence, and are therefore not
protected by the attorneyclient privilege.
also claim that the presentations were protected under the
work-product doctrine because they were prepared in
anticipation of litigation. “The work-product doctrine
protects an attorney's ‘mental processes . . .,
providing a privileged area within which he can analyze and
prepare his client's case.'” Wellin,
2016 WL 5539523, at *9 (quoting United States v.
Nobles, 422 U.S. 225, 238 (1975)). Federal Rule of Civil
Procedure 26(b)(3) contains the work-product doctrine,
providing that “[o]rdinarily a party may not discover
documents and tangible things that are prepared in
anticipation of litigation.” Federal law governs the
waiver of work-product protection. Continental Cas. Co.
v. Under Armour, Inc., 537 F.Supp.2d 761, 769 (D. Md.
2008). “‘Work-product immunity is waived if the
client, the client's lawyer, or another authorized agent
of the client: . . . (4) discloses the material to third
persons in circumstances in which there is a significant
likelihood that an adversary or potential adversary in
anticipated litigation will obtain it.'”
Id. at 772 (quoting Restatement (Third) of the Law
Governing Lawyers § 91 (Am. Law Inst. 2000)).
discussed above, Plaintiffs claim their attorneys created
these presentations in anticipation of class litigation
arising out of stucco defects in Sun City. Defendants argue
that these presentations were nothing more than solicitation
materials. Because the Court is not privy to the contents of
the presentations, it is unable to determine whether
Defendants' assertion is correct. Assuming, without
deciding, that these presentations were subject to
work-product protection, the Court concludes that any
work-product protection was waived when Plaintiffs'
counsel decided to give the presentations at meetings that
were open to the public. The public nature ...