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Wellin v. Wellin

United States District Court, D. South Carolina, Charleston Division

August 23, 2017

WENDY WELLIN, as the Special Administrator of the Estate of Keith S. Wellin and as Trustee of the Keith S. Wellin Florida Revocable Living Trust u/a/d December 11, 2001, Plaintiff,
v.
PETER J. WELLIN, et al., Defendants. LARRY S. McDEVITT, as Trustee of the Wellin Family 2009 Irrevocable Trust, Plaintiff,
v.
PETER J. WELLIN, et al., Defendants. PETER J. WELLIN, et al., Plaintiffs,
v.
WENDY WELLIN, individually and as Trustee of the Keith S. Wellin Florida Revocable Living Trust u/a/d December 11, 2011, Defendant.

          ORDER

          DAVID C. NORTON, UNITED STATES DISTRICT JUDGE.

         The following matter is before the court on Peter J. Wellin, Cynthia W. Plum and Marjorie W. King's (collectively, the “Wellin Children”), and Gustav Wellin, Nathaniel Wellin, Nicholas Wellin, Abigail King, Claire King, Mackenzie King, Dr. Ann Plum, and Keith Plum's (collectively, the “Wellin Grandchildren”) motions to clarify the court's September 30, 2016 order (“Order”) ruling on Dr. Ann Plum's (“Plum”) motion for protective order. ECF Nos. 513, 518.[1] For the following reasons, the court grants the Wellin Chilren and Wellin Grandchildren's motions, and clarifies the Order as follows.

         I. BACKGROUND[2]

         The instant dispute arises out of Plum's October 29, 2015 deposition, in which she was asked various questions regarding her understanding of certain factual and legal issues in this litigation. Plum's counsel objected and Plum refused to answer such questions. Following her deposition, Plum filed a motion for a protective order, arguing that these questions implicated a number of privileged communications. ECF No. 370. More specifically, Plum argued that (1) her communications with her attorneys were protected by the attorney-client privilege and the work-product protection, (2) her communications with other Wellin Grandchildren were protected by the joint-client doctrine, and (3) her communications with her mother and her mother's attorneys were protected by the common interest doctrine. Id.

         The Special Master issued his Report and Recommendation (“R&R”) on March 8, 2016, recommending that the bulk of Plum's communications were protected by either the attorney-client privilege, work-product protection, or the joint-client and common interest doctrines. ECF No. 410, R&R at 11-13, 22-24. Wendy Wellin (“Wendy”) and Larry McDevitt (“McDevitt”) filed objections to the R&R on April 4, 2016, ECF Nos. 430-32, [3] and Plum filed a reply on April 21, 2016. ECF No. 440.

         The court issued its Order on September 30, 2016, granting in part and denying in part Plum's motion for protective order. The Wellin Children filed their motion to clarify the Order on December 21, 2016. ECF No. 513. McDevitt filed a response in opposition on December 30, 2016, ECF No. 515, and Wendy filed a set of responses on January 4, 2017. ECF Nos. 516, 517.[4] The Wellin Grandchildren filed their own motion to clarify the Order on January 4, 2017, ECF No. 518, and McDevitt filed a response in opposition to that motion on January 6, 2017. ECF No. 519. The Wellin Children filed a reply in support of their motion to clarify on January 6, 2017. ECF No. 520. Wendy filed responses in opposition to the Wellin Grandchildren's motion to clarify on January 18, 2017. ECF Nos. 523, 524. The matter is now ripe for the court's review.

         II. STANDARDS

         Pursuant to Federal Rule of Civil Procedure 60(a), the court may, on a motion or on its own, “correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record.” The court's power to correct “clerical mistakes” is limited to “blunders in execution, ” such as transcription errors, inadvertent omissions, and miscalculations. Sartin v. McNair Law Firm PA, 756 F.3d 259, 265 (4th Cir. 2014) (quoting Rhodes v. Hartford Fire Ins. Co., 548 F.App'x 857, 859-60 (4th Cir. 2013)). However, the court's power to correct “a mistake arising from oversight or omission” allows the court to conform the text of an order to the court's original intent, or address “unintended ambiguit[ies] that obfuscate[] the court's original intent.” Id. Still, a court may not use Rule 60(a) to correct intended, albeit erroneous, results. Rivera v. PNS Stores, Inc., 647 F.3d 188, 194 (5th Cir. 2011) (explaining that “missteps involving substantive legal reasoning” fall outside of the scope of Rule 60(a)).

         III. DISCUSSION

         The parties have reached conflicting interpretations of one aspect of the court's Order-its holding that the common interest and joint-client doctrines did not apply to those communications between Plum and the Wellin Children/Grandchildren that took place outside the presence of an attorney. ECF No. 513 at 3-4; see also Order at 32 (ruling that “the common interest doctrine does not extend to communications that do not involve at least one of the clients' attorneys, ” and applying that rule to hold that the common interest doctrine did not apply to the challenged communications). The Wellin Children and Wellin Grandchildren ask the court to clarify whether this holding was intended to overrule its previous decision in Hohenwater v. Roberts Pharm. Corp., where it addressed the standards governing a party's waiver of the work-product protection. 152 F.R.D. 513, 516 (D.S.C. 1994) (stating that the Fourth Circuit “appears to be in agreement with” the rule that “‘disclosure of a document to third persons does not waive the work product immunity unless it has substantially increased the opportunities for potential adversaries to obtain the information.'” (quoting 8 C. Wright, A. Miller & R. Marcus, Federal Practice and Procedure § 2024 (1993 Supplement))).

         A. Procedural Objections

         McDevitt and Wendy offer several procedural objections to this request.[5]McDevitt contends that the instant motions seek an advisory opinion, “essentially ask[ing] the [c]ourt to issue a general pronouncement regarding privilege law or how that law would apply to a hypothetical document even though no actual document has been raised.” ECF No. 515 at 5. Wendy raises a similar concern in her response, noting that the Wellin Children's motion poses a hypothetical question involving information communicated to a party's spouse, a factual scenario which was not presented by Plum's initial motion. ECF No. 517 at 7. To the extent the Wellin Children and Wellin Grandchildren ask the court to address facts or legal questions that were not presented by Plum's motion for protective order, the court would agree that the instant motion seeks an advisory opinion. For this reason, the court declines to address any hypothetical factual scenarios. However, the court does not believe it is advisory to clarify what issues the Order did and did not address. Therefore, the court will not dismiss the instant motions as a request for an advisory opinion, but it will craft its clarification so as not to exceed the bounds of the controversy presented by Plum's motion for protective order.

         McDevitt also argues that the instant motions seek to alter or amend, rather than clarify, the Order because the Order already held that when communications do not include an attorney “they are not privileged in the first place[6] or, alternatively, the privilege is waived.” ECF No. 515 at 9. Of course, this argument is premised on McDevitt's interpretation of the Order. Thus, to accept this argument, the court must take a position on the very question posed by the Wellin Children and Wellin Grandchildren's motions: what does the Order hold with respect to Plum's waiver of the work-product protection?[7] Consequently, the court sees no reason why it should not answer this question, thereby clarifying the Order.

         B. Clarification on ...


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