Opinion
Civil Action No. 01-2095-CM, No. 01-2096-CM
July 17, 2002
MEMORANDUM AND ORDER
Plaintiffs in these actions are Christine R. Berroth and Susan Brown, both of whom allege that they were subjected to gender discrimination by their former employer, defendant Farm Bureau Mutual Insurance Company. Plaintiffs have requested the court to review Magistrate Judge O'Hara's order (Doc. 59), which denied plaintiff's motion to compel Scott Campbell ("Campbell"), the designated corporate representative of defendant, to answer certain questions asked during a deposition on September 7, 2001 (Doc. 36 in Berroth and Doc. 45 in Brown). The questions in dispute, which are listed on page four of Magistrate Judge O'Hara's order in Doc. 59, involve conversations between Campbell and his attorney Edward Horne ("Horne") prior to Campbell's depositions.
Standard of Review of Magistrate's Order
Under 28 U.S.C. § 636(b)(1)(A), the district court's scope of review of a magistrate's decision is whether the order has been shown to be "clearly erroneous or contrary to law." Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1461-62 (10th Cir. 1988). "The clearly erroneous standard requires that the court affirm the decision of the magistrate unless `on the entire evidence [the court] is left with a definite and firm conviction that a mistake has been committed.'" Aerotech Res., Inc. v. Dodson Aviation, Inc., No. Civ. A. 00-2099-CM, 2001 WL 474302, at *3 (D.Kan. Apr. 23, 2001) (quoting Ocelot Oil Corp., 847 F.2d at 1461-62) (internal citation omitted); see also Fed.R.Civ.P. 72(a); D. Kan. R. 72.1.1(c) 72.1.4(a).
II. Analysis
Plaintiffs argue that Magistrate Judge O'Hara erred in denying plaintiff's motion to compel Campbell to testify about certain conversations between himself and his attorney, Horne, because the conversations fall within the crime-fraud exception of the attorney-client privilege. More specifically, plaintiffs argue that Campbell committed perjury by falsifying affidavits, making the conversations between himself and Horne regarding the preparation of those affidavits ineligible for protection under the privilege. However, as outlined in detail in Magistrate Judge O'Hara's order, the crime-fraud exception is only available when the plaintiffs present sufficient evidence of a "prima facie" case of perjury. Burton v. R.J. Reynolds Tobacco Co., 177 F.R.D. 491, 501 (D.Kan. 1997) (citing Wallace, Saunders, Austin, Brown Enochs, Chtd., v. Louisburg Grain Co., 250 Kan. 54, 61, 824 P.2d 933, 939 (1992)); Motley v. Marathon Oil Co., 71 F.3d 1547, 1551 (10th Cir. 1995).
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Plaintiffs allege Magistrate Judge O'Hara clearly erred by finding that the plaintiffs failed to state a prima facie case of perjury. Specifically, plaintiffs contend that several statements in Magistrate Judge O'Hara's order misconstrued the evidence before the court. The court will examine each statement in turn.
First, plaintiffs contend Magistrate Judge O'Hara erred by finding that Mr. Campbell did not commit perjury through a statement regarding the proportion of male and female adjusters. (Pls.' Mtn. at 2-3). Magistrate Judge O'Hara found that Mr. Campbell did not intend to convey exact personnel figures, but rather estimated proportions. Magistrate Judge O'Hara drew this conclusion based upon the context of Mr. Campbell's statements, including his use of terminology such as "balanced," rather than asserting exact numbers, and Mr. Campbell's use of qualifying language such as the term "almost." Plaintiffs contend this was error, because Mr. Campbell had intended to state that the numbers of males and females were evenly balanced. Based upon its review of the record, the court does not believe that Magistrate Judge O'Hara's interpretation was clearly erroneous or contrary to law. The court does not find that this statement supports an inference that Mr. Campbell committed perjury. Plaintiffs' motion is denied on this basis.
Second, plaintiffs argue that Magistrate Judge O'Hara erred by stating that Mr. Campbell had not intended to convey precise figures regarding the ratio of male to female adjusters defendant employed. Plaintiffs claim Magistrate Judge O'Hara misstated the manner in which Mr. Campbell was computing the numbers of male and female employees, by including the statement that Mr. Campbell "considered two female office claims representatives to be a part of the adjusting staff." (Order at 9). Upon fresh examination, the court finds that Magistrate Judge O'Hara did not err in finding that Mr. Campbell had not intended to convey precise figures regarding the ratio of male to female adjusters. Consequently, there is no basis for the court to conclude that Mr. Campbell committed perjury. Plaintiffs' motion is denied on this basis.
Third, plaintiffs contend Magistrate Judge O'Hara erred by finding that there was no support for plaintiffs' contention that Mr. Campbell perjured himself by stating that he selected plaintiff Brown instead of a male adjuster, Tracy Gawith. Plaintiffs contended in their Motion to Compel that because Mr. Campbell did not interview Mr. Gawith for the position, Mr. Campbell could not have "considered" him. In his order, Magistrate Judge O'Hara rejected this argument, finding that it would have been possible for Mr. Campbell to have considered Mr. Gawith for the position, even though Mr. Campbell did not interview Mr. Gawith. The court finds that Magistrate O'Hara's conclusion is not clearly erroneous given the record in the case. The court declines to find support for plaintiff's proposition that Mr. Campbell perjured himself through this statement. Plaintiffs' motion is denied on this basis.
Fourth, plaintiffs state that Magistrate Judge O'Hara erred by observing that "[p]laintiff [had] presented no evidence that Campbell or defendant have attempted to withhold evidence during the [Kansas Human Rights Commission (KHRC)]'s investigation or during the course of this litigation. . . . [Q]uite to the contrary, based on the evidence presented by defendant, it appears defendant and Campbell were forthcoming and thorough in responding to requests from the KHRC." (Order at 9). Plaintiffs contend that defendant did not produce certain documents to the KHRC, including its interview records. {Plaintiff does not, however, bring to the court's attention any discovery request or other requests for documentation that was not met by defendants. Without evidence that defendant withheld information it were required to produce, the court cannot give credence to plaintiffs' assertion that Magistrate Judge O'Hara erred by stating that defendant had been forthcoming in responding to requests from the KHRC. The court finds that Magistrate Judge O'Hara's ruling was not clearly erroneous as to this issue. Plaintiffs' motion is denied on this basis.
Fifth, plaintiffs allege that Magistrate Judge O'Hara erred by finding that plaintiffs failed to present a prima facie case of perjury. Specifically, plaintiffs contend that Magistrate Judge O'Hara erred by stating that "[t]he evidence does not support a good faith belief by a reasonable person that an in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies." (Order at 10-11). Magistrate Judge O'Hara found that plaintiffs could not state a prima facie case under the applicable legal standard, because plaintiffs failed to make the threshhold showing of a factual basis to support a good faith belief by a reasonable person that in camera review may lead to evidence to establish that the crime-fraud exception applies. Furthermore, Magistrate Judge O'Hara found that plaintiffs failed to state how they justifiably relied on the truth of the statements in Mr. Campbell's affidavits, and thus failed to establish a prima facie case of perjury. Plaintiffs state that the court was naive in reaching these conclusions, and attempt to adduce that the court should view corporations' statements with a heightened sense of suspicion in the wake of Enron's collapse. The court will not require less proof from plaintiffs under the applicable legal standard. Furthermore, the court finds no basis to support plaintiff's conclusion that the court should be suspicious of defendant merely because it is a corporation. The court finds that Magistrate Judge O'Hara did not err by finding that plaintiffs failed to state a prima facie case of perjury.
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Therefore, under the applicable standard, this court finds that plaintiffs have not proven that Magistrate Judge O'Hara's decision was clearly erroneous or contrary to law. After a review of the evidence, the court is not left with a "definite and firm conviction that a mistake has been committed," and therefore affirms Magistrate Judge O'Hara's order.
III. Order
IT IS THEREFORE ORDERED that plaintiffs' Motions for Review of Magistrate Judge's Pretrial Order (Docs. 60 and 75) are denied.