United States District Court, E.D. Arkansas, Western Division
OPINION AND ORDER
LEON HOLMES UNITED STATES DISTRICT JUDGE
summer of 2015 Budget Maintenance Concrete Services, Inc.,
performed subcontract work for CKG, Inc., in central
Arkansas. Budget allegedly assured CKG that it was
licensed to do the work, performed shoddy work, abandoned the
project, and left Arkansas. After Budget abandoned the
project, CKG discovered that Budget was not and had never
been a licensed contractor.
not pay Budget. When Budget's lawyers at Jones, Jackson
& Moll sent a lien notice to CKG, CKG informed them that
seeking payment was improper for various reasons, including
that Budget was not licensed when it contracted for and
performed the work in violation of Arkansas law. Several
months later, Budget again sought payment from CKG, this time
through Tucker, Albin & Associates. The complaint calls
Tucker, Albin & Associates a law firm, but a recent
filing indicates that it is a debt collection agency.
Document #24 at 7. CKG responded to Tucker, Albin &
Associates with the same information that it sent to Jones,
Jackson & Moll. Finally, another law firm, Orlando Law
Offices, contacted CKG for the same purpose and threatened to
file suit on Budget's behalf. CKG again responded that
Budget's operations had been illegal under Arkansas law,
rendering the subcontract void, and it threatened to file
counterclaims. Budget then sued CKG, as well as its
registered agent, Kimberly Carroll, individually, in
Pennsylvania. Orlando Law Offices represented Budget.
CKG and Carroll sued Budget, Orlando Law Offices, and a
lawyer with that firm, Christopher Garrell, asserting fraud
and violations of the Arkansas Deceptive Trade Practices Act.
The Court dismissed Orlando Law Offices and Garrell several
months ago for lack of personal jurisdiction over them.
plaintiffs have recently served subpoenas for production of
documents upon Jones, Jackson & Moll; Tucker, Albin &
Associates; and Orlando Law Offices. All three subpoenas
command production of the following:
Copies of all emails, text messages, or any other
correspondence between your office . . . and [an employee of
Budget] or any other person who is an employee, officer,
director or owner of Budget Maintenance Concrete Svcs, Inc.,
in relation to the requests made in the attached discovery.
#19 at 4, 7 and 10. The term “attached discovery”
references requests for admission the plaintiffs sent to
Budget earlier this year. See Document #24-1 at 1-2.
moves to quash all three subpoenas pursuant to Federal Rule
of Civil Procedure 45(d)(3). Budget argues that the
plaintiffs failed to give it prior notice before serving the
subpoena as Rule 45(a)(4) requires, and that the
attorney-client privilege covers all the communications.
Jones, Jackson & Moll also moves to quash the subpoena it
received for the same reasons.
Rule of Civil Procedure 45(a)(4) requires a party to serve
notice and a copy of a subpoena commanding the production of
documents on each party, before such subpoena is served on
the person to whom it is directed. The purpose of the notice
requirement is to afford the other parties an opportunity to
object. See Fed. R. Civ. P. 45, 2013 Amendment to
Advisory Committee Notes. Various district courts have
routinely refused to quash subpoenas, however, for technical
violations of this rule where there is no prejudice to the
opposing party. See, e.g., Whitney v. Franklin
Gen. Hosp., 2015 WL 1879514 at *4 (N.D. Iowa) (refusing
to quash subpoena where opposing party received copy of the
subpoena two days after it was served and had opportunity to
object; and collecting cases in which district courts have
plaintiffs' counsel issued the subpoenas on October 22nd.
The record does not show when the subpoenas were mailed, but
Budget says they were mailed the same day. On the following
day-October 23rd-plaintiffs' counsel sent defendants'
counsel a copy of the subpoenas. At most, therefore, the
subpoenas were mailed to the non-parties one day before
notice was mailed to defendants' counsel. Budget has had
an opportunity to object, as it has moved to quash all the
subpoenas. Here, the plaintiffs' technical violation of
Rule 45(a)(4) does not require that the subpoenas be quashed
because the defendants have neither shown nor argued that
they were prejudiced. The Court will thus turn to the merits
of the privilege issue.
must quash or modify a subpoena if it “requires
disclosure of privileged or other protected matter, if no
exception or waiver applies.” Fed.R.Civ.P.
45(d)(3)(A)(iii). The attorney-client privilege is one of the
oldest privileges, existing to “encourage full and
frank communication between attorneys and their clients and
thereby promote broader public interests in the observance of
law and administration of justice.” Upjohn Co. v.
United States, 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66
L.Ed.2d 584 (1981). The privilege survives even beyond the
client's death. Swidler & Berlin v. United
States, 524 U.S. 399, 411, 118 S.Ct. 2081, 2088, 141
L.Ed.2d 379 (1998). In diversity cases, like this one, the
state law supplying the rule of decision governs application
of the privilege. Fed.R.Evid. 501.
party asserting a privilege bears the burden of showing the
privilege applies. Kinkead v. Union Nat'l Bank,
51 Ark.App. 4, 11, 907 S.W.2d 154, 158 (1995). In Arkansas, a
client “has a privilege to refuse to disclose and to
prevent any other person from disclosing confidential
communications made for the purpose of facilitating the
rendition of professional legal services to the
client.” Ark. R. Evid. 502(b). An exception applies
“[i]f the services of the lawyer were sought or
obtained to enable or aid anyone to commit or plan to commit
what the client knew or reasonably should have known to be a
crime or fraud.” Ark. R. Evid. 502(d)(1). Fraud
requires a false representation, knowledge or belief that the
representation was false, intent to induce action or inaction
in reliance on the misrepresentation, justifiable reliance
upon the representation, and resulting damages. 1 Howard W.
Brill & Christian H. Brill, Law of Damages § 33.8
(6th ed. 2014).
noted, the plaintiffs seek correspondence between the
defendant and Jones, Jackson & Moll; Tucker, Albin &
Associates; and Orlando Law Offices relating to requests for
admission that the plaintiffs previously sent to Budget. The
requests for admission ask Budget to admit that it hired
three separate law firms to collect payment “on the
VOID contract”; that each firm was provided notice that
Budget had violated Arkansas law, rendering the contract
void; that Jones, Jackson & Moll declined to pursue
collection after receiving such notice; that Tucker, Albin
& Associates declined to pursue collection after
receiving such notice; and that Orlando Law Offices filed a
frivolous action in Pennsylvania on behalf of Budget after
receiving such notice. Document #24-1 at 1-2. Budget denied
the first request for admission, and responded to the latter
three with, “Budget cannot Admit or Deny . . . what a
third party may or may not have received.” Id.
The plaintiffs objected, maintaining that Budget should have
admitted each statement. Id. When Budget did not
change its answer, the plaintiffs sent the subpoenas
asserts the attorney-client privilege. Budget admits,
however, that only “[t]wo of the non-parties subpoenaed
are law firms.” Document #20 at 1-2. Budget has
presented nothing to show that Tucker, Albin & Associates
“is a person authorized, or is reasonably believed by
the client to be authorized, to engage in the practice of law
in any state or nation.” See Ark. R. Evid.
502(a)(3) (defining “lawyer” for purposes of the
privilege). Budget has not shown that the communications
sought from Tucker, Albin & Associates are privileged or
protected. With respect to Jones, Jackson & Moll and
Orlando Law Offices, however, the communications sought
between Budget and its previous lawyers directly address the
strength of Budget's legal entitlement to ...