Albuquerque Journal v. Board of Educ.

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: _____________
3 Filing Date: November 13, 2018
4 NO. A-1-CA-35864
5 ALBUQUERQUE JOURNAL and
6 KOB-TV, LLC,
7 Plaintiffs-Appellees,
8 v.
9 BOARD OF EDUCATION OF
10 ALBUQUERQUE PUBLIC SCHOOLS,
11 and RIGO CHAVEZ, in his capacity as
12 custodian of records of Board of
13 Education for Albuquerque Public Schools,
14 Defendants,
15 and
16 MAUREEN SANDERS,
17 Witness-Appellant.
18 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
19 Nancy J. Franchini, District Judge
20 Peifer, Hanson & Mullins, P.A.
21 Charles R. Peifer
22 Gregory P. Williams
23 Albuquerque, NM
24 for Appellee Albuquerque Journal
1 Foster Rieder & Jackson, P.C.
2 Geoffrey D. Rieder
3 Albuquerque, NM
4 for Appellee KOB-TV, LLC
5 Ortiz & Zamora, Attorneys at Law, LLC
6 Tony F. Ortiz
7 Santa Fe, NM
8 for Defendants
9 Sanders & Westbrook, PC
10 Maureen A. Sanders
11 Albuquerque, NM
12 Witness-Appellant
13 Brant & Hunt, Attorneys
14 John M. Brant
15 Albuquerque, NM
16 for Witness-Appellant
1 OPINION
2 HANISEE, Judge.
3 {1} Non-party Appellant Maureen Sanders appeals the district court’s discovery
4 order requiring her to answer Plaintiffs’ deposition questions regarding, and to
5 produce notes she took during, conversations that she claims are privileged under
6 either the Open Meetings Act (OMA), NMSA 1978 §§ 10-15-1 to -4 (1974, as
7 amended through 2013), or Rule 11-503(B)(3) NMRA’s attorney-client privilege.
8 Concluding that the district court (1) properly determined that there exists no OMA
9 privilege in New Mexico, and (2) did not abuse its discretion in determining that
10 Sanders failed to meet her burden of establishing the applicability of the attorney-
11 client privilege, we affirm.
12 BACKGROUND
13 The Historical Facts Underpinning the Underlying Case
14 {2} The underlying case between two media outlets—the Albuquerque Journal
15 and KOB-TV, LLC (collectively, Plaintiffs)—and the Albuquerque Public Schools
16 (APS) Board of Education (the Board) and APS’s records custodian Rigo Chavez
17 (collectively, Defendants) is an enforcement action under the New Mexico
18 Inspection of Public Records Act (IPRA), NMSA 1978, §§ 14-2-1 to -12 (1947, as
19 amended through 2018) (the IPRA action). In the IPRA action, Plaintiffs seek to
1 enforce their right to inspect public records that Defendants have withheld from
2 inspection based on claims that those records are exempt from inspection.
3 {3} The IPRA action was borne of the events surrounding and immediately
4 preceding the abrupt resignation of Winston Brooks from his position as APS
5 Superintendent on August 15, 2014—just two days after the start of the 2014-2015
6 school year—and the $350,000 buyout of Brooks’ contract that the Board
7 approved as part of Brooks’ Resignation and Settlement Agreement (the
8 Settlement Agreement). On August 11, 2014, the Board met in a closed session to
9 discuss a report prepared by attorney Agnes Padilla (the Padilla Report, or Report)
10 at the request of Board President Analee Maestas. The Report was commissioned
11 after Maestas and Board member Martin Esquivel became aware of “misconduct
12 allegations involving [Brooks]” and what they later described as the possibility of
13 litigation against APS resulting therefrom. The closed meeting was convened for
14 the purpose of “discuss[ing] a limited personnel matter regarding [Brooks’]
15 performance, evaluation, improvement plan, reports or concerns received by the
16 president of the [B]oard or [members of the] Board of Education related to
17 [Brooks], [Brooks’] contract, and possible disciplinary action.”
18 {4} During the closed meeting, Brooks and his attorney Maureen Sanders waited
19 in a room separate from where the Board was meeting with its attorney, Tony
20 Ortiz. More than once during the closed meeting, Ortiz left the Board to speak with
2
1 Brooks and Sanders. Four days later, the Board and Brooks entered into the
2 Settlement Agreement. Included as part of the Settlement Agreement was a
3 reference letter for Brooks signed by Maestas and containing a positive review of
4 Brooks’ tenure as APS Superintendent, noting the Board’s appreciation for his
5 service, and “wish[ing] him well in his future endeavors.” The Settlement
6 Agreement provided that APS “will maintain [the] reference letter for Brooks in
7 his personnel file” and “[i]f contacted by anyone seeking references for Brooks . . .
8 [the letter] will be the only official reference provided by [APS].” It further
9 provided that APS “shall maintain . . . the [Padilla R]eport . . . in a file separate
10 from Brooks’ personnel file, and it shall not be released to anyone, including
11 potential future employers in response to a request for Brooks’ personnel file.” The
12 Settlement Agreement contained no discussion of the reasons underlying the
13 decision to prematurely terminate Brooks’ contract with APS and provided only
14 that “[n]othing in this [a]greement or in its execution admits wrongdoing of any
15 kind by either party” and that the agreement was “mutually entered for the benefit
16 of each party.”
17 Plaintiffs’ IPRA Requests and Subsequent Enforcement Action
18 {5} Between August 7 and September 3, 2014, Plaintiffs made a combined seven
19 written requests of APS to inspect, among other public records, the Padilla Report
20 and “documents referencing any complaints or allegations of misconduct regarding
3
1 . . . Brooks.” Defendants provided for inspection of certain requested records,
2 denied the existence of any responsive records to other requests, and denied certain
3 requests based on claimed exemptions under IPRA. Plaintiffs thereafter filed the
4 IPRA action, alleging that “Defendants have failed to satisfy their burden of
5 showing that the documents that Plaintiffs[] requested were completely exempt
6 from disclosure under any of the exceptions enumerated in Section 14-2-1.” In
7 defending against the IPRA action, Defendants argued that the records withheld,
8 including the Padilla Report, are protected by (1) the attorney-client privilege, (2)
9 the attorney work-product doctrine, and/or (3) IPRA’s exception for “letters or
10 memoranda that are matters of opinion in personnel files.” See § 14-2-1(A)(3), (6),
11 (8).
12 Plaintiffs’ Attempt to Prove Waiver of Privilege as to the Padilla Report
13 Through Sanders
14 {6} During the course of litigating the IPRA action, Plaintiffs were allowed to
15 depose Padilla, Maestas, and Esquivel in order to adduce evidence relevant to the
16 central issue of Defendants’ claim that the Padilla Report is attorney-client
17 privileged. Based on information learned in those depositions indicating that either
18 the Padilla Report itself or its substance may have been disclosed to third parties,
19 including possibly Sanders, Plaintiffs subpoenaed Sanders to produce “[a]ll
20 documents, records, or things reflecting or recording any communications from
21 [APS] or any APS representative, agent or attorney concerning any complaints or
4
1 allegations of misconduct regarding Winston Brooks or [his wife] Ann Brooks
2 made to APS or any member of the APS Board . . . after January 1, 2014.” Sanders
3 objected to the subpoena based in relevant part on a claim of attorney-client
4 privilege. In her objection, Sanders explained that “[t]he only documents
5 responsive to the subpoena are notes [she] made . . . at a meeting she attended with
6 Tony Ortiz . . . and Winston Brooks . . . on August 11, 2014.” She further
7 explained, “[t]here are four pages of notes from that meeting and two pages might
8 be viewed as responsive to the [s]ubpoena.”
9 {7} Plaintiffs also sought to depose Sanders to determine if conversations she
10 had with various APS attorneys—particularly, her conversations with Ortiz on
11 August 11 during the closed meeting—effected a waiver of the attorney-client
12 privilege asserted by Defendants as to the Padilla Report. At her deposition,
13 Sanders testified that she “represent[s Brooks and his wife] in matters that are
14 related to . . . the employment and termination of employment of Winston Brooks”
15 as superintendent of APS. She acknowledged that she had at least one conversation
16 with APS attorney Art Melendres—whom she described as Brooks’ attorney
17 “during the time that he was [S]uperintendent” and continuing “after his
18 employment ended in several matters that were pending”—at some point before
19 the August 11 Board meeting, though she refused to describe the conversation
20 based on a claim of attorney-client privilege. Regarding what occurred on August
5
1 11, Sanders explained that she accompanied Brooks to the Board meeting because
2 “there was an agenda item involving . . . Superintendent Brooks’ employment
3 matters.” She further explained that she and Brooks were asked to “sit in a room
4 next to the boardroom” and that on more than one occasion, Ortiz left the
5 boardroom and came to speak with her and Brooks. Sanders could not recall
6 exactly how many times Ortiz came to speak with them during the meeting.
7 {8} Sanders declined to answer Plaintiffs’ questions regarding the conversations
8 she had with Melendres and Ortiz, including whether Ortiz had described to her
9 any portion of the Padilla Report, which she stated she neither received a copy of
10 nor reviewed in full or in part. Specifically, she refused to answer the following
11 questions:
12  “What do you remember about [the] conversation [with Art Melendres]?”
13  “When you were talking with Tony Ortiz at the time of the Board meeting,
14 on or about August the 11th, . . . did you discuss a report or an investigation
15 done by Agnes Padilla?”
16  “Did Agnes[ Padilla’s] name come up?”
17  “Did Mr. Ortiz describe any portions of th[e Padilla R]eport to you?”
18  “[W]hen you were meeting with Mr. Ortiz at the time of the Board meeting,
19 did you discuss the [Padilla R]eport in any way?”
6
1  “Do [the] notes [you took during your conversations with Ortiz] include
2 information communicated to you by Tony Ortiz?”
3  “When did discussions first begin between APS and Mr. Brooks or you
4 regarding the possibility that he might resign?”
5 As the basis for refusing to answer these questions, Sanders asserted that her
6 communications with Melendres and Ortiz were protected by the attorney-client
7 privilege because her client, Brooks, “[a]s superintendent of APS[,]” shared a
8 “common interest” with Melendres’ client, APS, and Ortiz’s client, the Board,
9 making their communications privileged. 1 She alternatively refused to answer
10 questions “on the basis of . . . open meetings confidentiality.” When Plaintiffs
11 attempted to explore the basis of Sanders’ claim of a common interest privilege,
12 Sanders additionally declined to answer questions regarding when the purported
13 common interest arose and whether she considered APS “an adverse party” to
14 Brooks during the course of her representation of Brooks.
1
For clarity, we note that, although the record indicates that (1) Melendres
and Ortiz represented different clients—Melendres represented APS, including
Brooks in his official capacity as APS Superintendent, and Ortiz represented the
Board only—and (2) Sanders had separate conversations with each attorney at
different points in time, Sanders treated APS and the Board as a single unit for
purposes of identifying the party with which Brooks purportedly shared a common
interest. In other words, Sanders did not argue that the attorney-client privilege
independently protected her conversation with Melendres based on a separate
common interest that Brooks and APS, as Brooks’ employer responsible for
defending him in his official capacity, may have shared prior to August 11.
7
1 Plaintiffs’ Motion to Compel Sanders’ Testimony and Sanders’ Claims of
2 Privilege
3 {9} Plaintiffs thereafter filed a motion to compel Sanders to answer the questions
4 she had refused to answer during her deposition regarding her communications
5 with APS’s attorneys 2 and to produce the notes she took during the August 11
6 meeting. 3 Noting that they took Sanders’ deposition to determine only “if APS
7 waived . . . asserted privileges by sharing the [R]eport or its contents with Ms.
8 Sanders or Mr. Brooks[,]” Plaintiffs argued that the privileges asserted by
9 Sanders—an OMA privilege and/or the attorney-client privilege—did not either
10 exist or apply, respectively, under the facts of the case to shield from disclosure
11 that which “APS’s attorneys communicated to [Sanders].”
12 {10} In responding to the motion, Sanders first argued that “executive session
13 communications are not discoverable” based on the OMA’s allowance for public
2
Where the term “APS’s attorneys” is used in this opinion, it reflects the
parties’ original use of that term, which we understand to collectively refer to
Melendres and Ortiz.
3
Plaintiffs expressly limited their motion with respect to Sanders’ notes to
“only the documentation of what was said by Mr. Ortiz to Ms. Sanders and Mr.
Brooks.” Plaintiffs made clear that they “do not seek those portions of the notes, if
any, that are notes of confidential communications from Mr. Brooks to Ms.
Sanders, or which constitute Ms. Sanders’ mental impressions.” Regarding
communications from APS’s attorneys, Plaintiffs were clear that they sought only
communications from APS’s attorneys to Sanders and Brooks, not communications
made either by Sanders to Melendres and Ortiz or between Sanders and Brooks.
8
1 bodies to meet in closed session to discuss “limited personnel matters.” According
2 to Sanders, “[a]though [she] and Superintendent Brooks were in a separate room
3 [during the August 11 closed Board meeting], they were essentially a part of the
4 executive session during their communications with Mr. Ortiz.” Sanders contended
5 that “[a]s such, the communications are not subject to the public’s right to know
6 about the discussions at an open meeting.”
7 {11} Sanders next expanded upon her claim that her communications with APS’s
8 attorneys are protected from compelled disclosure under the attorney-client
9 privilege due to a common interest shared by APS and Brooks. With respect to
10 Melendres, Sanders noted that “Art Melendres of the Modrall Law Firm has
11 represented APS for years, including the entire time Winston Brooks was
12 Superintendent[, and t]he Modrall Law Firm continued to represent Superintendent
13 Winston Brooks in other APS[-]related matters after his employment with APS
14 ended.” With respect to Ortiz, Sanders asserted that “[f]rom August 11, 2014 to
15 August 15, 2014[,] when a Settlement Agreement was executed Mr. Ortiz and Ms.
16 Sanders were representing two constituents of APS: its Board and its
17 Superintendent.” Sanders thus contended that any communications between her
18 and APS attorneys were privileged because New Mexico’s attorney-client privilege
19 extends to communications made “between the client or client’s lawyer and
20 another lawyer representing another in a matter of common interest[.]” Rule 11-
9
1 503(B)(3). Sanders argued that “[i]n this case, APS and Superintendent Brooks had
2 a commonality of interest which protected the confidential conversations to which
3 Ms. Sanders was a participant before, during and after the August 11, 2014 Board
4 meeting.” According to Sanders, that common interest was “identified in the
5 [a]genda for the August 11, 2014 Board meeting” and “related to [Brooks’]
6 performance, evaluation, improvement plan, reports or concerns received by the
7 President of the Board related to [Brooks], his contract or possible disciplinary
8 action.” Based on that, Sanders concluded that “the requirements of attorney-client
9 privilege under the common interest rule have been met as to the communications
10 involving Ms. Sanders and APS attorneys.”
11 {12} In their reply, Plaintiffs argued that Sanders had “offer[ed] no evidence that
12 APS and Mr. Brooks had decided on any joint effort or strategy, much less that
13 they shared an identical legal interest in regard to the communications from APS’s
14 attorneys.” Plaintiffs also argued that Sanders had failed to prove “that the
15 communications at issue were confidential” and “were intended to be confidential
16 at the time they were made.” Plaintiffs pointed out that Sanders and APS’s
17 attorneys “had no written agreement to maintain the confidentiality of [their]
18 communications nor did any person assert any promise or expectation of
19 confidentiality.” Thus, Plaintiffs contended that Sanders had not met her burden of
20 proving that the attorney-client privilege applied to shield from disclosure her
10
1 communications with APS’s attorneys and asked the district court to grant their
2 motion.
3 {13} Following a hearing, the district court granted Plaintiffs’ motion to compel
4 Sanders to answer questions and produce in part the notes she took during the
5 August 11 meeting. The court did so after concluding that (1) “[n]o Open Meetings
6 Act [p]rivilege exists in New Mexico[,]” and (2) it “has not been provided with a
7 factual basis to find that there was a common interest between APS and . . .
8 Brooks[] between August 11 and August 15, 2014. Presentation of counsel is
9 insufficient to establish that basis.” The district court thus ordered Sanders to (1)
10 “respond to the questions asked her during her deposition” and (2) “produce the
11 notes of what Mr. Ortiz told Ms. Sanders and Mr. Brooks regarding the Padilla
12 [R]eport and other documents.”
13 DISCUSSION
14 {14} On appeal, Sanders advances the same arguments she made below: (1) that
15 communications regarding “limited personnel matters” that occur during an
16 executive session of a public body are not discoverable based on the OMA, and (2)
17 that her communications with APS’s attorneys and any notes she took on August
18 11, 2014, are protected by the attorney-client privilege based on the common
19 interest they shared in the communications. She effectively argues that the district
20 court erred in concluding that no privilege applies under the facts of this case to
11
1 protect her communications with APS’s attorneys from discovery. Defendants,
2 who filed a brief in support of Sanders’ appeal, submit that this appeal involves
3 two additional issues: (1) whether “an employer waive[s] IPRA protection of a
4 personnel report regarding an employee by discussing that report with the subject
5 employee” and (2) whether “a plaintiff in an IPRA case [is] permitted to ask
6 witnesses about the document that may divulge the content of the protected
7 document[.]” We disagree with Sanders on the merits of her arguments and with
8 Defendants that this appeal involves any issues other than those advanced by
9 Sanders.
10 Standard of Review
11 {15} We review discovery orders and initial determinations regarding the
12 applicability of privileges for an abuse of discretion. See Santa Fe Pac. Gold Corp.
13 v. United Nuclear Corp., 2007-NMCA-133, ¶ 9, 143 N.M. 215, 175 P.3d 309;
14 Gingrich v. Sandia Corp., 2007-NMCA-101, ¶ 8, 142 N.M. 359, 165 P.3d 1135.
15 “An abuse of discretion occurs when a ruling is clearly contrary to the logical
16 conclusions demanded by the facts and circumstances of the case.” Benz v. Town
17 Ctr. Land, LLC, 2013-NMCA-111, ¶ 11, 314 P.3d 688 (internal quotation marks
18 and citation omitted). We review de novo a district court’s construction of a
19 privilege, including its determination regarding whether one exists under New
20 Mexico law. Cf. Pincheira v. Allstate Ins. Co., 2008-NMSC-049, ¶ 14, 144 N.M.
12
 1 601, 190 P.3d 322 (reviewing de novo determinations regarding “the intricate
2 interplay among discovery and privilege rules related to trade secrets”).
3 General Rules Governing Discovery and Assertions of Privileges
4 {16} Rule 1-026(B)(1) NMRA provides that “[p]arties may obtain discovery of
5 any information, not privileged, which is relevant to the subject matter involved in
6 the pending action.” (Emphasis added.) Privileged information, then, is not
7 discoverable. Pincheira, 2008-NMSC-049, ¶ 22. “[F]or a privilege to exist in New
8 Mexico, it must be recognized or required by the Constitution, the Rules of
9 Evidence, or other rules of [our Supreme] Court.” Republican Party of N.M. v.
10 N.M. Taxation & Revenue Dep’t, 2012-NMSC-026, ¶ 35, 283 P.3d 853 (internal
11 quotation marks and citation omitted); see Rule 11-501 NMRA (providing in the
12 Rules of Evidence that “[u]nless required by the [C]onstitution, these rules, or
13 other rules adopted by the [S]upreme [C]ourt, no person has a privilege to[:] A.
14 refuse to be a witness; B. refuse to disclose any matter; C. refuse to produce any
15 object or writing; or D. prevent another from being a witness, disclosing any
16 matter, or producing any object or writing”). Legislated privileges, i.e., privileges
17 provided by statute, “are generally regarded as an unconstitutional intrusion into
18 judicial rule-making” and are, therefore, not recognized. Breen v. N.M. Taxation &
19 Revenue Dep’t, 2012-NMCA-101, ¶ 23, 287 P.3d 379. “The burden of proving an
13
1 assertion of privilege rests upon the party asserting such claim.” Krahling v. Exec.
2 Life Ins. Co., 1998-NMCA-071, ¶ 15, 125 N.M. 228, 959 P.2d 562.
3 I. Section 10-15-1(H)(2) of the OMA Does Not Create a Privilege For or
4 Immunize From Discovery “Limited Personnel Matters” Discussed in a
5 Closed Meeting
6 {17} Section 10-15-1(H)(2) of the OMA exempts from certain requirements of
7 the OMA “limited personnel matters[,]” which are defined as “the discussion of
8 hiring, promotion, demotion, dismissal, assignment or resignation of or the
9 investigation or consideration of complaints or charges against any individual
10 public employee[.]” Based on this exemption, Sanders argues that “limited
11 personnel matters” discussed during public meetings that are closed pursuant to the
12 OMA are not a proper subject of discovery. While acknowledging that the OMA
13 “does not specifically address whether the discussions occurring within an
14 executive session are immune from discovery for litigation purposes[,]” Sanders
15 asks this Court to conclude that allowing discovery of her conversations with Ortiz
16 will “impair the public policy decision made by the Legislature” to allow sensitive,
17 private personnel matters to remain confidential. She reasons that the OMA, “by
18 allowing executive sessions related to limited personnel matters, certainly indicates
19 a strong public policy to protect the confidentiality of those deliberations.”
20 {18} The problem with Sanders’ argument is that it fails to recognize that
21 “confidentiality” and “privilege” are “legally distinct concepts.” See State ex rel.
14
1 Balderas v. ITT Educ. Servs., Inc., 2018-NMCA-044, ¶ 10, 421 P.3d 849.
2 “[I]nformation that is confidential is not necessarily protected by a legally
3 recognized privilege.” Id. Critically, Sanders identifies no privilege—either
4 adopted by our Supreme Court or recognized under the Constitution—on which to
5 base her argument that communications regarding “limited personnel matters” that
6 occur during a closed public meeting are immune from discovery. To the extent
7 she suggests that we construe Subsection (H)(2) as either creating or supplying the
8 justification for recognizing such a privilege, we decline to do so in light of
9 established New Mexico privilege law. See Republican Party of N.M., 2012-
10 NMSC-026, ¶ 35; Breen, 2012-NMCA-101, ¶ 23. We therefore conclude that the
11 district court properly determined that Section 10-15-1(H)(2) of the OMA does not
12 provide a stand-alone basis for Sanders to resist discovery.
13 II. Sanders Failed to Meet Her Burden of Establishing the Applicability of
14 the Attorney-Client Privilege to Her Communications With APS’s
15 Attorneys
16 A. Proving the Applicability of the Attorney-Client Privilege Based on a
17 Claimed Common Interest
18 {19} To establish the applicability of the attorney-client privilege, Sanders bore
19 the burden of proving all elements of the privilege as to each communication
20 claimed to be privileged. See Santa Fe Pac. Gold Corp., 2007-NMCA-133, ¶¶ 19-
21 21; Piña v. Espinoza, 2001-NMCA-055, ¶ 24, 130 N.M. 661, 29 P.3d 1062. In
22 New Mexico, the basic elements of the attorney-client privilege are “(1) a
15
1 communication (2) made in confidence (3) between privileged persons (4) for the
2 purpose of facilitating the attorney’s rendition of professional legal services to the
3 client.” Santa Fe Pac. Gold Corp., 2007-NMCA-133, ¶ 14; see Rule 11-503(B).
4 The third element—“between privileged persons”—may be established by
5 demonstrating that the communication occurred “between the client or client’s
6 lawyer and another lawyer representing another in a matter of common interest[.]”
7 Rule 11-503(B)(3).4 A person who relies on this subsection to claim privilege as to
8 particular communications bears the additional burden of establishing, at a
9 minimum, a factual basis allowing the district court to find that: (1) the parties to
4
Commonly known as the “common interest doctrine,” this aspect of the
attorney-client privilege rule may function as either an extension of the privilege or
an exception to waiver of the privilege. See Rule 11-503(B)(3); Rule 11-511
NMRA (providing that the rule of waiver “does not apply if the disclosure is a
privileged communication”); Katharine Traylor Schaffzin, An Uncertain Privilege:
Why the Common Interest Doctrine Does Not Work and How Uniformity Can Fix
It, 15 B.U. Pub. Int. L.J. 49, 54-55 (2005) (explaining that “[m]any courts
characterize [the doctrine] as an extension of the attorney-client privilege and
many more describe it as an exception to the traditional waiver of the attorney-
client privilege that occurs when a client discloses confidential communications to
a third party” (footnote omitted)).
In this case, Sanders invokes the doctrine in its function as an extension of
the privilege, i.e., to establish the privilege in the first instance, not to directly
defend against a claim of waiver resulting from a third-party disclosure. Cf. Santa
Fe Pac. Gold Corp., 2007-NMCA-133, ¶¶ 19, 25 (setting up a three-part burden-
shifting analysis in a case where the doctrine was raised as a defense to waiver
based on undisputed disclosure of a purportedly privileged document to a third
party). We point out this distinction in order to make clear why our common
interest doctrine analysis both adds to and differs in some respects from the
framework adopted and followed in Santa Fe Pacific Gold Corp.
16
1 the communication shared an identical legal interest in the subject matter of each
2 communication claimed to be privileged; (2) the communication was made “during
3 the course of a joint defense effort between the resisting party and the third party”
4 and “in furtherance of that effort”; and (3) the shared identical legal interest existed
5 at the time the communication was made as reflected by a preexisting, or at the
6 very least contemporaneous, agreement of the parties.5 Santa Fe Pac. Gold Corp.,
7 2007-NMCA-133, ¶¶ 16, 18, 24; see Ken’s Foods, Inc. v. Ken’s Steak House, Inc.,
8 213 F.R.D. 89, 93 (D. Mass. 2002) (“While a written agreement is not a
9 prerequisite for invoking the common interest doctrine, parties seeking to invoke
10 the exception must establish that they agreed to engage in a joint effort and to keep
11 the shared information confidential from outsiders.” (citation omitted)).
12 “[A]lthough a common interest agreement can be inferred where two parties are
13 clearly collaborating in advance of litigation, mere ‘indicia’ of joint strategy as of a
14 particular point in time are insufficient to demonstrate that a common interest
15 agreement has been formed.” Hunton & Williams v. U.S. Dep’t of Justice, 590 F.3d
16 272, 284-85 (4th Cir. 2010). Additionally, “a shared desire to see the same
17 outcome in a legal matter is insufficient to bring a communication between two
18 parties within [the common interest doctrine].” In re Pac. Pictures Corp., 679 F.3d
5
This third element was not addressed in Santa Fe Pacific Gold Corp., a
case in which it was apparently undisputed that the parties between whom
disclosure occurred had “entered into a common interest agreement.” 2007-
NMCA-133, ¶ 19.
17
1 1121, 1129 (9th Cir. 2012). There must be some showing that the parties, indeed,
2 came to an agreement “embodying a cooperative and common enterprise towards
3 an identical legal strategy.” Fireman’s Fund Ins. Co. v. Great Am. Ins. Co. of N.Y.,
4 284 F.R.D. 132, 139 (S.D.N.Y. 2012) (internal quotation marks and citation
5 omitted). Evidence of the parties’ agreement is critical because “the privilege
6 should not be used as a post hoc justification for a client’s impermissible
7 disclosures.” In re Teleglobe Commc’ns Corp., 493 F.3d 345, 365 (3d Cir. 2007).
8 {20} A party’s bald assertions that disclosure of information sought in discovery
9 would violate a privilege are insufficient to meet his or her burden. See United
10 Nuclear Corp. v. Gen. Atomic Co., 1980-NMSC-094, ¶ 267, 96 N.M. 155, 629
11 P.2d 231. When a party asserts a privilege as a basis for withholding information in
12 discovery, “the party shall make the claim expressly and shall describe the nature
13 of the . . . communications . . . not . . . disclosed in a manner that, without revealing
14 information itself privileged or protected, will enable other parties to assess the
15 applicability of the privilege.” Rule 1-026(B)(7)(a); see Piña, 2001-NMCA-055,
16 ¶ 24 (explaining that the party asserting the privilege must do so “with sufficient
17 detail so that [the party seeking disclosure], and ultimately the [district] court, may
18 assess the claim of privilege as to each withheld communication”).
19 {21} “We expressly disapprove of the practice of permitting the proponent of a
20 privilege to rely on an initial conclusory assertion of a privilege and to gradually
18
1 unveil the basis for her claims of privilege.” Piña, 2001-NMCA-055, ¶ 25. “The
2 party resisting discovery has the burden to clarify and explain its objections and to
3 provide support therefor.” United Nuclear Corp., 1980-NMSC-094, ¶ 267 (internal
4 quotation marks and citation omitted). Such support may be provided through a
5 variety of mechanisms, including submission of a privilege log or an affidavit, in
6 camera interview, or other means “as required by the circumstances of a particular
7 case.” Piña, 2001-NMCA-055, ¶¶ 24, 28; see Albuquerque Rape Crisis Ctr. v.
8 Blackmer, 2005-NMSC-032, ¶ 21, 138 N.M. 398, 120 P.3d 820 (contemplating the
9 need for an in camera interview to determine whether certain communications
10 claimed to be privileged were made for the purpose for which the privilege was
11 established); see also SCM Corp. v. Xerox Corp., 70 F.R.D. 508, 514 (D. Conn.
12 1976) (ordering the deponent lawyer to submit an affidavit for in camera review
13 that describes the conversations he had with a third party to determine whether a
14 common interest existed between the parties at the time of the communication); 2
15 Paul R. Rice, Attorney-Client Privilege in the United States § 11:12, at 1066-67
16 (2017-2018 ed.) (explaining that courts have accepted ex parte affidavits despite
17 “an element of adversarial unfairness in this process” because “the courts feel
18 justified in following this procedure when they are faced with the undesirable
19 alternatives of sacrificing the confidentiality of the communication or leaving the
20 issue unresolved”). “Failure to adequately support a claim of privilege thwarts both
19
1 the adversarial process and meaningful independent judicial review and justifies
2 denial of the claim of privilege.” Piña, 2001-NMCA-055, ¶ 24.
3 B. Whether the District Court Abused Its Discretion in Determining That
4 Sanders Failed to Meet Her Burden
5 {22} Here, the district court concluded that it had “not been provided with a
6 factual basis to find that there was a common interest between APS and . . .
7 Brooks[] between August 11 and August 15, 2014.” We understand the district
8 court’s ruling in this regard to reflect its determination that Sanders failed to meet
9 her burden of establishing the essential elements necessary to prove the
10 applicability of the attorney-client privilege, based on a claimed common interest,
11 to her communications with APS’s attorneys. We consider whether the district
12 court’s conclusion was “clearly contrary to the logical conclusions demanded by
13 the facts and circumstances of the case.” Benz, 2013-NMCA-111, ¶ 11 (internal
14 quotation marks and citation omitted).
15 {23} As noted previously, after first asserting the attorney-client privilege based
16 on a purported common interest during her deposition, Sanders refused to answer
17 the question, “[W]hat do you believe th[e] joint interest [between Brooks and APS
18 and its Board] to have been?” She additionally refused to answer the following
19 questions: (1) “When did discussions first begin between APS and Mr. Brooks or
20 you regarding the possibility that he might resign?” (2) “[W]hen did [the common
20
1 interest] arise?” and (3) “Did you consider APS . . . an adverse party to [Brooks]
2 during the course of [your] representation?” Sanders’ deposition testimony thus not
3 only fails to provide a factual basis establishing any of the elements of a common
4 interest but also employs the very practice this Court “expressly disapprove[d] of”
5 in Piña—that is, relying on an initial conclusory assertion of a privilege and failing
6 to provide basic information necessary to assess the claim of privilege. 2001-
7 NMCA-055, ¶ 25. Moreover, her refusal to answer questions regarding formation
8 of the common interest—coupled with her failure to thereafter supply a factual
9 basis allowing the district court to find that she, Melendres, and Ortiz indeed
10 established a common interest agreement prior to disclosing any potentially
11 privileged information—justifies the district court’s denial of her claim of
12 privilege. See id. ¶ 24; cf. In re Teleglobe Commc’ns Corp., 493 F.3d at 365
13 (explaining that “the privilege should not be used as a post hoc justification for a
14 client’s impermissible disclosures”); Ken’s Foods, Inc., 213 F.R.D. at 93
15 (explaining that “parties seeking to invoke the [common interest] exception must
16 establish that they agreed to engage in a joint effort and to keep the shared
17 information confidential from outsiders”).
18 {24} Additionally, our review of the district court record confirms that it contains
19 bare and unsupported assertions by Sanders, her counsel, and Ortiz regarding what
20 the parties’ purported common interest generally was. Notably, those assertions,
21
1 themselves, were vague, unclear, and not entirely consistent. In responding to
2 Plaintiffs’ motion to compel, Sanders merely cited the agenda for the August 11,
3 2014 Board meeting in identifying the common interest as “relat[ing] to [Brooks’]
4 performance, evaluation, improvement plan, reports or concerns received by the
5 President of the Board related to [Brooks], his contract or possible disciplinary
6 action.” Then, at the hearing on Plaintiffs’ motion to compel when asked by the
7 district court to “tell [it] what the common interest is” because the court did not
8 understand it as presented, Sanders’ counsel stated, “The common interest is to
9 work out a possible exit for . . . Brooks. If . . . both sides decided that it was in the
10 best interest for him to leave, then they were working on that . . . common
11 interest.” When pressed by the district court to explain the “identical legal interest
12 tied to [Sanders’ and Ortiz’s] communications[,]” Sanders’ counsel offered, “I
13 think that the identical legal interest is for both sides to be looking at whatever
14 legal issues may exist with regard to working out this common goal to separate
15 amicably.” Sanders’ counsel summed up the matter with, “What’s the common
16 legal goal here? They’re trying to make a plan.” Ortiz, in joining Sanders to argue
17 against the motion, described the parties’ common interest as, “You have a
18 problem with an employee; you invite him in. What’s our common interest? Our
19 common interest is, we’re trying to resolve this issue. . . . When this starts out, the
20 common interest is, [c]an we sit down and work this out?”
22
1 {25} Critically, the record contains no indication that Sanders either employed or
2 attempted to employ any of the means available to her—e.g., affidavit or seeking
3 in camera presentation of testimony or evidence to the district court—to supply the
4 facts necessary to meet her burden. And she did not do so despite relative clarity in
5 our law permitting privilege proponents to employ a variety of procedures—such
6 as submission of a privilege log, an affidavit, an ex parte affidavit, live testimony,
7 or some other means of demonstrating a factual basis for establishing the
8 applicability of the privilege—to demonstrate the applicability of a privilege given
9 the particular circumstances of a given case. See Piña, 2001-NMCA-055, ¶¶ 24, 28
10 (providing that the plaintiff “must provide a privilege log” and that the log,
11 “together with any supplemental affidavits[,] must affirmatively demonstrate an
12 objectively reasonable basis for each assertion of privilege[,]” but also explaining
13 that the procedural guidelines for asserting a privilege “are not immutable” and
14 that “[t]hey may be modified as required by the circumstances of a particular
15 case”); see also Albuquerque Rape Crisis Ctr., 2005-NMSC-032, ¶ 21 (noting that
16 the court may need to conduct an in camera inspection to determine whether
17 certain communications are discoverable); cf. State v. Perez, 1985-NMCA-041,
18 ¶ 13, 102 N.M. 663, 699 P.2d 136 (remanding the case for an in camera hearing to
19 determine a factual matter after concluding that “[w]ithout conducting the in
23
1 camera hearing, the court was in no position to determine” the necessary factual
2 question before it).
3 {26} Even on appeal, Sanders merely lists seven pieces of “evidence” that she
4 contends “established” that Brooks and the Board had “an identical interest” and
5 that she argues provided the district court with “substantial evidence to support the
6 claim of common interest.” That “evidence” comprises: (1) the minutes of the
7 Board’s July 16, 2014 meeting indicating that the Board convened in executive
8 session to discuss Brooks’ performance improvement plan; (2) Maestas’s July 18,
9 2014 statement to her fellow Board members, explaining why she wanted to
10 commission Padilla to conduct “an independent investigation into allegations
11 regarding Superintendent Brooks”; (3) the minutes of the Board’s August 11
12 meeting, indicating that the closed meeting lasted from 5:01 p.m. until 10:07 p.m.
13 and that no action was taken on the “limited personnel matter” regarding Brooks;
14 (4) the settlement agreement, including certain specific provisions therein; and (5)
15 three findings from the district court’s own order in which the district court (a)
16 recognized that Ortiz represented the Board and Sanders represented Brooks, (b)
17 referred to the purpose of the August 11 closed meeting as identified in the
18 meeting minutes, and (c) noted that Ortiz came into the separate room where
19 Sanders and Brooks were located during the closed meeting and had conversations
20 with them.
24
1 {27} We fail to see—and Sanders fails to explain—how this “evidence”
2 establishes the elements of a common interest and compels a contrary conclusion
3 to that reached by the district court. At best, it arguably offers indicia that Brooks
4 and APS at some time—possibly even various times—shared a common goal or
5 desire (e.g., to clear Brooks’ name, or to keep the Padilla Report from being
6 disclosed, a common desire we note they continue to share), which is insufficient
7 to establish that they shared an identical legal interest in the matters that Melendres
8 and Ortiz communicated to Sanders. See In re Pac. Pictures Corp., 679 F.3d at
9 1129 (stating that “a shared desire to see the same outcome in a legal matter is
10 insufficient” for the common interest exception to apply); Hunton & Williams, 590
11 F.3d at 283-85 (“ ‘[I]ndicia’ of joint strategy as of a particular point in time are
12 insufficient to demonstrate that a common interest agreement has been formed.”).
13 Indeed, much of what Sanders contends supports her position of a common interest
14 instead suggests the possibility that Brooks’ interests were not aligned with those
15 of the Board, which had investigated allegations of his possible misconduct and
16 then convened in a lengthy and non-public executive session regarding that
17 personnel matter after having received the Padilla Report. Particularly given the
18 existence of facts that give rise to the appearance that the parties had antagonistic
19 interests, it was incumbent upon Sanders to not only combat that appearance but
20 also affirmatively and specifically establish the existence of an agreement between
25
1 the parties regarding the identicality of their legal interest in communications they
2 intended to be privileged.
3 {28} Moreover, what we do see from our review of the record is that the evidence
4 Sanders now points to was not presented by Sanders to the district court—either as
5 an evidentiary proffer or even in her response brief—as supplying a basis for
6 finding the existence of a common interest. Indeed, much of that evidence was
7 proffered by Plaintiffs, not Sanders, for purposes unrelated to the issue of whether
8 the Board and Brooks had a common interest at the time of Sanders’
9 communications with Ortiz. Sanders’ reliance on such evidence now, after the fact,
10 fails to supply a basis for reversing the district court’s determination that it had not
11 been provided a factual basis for finding a common interest.
12 {29} Because we cannot say that the district court’s ruling is clearly contrary to
13 the logical conclusions demanded by the facts and circumstances of the case, we
14 conclude that the district court did not abuse its discretion in ruling that Sanders
15 failed to meet her burden of establishing the applicability of the attorney-client
16 privilege. We acknowledge the difficult position in which Sanders has been put
17 and her ensuing effort to zealously represent her client and meet her ethical
18 obligations as a lawyer. Having failed her burden of establishing privilege,
19 however, we reject Sanders’ contention that the district court’s order or this
20 Court’s affirmance of the same results in “compel[ling] her to do that which her
26
1 ethical obligations prohibit.” See Rule 16-106(B)(6) NMRA (permitting a lawyer
2 to “reveal information relating to the representation of a client to the extent the
3 lawyer reasonably believes necessary . . . to comply with . . . a court order”); Rule
4 16-106(A) (providing that “[a] lawyer shall not reveal information . . . unless . . .
5 disclosure is permitted by Paragraph B of this rule” (emphasis added)).
6 III. Defendants’ Arguments Are Without Merit
7 {30} Defendants join Sanders in her arguments regarding the OMA and the
8 applicability of the common interest aspect of the attorney-client privilege,
9 adopting them by reference and offering no additional argument or analysis to
10 support those proffered bases for reversal. Defendants advance two additional
11 arguments for why this Court should reverse the district court’s order and conclude
12 that Plaintiff’s motion to compel should be denied.
13 {31} Defendants first contend that Plaintiffs’ “discovery request to compel Ms.
14 Sanders’ testimony under the rationale that it might create a broader waiver of the
15 entire [Padilla] Report is faulty” and that this Court “should not allow the search
16 for a waiver as a rationale to compel the discovery sought from Ms. Sanders.” This
17 argument first reflects a misunderstanding of Plaintiffs’ argument regarding the
18 relevance and discoverability of Sanders’ testimony. The record plainly establishes
19 that Plaintiffs seek Sanders’ testimony for the limited purpose of proving that APS
20 voluntarily disclosed the Padilla Report or its substance to Sanders, thereby
27
1 effecting a waiver of the attorney-client privilege and the attorney work product
2 protection and defeating Defendants’ claim that the Report is exempt from
3 inspection under Section 14-2-1(A)(6), (8).
4 {32} Defendants’ argument also reflects a misunderstanding of the limited scope
5 of this appeal, including the applicable law that resolves it. Defendants argue that
6 this Court “should begin the analysis of any alleged waiver” by recognizing “the
7 clear protections IPRA affords employer/employee information” via Section 14-2-
8 1(A)(3)’s exemption for “letters or memoranda that are matters of opinion in
9 personnel files.” Defendants’ argument ignores that this Court is not presently
10 faced with any questions regarding the applicability of Section 14-2-1(A)(3)’s
11 exemption, much less whether any waiver has occurred under any IPRA exception.
12 We agree with Plaintiffs that because the district court has not yet been asked to
13 rule on whether Section 14-2-1(A)(3)’s exemption applies, this argument is not
14 properly before us.
15 {33} Defendants next argue that Plaintiffs “should not be permitted to compel
16 testimony about the substance of the [Padilla] Report” by “forc[ing] Ms. Sanders to
17 discuss what she may have heard about the [R]eport during executive session.”
18 Again, Defendants did not raise this issue before the district court below, and it is
19 not properly before us in this interlocutory appeal.
20 CONCLUSION
28
1 {34} For the foregoing reasons, we affirm the district court’s order.
2 {35} IT IS SO ORDERED.
3 _________________________________
4 J. MILES HANISEE, Judge
5 WE CONCUR:
6 _________________________________
7 STEPHEN G. FRENCH, Judge
8 _________________________________
9 JENNIFER L. ATTREP, Judge
29