2017-00205996-CU-BC

Mastagni Holstedt vs. Ellis Law Group, LLP

Nature of Proceeding: Motion to Compel Production of Documents

Filed By: Winter, Grant A.

Plaintiff Mastagni Holstedt, PC’s (“Mastagni” or “Plaintiff”) motion to compel further responses to request for production (set one) is DENIED.

As an preliminary matter, the Court notes that Plaintiff moves to compel further

responses Request for Production of Documents, Set One, nos. 1-25, including

production of all documents concerning communications between Ellis Law Group, LLP and Frank Latham regarding the amount of money to be paid as attorneys’ fees to Mastagni Holstedt, APC.

Although entitled a “motion to compel further responses”, Mastagni is actually seeking to compel Ellis to produce certain items in its privilege log which it contends has been waived as expressed in the Court’s 5/23/2018 Order. Ellis appears to have understood the motion as one to compel production of documents, thus, this mis-labeling and failure to include a separate statement is of no consequence.

Overview

Mastagni is suing Defendant Ellis Law Group, LLP (“Ellis” or “Defendant”) for breach of contract. Mastagni’s key allegations are:

Plaintiff and Defendant associated as co-counsel in connection with a workers compensation claim entitled Latham v. Vito Trucking and a third party claim entitled

Latham v. Republic Services, et al. On or about October 1, 2015, Plaintiff and

Defendant entered into a written Fee Agreement and Cost Sharing Agreement. The fee sharing agreement provided that Plaintiff and Defendant would equally split (“50%/50%”) the attorney’s fees.

Defendant settled Latham v. Republic Services, et al, the third party claim, for an amount which is unknown to Plaintiff, but believed to be $950,000, plus a Workers’ Compensation lien waiver of $230,000. Plaintiff is unaware of the total fees received by Defendant, based upon the contingent fee agreement that Defendant entered into with the client. After the settlement, Defendant delivered to Plaintiff a check for $75,000.

Plaintiff alleges that this amount is far less than 50% of the attorney’s fees that Defendant obtained from the settlement.

On 5/23/2018, the Court granted in part, and denied, in part, Mastagni’s motion for a supplemental privilege log and determination that Ellis waived the parties’ shared client’s attorney-client privilege in relation to the client’s instructions on how attorney’s fees should be divided. The Court found that Latham had waived the attorney-client privilege as it relates to Latham’s instructions to Ellis to split fees with Mastagni. The Court stated that “the extent Ellis withheld or redacted documents solely because they contain Latham’s instructions on how to split fees with Mastagni, it must revise the privilege log, indicate in its response(s) to applicable document requests that it will produce documents containing Latham’s instructions, as well as produce responsive documents in which Latham’s instructions are unredacted.” (5/23/2018 Order.)

Mastagni seeks to compel the production of the following documents in Ellis’ privilege log:

· ELG005552 – 9/1/2016; Handwritten Notes by Mark E. Ellis, Attorney; Attorney-Work Product and Attorney-Client Privilege

· ELG005557 – 9/1/2016; Handwritten Notes by Mark E. Ellis, Attorney; Attorney-Work Product and Attorney-Client Privilege

· ELG009576-009585 – 9/1/201; Email Communication re: meeting with client and allocation of settlement funds from Crystal Strong, Legal Assistant to Mark E. Ellis, Attorney and Trish Huff, Comptroller; Attorney-Work Product

Analysis

Mastagni moves to compel on the sole ground that pursuant to the Court’s 5/23/2018 Order, the above three documents fall within the categories of documents which the Court determined that the attorney-client privilege was waived.

Ellis, however, has invoked either the work-product doctrine as the sole ground for withholding or both the attorney-client privilege and work product doctrine as the grounds for withholding. The Court’s 5/23/2018 Order made no determination regarding whether the work-product doctrine was waived. Thus, the 5/23/2018 Order does not support Mastagni’s argument. Although Mastagni addressed the work-product doctrine in response to Ellis’ argument, because Ellis invoked the work-product doctrine in its privilege log, Mastagni, as the moving party, was required to confront the issue in the first instance.

The motion is DENIED.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.