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Case 2:06-cv-00268-KS-MTP Document 111 Filed 10/01/07 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

HATTIESBURG DIVISION

APRIL AGEE, CASSILLIE ALLEN,
et al., on behalf of themselves and all others
similarly situated



PLAINTIFFS

v.

No. 2:06cv268KS-MTP

WAYNE FARMS, L.L.C. DEFENDANT

EULA M. KEYES, KENYATTA
GARDNER, AND SHERICA WILLIAMS
on behalf of themselves and others
similarly situated
v.

consolidated with

PLAINTIFFS



No. 2:07cv29KS-MTP

WAYNE FARMS, L.L.C. DEFENDANT

ORDER DENYING MOTION TO QUASH SUBPOENA

This matter is before the court on the motion to quash subpoena [103] filed by the Agee

plaintiffs, and the court having considered the motion, the response and the reply, as well as

applicable law, finds that the motion should be denied.

Plaintiffs filed this motion in response to a subpoena issued by defendant to MCM

Services Group, LLC (“MCM”), seeking “[a]ny and all advertisements, call center intake records,

call center intake questionnaires, prospect intake sheets, lead profiles, and any and all information

entered into [MCM’s] lead management program (LEAP) database related to any former or

present employee of Wayne Farms LLC.” See Exhibit A to motion to quash. According to the

Declaration of Todd Bassinger, MCM’s CEO and General Counsel, MCM was retained by Greg

Jones, co-counsel for the potential plaintiffs, “to place advertisements and answer phone calls

Case 2:06-cv-00268-KS-MTP Document 111 Filed 10/01/07 Page 2 of 7

from potential plaintiffs who have responded to such advertisements.” See Exhibit C to motion to

quash. The dispute between the parties centers around a standard form questionnaire completed

over the telephone at MCM’s call center. See Exhibits 1 and 2 to defendant’s response to motion

to quash. Plaintiffs argue that these documents are protected by the attorney-client privilege

and/or the work product doctrine and, therefore, the subpoena should be quashed.

Plaintiffs, as the party asserting a claim of privilege, have the burden of establishing that

the documents sought by defendant are, in fact, privileged.1 See, e.g., U.S. v. Rodriguez, 948 F.2d

914, 916 (5th Cir. 1991) (“The burden of establishing privilege rests on the party who invokes

it.”); In re Santa Fe Intern. Corp., 272 F.3d 705, 710 (5th Cir. 2001) (“A party asserting a

privilege exemption from discovery bears the burden of demonstrating its applicability.”).

In order to invoke the attorney-client privilege, plaintiffs must establish the following

elements: 1) the asserted holder of the privilege is or sought to become a client; 2) the person to

whom the communication was made (a) is a member of the bar of a court, or his subordinate and

(b) in connection with the communication is acting as a lawyer; (3) the communication relates to a

fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c)

for the purpose of serving primarily either (i) an opinion on law or (ii) legal service or (iii)

assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and

(4) the privilege has been claimed and not waived by the client. U.S. v. Impastato, 2007 WL

2463310, at * 2 (E.D. La. Aug. 23, 2007) (citing U.S. v. Kelly, 569 F.2d 928, 938 (5th Cir. 1978)).

As noted above, the first element of the privilege is an existing or prospective attorney-

client relationship. A finding of such a relationship “hinges upon the client’s belief that he is

1 Because this case concerns the adjudication of federal rights (under the Fair Labor

Standards Act), the federal common law of privilege applies. Willy v. Admin. Review Bd., 423
F.3d 483, 495 (5th Cir. 2005).

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Case 2:06-cv-00268-KS-MTP Document 111 Filed 10/01/07 Page 3 of 7

consulting a lawyer in that capacity.” Morisky v. Public Serv. Elec. & Gas Co., 191 F.R.D. 419,

424 (D.N.J. Feb. 23, 2000). Here, even assuming that plaintiffs’ attorneys had sufficiently

established the existence of an agency relationship between themselves and MCM, they have

failed to establish that the employees were clients or sought to become clients at the time they

provided the information to MCM. See id. at 423 (pre-litigation questionnaires distributed to

prospective class members by plaintiffs’ attorneys not privileged where they could not establish

that employees who completed questionnaire were clients or sought to become clients when they

returned questionnaires); Schiller v. City of New York, 2007 WL 1498059, at * 4 (S.D.N.Y. May

23, 2007) (questionnaires distributed by New York Civil Liberties Union (“NYCLU”) not

privileged where NYCLU “offered no evidence that any person who completed a questionnaire

believed at the time that he or she was seeking representation by the NYCLU”).

The only information provided to this court in support of the privilege claim is that MCM

was hired by plaintiffs’ attorney to place advertisements and answer calls in response. No

information has been provided concerning the nature of those advertisements. No information has

been provided concerning the substance of the communications between MCM and the employees

both before and at the time the information was received. In particular, plaintiffs cannot establish

that the employees were told that their responses would be considered confidential attorney-client

communications.2 See Schiller, 2070 WL 1498059, at * 5. Nor have any affidavits have been

provided from the employees indicating that they believed they were seeking legal advice or

representation when they contacted MCM. See id. at * 5. And there is no indication that

2 To the contrary, under the “Privacy Policy” on MCM’s website, attached as Exhibit 2 to

defendant’s response to the motion to quash, it is stated: “Also, though we have connections to
many law firms and serve as an intermediary between them, we are not lawyers and information
you give us can not be considered protected by an attorney-client relationship.”

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Case 2:06-cv-00268-KS-MTP Document 111 Filed 10/01/07 Page 4 of 7

plaintiffs’ attorneys communicated with any of these prospective plaintiffs prior to their

contacting MCM and providing the information in the questionnaires. See Morisky, 191 F.R.D. at

423; see also Gates v. Rohn Haas Co., 2006 WL 3420591, at * 5 (E.D. Pa. Nov. 22, 2006)

(finding that this fact weighed against finding an attorney-client relationship). It is not even clear

whether the instant lawsuit had been filed at the time the questionnaires were completed. See

Morisky, 191 F.R.D. at 423; Gates, 2006 WL 3420591, at * 5.

In cases where courts have found that preliminary questionnaires were privileged, they

have done so on the basis of far more indicia that an attorney-client relationship was being formed

than in the instant case. See, e.g., Gates, 2006 WL 3420591, at * 5 (holding questionnaires

distributed to potential class members privileged based on fact that attorneys organized meeting

where questionnaires were distributed, persons not seeking legal advice or representation

instructed to leave meeting, and individuals who completed questionnaires received them directly

from and returned them to attorneys); Vodak v. City of Chicago, 2004 WL 783051, at * 2-3 (N.D.

Ill. Jan. 16, 2004) (finding questionnaire privileged because it was distributed at a meeting whose

purpose was to provide legal information and representation if desired, only those people seeking

legal representation or advice were requested to complete the form, the forms were immediately

utilized to provide legal representation, and information in questionnaires was kept confidential

and provided only to lawyers who represented the individuals in court). The court therefore finds

that plaintiffs have failed to meet their burden of establishing that the requested documents are

protected by the attorney-client privilege.

The court also finds that plaintiffs have failed to meet their burden of establishing that the

documents are protected by the work product doctrine. The doctrine of work product is codified

in Rule 26(b)(3) of the Federal Rules of Civil Procedure, which provides that a party generally

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Case 2:06-cv-00268-KS-MTP Document 111 Filed 10/01/07 Page 5 of 7

cannot discover documents “prepared in anticipation of litigation or for trial by or for another

party or by or for that other party’s representative (including the other party’s attorney, consultant,

surety, indemnitor, insurer, or agent.” See also In re Vioxx Products Liability Litigation, 2007

WL 2309877, at * 19 (E.D. La. Aug. 14, 2007) (“The doctrine of work product...gives a qualified

immunity to communications that are created in preparation for litigation.”). First, plaintiffs have

failed to show that the questions on the questionnaire were created in anticipation of litigation or,

for that matter, who created them. In addition, as for the answers to the questions, these are

clearly facts which are not themselves protected by the work product doctrine. See In re Int’l Sys.

& Controls Corp., 693 F.2d 1235, 1240 (5th Cir. 1982) (“We know that the work product

immunity protects only the documents themselves and not the underlying facts.”); see also Gates,

2006 WL 3420591, at * 5 (“the purely factual information contained on the completed

questionnaires is not protected [by work product]”); Morisky, 191 F.R.D. at 425 (rejecting work

product claim because “[t]he completed questionnaires are simply fact statements provided by 141

PSE & G employees before any attorney ever communicated with them).3

Finally, the court notes that plaintiffs have failed to produce a privilege log, as required by

Rule 26.1(A)(1)(c) of the Local Rules. Indeed, if plaintiffs had not inadvertently filed a

3 Mr. Bassinger’s assertions that “[a]ny and all communications between MCM and

potential plaintiffs, including all call center intake records, were made for the purpose of
facilitating the rendition of professional legal services by Plaintiffs’ attorneys” and that “such
communications and intake records assisted Plaintiff attorney’s preparation for litigation” are
clearly insufficient to meet plaintiffs’ burden. So too are Mr. Jones’ almost identically-worded
assertions in his Declaration. A privilege claim “requires more proof than a conclusion by the
party asserting the claim (or his attorney) that it is justified.” Auto Club Family Ins. Co. v.
Ahner, 2007 WL 2480322, at * 5 (E.D. La. Aug. 29, 2007) (citation omitted). “To the extent that
evidentiary support for the factual basis of the privilege is not forthcoming, the claim is little
more than a bald, conclusory, or ipse dixit assertion...[which] “forecloses meaningful
independent inquiry by the finder of facts (the judge) into the validity of the claim....” Id.
(citation omitted).

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Case 2:06-cv-00268-KS-MTP Document 111 Filed 10/01/07 Page 6 of 7

completed questionnaire as an attachment to a notice of consent [96], defendant might still not

know about the questionnaire at all. This failure to provide a privilege log is, on its own,

sufficient to warrant a finding that any privilege, even if it had been established by plaintiffs, has

been waived. See Local Rule 26.1(A)(c) (“To withhold materials without such notice [a privilege

log] subjects the withholding party to sanctions under Fed. R. Civ. P. 37 and may be viewed as a

waiver of the privilege or protection.”); see also Coldwell Banker Real Estate Corp. v. O’Neal,

2006 WL 3845011, at * 1 (E.D. La. Dec. 29, 2006) (“In other contexts in which a privilege log is

required, failure to provide the log has resulted in a finding that any privilege has been waived.”)

(citations omitted); Morisky, 191 F.R.D. at 426-27 (noting that it was “particularly dismayed” by

plaintiffs’ failure to disclose existence of questionnaires at issue and finding this an independent

basis for rejecting claims of privilege); Auto Club Family Ins. Co. V. Ahner, 2007 WL 2480322, at

* 5 (E.D. La. Aug. 29, 2007) (rejecting privilege claim in part because of failure to provide a

privilege log).

For the foregoing reasons, the court finds that plaintiffs have failed to meet their burden of

establishing that the documents at issue are protected by either the attorney-client or work product

privileges, and that even if plaintiffs had met their burden, any such privilege was waived by their

failure to produce a privilege log as required by the Local Rules. Accordingly, plaintiffs’ motion

to quash subpoena should be denied.

IT IS, THEREFORE, ORDERED and ADJUDGED that the motion to quash subpoena

[103] is denied.

IT IS FURTHER ORDERED AND ADJUDGED that MCM has fourteen (14) days from

the date of this Order within which to respond to the Subpoena and produce the requested

documents.

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Case 2:06-cv-00268-KS-MTP Document 111 Filed 10/01/07 Page 7 of 7

SO ORDERED this the 1st day of October, 2007

s/ Michael T. Parker
United States Magistrate Judge

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