KENNADIE GRACE WILCOX v. ANDALUSIA CITY SCHOOLS BOARD OF EDUCATION (2023)

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Pending before the Court is Plaintiff Kennadie Grace Wilcox's Motion for Sanctions filed on April 27, 2023. (Doc. 120.) The motion is based in part on communications between William Alverson Jr., an attorney based in Andalusia, Alabama who has long served as the attorney for the Defendant Andalusia City Schools Board of Education (the Board), and nonparty witnesses Addy Gantt and Eva Kanaley. According to the Plaintiff, Ms. Gantt and Ms. Kanaley were cooperating witnesses who had information detrimental to the interests of the Defendants and were prepared to testify for the Plaintiff and against the Defendants at trial, but Mr. Alverson improperly intimidated, threatened, or tampered with these witnesses such that they will no longer communicate with Plaintiff's counsel and no longer wish to testify. The Defendants and Mr. Alverson have asserted that Mr. Alverson's communications with Ms. Gantt and Ms. Kanaley concerning the facts and issues involved in this litigation are protected by the attorney-client privilege and thus cannot be disclosed.

The Court held an evidentiary hearing on the Plaintiff's Motion on June 13, 2023. In attendance were Susan Han and Brandy Lee, Plaintiff's counsel of record; Mark Boardman and Katherine Watkins, Defendants' counsel of record; Defendant Dr. Daniel Shakespeare; Amy Dugger, Board member; Mr. Alverson; and Wallace Mills, Mr. Alverson's personal counsel. Portions of the hearing were conducted ex parte to allow the Court to inquire into the assertion of the privilege with Mr. Alverson and his counsel, Mr. Mills. The Court has also reviewed other evidentiary materials submitted by the parties, including: a declaration signed by Ms. Han; declarations signed by Ms. Gantt; and other materials submitted ex parte for the Court's in camera review, including text messages between Mr. Alverson and Ms. Gantt and Ms. Han's and Mr. Alverson's cellular telephone records.

This Order addresses whether certain communications between Mr. Alverson and Ms. Gantt, Ms. Kanaley, or both are attorney-client privileged, as well as whether the privilege has been waived and to what extent.

II. LEGAL STANDARD 1

“The attorney-client privilege exists to protect confidential communications between client and lawyer made for the purpose of securing legal advice.” In re Grand Jury Matter No. 91-01386, 969 F.2d 995, 997 (11th Cir. 1992) (citation omitted); accord Knox v. Roper Pump Co., 957 F.3d 1237, 1248 (11th Cir. 2020); Cox v. Adm'r U.S. Steel & Carnegie, 17 F.3d 1386, 1414 (11th Cir. 1994). “The party invoking the attorney-client privilege has the burden of proving that an attorney-client relationship existed and that the particular communications were confidential.” United States v. Schaltenbrand, 930 F.2d 1554, 1562 (11th Cir. 1991). Thus, to successfully invoke the privilege, the person asserting the privilege must prove that what is sought to be protected is (1) a communication, (2) made between privileged persons, (3) in confidence, (4) for the purpose of obtaining or providing legal advice or assistance. See In re Grand Jury Matter No. 91-01386, 969 F.2d at 997.

“[A] party asserting the privilege must not only claim it expressly but must demonstrate that each essential element of the privilege is present with respect to the specific communication or document whose disclosure is sought.” Purdee v. Pilot Travel Ctrs., LLC, No. CV407-028, 2008 WL 11350099, at *1 (S.D. Ga. Feb. 21, 2008). “That burden is not, of course, discharged by mere conclusory or ipse dixit assertions, for any such rule would foreclose meaningful inquiry into the existence of the relationship, and any spurious claims could never be exposed.” Bridgewater v. Carnival Corp., 286 F.R.D. 636, 639 (S.D. Fla. 2011) (quoting In re Bonanno, 344 F.2d 830, 833 (2d Cir. 1965))).

“The attorney-client privilege does not protect any and all communications between a client and a lawyer[,]” Banneker Ventures, LLC v. Graham, 253 F. Supp. 3d 64, 70 (D.D.C. 2017), because lawyers “do not always act in a legal capacity,” Gaddy v. Terex Corp., No. 1:14-CV-1928-WSD, 2015 WL 13545486, at *3 (N.D. Ga. Oct. 28, 2015). Communications that “relate to matters other than the giving of legal advice ․ are outside the attorney-client privilege.” United States v. Davis, 636 F.2d 1028, 1044 (5th Cir. Unit A Feb.1981)² ; see also In re Cnty. of Erie, 473 F.3d 413, 421 (2d Cir. 2007) (“When an attorney is consulted in a capacity other than as a lawyer, as (for example) a policy advisor, media expert, business consultant, banker, referee or friend, that consultation is not privileged.”); Gaddy, 2015 WL 13545486, at *3 (“When an attorney serves a client in a way that is not legal in nature, the attorney-client privilege does not protect their communications.”). Thus, “the proponent of the attorney-client privilege must show ․ that the communication was confidential and that the primary purpose of the communication was to relay, request or transmit legal advice.” Baines v. City of Atlanta, No. 1:19-CV-0279-TWT-JSA, 2020 WL 10058115, at *1 (N.D. Ga. Oct. 2, 2020) (emphasis added).

The attorney-client privilege “ ‘belongs solely to the client,’ who may waive it either expressly or by implication.” Knox, 957 F.3d at 1248 (quoting Cox, 17 F.3d at 1417). A client may waive the privilege by disclosing her otherwise privileged communications to a third party. See, e.g., United States v. Suarez, 820 F.2d 1158, 1160 (11th Cir. 1987) (“[A]t the point where attorney-client communications are no longer confidential, i.e., where there has been a disclosure of a privileged communication, there is no justification for retaining the privilege. For that reason, it has long been held that once waived, the attorney-client privilege cannot be reasserted.” (citations omitted)); Weil v. Inv./Indicators, Rsch. & Mgmt., Inc., 647 F.2d 18, 24 (9th Cir. 1981) (“[I]t has been widely held that voluntary disclosure of the content of a privileged attorney communication constitutes waiver of the privilege as to all other such communications on the same subject.”); United States v. Cote, 456 F.2d 142, 144–45 (8th Cir. 1972) (explaining that a client may waive the attorney-client privilege by disclosing the substance of privileged communications).

III. BACKGROUND

In this lawsuit, the Plaintiff brings claims against the Board, Dr. Daniel Shakespeare, and Ted Watson ³ under 20 U.S.C. § 1681 et seq. (Title IX), 42 U.S.C. § 1983, and Alabama state law. Her claims relate to an alleged sexual relationship between her and a high school teacher and coach, Anthony Clark, and alleged sexual harassment perpetrated by Dr. Shakespeare while she was a student at Andalusia High School. Ms. Kanaley was the Plaintiff's friend and classmate. Ms. Gantt is Ms. Kanaley's mother at whose home the Plaintiff stayed for a time during the Plaintiff's senior year and in whom the Plaintiff apparently confided concerning the details of Coach Clark's and Dr. Shakespeare's actions.

According to the Plaintiff, Ms. Gantt and Ms. Kanaley were cooperating witnesses who had information detrimental to the interests of the Defendants and were prepared to testify for the Plaintiff and against the Defendants at trial. Indeed, in June 2022, Ms. Gantt and Ms. Kanaley signed sworn declarations which the Plaintiff submitted with her brief in opposition to the Defendants' motion for partial summary judgment, and these declarations contain information and statements adverse to the Defendants. (See generally Docs. 68-7, 68-8.) But according to the Plaintiff, beginning in September 2022, Mr. Alverson improperly intimidated, threatened, or tampered with these witnesses in violation of federal law and the Alabama Rules of Professional Conduct such that they will no longer communicate with Plaintiff's counsel and no longer wish to testify at trial.

Although Mr. Alverson has not made a formal appearance in this case, he acknowledges that he is the long-time attorney for the Board; he has been “monitoring” this case on behalf of the Board; and he has participated in certain aspects of this case on behalf of the Board, including attending depositions, attending mediation, interviewing and meeting with witnesses, and advising the Board about the case during executive session. Mr. Alverson also acknowledges that he communicated with Ms. Gantt regarding this lawsuit, including in text messages with Ms. Gantt in September and October 2022; in a three-hour one-on-one meeting with Ms. Gantt on December 7, 2022; and in text messages with Ms. Gantt in the Spring of 2023. Additionally, he contends that he communicated with Ms. Gantt and Ms. Kanaley in April 2018 concerning Ms. Kanaley's participation in a police interview during the criminal investigation into the Plaintiff's alleged relationships with Coach Clark and Dr. Shakespeare. Mr. Alverson further contends that he has not communicated with Ms. Kanaley regarding the facts and issues involved in this lawsuit since April 2018, and that he did not communicate with Ms. Gantt regarding the facts and issues involved in this lawsuit between April 2018 and September 2022.

Mr. Alverson claims that he is Ms. Gantt's personal attorney and that any communications he may have had with her about the facts and issues involved in this lawsuit, including Ms. Gantt's role as a nonparty witness, were made in his role as her long-time friend and confidant, as an attorney for the Board, and, germane to the issue addressed in this Order, as Ms. Gantt's personal attorney. According to Mr. Alverson, given his role as Ms. Gantt's personal attorney, his communications with Ms. Gantt about this lawsuit and the underlying facts—primarily the oral communications in April 2018 and text and oral communications between September 2022 and May 2023—are confidential and privileged and therefore cannot be disclosed to Plaintiff's counsel.⁴ Additionally, at a telephone hearing held the day after the Plaintiff's Motion for Sanctions was filed, Mr. Boardman, one of the Defendants' counsel of record, asserted that Ms. Gantt and Ms. Kanaley are Mr. Alverson's clients and further stated that any communications those witnesses have had with Mr. Alverson are protected by the attorney-client privilege.

The Plaintiff argues that disclosure of those communications is necessary to determine what Mr. Alverson said to Ms. Gantt to convert her and Ms. Kanaley from cooperating witnesses with information and testimony favorable to the Plaintiff and adverse to the Defendants to witnesses who no longer want to testify at trial or to communicate with Plaintiff's counsel. The Plaintiff further contends that Mr. Alverson's assertion of the attorney-client privilege is a farce, improper, and a means of obstruction to prevent the disclosure of his communications with Ms. Gantt; and that, in any event, the privilege, if it existed, has been waived through Ms. Gantt's voluntary disclosure in September 2022 of certain text messages with Mr. Alverson to Ms. Han, and through Ms. Gantt's voluntary execution of a declaration in June 2023 that reveals the substance of her communications with Mr. Alverson, which was shared with counsel for the Defendants and then filed in open court. The Plaintiff further argues that any waiver extends to all communications regarding the same subject matter.

The Court will now summarize certain evidence before the Court relevant to the attorney-client privilege issue addressed in this Order: Ms. Han's testimony in her Declaration and at the evidentiary hearing; Mr. Alverson's testimony in his Declaration and at the evidentiary hearing; and Ms. Gantt's Declarations. The Court may consider hearsay evidence, including declarations, in determining whether the privilege exists. See FED. R. EVID. 104(a) (“The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.”); see also Bourjaily v. United States, 483 U.S. 171, 178 (1987); In re Int'l Mgmt. Assocs., LLC, 781 F.3d 1262, 1268 (11th Cir. 2015) (per curiam) (court may consider hearsay when making Rule 104 determinations).

A. Ms. Han's Testimony

In support of the Motion for Sanctions, the Plaintiff submitted a Declaration signed by Ms. Han. (Doc. 120-4.) Ms. Han states that in the morning of September 16, 2022—two days after the parties attended a confidential mediation conference with Magistrate Judge Kelly Pate, during which Mr. Alverson was present—Ms. Gantt called Ms. Han and “read the contents of text messages sent to Ms. Gantt after the mediation from Andalusia City Schools Board of Education attorney Bill Alverson.” (Id. at 3.) According to Ms. Han, Ms. Gantt relayed, among other things, that Mr. Alverson told her she should consider how it might affect her, Ms. Kanaley, and other members of Ms. Gantt's family if Ms. Gantt and Ms. Kanaley testified at trial; and that negative things may come out about Ms. Gantt on the stand if she testified. According to Ms. Han, Ms. Gantt also relayed that Mr. Alverson said he knew Ms. Kanaley was studying to be a teacher, and Ms. Gantt and Ms. Kanaley should consider the teaching opportunities Ms. Kanaley may have in Andalusia if they did not testify at trial. Mr. Alverson also purportedly shared with Ms. Gantt the Plaintiff's confidential settlement demand at mediation. At the evidentiary hearing, Mr. Alverson admitted that he disclosed the Plaintiff's mediation settlement demand to Ms. Gantt. (Doc. 175 at 77.) Additionally, Ms. Han's telephone records, currently filed ex parte, corroborate her testimony that Ms. Gantt called her on September 16, 2022, during which the two participated in a lengthy phone call. The text messages produced by Mr. Alverson corroborate that he texted Ms. Gantt regarding this lawsuit on September 15, 2022. Additionally, Mr. Alverson's telephone records show that Ms. Gantt initiated no phone calls to Mr. Alverson in September. In other words, the records show that Mr. Alverson initiated contact with Ms. Gantt concerning this lawsuit in September.

In her declaration, Ms. Han also avers that on September 22, 2022, Ms. Gantt sent her the following text message: “Today bill Alverson sent a text saying he played tennis with Libby and saw my mom in the country club parking lot and that we need to chat because of the aftermath for my family.” (Doc. 120-4 at 4.)⁵ Ms. Han attached to her Declaration a copy of this text message from Ms. Gantt. (Doc. 120-4 at 12–13.)

At the evidentiary hearing, Ms. Han testified, under oath, that Ms. Gantt called her on September 16, 2022, that Ms. Gantt was “upset,” and that Ms. Gantt read to her text messages Ms. Gantt had received from Mr. Alverson. (Doc. 175 at 29.) Ms. Han further testified that several days later, Ms. Gantt texted her about Mr. Alverson telling Ms. Gantt he had played tennis with her sister and had seen her mother at the country club and “they needed to talk about the aftermath for her family.” (Id. at 30.)

B. Mr. Alverson's Testimony

In support of their response to the Plaintiff's Motion for Sanctions, the Defendants submitted a Declaration signed by Mr. Alverson, (Doc. 131-1.) Mr. Alverson explains he has served as the Board's attorney for the past 20 years; he has been monitoring this lawsuit at the Board's request, including attending all depositions; and the Board has paid his attorney's fees related to this case. (Id. at 1.) Mr. Alverson further states that he has known Ms. Gantt since she was in high school, he previously represented her in a divorce and a post-divorce custody dispute, and he continues to represent her “on many post-divorce issues.” (Id. at 2.) He further asserts that in April 2018, he met with Ms. Gantt and Ms. Kanaley “as their attorney” after they were contacted by the Andalusia Police Department concerning Ms. Kanaley's participation in an interview as part of the criminal investigation into Coach Clark. (Id.) He also asserts he “followed up” with Ms. Gantt after Ms. Kanaley spoke to the police. (Id.) He contends that “[a]ny communications between Addy Gantt and [him] are attorney-client privileged.” (Id.) He also says he met with Ms. Gantt in December 2022, at her request, and that the meeting “included information which is attorney-client privileged.” (Id.)

Mr. Alverson also testified under oath at the evidentiary hearing, both ex parte and in the public portion of the hearing. In the public portion, Mr. Alverson stated, through counsel, that he “is not [Ms. Gantt's] attorney for the purposes of this litigation.” (Doc. 175 at 9.) Mr. Alverson's counsel also stated, though, that Ms. Gantt sought legal advice from Mr. Alverson with respect to this case and her appearance as a witness. (Id.) Mr. Alverson himself testified that he continues to maintain the existence of the attorney-client privilege concerning any communications he has had with Ms. Gantt about this lawsuit. (Id. at 12.) Mr. Alverson further testified that his December 2022 meeting with Ms. Gantt had multiple purposes. One purpose was to give her legal advice about the case that she had requested. But the Board also had requested that he meet with her, as they wanted to know “what she's going to say” since she had been listed as a witness. (Id. at 84–85.) Additionally, Mr. Alverson acknowledged that he billed ⁶ the Board for his three-hour meeting with Ms. Gantt. (Id. at 85.) Mr. Alverson also testified that he has not communicated with Ms. Kanaley about any matters involving this lawsuit other than in April 2018.

During the ex parte portion of the hearing, Mr. Alverson testified regarding the bases for the assertion that his communications with Ms. Gantt and Ms. Kanaley in April 2018, as well as his communications with Ms. Gantt in September 2022 and December 2022, are protected by the attorney-client privilege. Moreover, although he initially refused to do so, Mr. Alverson eventually complied with the Court's oral order to submit to the Court copies of his text messages with Ms. Gantt, dating from approximately September 2022 through May 2023, for the Court's in camera review for purposes of examining the existence, if any, of the attorney-client privilege.

C. Ms. Gantt's Testimony

Although she did not testify live at the evidentiary hearing, Ms. Gantt has executed two Declarations, which the Defendants have submitted in support of various filings concerning the Motion for Sanctions and related issues. In her first Declaration, dated May 4, 2023, Ms. Gantt states that she “consider[s] Bill Alverson [her] and [her] daughter Eva Kanaley's personal attorney,” and that she “never intended to waive [their] attorney-client privilege with him.” (Doc. 131-2 at 1.) Ms. Gantt does not deny calling Ms. Han about Mr. Alverson's contacting her (Ms. Gantt) or that she disclosed to Ms. Han the substance of Mr. Alverson's text messages. Ms. Gantt also does not deny sending a text to Ms. Han on September 22 in which Ms. Gantt stated that Mr. Alverson had texted her about playing tennis with her sister and “need[ing] to chat because of the aftermath for [Ms. Gantt's] family.”

Ms. Gantt's Supplemental Declaration was executed on June 8, 2023, and it was filed with the Court on the public docket on June 9, 2023, (Doc. 161-1). Therein, Ms. Gantt states that she “intend[s] for this Supplemental Declaration to be submitted to the Court on my behalf.” (Id. at 1.) She further states that Mr. Alverson has been her attorney since 2004 and her friend since the mid-1990s, and that since 2004, she has considered Mr. Alverson to be her attorney “and still do[es] today on any legal matter.” (Id. at 2.) She also states that in April 2018, she sought Mr. Alverson's legal advice about the police investigation the night before Ms. Kanaley, a minor at the time, was to give a statement to the police. She says that after Ms. Kanaley provided her statement, she again contacted Mr. Alverson in his capacity as their attorney. Additionally, she says she did not contact Mr. Alverson “in his capacity as [her] attorney again about this matter until 2022.” (Id. at 3.) She also explains that Mr. Alverson has given her advice “about life decisions that did not have legal connections,” and that she does not “separate his role as lawyer from his role as friend and advisor.” (Id. at 5.)

Additionally, Ms. Gantt states that in September 2022, Mr. Alverson texted her that he felt she was “being manipulated by Plaintiff's attorneys,” and that she asked to speak with him because she “felt [she] needed information about the case from a source [she] trusted.” (Id. at 5–6.) She says Mr. Alverson “agreed to [her] request that [they] talk” but that they did not have the chance to speak on the phone at that time. (Id. at 6.) She also states that later in September 2022, Mr. Alverson texted her after playing tennis with her sister and seeing her mother. According to Ms. Gantt, Mr. Alverson's text message “indicated that he wanted to provide [her] with additional information about [the Plaintiff's] allegations and the lawsuit.” (Id.) She also says Mr. Alverson informed her that the decision whether to participate in the case was hers. She denies that Mr. Alverson said she owed him money for legal fees or that he ever made threats concerning Ms. Kanaley's ability to teach in Andalusia. (Id. at 4–5.) Ms. Gantt asserts that she does not “remember reading word for word all of [her] text messages with [Mr. Alverson] to Plaintiff's attorney Susan Han over the phone.” (Id. at 11.) Ms. Gantt does not deny texting Ms. Han on September 22, 2022, in which Ms. Gantt stated that Mr. Alverson had texted her about playing tennis with her sister and “need[ing] to chat because of the aftermath for [Ms. Gantt's] family.”

Ms. Gantt also describes communications with Mr. Alverson in September and October 2022 via text message and Facebook Messenger. She states that she asked to speak with Mr. Alverson “in September and twice in October.” (Id. at 8.) She further states that she met with Mr. Alverson in December to seek legal advice and counsel, and also to catch up on each others' lives. (Id.) She says she wanted advice from Mr. Alverson “on how to not be involved in the case.” (Id.) She set forth the following information regarding her meeting with Mr. Alverson:

He told me that unless Plaintiff's attorneys subpoenaed me, they could not require me to testify. He also explained that living in South Carolina I was outside of the Court's subpoena power and did not have to participate. I asked [Mr. Alverson] for his legal opinion about what actions I could or should take next, since I felt manipulated by Plaintiff's attorneys and no longer trusted them. Bill Alverson simply told me it was my choice.

(Id. at 9.)

Ms. Gantt also discusses text messages she exchanged with Mr. Alverson from March 2023 through May 2023 concerning this case and in particular whether she will testify at trial. (Id. at 10.)

She also states that she “do[es] not waive [her] attorney client privilege with Bill Alverson” but provided the supplemental declaration “so that it is clear that [Mr. Alverson] is and has remained [her] attorney.” (Id. at 11–12.)

IV. DISCUSSION

As will be explained further below, the Court concludes that the attorney-client privilege protects some, but not all, of Mr. Alverson's communications with Ms. Gantt and Ms. Kanaley regarding the facts and issues involved in this lawsuit; but that Ms. Gantt nonetheless waived the privilege with respect to certain communications by voluntarily disclosing their substance to third parties. The Court will divide its discussion into four discrete timeframes during which Ms. Gantt and Mr. Alverson communicated about the facts and issues involved in this lawsuit: April 2018, September 2022, December 2022, and March through May 2023. The Court will then address the extent of Ms. Gantt's privilege waiver.

As an initial matter, the Defendants and Mr. Alverson all take the position that none of them are proponents of the attorney-client privilege here, on the grounds that the privilege belongs to the client. The Defendants further state that they “obviously cannot invoke the privilege on Ms. Gantt's behalf.” (Doc. 180 at 3.) But that is precisely what the Defendants have done in this case, beginning the day after the Plaintiff's Motion for Sanctions was filed. It is true that the client is the privilege holder. But a “proponent” is a person who advocates for a position. Here, the Defendants and Mr. Alverson all advocate for the position that Ms. Gantt's communications with Mr. Alverson concerning this litigation are privileged. Additionally, the Court has before it two declarations executed by Ms. Gantt, the asserted privilege holder, and she similarly asserts that all these communications are privileged.

A. April 2018 Communications

The Defendants and Mr. Alverson contend that Mr. Alverson's communications with Ms. Gantt and Ms. Kanaley in April 2018 are privileged. The Plaintiff does not meaningfully argue otherwise, and the Plaintiff does not argue that Ms. Gantt or Ms. Kanaley have disclosed the substance of any of these communications to third parties. The Plaintiff does contend that Ms. Gantt's waiver of the privilege as to other communications extends to these April 2018 communications.

The Defendants and Mr. Alverson have established that Mr. Alverson's April 2018 communications with Ms. Gantt and Ms. Kanaley concerning the police investigation and interview are privileged. They have sufficiently shown that the primary purpose of the communications was to secure legal advice or assistance regarding Ms. Kanaley's participation in a police interview as part of an ongoing criminal investigation. Cf. Knox, 957 F.3d at 1248. Mr. Alverson's and Ms. Gantt's testimony on this issue is consistent with one another and is not contradicted by any evidence in the record.

Whether there was waiver as to these communications will be addressed below.

B. September 2022 Text Communications

The Defendants and Mr. Alverson contend that Mr. Alverson's communications with Ms. Gantt in or around September 2022 are privileged. The Plaintiff counters that they are not privileged, and alternatively that Ms. Gantt has waived the privilege.

Before analyzing the parties' arguments further, the Court first makes the following observation. When an attorney is alleged, with some evidentiary support, to have tampered with a witness, the attorney should not be permitted to invoke the attorney-client privilege to shield a judicial inquiry into the very communications that form the basis of the alleged witness tampering. Invocation of the privilege in those circumstances is inconsistent with the privilege's purpose and does not serve the goals of “encourag[ing] full and frank communications between attorneys and their clients,” nor does it “promote broader public interests in the observance of law and administration of justice,” cf. Jaffee v. Redmond, 518 U.S. 1, 11 (1996) (quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)). Indeed, it does just the opposite.

In any event, the Defendants and Mr. Alverson have failed to show that the September 2022 text communications between Ms. Gantt and Mr. Alverson are attorney-client privileged because they have not shown that the purpose of the communications was to secure or transmit legal advice. Having reviewed the text messages between Mr. Alverson and Ms. Gantt, the Court discerns nothing constituting a transmission of or request for legal advice. Instead, they reveal, for example, Mr. Alverson's unsolicited initiation of a lengthy text communication with Ms. Gantt concerning this case and the unsolicited disclosure to Ms. Gantt of details about the Plaintiff, the allegations in this lawsuit, and matters discussed at the mediation, including the Plaintiff's settlement demand, which Mr. Alverson admits disclosing to Ms. Gantt. And Mr. Alverson acknowledges that his disclosure of the Plaintiff's settlement demand was not a privileged communication. (Doc. 178 at 10.) Construing them altruistically, the messages support the conclusion that Mr. Alverson was acting as Ms. Gantt's friend—and as the Board's attorney—when he relayed information to her. But in those circumstances, a lawyer's communications with his “client” are not privileged. See Davis, 636 F.2d at 1044; In re Cnty. of Erie, 473 F.3d at 421; Gaddy, 2015 WL 13545486, at *3. Additionally, although Ms. Gantt states in her Supplemental Declaration that she “asked to speak with [Mr. Alverson]” in September 2022—after he texted her that he felt she was being manipulated by the Plaintiff's attorneys—and twice in October 2022,⁷ she also states they did not speak at that time, and nothing in her Supplemental Declaration suggests that any of their September 2022 text communications involved a request for or transmission of legal advice.

The Court's conclusion should not be construed as either endorsing or foreclosing a finding that Mr. Alverson in those communications was attempting to improperly influence or manipulate Ms. Gantt and Ms. Kanaley into not testifying at trial. At this stage, the Court need not and does not decide whether Mr. Alverson was acting ethically and in good faith or, conversely, whether he was attempting to improperly influence or manipulate the witnesses when he communicated with Ms. Gantt in September 2022. That issue will be decided at a later date. Here, the Court merely concludes that the privilege proponents have not satisfied their burden to show that the September 2022 communications were “for the purpose of securing legal advice or assistance.” See Knox, 957 F.3d at 1248.

In his ex parte testimony, Mr. Alverson contextualized the September 2022 communications as relating to privileged information and facts Mr. Alverson knows through his legal representation of Ms. Gantt in separate matters, their April 2018 conversations regarding facts and issues involved in this lawsuit, and his representation of the Board in this litigation. Therefore, according to Mr. Alverson, the September 2022 communications are privileged as well. On this record, however, his testimony does not help the privilege proponents establish that the September 2022 communications are protected by the attorney-client privilege.

Even if the Court is incorrect and the September 2022 communications between Ms. Gantt and Mr. Alverson are attorney-client privileged, the Court concludes that the privilege has nonetheless been waived because Ms. Gantt voluntarily disclosed the substance of those communications to Ms. Han, and to the public in her Supplemental Declaration. In her Declaration and her in-person testimony, Ms. Han testified that over the course of several days in September 2022, Ms. Gantt disclosed to Ms. Han, in phone calls and text messages, the substance of text messages Ms. Gantt had received from Mr. Alverson. Specifically, on September 16, 2022, Ms. Gantt called Ms. Han and read out loud to Ms. Han text messages Ms. Gantt had received from Mr. Alverson. Ms. Han's telephone records corroborate that Ms. Gantt called her on September 16, during which they had a lengthy conversation. Additionally, the text messages produced by Mr. Alverson corroborate that he had text communications with Ms. Gantt on September 15. Ms. Han's Declaration sets forth details of the substance of Mr. Alverson's text messages as relayed to her by Ms. Gantt, and Ms. Han's phone records corroborate her testimony that Ms. Gantt called her that day. Additionally, on September 22, 2022, Ms. Gantt sent Ms. Han the following text message: “Today bill Alverson sent a text saying he played tennis with Libby and saw my mom in the country club parking lot and that we need to chat because of the aftermath for my family.” (Doc. 120-4 at 4, 12–13.)

In her Declarations, Ms. Gantt does not deny calling Ms. Han in September 2022 about Mr. Alverson's contacting her (Ms. Gantt) or that she relayed to Ms. Han the substance of Mr. Alverson's text messages as set forth in Ms. Han's declaration. Ms. Gantt does dispute that Mr. Alverson said she owed him money for her prior divorce and that he ever made threats concerning Ms. Kanaley's ability to teach in Andalusia, but she does not directly dispute telling Ms. Han that Mr. Alverson said these things. Ms. Gantt also does not deny texting Ms. Han on September 22 about Mr. Alverson texting Ms. Gantt that they “need[ed] to chat because of the aftermath for [Ms. Gantt's] family.” In her Supplemental Declaration, Ms. Gantt does state that she does not remember reading “word for word” all of her text messages with Mr. Alverson to Ms. Han over the phone. (Doc. 161-1 at 11.) However, unlike an express denial that she read the text messages to Ms. Han, Ms. Gantt's inability to remember doing so is insufficient to dispute Ms. Han's testimony. Cf. Griffin v. Biomat USA, Inc., No. 1:19-cv-604-ECM, 2021 WL 5042444, at *2–3 (M.D. Ala. Oct. 29, 2021) (in summary judgment context, where the plaintiff patient had testified regarding the defendant nurse's alleged treatment of the plaintiff, the defendant nurse's testimony that she did not remember treating the plaintiff was insufficient to create a genuine dispute of fact regarding the plaintiff's version of events); Chandler v. James, 985 F. Supp. 1094, 1100 (M.D. Ala. 1997) (in summary judgment context, explaining that “a witness who states that [s]he cannot remember whether or not an event alleged to have happened by the moving party actually took place” fails to negate the moving party's version of events). Although Griffin and Chandler addressed the parties' respective burdens at summary judgment, the Court finds the reasoning of those cases persuasive and instructive here. Moreover, the Court is not aware of any binding authority standing for the proposition that waiver occurs only if privileged communications are disclosed “word for word.” Instead, cases observe that disclosure of the substance of a privilege communication results in waiver. See, e.g., Knox, 957 F.3d at 1249; Iqris Techs. LLC v. Point Blank Enters., Inc., No. 21-CV-61976, 2023 WL 122190, at *2 (S.D. Fla. Jan. 6, 2023). Consequently, Ms. Gantt's voluntary disclosure of the substance of these communications to Ms. Han results in a waiver of any attorney-client privilege that may have attached to those communications. See Suarez, 820 F.2d at 1160; Weil, 647 F.2d at 24; Cote, 456 F.2d at 144–45.

Additionally, to the extent Mr. Alverson's text to Ms. Gantt that he felt she was being manipulated by the Plaintiff's attorneys, Ms. Gantt's subsequent request(s) to speak with him, or both constitute privileged communications, Ms. Gantt waived the privilege when she disclosed the substance of these communications in the Supplemental Declaration she executed and which was filed with the Court on the public docket. Cf. Banneker Ventures, LLC, 253 F. Supp. 3d at 73 (concluding that public disclosure of document containing attorney-client privileged information resulted in a waiver of the privilege).

Neither Mr. Alverson nor the Defendants dispute that voluntary disclosure to a third party waives the privilege. The Defendants assert that Ms. Gantt did not waive the privilege based on a statement in her declaration that she did not intend to waive it. But the Defendants do not explain how Ms. Gantt's subjective intent regarding waiver has any bearing on the undisputed legal rule that voluntary disclosure to a third party waives the privilege. And once the privilege has been waived, it cannot be reasserted. See Suarez, 820 F.2d at 1160. The Defendants do not cite any authority for the proposition that the privilege can be resurrected months after the client's voluntary disclosure to a third party.

The Defendants also state that even with the benefit of Ms. Gantt's Declarations and Ms. Han's testimony, the Board “still does not know whether Ms. Gantt disclosed privileged communications to Plaintiff's attorneys on the phone in September 2022 and, if so, the Board does not know the substance of those communications.” (Doc. 180 at 4–5.) Given Ms. Han's unrefuted testimony concerning her conversations with Ms. Gantt, the Court finds this statement puzzling. To the extent the Defendants assert they still do not know whether there was any disclosure because Ms. Gantt has not expressly admitted to any disclosure, this argument is without merit. As previously explained, Ms. Han's testimony on the subject was not refuted by Ms. Gantt, nor was it refuted by any other record evidence.

Mr. Alverson raises several arguments that no waiver occurred, but none of them is persuasive. First, Mr. Alverson's position is that Ms. Gantt only relayed the substance of one communication to Ms. Han, Mr. Alverson's admonition regarding “the aftermath for [her] family”; he thus suggests that waiver occurred only as to this communication. (Doc. 178 at 13.) He observes that Ms. Han's declaration contains “several purported statements by Ms. Gantt about text communications [with Mr. Alverson] that did not occur,” (id.), referring to the purported statements about teaching opportunities and legal fees.⁸ But this position ignores the portion of Ms. Han's declaration that Mr. Alverson himself corroborated—that he shared with Ms. Gantt the Plaintiff's confidential mediation settlement demand—as well as other portions of Ms. Han's declaration which neither Mr. Alverson nor Ms. Gantt have directly disputed: specifically, that Mr. Alverson told Ms. Gantt she should consider how it might affect her, Ms. Kanaley, and other members of Ms. Gantt's family if Ms. Gantt and Ms. Kanaley testified at trial; and that negative things may come out about Ms. Gantt on the stand if she testified. It also ignores Ms. Gantt's Declaration testimony that Mr. Alverson told her he felt she was being manipulated by the Plaintiff's attorneys. To the extent that any of those communications were privileged in the first instance, Ms. Gantt waived the privilege through her voluntary disclosure to third parties.

Additionally, Mr. Alverson argues that existing case law establishes that the implied waiver doctrine is implicated where a party “has placed the privileged information at issue in the case, and it would be unfair not to allow the opposing party to defend against it.” (Id. at 8.) Mr. Alverson suggests that no waiver occurred here because Ms. Gantt is not a party to this case, the privileged communications concern information that is not probative of a relevant issue in the case, neither Ms. Gantt nor Mr. Alverson placed the information at issue, and “[t]here is no piece of privileged information relied upon by a party to this case which puts the other party at a disadvantage.” (Id. at 6–8.)

Mr. Alverson's arguments are unavailing. First, although there may not be case law directly addressing the circumstances presented here, the Court is not persuaded that, under existing Supreme Court and Eleventh Circuit case law, disclosure of privileged communications to a third party does not result in a waiver where the underlying communications are alleged, with some evidentiary support, to have been made for the purpose of attempting to improperly influence or manipulate witnesses into not cooperating or testifying at trial. Additionally, the binding authority relied upon by Mr. Alverson does not support the conclusion that Ms. Gantt's status as a witness as opposed to a party is dispositive. And contrary to Mr. Alverson's assertion, the privileged communications at issue here concern highly probative information regarding a relevant issue, namely whether Mr. Alverson improperly influenced, intimidated, or tampered with nonparty witnesses such that they are no longer willing to communicate with Plaintiff's counsel or testify at trial. And without the information, the Plaintiff is at a disadvantage because she cannot discover the full nature and extent of Mr. Alverson's communications with the witnesses or vindicate her loss of their cooperating testimony at trial, to the extent Mr. Alverson is responsible for the loss.

In sum, the Court concludes that the September 2022 communications have not been shown to be privileged, and alternatively, that any privilege was waived by Ms. Gantt.

C. December 2022 Communications

The Plaintiff contends that the communications during the December 2022 meeting are not attorney-client privileged because Mr. Alverson was acting as the Board's lawyer rather than Ms. Gantt's lawyer. The Plaintiff also argues that Ms. Gantt waived any privilege by disclosing the substance of the communications in her Supplemental Declaration, which was first voluntarily disclosed to the Defendants' counsel of record and then to the general public when it was filed on the public docket. The Defendants and Mr. Alverson contend that the December 2022 communications are privileged and also that no waiver occurred.

On the one hand, Ms. Gantt and Mr. Alverson have testified that in the December meeting she sought his legal advice and counsel concerning her participation in this lawsuit, which is evidence supporting a conclusion that their communications are privileged. On the other hand, Mr. Alverson testified that he also met with her at the Board's request because Ms. Gantt was listed as a witness and the Board wanted to know “what she's going to say,” and Mr. Alverson also billed the Board for his time at the meeting (which he described in his billing records as a meeting with a witness), all of which is evidence supporting a conclusion that the communications are not privileged.

The privilege proponents have not shown that Ms. Gantt and Mr. Alverson's communications regarding the facts and issues involved in this lawsuit, including Ms. Gantt's participation in this lawsuit, during their December 2022 meeting are attorney-client privileged because they have not shown that the primary purpose of the communications was to secure or transmit legal advice. Mr. Alverson's own testimony reflects that he also met with Ms. Gantt in his capacity as the Board's attorney and at the Board's request because she was listed as a witness and the Board wanted to know “what she's going to say.” Additionally, his billing records, which reflect that he billed the Board for three hours for meeting with a “witness,” is strong evidence that the primary purpose of their communications was not to give Ms. Gantt legal advice and instead that Mr. Alverson was primarily acting as the Board's attorney and in the Board's interest.

Even if the Court is incorrect and the December 2022 communications between Ms. Gantt and Mr. Alverson are attorney-client privileged, the Court concludes that any privilege was waived upon the public filing of Ms. Gantt's Supplemental Declaration, which she said she “intend[ed] ․ to be submitted to the Court on my behalf,” (Doc. 161-1 at 1), and which discloses the substance of at least some of her communications with Mr. Alverson during that meeting. Cf. Banneker Ventures, LLC, 253 F. Supp. 3d at 73.⁹ Specifically, she disclosed in her Supplemental Declaration that she sought Mr. Alverson's legal advice in December 2022 “on how to not be involved in the case,” (Doc. 161-1 at 8), and elaborated that in their meeting, Mr. Alverson told her that the Plaintiff's attorneys could not require her to testify unless they subpoenaed her, and that she is outside the Court's subpoena power because she lives in South Carolina. She also says she asked him for his legal opinion about what she could or should do next, and she says he told her it was her choice. The public filing of her Supplemental Declaration results in a waiver of the attorney-client privilege as to these communications and any others referenced in the Supplemental Declaration.

Citing the common-interest doctrine, the Defendants argue that the disclosure of drafts of Ms. Gantt's Supplemental Declaration to Defendants' counsel did not result in waiver. The Court finds the Defendants' reliance on the common-interest doctrine misplaced in these circumstances and, in any event, irrelevant because Ms. Gantt's Supplemental Declaration was also filed in open court. The Defendants contend, in a single sentence with no citation to authority, that no waiver occurred when Ms. Gantt's Supplemental Declaration was attached to a notice the Defendants filed with the Court on the public docket. The Court finds this contention frivolous and insufficient to alter the Court's conclusion that any privilege has been waived.

D. March through May 2023 Text Message Communications

The text messages produced by Mr. Alverson show that he and Ms. Gantt communicated about this lawsuit and her participation in it between March and May 2023. Moreover, Ms. Gantt's Supplemental Declaration describes the substance of certain text messages between her and Mr. Alverson during this time concerning this lawsuit and her participation in it. No one contends that these specific communications are privileged. It therefore follows that the privilege proponents have failed to meet their burden to show that these specific communications are privileged.

E. Extent of the Waiver

The Court now turns to the extent of the waiver. It is well-settled that when the client waives the privilege by testifying about portions of attorney-client communications, “she cannot thereafter insist that the mouth of the attorney be shut,” hence “the rule that testimony as to part of a privileged communication, in fairness, requires production of the remainder.” In re von Bulow, 828 F.2d 94, 101 (2d Cir. 1987) (citing Hunt v. Blackburn, 128 U.S. 464, 470–71 (1888)); see also Cox, 17 F.3d at 1417 (observing that a client “may not use the privilege ․ to disclose some selected communications for self-serving purposes” (citation omitted)). And Federal Rule of Evidence 502 provides that waiver of the attorney-client privilege “extends to an undisclosed communication ․ only if: (1) the waiver is intentional; (2) the disclosed and undisclosed communications ․ concern the same subject matter; and (3) they ought in fairness to be considered together.”

Mr. Alverson acknowledges that the privilege waiver extends to all communications regarding the same subject matter. (Doc. 178 at 9.) He further argues that Rule 502's fairness element is lacking, but only in the context of whether waiver occurred at all and not regarding subject matter waiver, and in any event he does not expressly challenge Rule 502's other elements. (See id. at 8–9.) The Defendants contend, with no analysis or citation to authority, that the privilege is only waived as to the specific communications. Moreover, the Defendants do not mention let alone analyze Rule 502. For the same reasons explained above concerning prejudice, the disclosed and undisclosed communications ought in fairness be considered together. See FED. R. EVID. 502. Given this conclusion, and the absence of any dispute as to the remaining Rule 502 elements, the Court concludes that the waiver extends to all communications concerning the same subject matters.

The Court now addresses subject matter. With respect to the September 2022 text messages, Mr. Alverson's position is that Ms. Gantt only relayed the substance of one communication to Ms. Han, Mr. Alverson's admonition regarding “the aftermath for [her] family,” and thus any waiver would extend only to that subject matter. (Doc. 178 at 13.) He observes that Ms. Han's declaration contains “several purported statements by Ms. Gantt about text communications [with Mr. Alverson] that did not occur,” (id.), referring to the purported statements about teaching opportunities and legal fees. But as explained above, this position ignores other portions of Ms. Han's Declaration as well as Ms. Gantt's Declaration testimony that Mr. Alverson told her he felt she was being manipulated by the Plaintiff's attorneys. To the extent those communication were privileged, Ms. Gantt waived the privilege, and the waiver extends to undisclosed communications concerning those subject matters.

With respect to the December 2022 meeting, Mr. Alverson acknowledges that any waiver would result in a waiver by Ms. Gantt as to “communications on the subject matter of communications with Mr. Alverson as to whether and to what extent Ms. Gantt was required to testify or participate in the trial,” given the substance of what Ms. Gantt disclosed in her Supplemental Declaration. (Id. at 11.) The Court agrees.

Consequently, the Court finds that the privilege waiver extends to all communications between Ms. Gantt and Mr. Alverson concerning the following subject matters: the impact on Ms. Gantt, Ms. Kanaley, and other members of Ms. Gantt's family if Ms. Gantt and Ms. Kanaley testified at trial; negative things coming out about Ms. Gantt on the stand if she testified; the Plaintiff's settlement demand(s); the aftermath for Ms. Gantt's family if she testifies; Ms. Gantt's requests to speak or meet with Mr. Alverson; Ms. Gantt's being manipulated by the Plaintiff's attorneys; whether and to what extent Ms. Gantt was required to testify or participate in the trial; all other subject matters discussed in the text messages between Mr. Alverson and Ms. Gantt from September 2022 through May 2023; and all other subject matters discussed in Ms. Gantt's Declarations.

V. CONCLUSION

Accordingly, it is

ORDERED as follows:

1) On or before August 1, 2023, Attorney Bill Alverson shall file under seal—but not ex parte—a copy of all text messages and Facebook Messenger messages between him and Ms. Gantt from September 2022 through May 2023. Said messages shall be Bates-stamped and marked as “Confidential.” Information unrelated to this litigation may be redacted.

2) The evidentiary hearing regarding the Plaintiff's Motion for Sanctions (Doc. 120) and the Defendants' Motion for Sanctions (Doc. 144) shall resume on August 11, 2023 at 9:30 a.m. CT, in Courtroom 2D, Frank M. Johnson, Jr. United States Courthouse, One Church Street, Montgomery, Alabama. The Clerk of Court is DIRECTED to provide a court reporter.

3) Mr. Alverson, Ms. Han, Dr. Shakespeare, and Ms. Dugger shall attend the hearing.

DONE, on this the 18th day of July, 2023.

FOOTNOTES

2.   In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.

3.   Ted Watson has been dismissed as a party. (See Doc. 91 at 59.)

4.   The Defendants also took the position that the communications cannot be disclosed to the Court, even in an in camera capacity. (See, e.g., Doc. 145 at 9–10.) The Defendants are incorrect in this contention. See, e.g., United States v. Zolin, 491 U.S. 554, 568–69 (1989).

5.   Libby is Ms. Gantt's sister.

6.   Mr. Alverson's billing records characterized the meeting as a meeting with a witness.

7.   Ms. Gantt's statements in the Supplemental Declaration strongly imply that, in September 2022, she—not Mr. Alverson—is the one who first suggested or requested that they talk about this case. However, the text messages do not support this version of events. Additionally, the text messages do not reflect that Ms. Gantt made any request in October 2022 to speak with Mr. Alverson—although, according to Ms. Gantt, she and Mr. Alverson also communicated via Facebook Messenger during this time.

8.   As noted above, Ms. Gantt disputes that Mr. Alverson said these things to her, but she has not directly disputed telling Ms. Han that Mr. Alverson said these things.

9.   The Supplemental Declaration was filed on the public docket even though the Court had previously allowed the parties and Mr. Alverson to file documents containing potentially privileged communications and information ex parte for the Court's in camera review; indeed, before Ms. Gantt's Supplemental Declaration was filed, the Defendants and Mr. Alverson had availed themselves of this ex parte filing option.

R. AUSTIN HUFFAKER, JR. UNITED STATES DISTRICT JUDGE