United States District Court, D. Montana, Billings Division
JOSIAH BURKE AND CRYSTAL BURKE, husband and wife, individually and on behalf of their minor children, Plaintiffs,
BRIAN OSNESS, DALE OSNESS, TOM FERGUSON, individually and as agent for TF CONSTRUCTION, and DALLAS CRANFORD, individually and as agent for LIBERTY ENVIRONMENTAL, LLC, Defendants.
OPINION AND ORDER
P. WATTERS UNITED STATES DISTRICT JUDGE
the Court is Defendant Dallas Cranford's motion to compel
discovery from the Plaintiffs Josiah and Crystal Burke. (Doc.
48). For the following reasons, the motion is denied.
Plaintiffs, a married couple with children, began renting a
home from Brian and Dale Osness during the summer of 2016. In
early spring of 2017, the Osnesses renovated the bathroom in
the home and allegedly disturbed asbestos, contaminating the
living space. As a result, the Plaintiffs and their children
allegedly lost nearly all their possessions and face an
increased risk of developing asbestos-related illnesses. The
Plaintiffs filed suit on their own behalf and on behalf of
their children, against the Osnesses, Tom Ferguson and TF
Construction, and Dallas Cranford and Liberty Environmental.
discovery, Cranford made requests for production. Request for
Production No. 10 asked for "all correspondence sent
from February 6, 2017, to present on any platform ... that
relate in any way to the remodel of the bathroom, your claim,
your injuries, or your damages." (Doc. 51-1 at 6).
Request for Production No. 13 asked for "all recorded
communication between Crystal and Josiah from February 6,
2017, and April 6, 2017, including, but not limited to, text
messages, voicemails, and Facebook posts or Facebook
Messenger." (Doc. 51-1 at 6). The Plaintiffs responded
via letter, stating to the extent Request for Production No.
10 asked for correspondence between the Plaintiffs, it was
subject to spousal privilege. For the same reason, the
Plaintiffs stated all of the information asked for in Request
for Production No. 13 was subject to spousal privilege.
Cranford disagreed, and the two sides attempted but failed to
come to a resolution, prompting Cranford to file this motion
argues communication between the Plaintiffs is not privileged
because the Plaintiffs have not attempted to keep their
asbestos exposure confidential. Cranford states they have
spoken to others about their asbestos exposure and have
posted on social media about their asbestos exposure.
not the way the spousal privilege works in Montana. The
spousal privilege's guiding principle is to protect the
sanctity of the marriage and the home. State v.
Forsythe, 390 P.3d 931, 935-936 (Mont. 2017) (citing
In re Marriage of Sarsfield, 671 P.2d 595, 600
(Mont. 1983)). It achieves that aim by protecting
communications between spouses intended to be confidential.
State v. Edwards, 260 P.3d 396, 401 (Mont. 2011)
(citing State v. Nettleton, 760 P.2d 733, 736
(1988)). The key question is whether the communication itself
was intended to be confidential, not the subject matter the
communication covered. State v. Forsythe, 390 P.3d
931, 935-936 (Mont. 2017). Put differently, it doesn't
matter what was said, what matters is who said it and who
heard it. Forsythe, 390 P.3d at 935 (citing
Nettleton, 760 P.2d at 736).
text messages or instant messages exchanged between the
Plaintiffs regarding their asbestos exposure are protected by
spousal privilege because the messages are confidential
communications between husband and wife. There is no evidence
the texts or instant messages exchanged between the
Plaintiffs were intended to be seen or read by anyone but
themselves. There is no third-party in the text or instant
message thread. The fact the Plaintiffs spoke with others
about their asbestos exposure does not render what they said
to each other on the same subject matter non-confidential. A
solemn example: a woman dying of cancer is free to put on a
brave face for the world without having to reveal the deepest
and most intimate fears she shared with her husband. The
Court holds the text and instant messages exchanged by the
Plaintiffs are protected by the spousal privilege.
argues even if the text and instant messages are privileged,
the Plaintiffs have waived the privilege by selectively
disclosing some messages and by putting what they knew about
the asbestos in issue.
may impliedly waive a privilege by making assertions in the
litigation that in fairness requires examination of the
protected communications. In re Marriage of Perry,
293 P.3d 170, 179 (Mont. 2013) (citing Dion v. Nationwide
Mut. Ins. Co., 185 F.R.D. 288, 295 (D. Mont. 1998)).
However, a court cannot find a waiver simply because the
privileged communication might be helpful or relevant to the
opposing party. Dion, 185 F.R.D. at 295. To waive
the privilege, a party must do more than merely deny the
opposing party's accusations. He or she must
affirmatively raise the issue involving the privileged
communications. Dion, 185 F.R.D. at 295. Implied
waiver reflects the notion that a privilege is intended to be
a shield, not a sword. Dion, 185 F.R.D. at 295.
"In other words, '[a] defendant may not use the
privilege to prejudice his opponent's case or to disclose
some selected communications for self-serving
purposes.'" Dion, 185 F.R.D. at 295
(quoting Cox v. Administrator U.S. Steel &
Carnegie, 17 F.3d 1386, 1418(11th Cir. 1994)).
classic example of implied waiver is when an insurer pleads
advice of counsel as an affirmative defense to a bad faith
claim, but when the opposing party attempts to discover
information about the affirmative defense, the insurer
asserts attorney-client privilege. In that situation, the
insurer is said to have impliedly waived the privilege
because it made an affirmative act which put the privileged
information at issue and the opposing party has no way to
contest the issue without the privileged information. See
Palmer by Diacon v. Farmers Insurance, 861 P.2d 895, 907
in contrast, the Plaintiffs have not made affirmative acts
which place their privileged communications at issue.
Cranford argues the Plaintiffs put their privileged
communications in issue by making what and when the
Plaintiffs knew about the asbestos an issue of fact. But it
wasn't the Plaintiffs that put it into issue, it was
Cranford's affirmative defense of comparative fault.
Cranford pled as an affirmative defense that the Plaintiffs
were comparatively at fault for their and their minor
children's injuries. The basis for the affirmative
defense is that the Plaintiffs apparently stayed in the home
for a period of time after knowing or having reason to know
of the asbestos exposure risk. Thus, any information the
Plaintiffs possess that tends to show they knew about the
asbestos exposure risk would be useful to Cranford. But
however useful the Plaintiffs' text and instant messages
may be to Cranford's affirmative defense, he cannot waive
their privilege for them. Dion, 185 F.R.D. at 295.
Unlike the insurer in Palmer, which made its
privileged communications with its attorneys an issue by
pleading as an affirmative defense that it relied on its
counsel's advice when handling an insurance claim,
Cranford fails to point to any affirmative act by the
Plaintiffs that puts their privileged communications into
issue. Furthermore, unlike an advice of counsel defense,
where the actual communication between the attorney and the
insurer is the only source of information, fairness does not
require examination of the Plaintiffs' text and instant
messages because what and when the Plaintiffs knew about the
asbestos is readily discoverable and provable by other means,
such as Cranford's testimony, the Osnesses's
testimony, the Plaintiffs' testimony, and the multiple
documents produced during discovery.
also argues the Plaintiffs disclosed a screenshot of text
messages which advance their case and prejudice his defense.
In the screen shot, the Plaintiffs are texting about finding
a hotel and an offer by the Osnesses to replace the
Plaintiffs' clothing and bedding. Cranford argues the
screenshot is being used to show the Osnesses offered to
replace the Plaintiffs' clothing and bedding. First,
it's not entirely clear why the screenshot was produced.
The Plaintiffs apparently disclosed the screenshot as part of
their initial disclosures, and then referred to the
screenshot in response to interrogatories and request for
production by the Osnesses for any communications the
Plaintiffs had with the Osnesses. Second, if that is indeed
the purpose for it, it's redundant evidence. The
Plaintiffs also produced multiple non-privileged
communications showing the same alleged fact, and presumably
one or both of them will testify that the offer occurred.
Cranford also argues the Plaintiffs referenced a text message
in response to an interrogatory. The reference, which
appeared in the body of a several page narrative recounting
the Plaintiffs' memory of events, stated "Josiah
texted Crystal after it was discovered there was no
insulation in the walls." Again, it's unclear to the
Court why the text was referenced, and again the text does
not materially advance or promote the Plaintiffs' case.
The reference appears to be an inadvertent or immaterial
aside made in the context of a long ...