United States District Court, D. Minnesota
E. Wojtalewicz, Wojtalewicz Law Firm, Ltd., (for Plaintiff);
Lastovich and Elizabeth S. Gerling, Jackson Lewis P.C., (for
E. RAU, UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Plaintiff's Motion for
Further Consideration of Sealing of certain emails between
Plaintiff and his counsel as well as Plaintiff's
memorandum and declaration discussing these emails. (ECF No.
348; see also ECF Nos. 227-28, 333-37). For the
reasons set forth below, the Court denies Plaintiff's
motion and affirms its previous order directing that these
documents be unsealed.
sued Defendants on January 3, 2011 under the Federal False
Claims Act and under the Minnesota False Claims Act. (ECF No.
1). At initiation of suit, there were two Plaintiffs, David
Kunz and David Feinwachs; only Feinwachs remains. The history
of this case is lengthy and litigious; the Court therefore
only discusses the brief facts relevant to the instant
counsel emailed Kunz and Feinwachs about gathering evidence
to pursue litigation on May 19 and July 12, 2010.
(See ECF Nos. 227-28, 335-37). Counsel emailed Kunz
and Feinwachs on their personal Comcast email accounts.
(See ECF Nos. 227-28, 335-37). Kunz forwarded the
email to Feinwachs. (See ECF No. 349, at 4).
Plaintiff argues it is unclear whether Kunz forwarded this
email to Feinwachs' personal or work email while
Defendant argues it was to Feinwachs' work email.
(See ECF Nos. 349, 357). Regardless of which of
Feinwachs' email accounts the email was forwarded to,
Defendants discovered these emails on the MHA public network.
(See ECF No. 342, at 40).
email communications at issue in the instant motion were
subject to Plaintiff's Motion in Limine No. 12, ruled on
by Chief Judge John R. Tunheim. Plaintiff brought Motion in
Limine No. 12 concerning “communications between
plaintiff's counsel and David Feinwachs and/or David
Kunz.” (ECF No. 217). This motion specifically
referenced emails between counsel and Feinwachs and Kunz,
(see ECF No. 217), and at the motion hearing it was
clarified that “[t]he only thing that we're talking
about now is the email communications between Mr. Feinwachs
and his various lawyers that existed on the MHA's network
. . . .” (ECF No. 330, at 39). In other words, the
emails in the instant motion were addressed via Motion in
Limine No. 12. Regarding that motion, Chief Judge Tunheim
With respect to the e-mails, the documents that were found on
the association's server, you know, the policy seemed
relatively clear that this is not private, and then we have
the issue of waiver. So I think that what Mr. Lastovich has
referred to as a handful of documents are admissible here, so
I will deny the motion.
(ECF No. 330, at 41). Notwithstanding this ruling, Plaintiff
now seeks to seal some of the emails.
argues the emails at issue should be sealed for multiple
reasons. Plaintiff argues the emails are protected as
attorney work product and attorney client communications.
Plaintiff reasons the emails are between counsel and the
individuals who initiated this suit, and that the emails had
an attorney-client communication disclaimer. Plaintiff also
argues Chief Judge Tunheim still intends to rule on whether
the emails at issue are protected as work product. The Court
finds that law-of-the-case doctrine dictates that
Plaintiff's motion should be denied.
law-of-the-case doctrine is a means to prevent relitigating a
settled issue in a case. United States v. Bartsh, 69
F.3d 864, 866 (8th Cir. 1995). The doctrine “requires
courts to adhere to decisions made in earlier proceedings in
order to ensure uniformity of decisions, protect the
expectations of the parties, and promote judicial
economy.” Id. In other words, the doctrine
“‘posits that when a court decides upon a rule of
law, that decision should continue to govern the same issues
in subsequent stages in the same case.'” United
States v. Carter, 490 F.3d 641, 644 (8th Cir. 2007)
(quoting Arizona v. California, 460 U.S. 605, 618
Judge Tunheim has deemed the emails found on the MHA server
“not private, ” thus precluding any argument
Plaintiff has about the emails being protected as attorney
client communications or work product. (See ECF No.
330, at 41). In other words, by forwarding emails from
private email accounts to work email accounts on a public
server, Plaintiff ...