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Boulangger v. Ohio Valley Eye Institute, P.C.

Court of Appeals of Indiana

December 21, 2017

Diyee Boulangger, Appellant-Defendant,
v.
Ohio Valley Eye Institute, P.C., Appellee-Plaintiff.

         Appeal from the Vanderburgh Superior Court The Honorable Robert J. Tornatta, Judge Trial Court Cause No. 82D06-1503-CT-1047.

          Attorneys for Appellant David A. Guerrettaz John M. Luttrull Ziemer Stayman Weitzel & Shoulders, LLP Evansville, Indiana.

          Attorneys for Appellee Joseph H. Langerak IV Spencer W. Tanner Evansville, Indiana.

          PYLE, JUDGE.

         Statement of the Case

         [¶1] In this interlocutory appeal, Appellant/Defendant, Diyee Boulangger ("Boulangger"), appeals the trial court's denial of her motion to quash Appellee/Plaintiff, Ohio Valley Eye Institute, P.C.'s ("OVEI"), non-party request for production of documents and subpoena duces tecum of her attorney-fee payments in a civil conversion, theft, theft by false impression, fraud, and forgery action. She argues that the documentation of her attorney fee payments might incriminate her and is, therefore, protected by the attorney-client privilege and her Fifth Amendment privilege against self-incrimination. Because we find that Boulangger's fee payments are not protected communications under either the attorney-client privilege or the Fifth Amendment, we conclude that the trial court did not abuse its discretion in denying her motion to quash the request for production of documents and subpoena duces tecum. We affirm the trial court's decision.

         [¶2] We affirm.

         Issue

         Whether the trial court abused its discretion when it denied Boulangger's motion to quash OVEI's non-party request for production of documents and subpoena duces tecum.

         Facts

         [¶3] On March 2, 2015, OVEI filed a complaint against Boulangger, its former employee. In its complaint, OVEI raised civil claims of conversion, theft, theft by false impression, fraud, and forgery, alleging that Boulangger had over-reported her hours and hourly rate during her three years of employment. The State also charged Boulangger criminally, but it dismissed the charges without prejudice on February 24, 2016. In answer to OVEI's complaint, Boulangger entered a general denial to OVEI's claims, stating that she was "under threat of prosecution for the alleged actions, " and invoked her Fifth Amendment privilege against self-incrimination. (Appellant's App. Vol. 2 at 34).

         [¶4] On June 5, 2015, OVEI filed a motion for summary judgment on its complaint.[1] Boulangger responded to the motion for summary judgment and designated an affidavit from her counsel, David A. Guerrettaz ("Counsel Guerrettaz"), as evidence. In the affidavit, Counsel Guerrettaz averred that in August of 2016, he had become aware that the Evansville Police Department ("Police Department") had continued to investigate Boulangger criminally after the State had dismissed its criminal charges. Specifically, he had learned that the Police Department had obtained a search warrant for Boulangger's email and chatroom conversations through Boulangger's email service provider. In light of this continuing investigation and the potential for the State to bring new charges against Boulangger, Counsel Guerrettaz argued that "[Boulangger could not] present by affidavit facts essential to justify her position" in her response to the summary judgment motion without violating her Fifth Amendment right against self-incrimination. (Appellant's App. Vol. 2 at 43).

         [¶5] Subsequently, the trial court entered summary judgment in favor of OVEI and awarded OVEI a judgment of $518, 817.80 plus costs and post-judgment interest against Boulangger. On January 19, 2017, OVEI filed a verified motion for proceedings supplemental to execution claiming that Boulangger had undisclosed assets, income, and profits or other non-exempt property that could be applied to satisfy OVEI's judgment. It requested that the trial court order Boulangger to appear in court to testify to any non-exempt property that could be applied to satisfy the judgment. OVEI also served Counsel Guerrettaz's law firm, Ziemer, Stayman, Weitzel & Shoulders, LLP ("ZSWS"), with a non-party request for production of documents ("Request for Production of Documents") and a subpoena duces tecum ("Subpoena"). In its Request for Production of Documents and Subpoena, OVEI requested that Counsel Guerrettaz and ZSWS produce "[c]opies of any and all check and/or wire transfers received from [Boulangger] or from others on behalf of [Boulangger] for legal fees paid for her representation." (Appellant's App. Vol. 2 at 48, 50). Boulangger filed a motion to quash the Request for Production of Documents and Subpoena.[2] In her motion to quash, Boulangger argued that the documentation OVEI had requested was protected by the attorney-client privilege and by Boulangger's Fifth Amendment right against self-incrimination. OVEI filed an objection to the motion to quash, arguing that the information regarding Boulangger's attorney fee payments was not protected by attorney-client privilege and did not implicate Boulangger's Fifth Amendment Privilege.

         [¶6] After an attorney conference on the pending motions, the trial court ordered Counsel Guerrettaz/ZSWS to produce copies of any checks and/or wire transfers received from Boulangger to pay for her legal fees. Boulangger timely moved the trial court to certify its order for interlocutory appeal, and the trial court certified the order. This courted ...


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