Untimely Privilege Objections Waived; However, Dissolved Entity Had No Privilege

Untimely privilege objections to a subpoena were waived.  However, the dissolved entity no longer had any privilege.  Utah Physicians for a Healthy Environment, Inc. v. Diesel Power Gear, LLC, 2025 WL 2144788 (D. Ut. Jul. 29, 2025).

In this case, the plaintiff is attempting to collect on a judgment.  Presumably, plaintiff is engaged in discovery in aid of execution.

“The present dispute centers on texts and emails referenced in a privilege log.”  Plaintiff served a subpoena on Mr. Perkins, who was the manager of defendant, DPG. The deadline for an objection was 14 days from service.  Mr. Perkins did not object. His deposition was taken, and defense counsel did not object.  Later, defense counsel, Mr. Cannon, “produced a privilege log claiming attorney-client privilege for 117 texts and 20 email chains between Mr. Cannon and Mr. Perkins.” After the milestone date for objections, DPG shut down and filed articles of dissolution.

The Utah Physicians court stated that there were two issues: “The court finds the resolution of the instant dispute turns on Rule 45 and the dissolution of DPG.”

First, the objection was untimely and therefore waived.

Under Rule 45, an objection to a subpoena “must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served.” Mr. Perkins did not object to the subpoena and neither did Defendants or their counsel. Rather on February 14, 2025, long after the deadline to object to the subpoena, Defendants’ counsel filed a privilege log claiming the attorney-client privilege for texts and emails with Mr. Perkins. Defendants’ objections to the subpoena were untimely under Rule 45 waiving any assertions of privilege.

Second, because DPG was dissolved, it had no privilege:

Further, Mr. Perkins informed the court that DPG has ceased operations and filed for dissolution. In federal courts, the “weight of authority … holds that a dissolved or defunct corporation retains no privilege.” In essence, “[o]nce a corporation becomes defunct, the policy interests supporting shielded communications fall away. Thus, even if the attorney client privilege is owned by DPG, any claims of privilege that DPG may have had in the materials would also be waived. [citations omitted].

In context the Utah Physicians court wrote: “There have been multiple writs of execution sought, and the court has found Defendants in civil contempt for violating its Fees Order. The court has also held multiple hearings regarding collection efforts and Defendants’ continued failures to satisfy their obligations.”