Opinion
CIV. NO. 99-892 SECTION "E" (2).
April 27, 2000.
ORDER AND REASONS
Defendant, The Sherwin-Williams Company ("SWC"), moved to compel plaintiff, Tonti Properties ("Tonti"), to provide responses to SWC's Second Set of Interrogatories and Second Set of Request for Production of Documents, on grounds that no responses had yet been received. However, plaintiff provided responses, apparently serving them by mail on the day before the motion was filed, and counsel for defendant has acknowledged that his motion is moot as to Interrogatory No. 1 and Request for Production Nos. 1 and 2. Therefore, the motion is DISMISSED AS MOOT as to Interrogatory No. 1 and Request for Production Nos. 1 and 2, EXCEPT that the copy of plaintiff's interrogatory answers provided to me in connection with this motion does not contain the verification required by Fed.R.Civ.P. 33(b)(1) and (2). Plaintiff must provide the required verification by May 9, 2000.
However, SWC also seeks to compel an adequate response to Request for Production No. 3, which requests "any and all documents that relate in any way to [plaintiff's] claim for attorney's fees and costs. This request includes, but is not limited to, all invoices, expense sheets, contingency fee contracts, totals of fees and/or costs, etc." Tonti objects to the production of any responsive documents "as the information is the subject of attorney-client privilege. Further, plaintiff's [sic] object on the basis that the issue of attorney's fees will ultimately be determined by the trier of fact."
SWC's motion to compel is GRANTED as to Request for Production No. 3. The requested information is clearly relevant to Tonti's claim for attorney's fees. It is certainly not a valid objection that the information sought relates to an issue that will ultimately be decided by the trier of fact. The very purpose of discovery is to uncover information that will lead to evidence that will be admissible on such an ultimate issue.
As to plaintiff's claim of attorney-client privilege, the Louisiana Code of Evidence defines the privilege as follows.
Louisiana law of privilege applies in this products liability action founded on diversity jurisdiction. Under Federal Rule of Evidence 501, privilege questions are governed by the federal courts' interpretation of federal common law except when state law supplies the rule of decision, in which case state law on privilege governs. Fed.R.Evid. 501; United States v. Moore, 970 F.2d 48, 49-50 (5th Cir. 1992); Hancock v. Hobbs, 967 F.2d 462, 466 (11th Cir. 1992); Robertson v. Neuromed, Ctr., 169 F.R.D. 80, 81-82 (M.D. La. 1996); Soriano v. Treasure Chest Casino, Inc., No. 95-3945, 1996 WL 736962, at *2 (E.D. La. Dec. 23, 1996).
A client has a privilege to refuse to disclose, and to prevent another person from disclosing, a confidential communication, whether oral, written, or otherwise, made for the purpose of facilitating the rendition of professional legal services to the client, . . . when the communication is: . . . [b]etween the client or a representative of the client and the client's lawyer or a representative of the lawyer.
La. Code Evid. art. 506(B). A communication is "confidential" if it is not intended to be disclosed except "in furtherance of obtaining or rendering professional legal services for the client." Id. art. 506(A)(5).
It is axiomatic that the attorney-client privilege "only protects disclosure of confidential communications between the client and attorney; it does not protect disclosure of underlying facts." United States v. Edwards, 39 F. Supp.2d 716, 723 (M.D. La. 1999) (citing Upjohn Co. V. United States, 449 U.S. 383, 395-96 (1981); In re Six Grand Jury Witnesses, 979 F.2d 939 (2d Cir. 1992); United States v. Freeman, 619 F.2d 1112 (5th Cir. 1980);Computer Network Corp. v. Spohler, 95 F.R.D. 500 (D.D.C. 1982)).
Information such as contingency fee contracts, hourly rates, hours spent by attorneys working on this litigation, attorney's fees charged and costs incurred are not "confidential communications" and are therefore not privileged. "[I]nvoices are not protected from discovery by the attorney-client privilege. . . . The invoices themselves are merely a byproduct of the fact of the representation [and] are not protected by any of the asserted privileges or [the work product doctrine] . . . ."Stonehenge/FASA Tex., JDC, L.P. v. Miller, No. 94-CV-0912-G, 1998 WL 826880, at *1 (N.D. Tex. 1998) (citing United States v. Davis, 636 F.2d 1028, 1044 (5th Cir. 1981); In re Grand Jury Proceedings, 517 F.2d 666, 671 (5th Cir. 1975)).
Moreover, a party waives the attorney-client privilege when he "pleads a claim or defense in such a way that he will be forced inevitably to draw upon a privileged communication at trial in order to prevail. Consequently, he places at issue and waives his privilege as to communications on the same subject under his control." Succession of Smith v. Kavanaugh, Pierson Talley, 513 So.2d 1138, 1145 (La. 1987).
To the extent that plaintiff may be asserting the work product doctrine concerning the substantive descriptions in its counsel's invoices, work product protection arises under federal law and is governed by Fed.R.Civ.P. 26(b)(3). The same concept of "at issue" waiver has been applied to federal work product protection. E.g., Holmgren v. State Farm Mut. Auto. Ins. Co., 976 F.2d 573, 577 (9th Cir. 1992).
In Smith, the Louisiana Supreme Court ratified the concept of "at issue" waiver because of the unfairness that would arise from permitting a client to insist on the privilege when he intends to use privileged information at trial. See generally Smith, 513 So.2d at 1143-45. Waiver occurs when the privilege-holder "will be forced inevitably to draw upon a privileged communication at trial in order to prevail." Id. at 1145. The focus in the instant case, then, must be on plaintiff's intended use of the protected communications, i.e., on "whether the privilege holder has committed himself to a course of action that will require the disclosure of a privileged communication." Id. at 1146.
In the instant case, Tonti seeks to recover from SWC the costs, including attorney's fees, of pursuing its claims in this litigation. In short, Tonti has expressly included a claim for recovery of attorney's fees in this case. Petition for Damages, attached as Exh. A to Record Doc. No. 2, ¶¶ 9, 10. Because Tonti may only recover reasonable attorney's fees under Louisiana law and will necessarily have to prove that its attorney's fees were reasonable and directly related to its claims, it will have to disclose the substance of the work its counsel performed. Therefore, plaintiff has placed the communications contained within its attorney invoices at issue and thereby waived both its attorney-client privilege and work product protection. In addition, Local Rule 54.2 requires that Tonti submit certain kinds of materials that would also be responsive to this request in connection with its attorney's fee claim.
Accordingly, IT IS ORDERED that SWC's motion is GRANTED as to Request for Production No. 3. Tonti must supplement its response to Request for Production No. 3 in writing as required by Fed.R.Civ.P. 34 and must make all responsive documents available to defendant's counsel within ten (10) days of entry of this order.
SWC's request for an award of costs and expenses is denied. Responses apparently were provided on the day before the motion to compel was filed and the motion has been granted only in part. Thus, Fed.R.Civ.P. 37(a)(4)(A) is inapplicable, and a reasonable apportionment of the expenses incurred in connection with the remainder of the motion is that all parties should bear their own expenses. Fed.R.Civ.P. 37(a)(4)(C).