Opinion
Civil Action No: 00-2402, Section: "J"(1).
February 15, 2001.
APPEARANCES: Submitted on briefs
HEARING ON MOTION
MOTION: 1) MOTION OF JUAN MARTINEZ-RUIZ AND JORGE MARTINEZ HACHITY TO COMPEL PRODUCTION OF DOCUMENTS
2) MOTION OF WHITNEY NATIONAL BANK FOR A PROTECTIVE ORDER__ 1,2 __ GRANTED IN PART AND DENIED IN PART.
Before the Court is the motion of counter-claim plaintiffs, Juan Martinez-Ruiz and Jorge Martinez Hachity (plaintiffs), seeking an order compelling production of certain documents which were withheld from production by Whitney National Bank on the basis of attorney-client privilege and work product doctrine. Whitney opposes the motion and seeks a protective order.
Plaintiffs argue that the documents all arise from and include a single memorandum (the memorandum") that pre-dates this litigation by over two years. They further argue that the memorandum, written by Cynthia Canada ("Canada"), in-house legal counsel for the Whitney, was voluntarily produced to representatives of counter-claim plaintiffs and therefore cannot be privileged. Finally, plaintiffs assert that the memo and subsequent documents are producible under the crime/fraud exception to an assertion of privilege.
Memorandum in support, p. 6. In a supplemental letter dated February 13, 2001, movers argue that the Whitney's attempt to protect itself from exposure, by its subsequent act of asking movers to agree to the transfer of funds without disclosing the problem with the payable on death affidavit, was in fact a fraud.
In response, Whitney points out that Canada prepared the memorandum for Robert Chamberlin, Manager of the Whitney's International Department, and it is clearly labeled "attorney-client privilege" and "confidential." Whitney withheld the memo from production during discovery along with seven other documents, identified in a "withheld document sheet," over which Whitney claims either attorney-client or work product protection. Whitney further argues that the fact that the memo was shown to the attorney for plaintiffs, Romi Gonzalez, and the accountant for plaintiffs, Jose Miranda, does not result in a waiver because the memo was inadvertently provided to them. As to the crime/fraud argument, Whitney points out that there is no showing in this case that a crime has been committed. Rather, Whitney points out that there is no factual allegation made by plaintiffs suggesting fraud or intent to deceive in the formulation of the memo.
The "withheld document sheet" is marked as exhibit "A" to counter-claim plaintiffs' memorandum in support of motion to compel.
Memorandum in opposition, pp. 3-4; affidavit of Luis Mendez, Exh. E to opposition.
Memorandum in opposition, p. 12. Whitney points out in a supplemental letter of February 13, 2001, that the crime/fraud exception only applies when the advice of the attorney is sought to further an existing intent to defraud, and no such allegation is made in this case.
I have carefully reviewed the documents at issue. My review reveals the following with regard to the documents listed on the "withheld document sheet" and in the same order as referenced in that sheet:
1. This document, the "memo" authored by Cynthia Canada, is clearly attorney-client privileged.
2. No document dated 7/24/97 was produced for in camera inspection.
3. This document is work product and may be withheld from production.
4. This document has been produced to counsel for plaintiffs in redacted form. The entire document, unredacted, should be produced. The draft version of this document should also be produced.
5. This memorandum from in-house counsel is clearly attorney-client privileged.
6. This memorandum, authored by Luis Mendez, has been produced in redacted form to plaintiffs. The entire memo, unredacted, will be produced.
7. This memorandum from in-house counsel is clearly attorney-client privileged.
8. This fax sheet is attorney-client privileged.
As to the memorandum and its production to representatives of plaintiffs, I find that the production was in fact unintentional and did not act as a waiver of the attorney-client privilege. At the request of plaintiffs in 1999, prior to commencement of any litigation involving the Whitney, the accountant and attorney for movers went to the Whitney to review records involving multiple accounts dating back approximately twelve years. Part of the records which were given to the. attorney and accountant were desk files kept by various bank personnel, including a desk file that contained the memo. Because the Whitney was not involved in litigation at the time, the bank officer involved, Luis Mendez, did not involve the legal department nor were the records screened prior to production.
Fifth Circuit case law is clear that inadvertent disclosure of confidential communications does not automatically result in a waiver of a privilege. Alldread v. City of Grenada, 988 F.2d 1425, l433-44 (5th Cir. 1993). Rather, the Fifth Circuit has directed that a court "consider the circumstances surrounding a disclosure on a case-by-case basis." Id. at 1434.
My review of the facts in this case shows that the disclosure was unintentional and that Whitney immediately objected to a request for production of the desk file and memo. Considering the nature of the memorandum which involved a review of the circumstances and rendition of advice regarding further action by in-house counsel for the Whitney, the overriding issue of fairness dictates that there has not been a waiver of privilege regarding the memo. Relative to the argument by plaintiffs that the memo should be produced pursuant to the crime/fraud exception, I do not find that there has been a showing of a prima facie case that there was an intent to deceive or commit fraud at the time the memo was confected. See Ward v. Succession of Freeman, 854 F.2d 780, 789-90 (5th Cir. 1988); andIn Re: Bank of Louisiana/Kenwin Shops, Inc., MDL No. 1193 (E.D.La. 11/10/98) (Duval, J.), 1998 WL 788776, *2.
Exhibit B to opposition memorandum.
For the foregoing reasons, the motion to compel is granted in part and the motion for a protective order is granted in part in accordance with this order.