Opinion
Case No. 4:02-CV-92 Consolidated With Case No. 4:02-CV-98.
February 18, 2003
Grady Michael Gruber of Godwin, Gruber, Dallas, TX, Attorneys For Plaintiffs.
Scott Masur McElhaney, of Jackson, Walker, Dallas, TX, Thomas E. Sanders, of Akin, Gump, Strauss, Hauer Feld, San Antonio, TX, Charles Cecil Keeble, Jr. of Haynes Boone, Dallas, TX, Attorneys For Defendants, Spectrum Restaurant Group Employees Group Life and Spectrum Restaurant Group, Inc., Hartford Life and Accident Insurance Co. and Custom Benefit Consultants, Inc.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff's Motion for Protective Order and to Quash Defendant CBC's Deposition Duces Tecum for Tim Kunes ("Kunes") and Brief in Support (Docket No. 81:1/2). Having considered the parties' submissions and the applicable law, the Court finds that Plaintiff's Motion for Protective Order and to Quash Defendant CBC's Deposition Duces Tecum for Time Kunes should be DENIED for the following reasons.
BACKGROUND
Defendant Custom Benefit Consultants, Inc. served Plaintiff with the Notice of Deposition Duces Tecum for Kunes, Plaintiff's financial planner, on January 21, 2003. Plaintiff seeks (1) a protective order limiting the scope of Kunes's deposition to matters not protected by the attorney/client privilege and/or work product privileges and (2) to quash duces tecum requests 3, 24 and 25 in their entirety and 1, 4, 5, 8, 9 and 10 to the extent each requests privileged information. Defendant responds that (1) the attorney-client privilege is governed by federal law and (2) the attorney-client privilege does not protect communications between Plaintiff, Plaintiff's attorneys and Kunes.
ATTORNEY-CLIENT PRIVILEGE
Privileges in federal court are governed by Fed.R.Evid. 501, which provides:
Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.Id. Although Rule 501 specifies that state law of privilege controls where state law supplies the rule of decision with respect to an element of a claim or defense, the federal law of privilege is paramount "where the court's jurisdiction is premised upon a federal question, even if the witness-testimony is relevant to a pendent state law count which may be controlled by a contrary state law of privilege." Smith v. Smith, 154 F.R.D. 661, 671 (N.D.Tex. 1994) (citing Hancock v. Hobbs, 967 F.2d 462, 467 (11th Cir. 1992) (per curiam) (footnote omitted)); see also Lenihan v. Stewart Enterps., Inc., 2002 WL 31001842, at *2 (E.D.La. Sept. 4, 2002) (citing cases). Accordingly, federal law of privilege provides the rule of decision with respect to privilege issues in this case.
In United States v. Kelly, 569 F.2d 928, 938 (5th Cir. 1978), cert. denied, 439 U.S. 829 (1978), the Fifth Circuit adopted the following attorney-client privilege test:
The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.Id. (quoting United States v. United Shoe Machinery Corp., 89 F. Supp. 357 (D.Mass. 1950)). The burden of proof to establish the attorney-client privilege is on the privilege claimant. See Kelly, 569 F.2d at 938.
The attorney-client privilege is designed "to encourage clients to make full disclosure to their attorneys." Fisher v. United States, 425 U.S. 391, 403 (1976). "[T]he attorney-client privilege protects communications made in confidence by a client to his lawyer for the purpose of obtaining legal advice. The privilege also protects communications from a lawyer to the client, at least if they would tend to disclose the client's confidential communications." Hodges, Grant Kaufmann v. United States, 768 F.2d 719, 720-21 (5th Cir. 1985) (citations omitted). Here, the communications between Plaintiff and Kunes and Plaintiff's attorney and Kunes are not protected by the attorney-client privilege. It is evident that Kunes is neither an attorney nor a client. In fact, Kunes is a third-party fact witness.
The attorney-client privilege does not protect underlying facts. See, e.g., Thurmond v. Compaq Computer Corp., 198 F.R.D. 475, 479 (E.D.Tex. 2000) (citing C. Mueller L. Kirkpatrick, Evidence § 5.12 (2d ed. 1999)); see also Upjohn Company v. United States, 449 U.S. 383, 395 (1981).
WORK PRODUCT DOCTRINE
Defendant did not address whether the requested documents are protected by the work product doctrine. Nevertheless, the Court will do so here. Federal Rule of Civil Procedure 26 allows discovery "regarding any matter not privileged, which is relevant to the subject matter involved in the pending action . . . ." Rule 26(b)(3) constitutes a restriction on otherwise permitted discovery: it affords qualified protection to "documents and tangible things . . . prepared in anticipation of litigation or for trial" by a party or the party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). If a party seeking discovery of such documents and tangible things demonstrates a "substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials in by other means" then discovery may be ordered. Nevertheless, absolute protection is afforded to "mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation." The burden of proof to establish the work product privilege is on the privilege claimant. See Kelly, 569 F.2d at 938. As with the attorney-client privilege, the work-product privilege does not apply to the underlying facts relevant to litigation, whether or not they have been reduced to writing or communicated to an attorney. See Upjohn Company, 449 U.S. at 395-96, 101. Finally, in order to come under work-product protection, the document at issue must have been "prepared in anticipation of litigation or for trial. . . ." Fed.R.Civ.P. 26(b)(3).
Here, Plaintiff has failed to prove that any of the requested documents are protected by the work-product doctrine. The work-product doctrine affords qualified protection to documents and tangible things prepared in anticipation of litigation or for trial by a party or the party's representative (including the party's attorney, consultant, surety, indemnitor, insurer, or agent). Clearly, Kunes is not a party or the party's representative. Furthermore, there is no evidence that the requested documents were prepared in anticipation of litigation or for trial. Consequently, the Court finds that the documents requested are not protected by the work-product doctrine.
CONCLUSION
In sum, the Court finds that Plaintiff's Motion for Protective Order and to Quash Defendant CBC's Deposition Duces Tecum for Time Kunes is DENIED.
It is therefore ORDERED that Plaintiff produce all documents requested of Kunes.
It is further ORDERED that Kunes reappear for deposition in order to answer any and all questions regarding communications between Plaintiff's attorneys and Kunes and/or Plaintiff and Kunes.