Opinion
Civil Action No: 03-2584 Section: "C" (4).
November 1, 2004
Before the Court is a Motion to Compel (doc. #103) filed by the plaintiff, Luan Hunter, in which Hunter seeks an order compelling White to answer questions presented during his deposition. In response to the questions, White asserted the attorney-client privilege.
I. Factual Summary:
Brian White formerly General Counsel for Al Copeland Sr personally, and several Copeland entities, is a defendant in this proceeding along with several other individuals. White allegedly participated in a conspiracy with former Judge Bodenheimer and his employer Al Copeland to fix the custody proceeding pending between Copeland and his former wife, Luan Hunter over which Bodenheimer presided. In connection with this proceeding, White's deposition commenced on July 6, 2004, and questions were presented regarding his role as the attorney for Al Copeland and the Copeland entities and action he took regarding the underlying domestic proceeding. During the course of the deposition, White raised the attorney client privilege. As a result, the plaintiff has filed the subject motion seeking an order from the court to instruct White to answer the questions and find that the Crime Fraud Exception applies.
White served as General counsel for Al Copeland Investments, Diversified Foods, Copeland's of New Orleans, Cheesecake Bistro, Landmark Hotel, Several Popeye's Restaurants and Restaurant Development Corp. Dep. of White Page 27.
The hearing took place. However, the court reserved its ruling on the application of the Crime Fraud Exception pending review of additional memorandum. Before complying with the briefing order, counsel for Copeland and the Copeland entities in this proceeding submitted written correspondence in which they voluntarily waive the attorney client privilege with respect to:
"all questions asked during the July 6, 2004 deposition of Brian White, to which Mr. White asserted the privilege on behalf of these clients; and any communications between Al Copeland, Sr. and Brian White that are material and/or germane to Hunter v. Copeland."
They further suggest that the issue involving the application of the crime fraud exception is Moot.
However, the plaintiff responded and contended that she should not be limited to the waiver as to the questions actually presented to White during the deposition and that the waiver as to material and/or germaine matters related to the underlying domestic proceeding would simply spawn additional motion practice such that it is not a true waiver.
Citing Securities Exchange Comm'n v. Herman, the plaintiff further contends that because Al Copeland Sr. has asserted the Fifth Amendment Privilege, the assertion of the privilege is sufficient to create a basis for the suspicion of fraud to support the application of the crime-fraud exception. Additionally, the plaintiff contends that it should not be limited to the questions presented to White during the deposition because they have had difficulty discerning which Copeland entity White worked for during several appearances in the underlying domestic case (¶ Supplemental Memorandum in Support of Motion to Compel Testimony of Bryan White, Page 8) They further noted that during Copeland's deposition he refused to testify concerning White's relationship with him or any of the Copeland Entities. (¶, Page 10).
2004 U.S. Dist. Lexis 829 (S.D.N.Y. May 5, 2004).
Having set forth the positions of the parties, the Court will proceed with its analysis of the subject motion.
II. Analysis A. Subject Matter Waiver
The "same subject matter" standard for waiver "seeks to prevent the selective, calculated disclosure of privileged communications." United States v. Skeddle, 989 F.Supp. 917, 919 (N.D.Ohio 1997); accord, Chinnici v. Central DuPage Hospital Assoc., 136 F.R.D. 464, 465 (N.D.Ill. 1991); Teachers Ins. and Annuity Ass'n of America v. Shamrock Broadcasting Co., 521 F.Supp. 638, 641 (S.D.N.Y. 1981). The goal of the "same subject matter" standard is to ensure that a client, cannot use waiver of the privilege as a sword as well as a shield. At bottom, the scope of waiver is a matter of basic fairness to the opposing party.
As Judge Carr explained in United States v. Skeddle, the "same subject matter" standard has not been defined precisely, apart from a general instruction to construe the concept narrowly. 989 F.Supp. at 919. The issue in Skeddle was the extent of a waiver that occurred when a corporation's general counsel testified about some of his privileged conversations in the course of investigating an alleged scheme to defraud his employer-client. The defendants in the criminal case argued that the testimony waived the attorney-client and work product privileges as to the entire content of the corporation's investigative file. The court in rejecting the defendants position noted that the majority of the attorney's testimony relayed the fact that certain conversations and meetings had taken place, without disclosing the content of the communications that took place during those meetings and conversations.
After rejecting the defendants' position, the court, to assist other courts and counsel, articulated several factors that courts may consider in determining the scope of the waiver. The following factors were set forth by the court as relevant in determining whether disclosed and undisclosed communications relate to the same subject matter are:
1) the general nature of the lawyer's assignment;
2) the extent to which the lawyer's activities in fulfilling that assignment are undifferentiated and unitary or are distinct and severable;
3) the extent to which the disclosed and undisclosed communications share, or do not share, a common nexus with a distinct activity;
4) the circumstances in and purposes for which disclosure originally was made;
5) the circumstances in and purposes for which further disclosure is sought;
6) the risks to the interests protected by the privilege if further disclosure were to occur; and
7) the prejudice which might result if disclosure were not to occur.
By applying these factors, and such other factors as may appear appropriate, a court may be able to comply with the mandate that it construe "same subject matter" narrowly while accommodating fundamental fairness. 989 F.Supp. at 919. The point is at least implicit in the Skeddle factors, but worth noting specifically: in determining the scope of the waiver, the court must keep a close eye on the legal relevance of the communications that have been disclosed. The goal is to ensure that the opposing party has a fair chance to litigate the contested issues for which those communications are relevant.
The record shows that White's assignment was in a general nature. According to his deposition, he worked as General Counsel for Al Copeland Investments, the corporation that manages Copeland's other corporations. He was also General Counsel for Diversified Foods, Copeland's of New Orleans, Cheesecake Bistro, Landmark Hotels, Boutique Hotel, several Popeye's restaurants and Restaurant Development Corporation and a few others. In addition to serving as General Counsel, White serves as the personal attorney for Al Copeland and administratively functions to retain counsel and to perform other acts as requested by Copeland including operations. He also attends Board Meetings despite having been suspended and not being able to practice law for the next three years.
The second prong is also met. It is clear from White's limited testimony that he appeared as counsel for Copeland investments in the divorce proceeding, he also acted as the intermediary for Copeland during the divorce proceeding and handled communications with the attorney who was retained to represent Copeland in the proceeding. Additionally, it is unclear from the record the exact nature of his capacity at the time he had multiple ex parte meetings with Bodenheimer. On occasion, he made appearances in court but did not indicate that he was acting on behalf of any of the particular Copeland entities and as such was presumably acting on behalf of Mr. Copeland.
The remaining elements have also been met. The nature of the questions sought consists of discussions White had with Copeland which were related to Bodeheimer, Philip M. Demma, and/or the domestic proceeding. They further included questions regarding Bodenheimer communications regarding the shrimp contract and with whom. He was further questioned regarding reimbursements for payments of meals for Bodenheimer, Demma and any other named player in the alleged conspiracy.
A defendant and former Officer in the Jefferson Parish Sheriff's Office.
The common theme running through these questions involve every fact surrounding White's relationship with Copeland and the limitations thereof. It further includes the role that White played on behalf of Copeland and his companies and the impact and the effect of their relationship on the Hunter domestic proceeding. The Court therefore finds that the subject matter of White's waiver covers the entirety of his activities in the domestic proceeding and his role with Copeland and the Copeland entities as the personal attorney, corporate administrator, and general counsel including his compensation for the various roles during the proceeding. United States v. Davis, 636 F.2d 1028, 1043, n. 18 (5th Cir. 1981) (disclosure of any significant portion of a confidential communion waives the privileges as the whole.) The waiver is clearly not restricted to the questions asked.
B. Crime Fraud Exception
Despite the breadth of the waiver of the attorney client privilege, Hunter contends that the crime fraud exception should apply because the defendants proposed waiver is limited to the questions in the deposition and those issues reasonably related to the domestic proceeding. Hunter contends that because Copeland sought the protection of the Fifth Amendment, she still will not receive information as the adversarial process is designed. Therefore, she is entitled to the application of the exception. As indicated above the waiver is broader than that proposed by the defendants.
Furthermore, the crime/fraud exception is not truly an exception. Rather, it is an exclusion of certain activity from the reach of the privileges. In re Grand Jury Subpoena, 731 F.2d at 1038. As one noted commentator has put it, the crime/fraud "exception" merely delineates the outer contours of the attorney-client and work product privileges, recognizing the commonsense notion that these privileges "cannot avail to protect the client in concerting with the attorney a crime or other evil enterprise." 8 John Wigmore, Evidence § 2298 at 572 (McNaughton rev. 1961); see also In re St. Johnsbury Trucking Co. v. Bankers Trust Co., 184 B.R. 446, 456 (Bankr. D. Vt. 1995) ("[T]he exception is not really an exception, but an exclusion.").
In light of the Court's earlier ruling, the crime fraud exception does not apply. The breadth of the waiver is such that any question directed to the subject matter as noted above may be asked.
Accordingly,
IT IS ORDERED that the Motion to Compel (doc. #103) is GRANTED IN PART AND DENIED IN PART. The Motion is GRANTED to the extent that the plaintiff seeks to depose White regarding the questions presented in the deposition and regarding the entirety of his activities in the domestic proceeding and his role with Copeland and the Copeland entities as the personal attorney, corporate administrator, and general counsel including his compensation for the various roles during the proceeding.
IT IS FURTHER ORDERED that the Motion is DENIED to the Extent that it seeks the application of the Crime Fraud Exception.