Opinion
CIVIL ACTION NO. 01-2554, SECTION: "M" (3).
July 29, 2003.
Before the Court is plaintiffs' Motion for Reconsideration of the June 18th discovery ruling, but only insofar as it addressed the Defendants' client newsletter entitled "Scrap Notes." Defendants filed formal opposition memoranda and the motion was the subject of oral argument, following which the matter was taken under submission. Defendants seek the return of the copies of two newsletter issues allegedly inadvertently produced by Attorney Stolzle, having claimed that the work product and the attorney-client privileges apply to both disclosure and use of the protected documents by Southern Scrap. Plaintiffs have declined to return the newsletters, contending that they are not subject to the attorney-client or the work-product privileges and, even that if subjected to the privileges, the Attorney Defendants waived the privileges.
See Southern Scrap Material Co. v. Fleming, 2003 WL 21474516, at **21-22 (E. D. La. June 18, 2003) (Knowles, M. J.).
After reviewing the parties' submissions, the applicable law, including the district court's opinion in Robinson v. Texas Automobile Dealers Association, 214 F.R.D. 432 (E. D. Tex.) (Schell, J.), inter alia, the undersigned Magistrate Judge finds that modification of the June 18, 2003 ruling is not warranted for reasons discussed below.
ATTORNEY-CLIENT PRIVILEGE
Plaintiffs bring their claims under federal law, and thus, federal law governs the analysis of the attorney-client privilege in this case. See Fed.R.Evid. 501. The confidential relationship between lawyer and client is sacrosanct and one of the bastions of an ordered liberty. See Enda Selan Epstein, The Attorney-Client Privilege and the Work-Product Doctrine 2 (3rd ed. 1997). It is the oldest of all of the testimonial privileges, grounded in the fundamental concept that free expression of a client to one's legal advisors requires that the ability to compel disclosures must be removed except upon the client's consent. It not only protects the communications that a client might make to counsel, but it also protects communications that might be made by counsel to the client. John Henry Wigmore, Evidence in Trials at Common Law §§ 2291, 2320 at 545 and 628 (McNaughton rev. 1961); Upjohn Co. v. United States, 449 U.S. 383, 390 (1981); In re LTV Securities Litigation, 89 F.R.D. 595, 599-600 (N.D. Tex. 1981). Accordingly, if a party demonstrates that attorney-client privilege applies, the privilege affords all communications between attorney and client absolute and complete protection from disclosure. See Myers v. City of Highland Village, Texas, 212 F.R.D. 324, 328 (E. D. Tex. 2003).
The Supreme Court has expressly recognized that the attorney-client privilege enjoys a special position as "the oldest of the privileges for confidential communications known to the common law" and that the privilege serves a salutary and important purpose: to "encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice." Swidler Berlin v. United States, 524 U.S. 399, 403 (1998) ( quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)).
Nevertheless, like all privileges, the attorney-client privilege "interferes with the truth seeking mission of the legal process, and therefore is disfavored. United States v. Aramony, 88 F.3d 1369, 1389 (4th Cir. 1996); see also In re LTV Securities Litigation, 89 F.R.D. at 600 (The attorney client privilege is construed "no more broadly than is necessary to effectuate its purpose").
The attorney-client privilege extends to the subject matter of the newsletters at issue, which are communications issued for the purpose of furnishing professional legal advice and assistance to clients. The privilege further extends to the communications insofar as they were shared by the Defendants, co-plaintiffs' counsel in the underlying litigation, where, as here, the communications were designed to further the joint or common interest of the Defendant Attorneys' clients. There is little doubt that the information and advice set forth in the "Scrap Notes" newsletters may be valuable to the plaintiffs in this litigation. However, the client newsletter at issue does not contain such information which would demand disclosure as a matter of public policy such that its denial would cause hardship or injustice. Hickman v. Taylor, 329 U.S. 495, 509, 67 S.Ct. 385, 393, 91 L.Ed. 451 (1947).
This Court is not persuaded by the plaintiffs' claim that Attorney Stolzle, in providing his copies of the Scrap Notes newsletter to the plaintiffs, made a disclosure that implicates a waiver of the attorney-client privilege. First and foremost, the privilege is not the lawyer's to waive but the client's. See Nguyen v. Excel Corporation, 197 F.3d 200, 206 (5th Cir 1999); In re Impounded Case (Law Firm), 879 F.2d 1211, 1213 (3rd Cir. 1989). Further, plaintiffs' complaint of gamesmanship rings hollow under the facts presented. Southern Scrap was given ample notice of the privilege claimed with respect to the "Scrap Notes" newsletter via vanous Privilege Logs submitted by the Defendants, albeit not Stolzle's Log, and did in fact contest the validity of the privileges and protections at issue.
The Supreme Court's landmark decision in Upjohn sheds some light on the larger issue presented, i.e., whether a newsletter, which is the subject of mass-mailing to clients, can ever be considered as protected by either the attorney-client or the work-product privilege. In Upjohn, a corporation's in-house general counsel conducted an internal "factual" investigation of "questionable payments" that some of the corporation's subsidiaries had made to foreign governments. 449 U.S. at 387-89, 101 S.Ct. at 681-82. This investigation, which involved in-house counsel requesting certain employees to complete a questionnaire and interviewing those and other employees, was the only legal work at issue in Upjohn. Explaining that the attorney-client privilege "exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice," 449 U.S. at 390, 101 S.Ct. at 683, a unanimous Supreme Court held that the privilege protected the questionnaires and the attorney-investigators' notes of their interviews with Upjohn employees.
Although the focus of the Upjohn Court's analysis was whether the scope of the privilege included communications to counsel by employees outside the corporation's "control group," the Court recognized, at least implicitly, that an attorney's investigation may constitute a legal service, encompassed by the privilege. The Supreme Court expressly noted that "[t]he first step in the resolution of any legal problem is ascertaining the factual background and sifting through the facts with an eye to the legally relevant." Id. at 390-9 1, 101 S.Ct. at 683.
Courts have consistently recognized that investigation may be an important part of an attorney's legal services to a client. See, e.g., Dunn v. State Farm Fire Casualty Co., 927 F.2d 869, 875 (5th Cir. 1991) (applying Mississippi law); In re Grand Jury Subpoena, 599 F.2d 504, 510-11 (2nd Cir. 1979); In re Int'l Sys. Controls Corp. Sec. Litig., 91 F.R.D. 552, 557 (S.D. Tex. 1981), vacated on other grounds, 693 F.2d 1235 (5th Cir. 1982); In re LTV Sec. Litig., 89 F.R.D. at 599-611 (N.D. Tex. 1981). In sum, Upjohn made it clear that fact finding which pertains to legal advice may come within the ambit of what is considered to be professional legal services.
Revisiting the "Scrap Notes" client newsletter in light the district court's decision in Robinson v. Texas Automobile Dealers Association (TADA), 214 F.R.D. 433 (E. D. Tex.) does not command a different result. Neither that case, nor any other Fifth Circuit jurisprudence addresses the question presented in this case, i.e., whether the attorney-client privilege can ever be applied to shield a client newsletter sufficiently marked as "confidential" and "attorney-client privileged," but mass-mailed to clients numbering in the thousands. This Court finds that the facts underpinning the court's decision in Robinson, supra, diverge in significant particulars.
The Court here notes that it was aware of the district court's decision in Robinson, supra, at the time the June 18th ruling issued. This Court cited the Robinson decision as persuasive with respect to other categories of documents reviewed in camera. See Southern Scrap v. Fleming, 2003 WL 21474516 at * 13 n. 41 and * 15 n. 46 (E. D. La.) ( citing Robinson, supra, for the proposition that a client may not refuse to disclose facts or documents simply because they were communicated or given to an attorney).
The Robinson case focused on a mass mailing from attorney Karen Coffey to the 700 members of the trade association, Texas Automobile Dealers Association ("TADA"). The court held, based upon the facts discussed below, that the proponent of the privilege failed to demonstrate that the documents were maintained as confidential. The Robinson court observed:
The act of sending TADA members communications about legal matters and the fact that Coffey believes that all TADA members consider her to be their attorney are facially insufficient to establish the existence of an attorney-client relationship. Defendants have also submitted deposition testimony of four TADA members indicating that they considered Coffey their attorney. Such testimony could theoretically be sufficient to establish the requisite relationship for those members who so testified. But those members were vague as to the date when the relationship was created and did not testify that it was in existence at the time these communications were made. Moreover, the testimony of these four members is not sufficient to establish an attorney-client relationship between Coffey and the other TADA members who received these communications.Robinson, 214 F.R.D. at 452. In sum, the Robinson court held that absent some showing that all TADA members intended to make Karen Coffey their attorney, the defendants failed to carry their burden of establishing that all TADA members were Coffey's clients, so as to invoke the protection of the joint defense privilege. Id. at 453. Aside from the facts that automobile dealers were members of TADA and received mailings, there was a complete failure of proof of the attorney-client relationship.
Given the wide-distribution of "documents that were mass-mailed or faxed to seven hundred TADA members," the Court determined that the distributees were the only ones in a position to attest whether confidentiality was maintained. Id. at 454 (italicized emphasis added).
The Robinson court noted:
In a situation like the present one, the affiants would need, at the least, to provide the name of every person who had been privy to the communication or with whom the communication had been discussed, establish that each such person had a relationship with the co-defendant recipient such that waiver had not occurred, and affirm that they understood the communications were intended to be kept confidential.Id. The trade association members could not establish that their intention was that the documents be kept confidential because "[t]hey are not marked as `confidential,' `attorney-client communication,' or the like, as are other documents that were obviously intended to be so protected at the time they were written." Id. The court concluded: "Because the Defendants have failed to establish that TADA members were or sought to become Karen Coffey's clients, or that the communications from Coffey to TADA members were intended to be or were kept confidential, these documents are not protected by the attorney-client privilege directly or by extension through the joint defense privilege." Id.
Unlike the communications discussed in Robinson, the "Scrap Notes" newsletters state in no less than pellucid terms that they are confidential attorney-client communications not to be disclosed to third-parties. A description of the contents and cautionary language proscribing disclosure to non-clients is prominently posted on the mailer front center, stating that:
NOTE: This newsletter is considered privileged communication between clients and attorneys in connection with ongoing work in your case. Keeping this in mind, please use this newsletter for your own information only and refrain from sharing it with anyone not a plaint if in this case. This newsletter is published as a courtesy and contains confidential information that would normally only be revealed in attorney-client conferences.See Exhibits "B-1" and "B-2" to Plaintiffs Motion for Reconsideration (italicized emphasis in original). There can be no question but that the substance of the communications contained in the "Scrap Notes" newsletter were intended to update clients numbering in the thousands and keep them abreast of the various developments in their cases. In mass torts cases (whether class-action or otherwise), newsletter-type communication mass-mailed to clients may be the only effective way to reach out to the clients and inform them in sufficient detail of developments in their cases. Door-to-door, telephone or mass-meeting type contact may not be either physically possible, financially feasible or effective with clients numbering in the thousands. In the case at bar, involving class-action cases arising from alleged continuing mass torts with thousands of putative class plaintiffs, it is difficult imagine any other way of ensuring the imperative, i.e., adequate representation.
It is noteworthy that, at the outset, the Robinson court highlighted the mandate of Upjohn, which requires "a case by case determination of whether application of the privilege would further the underlying purpose of the privilege." Robinson, 214 F.R.D. at 452 (citing Upjohn, 449 U.S. at 396-97). The Robinson case turned on its facts, to wit: (1) documents neither marked as "confidential," nor "attorney-client communication;" (2) issued by fax and mail to several hundred recipients; and (3) involving recipients whose client-status was questionable at best. The Robinson court held that the aforesaid facts militated strongly against a finding of intended or actual confidentiality." Id. at 454.
Reconsidering the particular facts presented here, this Court finds that they militate strongly in favor of a finding of intended and actual confidentiality and that application of the privilege furthers its underlying purposes. All of the "Scrap Notes" newsletters bear annotations front and center stating that the contents are "confidential" and "attorney-client communications, " as well as specific instructions cautioning against disclosure to non-client/third parties. Additionally, the fact that these communications. were mailed only to clients also favors maintenance of the privilege. Moreover, the fact that only one mishap occurred involving one newsletter, despite the thousands of mailers that were sent periodically to the Defendants' clients, speaks volumes for the Defendant Attorneys'/clients' vigilance and success in actually keeping their lines of communication open, but nevertheless "confidential."
"`The party asserting waiver has the burden of proving facts necessary to support that finding.'" Robinson, 214 F.R.D. at 454 ( citing High Tech Communications, 1995 WL 45847 at *5). The Court will not reiterate herein its discussion of the criteria set forth in Alldread v. City of Grenada, 988 F.2d 1425 (5th Cir. 1993), but rather imports its prior its ruling, incorporating it by reference. See Southern Scrap, 2003 WL 21474516, **21-22 and n. 64.
Having found that the attorney-client privilege applies to the facts of this case, this Court does not reach the issue of work product immunity. For all of the foregoing reasons, the Court declines any modification of its discovery ruling with respect to the "Scrap Notes" newsletter. Accordingly,
The work-product doctrine expressly applies only to "documents and tangible things otherwise discoverable." Fed.R.Civ.P. 26(b)(3); see also Electronic Data Systems Corporation v. Steingraber, 2003 WL 21653414 * 1 (E. D. Tex.) (Davis, J.).
IT IS ORDERED that the plaintiffs' Motion for Reconsideration is DENIED.