Opinion
Civil Action No. 99-2496 (GK).
September 30, 2004
MEMORANDUM OPINION
Intervenor British American Tobacco Australia Services, Limited ("BATAS") has moved for the Right to Protect Its Privilege Rights in Deposition and Trial Testimony that may be presented in this case in the future. Upon consideration of the Motion, the Opposition, the Reply, and the entire record in this case, the Court concludes that the Motion must be denied.
On December 5, 2003, this Court granted BATAS' Motion to Intervene for a Limited Purpose, namely to assert and litigate its privilege in certain documents which Defendant BATCo had been ordered to produce under Order #449. That issue is now pending before the Court of Appeals.
Now, some 11 months later, and a mere 20 days before the start of a six-to-seven-month trial, BATAS has moved to expand its intervention rights in order to protect whatever privilege it may wish to assert "in deposition and trial testimony that witnesses may provide in proceedings that have yet to occur in this case." Mot., at 1. In particular, BATAS is concerned about the testimony of Frederick Gulson, who served as its senior in-house counsel from 1989 to 1990. According to BATAS, Mr. Gulson has knowledge of privileged information which is protected from disclosure by the Australian legal profession privilege.
Under United States privilege law, parties are obligated to zealously protect privileged information or be deemed to have waived their rights. As our Court of Appeals has warned, "the confidentiality of communications covered by the [attorney-client] privilege must be jealously guarded lest it be waived. . . . If a client wishes to preserve the privilege, it must treat the confidentiality of attorney-client communications like jewels — if not crown jewels." In re Sealed Case, 877 F.2d 976, 980 (D.C. Cir. 1989).
In this instance, BATAS has waited until, literally, the last second (the Court now being in trial in this case) to seek to expand its intervention in order to assert attorney-client privilege. As the Government pointed out in its Opposition, it has been more than a year since, on September 12, 2003, Mr. Gulson's affidavit (executed on February 14, 2003) was unsealed, made public, and filed as an exhibit to the United States Fourth Motion to Compel Documents Withheld by Brown Williamson. Thus, BATAS has been on notice for all that time that Mr. Gulson was prepared to disclose, and had disclosed, allegedly confidential and privileged information. By March 15, 2004, the United States had listed Mr. Gulson as a witness on its final witness list and BATAS still took no action. As to the other witnesses mentioned in the pending Motion, BATAS made no attempt to participate or assert any privilege during the taking of Andrew Foyle's testimony in England in April 2004 or the taking of Robert Northrip's deposition in January 2004. Both Messrs. Foyle and Northrip had also represented BATAS. Both of these men were also listed on the Government's witness list filed March 15, 2004.
In sum, BATAS has taken no action since December 5, 2003 when it was granted leave to intervene for a limited purpose, to expand that intervention in order to assert its alleged privilege as to Messrs. Gulson, Northrip and Foyle. In view of this dilatory conduct, BATAS's present Motion is clearly untimely under Fed.R.Civ.P. 24(a)(2). By taking no action since September 12, 2003, when Mr. Gulson's affidavit became publicly available, BATAS has clearly waived its right to assert any privilege over the subject matter covered in that affidavit. In re United Mine Workers of America, 307, 310 (D.D.C. 1994).
Finally, there is no question that BATAS's untimely expanded intervention would further delay and complicate the massive trial which has begun and is scheduled take between six and seven months to complete. Had BATAS acted in a timely fashion and asserted its rights at an earlier time, any assertion of privilege it may have raised under Australian law could have been litigated in an orderly fashion. Given the time constraints under which all participants in the trial are now operating, it would be impossible to fully consider complex issues of Australian privilege law in the middle of this lengthy, multi-defendant case with its thousands of exhibits and hundreds of witnesses.
For the foregoing reasons, BATAS' Motion is denied.