Opinion
Withdrawn from bound volume because the opinion and order were vacated July 25, 1994.
For Vacating Order, see 1994 WL 455538.
Plaintiff, served with document production request, filed objections to portions of request based on attorney-client privilege and work product doctrine. On defendant's motion to compel production, the District Court, Payne, J., held that: (1) blanket assertion that possibility of litigation was " obvious" when documents were prepared did not warrant application of work product protection; (2) attorney-client privilege did not apply to documents written by corporate counsel that communicated no advice and revealed no client communication; (3) attorney-client privilege applied to documents that appeared to contain confidential client information communicated to help counsel provide legal advice to corporation.
Ordered accordingly.
Ralph Walling Buxton,Susan Taylor Hansen, Cooper, Spong & Davis, Portsmouth, VA, James Edward Anklam, John W. Edwards, George Van Cleve, Jones, Day, Reavis and Poque, Washington, DC, Andrew J. Sonderman, John L. Shailer, Columbus, OH, for Portsmouth Redevelopment.
Ralph Walling Buxton, Susan Taylor Hansen, Cooper, Spong & Davis, Portsmouth, VA, James Edward Anklam, Jones, Day, Reavis and Poque, Washington, DC, for Commonwealth Gas.
Bradfute Warwick Davenport, Jr., James Edward Ryan, Jr., Alan Dale Abert, Mays & Valentine, Richmond, VA, for BMI Apartments, Berlin-Miles-Richels, Inc., B.L. Richards, E.C. Handley, Arnold Amdursky, H.G. Berlin, L.B. Taylor, E. Ransdell, III, S. Schreier, N. Schreier, J. Pitler, R.G. Richels, Morris Richels, B. Kolish, H.D. Embree, M.D. Embree, R.L. King, H.E. Gordon, C.O. Pariser, R.J. Berlin.
Thomas Rollins Watkins, Nanci Snow Bockelie, Patten, Wornom & Watkins, Newport News, VA, for Martin and Rose Shebar, Irvin Cohen, Eleanor Cohen, Sidney Coren, Shirley Coren, J. Garner, B. Kramer.
MEMORANDUM OPINION AND ORDER
PAYNE, District Judge.
On May 14, 1993, BMI Apartments Associates (" BMI" ) served a document production request on Commonwealth Gas Services, Inc. (" Commonwealth" ). On June 1, 1993, Commonwealth responded by producing some documents and by filing objections to portions of the request based on the attorney-client privilege and the work-product doctrine. This matter is before the court on BMI's motion to compel production of the documents for which protection from production was sought by those objections.
STATEMENT OF FACTS
One of the documents produced by Commonwealth disclosed that in 1990 the United States Coast Guard (" Coast Guard" ) had investigated an oil discharge in the Elizabeth River near the Patio Plaza Apartments, the site which is the subject of this action. According to the briefs filed on the motion to compel, the Coast Guard received a complaint in December 1990 about an oil sheen on the Elizabeth River near the site. In January 1991, the Coast Guard had informed Portsmouth General Hospital that it may be financially responsible for the incident. Commonwealth received no such notice, but, in May 1991, the Coast Guard notified Commonwealth of the incident. Thereafter, there were several meetings between the Coast Guard and Commonwealth and, at the Coast Guard's request, Commonwealth took water samples from the outfalls of the storm sewers at the site. During this period, Commonwealth communicated with its insurance carrier, two testing facilities and the Coast Guard respecting the reported oil sheen. Commonwealth also conducted in-house interviews and gathered information about the history of the site and the insurance carriers of Commonwealth's predecessor, the Portsmouth Gas Company. Commonwealth has had no communication with the Coast Guard concerning the incident since 1991.
As a result of discussions about Commonwealth's privilege claims, BMI requested a privileged document log which was delivered to BMI by Commonwealth on Aug. 24, 1993. Meanwhile, through Freedom of Information Act requests, BMI obtained from the Coast Guard and from the Virginia Department of Environmental Quality records of the 1990 discharge. Thereafter, Commonwealth provided to all parties the laboratory analysis which it had undertaken at the request of, and had provided to, the Coast Guard.
After receiving the privileged document log, BMI moved to compel production of all documents which pertain to the Coast Guard investigation. Commonwealth opposed that motion and submitted the documents for in camera review by the court.
The Federal Rules of Civil Procedure in effect at the time this case was filed will be applied in this case generally and to the resolution of the claims of privilege raised by the motion to compel. It would be neither just nor practicable at this juncture to make the amended rules applicable in this case.
DISCUSSION
The court reviewed the documents and the briefs of the parties. Thereafter, in a conference call with counsel for BMI and Commonwealth, the court advised that the support offered by Commonwealth for the protection of the documents was sparse and that many documents appeared to be entitled to no protection. Accordingly, the court instructed counsel for Commonwealth to review the claims of protection, to withdraw claims of protection that had no support and to augment the explanations of the reasons for the protection sought for the remaining documents. In response to the court's direction, Commonwealth divided the documents into three categories (I, II and III). Apparently apprehensive about waiving claims relating to documents in Category I, Commonwealth persisted in the substantially unsound claims it had advanced for documents in Categories II and III while, at the same time, offering to produce those documents if doing so would not constitute a waiver of the protection sought for documents in Category I. Whatever may be said for, or about, this rather unusual, and somewhat doubtful approach of counsel to discharging their responsibility to decide upon, and clearly articulate, the basis for claims of privilege and work-product, the court ordered production of the documents in Category II and Category III because the review of those documents showed that there was no valid claim of privilege or work-product available. Accordingly, production of those documents could not have operated as a waiver of valid claims relating to other documents. There were 25 documents in Categories II and III. Of the 26 documents remaining, Commonwealth seeks to protect 11 exclusively under the work-product doctrine and 15 under both the attorney-client privilege and the work-product doctrine. Each of these claims is considered below.
These are the documents number by Commonwealth as P15, P22, P25, P26, P29-31, P34, P40, P43 and P51.
These are documents P3, P6, P9, P12, P14, P16, P17, P19, P23, P24, P27, P28, P32, P49 and P50.
I. The Work-Product Claim
The work-product doctrine provides an attorney with room to think about actual or genuinely anticipated litigation and to plan strategies and tactics without concern that the work and thought generated in the process will be available to the opposing party. This protection is, however, extended only to work done in anticipation of, or during, litigation. See Sandberg v. Virginia Bankshares, Inc., 979 F.2d 332 (4th Cir.1992). To determine whether work product is immune from disclosure, a three-step analysis must be undertaken: (1) was the document prepared during, or in anticipation of, litigation? (2) if so, is the material opinion or non-opinion work product? (3) if it is non-opinion work product, has the party seeking production demonstrated a substantial need for the document or will the party endure undue hardship if the document is not produced? Fed.R.Civ.P. 26(b)(3). The party seeking protection under the work-product doctrine has the burden of establishing entitlement to protection, and the first step is to show that the documents were prepared during, or in anticipation of, litigation. Sandberg, at 355; Republican Party of North Carolina v. Martin, 136 F.R.D. 421, 429 (E.D.N.C.1991) (" The party seeking to assert the doctrine as a bar to discovery has the burden of establishing that the doctrine is applicable by establishing as to each document all the elements that trigger the protection." ) (emphasis added).
Federal Rule of Civil Procedure 26(b)(3) states in part:
There was no litigation pending when the documents here at issue were prepared and Commonwealth has failed to establish that any document for which it seeks work-product protection was prepared in anticipation of litigation. Instead, Commonwealth has made a blanket assertion that the possibility of litigation was " obvious." This is legally insufficient to secure protection " because litigation is an ever-present possibility in American life, [and therefore] it is more often the case than not that events are documented with the general possibility of litigation in mind." National Union Fire Insur. Co. v. Murray Sheet Metal Co., Inc., 967 F.2d 980, 984 (4th Cir.1992).
Commonwealth's claims here are a classic example of the reason for this rule. Commonwealth's corporate counsel, Stephen L. Hebenstreit, stated in his affidavit that " [a]ll of the work I performed was with the expectation that litigation might result ..." The affidavit, and the documents themselves, reflect that corporate counsel had only " the general possibility of litigation in mind" when generating the documents for which work-product protection is sought.
In today's world, it is possible, of course, that a Coast Guard inquiry into an oil sheen on a waterbody could raise the spectre of litigation for someone at sometime in the future. But, in order to secure protection under the work-product doctrine " [t]he document must be prepared because of the prospect of litigation when the preparer faces an actual claim or a potential claim following an actual event or series of events that reasonably could result in litigation." Id. (emphasis added). See also Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 865 (D.C.Cir.1980) (" At the very least some articulable claim, likely to lead to litigation, must have arisen." ) The affidavit of Hebenstreit, who took the lead in the corporation's response to the Coast Guard's inquiry, does not establish the existence of an articulable claim likely to lead to litigation. This is not altered by Hebenstreit's statement that his superiors assigned him to advise the corporation about " any possible liability arising from the Coast Guard inquiry and about the type of response, if any, to make to the Coast Guard." To the contrary, that statement illustrates that no articulable claim had arisen at that point and hence does not help Commonwealth to sustain its burden of proof. See Murray Sheet Metal, 967 F.2d at 984 (" The fact that a defendant anticipates the contingency of litigation resulting from an accident or an event does not automatically qualify an ‘ in house’ report as work product." ) (quoting Janicker v. George Washington Univ., 94 F.R.D. 648, 650 (D.D.C.1982)).
Neither Commonwealth's broad, conclusory assertion that the likelihood of litigation was obvious nor the other statements in Hebenstreit's affidavit are sufficient to carry Commonwealth's burden of establishing that each document for which it seeks work-product protection was prepared in anticipation of litigation. Nor is Commonwealth's burden met merely because a few of the documents contain the notation " because of the likelihood of litigation concerning this matter, the CDC Law Department will be coordinating and controlling our investigation." This is simply an earlier iteration of the conclusory remarks in Hebenstreit's affidavit. Neither statement shows that Commonwealth faced an actual, or articulable potential, claim that reasonably could have been expected to result in litigation.
Indeed, the record reflects that the Coast Guard, which had informed another entity of its potential financial responsibility for the oil discharge before communicating with Commonwealth, had not asserted or threatened any claim against Commonwealth. Nor does the record reflect either that Commonwealth had knowledge of facts, unknown to the Coast Guard, which Commonwealth thought could reasonably lead to claims against it or that Commonwealth itself was contemplating litigation against the Coast Guard or others. On this record, Commonwealth has failed to satisfy the threshold factor in establishing entitlement to the protection afforded by the work-product doctrine.
II. The Attorney-Client Privilege
There are 15 documents as to which Commonwealth asserts protection from disclosure under the attorney-client privilege which protects against disclosure of a communication " from a client to his attorney made in confidence and concerning legal advice sought from his attorney." In re Special Grand Jury No. 81-1, 676 F.2d 1005, 1008-09 (4th Cir.1982). This protection of client communications of necessity also extends in most instances to communications of legal advice by the lawyer to the client. See Coastal States Gas Corp. v. Dept. of Energy, 617 F.2d 854 (D.C.Cir.1980).
The extent to which the privilege protects the lawyer's advice is somewhat unsettled. One line of authority suggests that, to be protected, the communication of advice must include some modicum of confidential information from the client. See United States v. (Under Seal), 748 F.2d 871, 874 (4th Cir.1984) (citing Brinton v. Department of State, 636 F.2d 600, 603 (D.D.Cir.1980)) (stating that the privilege applies to communications originating with the attorney is the communication is based on confidential information provided by the client). Another line of authority takes the view that all advice from the attorney to the client is privileged. This view is reflected in In re LTV Securities Litigation, 89 F.R.D 595 (N.D.Tex.1981), which holds that a rule protecting only advice which discloses confidential client information " fails to deal with the reality that lifting the cover from the advice will seldom leave covered the client's communication to his lawyer." Id. at 602. The distinction between these two lines of authority is blurred; both raise the concern that disclosure of the advice effectively discloses the underlying confidential communication, but the approach illustrated in LTV addresses that concern by providing blanket protection to the giving of legal advice.
Of course, the nature and scope of the privilege are matters controlled by state law. However, the Supreme Court of Virginia has not addressed this issue directly. In 1914, the Court observed that " confidential communications between an attorney and his client, made because of that relationship and concerning the subject matter of the attorney's employment, are privileged from disclosure ..." Grant v. Harris, 116 Va. 642, 648, 82 S.E. 718, 719 (1914). This would appear to protect communications in either direction-whether from client to attorney or attorney to client-so long as the communication concerns the legal matter for which the attorney was retained. In Commonwealth v. Edwards, 235 Va. 499, 370 S.E.2d 296 (1988), the Supreme Court of Virginia found that certain documents prepared by counsel or counsel's agent were privileged because the documents contained information of which " the client would not reasonably expect publication ..." Id. at 513, 380 S.E.2d at 304. This appears to require that, for the privilege to apply, the communication from counsel to client contain confidential client communication. However, in Edwards, the Court quoted its earlier observation in Grant v. Harris.
To fully effectuate the purpose of privilege, it would seem that disclosure of advice rendered to the client by the attorney must necessarily be protected because, almost invariably, the advice will disclose, at least inferentially, confidential client communication. However, because the communications of counsel for which Commonwealth asserts the privilege fail to meet other requirements of the privilege, a resolution of this issue here is unnecessary. For purposes of this decision, therefore, the court will assume that the privilege extends fully to protect legal advice.
The most significant component of Commonwealth's burden is to establish the existence of confidential communications because it is only these that are entitled to protection. In that regard, it is important to remember that " the mere relationship of attorney-client does not warrant a presumption of confidentiality." In re Grand Jury Proceedings, 727 F.2d 1352, 1356 (4th Cir.1984). Moreover, even though the privilege is designed to promote the important societal goal of open and full communication between client and lawyer, it is " strictly construed, in order to harmonize it, to the extent possible, with the truthseeking mission of the legal process." United States v. Tedder, 801 F.2d 1437, 1441 (4th Cir.1986).
Commonwealth argues that the privilege attaches to the 15 documents for which it seeks protection because corporate counsel, as Hebenstreit states in his affidavit, was directed to gather information so that he could advise the corporation as to the legal ramifications and potential liability of the Coast Guard investigation. However:
[t]he ‘ essence’ of the privilege is the protection of what was ‘ expressly made confidential’ or should have been ‘ reasonably assume[d] ... as so intended.’ In determining whether it was to be reasonably ‘ assume[d] that confidentiality was intended,’ it is the unquestioned rule that the mere relationship of attorney-client does not warrant a presumption of confidentiality.
Id. at 875 (quoting In re Grand Jury Proceedings (John Doe), 727 F.2d 1352, 1356 (4th Cir.1984) (further citations omitted)).
Most of the 15 documents at issue here were written by corporate counsel. These documents are not protected because they reflect no confidential communication from a client and no advice and hence they fail to meet the fundamental requirements for application of the privilege. Document P6 is a note from one in-house counsel to two other in-house counsel requesting that particular actions be undertaken. There is no advice being communicated, and no client communication is revealed, so the attorney-client privilege is not applicable. Other documents which fall into the same category are P9, P16, P17, P23, P24, P27, P28, P32, P49 and P50.
Document P3, prepared by Mr. Hebenstreit and sent to a Commonwealth employee, contains information gathered from the client. But, its text reveals that the information in it is not expected to remain confidential because the information is intended to be provided to Commonwealth's insurance carriers.
Document P19 is Hebenstreit's notes of a discussion with a company employee apparently on or about January 11, 1991 when Commonwealth first learned of the presence of the oil sheen. The notes do not constitute or reflect legal advice. Nor do they appear on their face to contain any confidence or confidential information. Commonwealth has made no showing that the information reflected in those notes was communicated in confidence.
Notwithstanding the opportunity afforded Commonwealth to bolster the basis for its privilege and work-product claims, Commonwealth's claims of privilege for the foregoing documents, like its work-product claims, are based on conclusory statements which do not satisfy Commonwealth's burden to show entitlement to the protection of the attorney-client privilege. Indeed, it appears that the claim of privilege is predicated principally, if not exclusively, on the fact that lawyers were involved in the communication. That is not a sufficient basis to support application of the privilege.
It appears, however, that the privilege applies to document P12 and to part of document P14 because these documents appear to contain confidential client information communicated to help counsel provide legal advice to the corporation. Commonwealth has claimed the attorney-client privilege for only part of document P14, but has not stated which part. The court finds the privilege attaches only to the first two pages, because the remaining pages appear to be simply corporate counsel's notes to himself. The attorney-client privilege inapplicable to all other documents.
CONCLUSION
For the foregoing reasons, BMI's motion to compel is granted as to all documents in Category I except document P12 and the first two pages of document P14.
It is so ORDERED.
[A] party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has 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 by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.