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ROBINSON v. TEXAS AUTOMOBILE DEALERS ASSOCIATION

March 28, 2003

BERT A. ROBINSON, MARY K. LUMAN, TOYIA URBANIAK, KIRK T. GARNER, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
TEXAS AUTOMOBILE DEALERS ASSOCIATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Richard A. Schell, United States District Judge

MEMORANDUM OPINION AND ORDER GRANTING IN PART PLAINTIFFS' MOTION TO COMPEL

Before the court are the following written submissions:

a) "Plaintiffs' Motion to Compel and Supporting Brief" (Dkt. #337), filed November 24, 1999;
b) "Defendants' Response to Plaintiffs' Motion to Compel and Brief in Support" (Dkt. #345), filed December 14, 1999;
c) "Plaintiffs' Reply in Support of Plaintiffs' Motion to Compel" (Dkt. #356), filed February 2, 2000;
d) "Defendants' Surreply in Further Response to Plaintiffs' Motion to Compel and Brief in Support" (Dkt. #354), filed February 2, 2000;
e) "Plaintiffs' Brief and Submission of Testimony Pursuant to Court Order" (Dkt. #396), filed June 5, 2000;
f) "Defendants' Response to Plaintiffs' Submission of Testimony Pursuant to Court Order" (Dkt. #399), filed June 16, 2000;
g) "Plaintiffs' Supplemental Motion to Compel Production" (Dkt. #395), filed June 5, 2000;
h) "Defendants' Response to Plaintiffs' Supplemental Motion to Compel Production" (Dkt. #398), filed June 16, 2000; and
i) "Agreed Stipulation Regarding Privileged Documents" (Dkt. #404), filed July 17, 2000.
After in camera review of the documents and consideration of the written submissions, privilege log, affidavits, and the applicable law, the court is of the opinion that the motion to compel should be granted in part and denied in part.

I. INTRODUCTION

This is a proposed class action antitrust case. Plaintiffs allege that the Texas Automobile Dealers Association ("TADA") and its member dealers conspired to fix prices in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1, by agreeing to add an itemized vehicle inventory tax charge to each of their customers' invoices. Plaintiffs filed a motion to compel requesting production of all documents shown on Defendants' privilege log, with certain specified exceptions. Subsequently, in a stipulation filed July 17, 2000, Plaintiffs withdrew their requests as to all documents except those identified in their reply brief. Plaintiffs also filed a supplemental motion to compel requesting certain long distance telephone records.

II. LEGAL STANDARDS

a. Attorney-Client Privilege

The federal common law of attorney-client privilege applies to federal court cases where a federal question is being litigated. See United States ex rel. Gameel Ghaprial, M.D. v. Quorum Health Resources, Inc., No. Civ. A. 97-1051, 1999 WL 7900, at *1 (E.D.La. Jan. 6, 1999); Smith v. Smith, 154 F.R.D. 661, 671 (N.D.Tex. 1994). The privilege prevents disclosure of communications between an attorney and client that were made while seeking or rendering legal services. The purpose of the privilege is 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." Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).

The elements necessary to establish that material is protected by the federal attorney-client privilege are:

(1) the asserted holder of the privilege is or sought to become a client;
(2) the person to whom the communication was made is
(a) a member of a 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

(iii) or assistance in some legal proceeding, and

(d) not for the purpose of committing a crime or tort; and
(4) the privilege has been

(a) claimed and

(b) not waived by the client.

United States v. Mobil Corp, 149 F.R.D. 533, 536 (N.D.Tex. 1993) (quoting In re LTV Sec. Litig., 89 F.R.D. 595, 600 (N.D.Tex. 1981)); see also United States v. El Paso Co., 682 F.2d 530, 538 n. 9 (5th Cir. 1982); In re Grand Jury Proceedings, 517 F.2d 666, 670 (5th Cir. 1975). These elements obviously differ slightly when the privilege is asserted for communications from the attorney to the client. See Mobil, 149 F.R.D. at 536.

The burden is on the party asserting the privilege to demonstrate how each document satisfies all the elements of the privilege, see Hodges, Grant & Kaufmann v. United States, 768 F.2d 719, 721 (5th Cir. 1985), including confidentiality and lack of waiver by breach of confidentiality.*fn1 See In re Grand Jury Proceedings, 680 F.2d 1026, 1029 (5th Cir. Unit A 1982) (Rubin concurring) ("The party who invokes the attorney-client privilege has the burden of establishing both the existence of an attorney-client relationship and the confidential nature of the communication.") (citing United States v. Flores, 628 F.2d 521, 526 (9th Cir. 1980); United States v. Kelly, 569 F.2d 928, 938 (5th Cir. 1978));United States v. Miller, 660 F.2d 563, 570 (5th Cir. 1981) (finding that the privilege proponent failed to meet his burden of proving that disclosure of documents by accountant to IRS did not constitute waiver); Mobil, 149 F.R.D. at 536 (listing lack of waiver as an element essential to establishing the privilege). The attorney-client privilege is to be strictly construed, i.e., interpreted "`within the narrowest possible limits consistent with the logic of its principle.'" United States v. Pipkins, 528 F.2d 559, 563 (5th Cir. 1976) (quoting In re Horowitz, 482 F.2d 72, 81 (2d. Cir. 1973)).

The privilege requires both intent that the communication remain confidential and that the communication actually remained confidential. A communication that would otherwise be privileged loses its protection if it is shared with a third party who does not have a common legal interest. See In re Auclair, 961 F.2d 65, 69 (5th Cir. 1992); New Orleans Saints v. Griesdieck, 612 F. Supp. 59, 63 (E.D.La. 1985) (The presence of persons who are neither lawyers nor clients negates the confidentiality necessary to the privilege); LTV, 89 F.R.D. at 603-04 ("[T]he communication must have been made and maintained in confidence under circumstances where it is reasonable to assume that disclosure to third parties was not intended") (citing Pipkins, 528 F.2d at 563 ("It is vital to a claim of privilege that the communication have been made and maintained in confidence.")).

The privilege protects attorney-client communications, not information contained within the communications. See LTV, 89 F.R.D. at 603 (quoting Upjohn, 449 U.S. at 395); see generally Paul R. Rice, Attorney Client Privilege in the United States § 5.1 (2d ed. 1999). Thus, a client may not refuse to disclose facts or documents simply because they were communicated or given to an attorney. See Fisher v. United States, 425 U.S. 391, 403-04 (1976); U.S. v. Davis, 636 F.2d 1028, 1040-41 (5th Cir. Unit A 1981) (unprivileged documents are not rendered privileged by depositing them with an attorney); Lahr v. Fulbright & Jaworski, No. 3:94-CV-0981-D, 1996 U.S. Dist. LEXIS 20133, at *17 n. 3 (N.D.Tex. July 11, 1996) (citing Upjohn, 449 U.S. at 395-96) (facts known to witnesses do not become privileged when they are communicated to an attorney). On the other hand, an attorney-client communication does not lose its privileged status because it contains non-privileged facts or consists of otherwise non-privileged documents. See High Tech Communications, Inc. v. Panasonic Co., Civ. A. No. 94-1477, 1995 WL 45847, at *4-*5 (E.D.La. Feb. 2, 1995) (citing Upjohn, 449 U.S. at 395-96); LTV, 89 F.R.D. at 613 (although unprivileged business records had to be disclosed, the client did not have to disclose which of those business records were provided to its attorney who was investigating the client at its request); El Paso, 682 F.2d at 538 n. 10 (5th Cir. 1982) (noting that disclosure to a third party of the underlying facts contained in a privileged communication does not affect the privileged nature of the communication).

Only communications made with a legal objective are protected. As one court has observed:

[T]he mere fact that a communication is made directly to an attorney, or an attorney is copied on a memorandum, does not mean that the communication is necessarily privileged. The information-holder's motive for the communication, to the extent that it can be discerned from the document, thus is an important consideration. "If the information-holder will communicate with the attorney even if the privilege does not exist, or if a nonlegal objective is sufficient to stimulate communication with the attorney, then there is no reason for the privilege to attach."
United States Postal Service v. Phelps Dodge Ref. Corp., 852 F. Supp. 156, 160 (E.D.N.Y. 1994) (citations omitted). The privilege "protects only those disclosures — necessary to obtain informed legal advice — which might not have been made absent the privilege." Fisher, 425 U.S. at 404.

"[T]he attorney-client privilege attaches to corporations [and organizations] as well as to individuals." Commodity Futures Trading Comm'n v. Weintraub, 471 U.S. 343, 348 (1985) (citing Upjohn, 449 U.S. 383). Because corporations can only act through their agents, communications between corporate agents and attorneys are protected if the agent is empowered to act on behalf of the corporation. See id. Thus, the privilege extends not only to communications between officers and directors and the corporation's attorney, see id. at 348-49, but also to communications between a corporation's lower level employees acting at the direction of its officers and the corporation's attorney. See Rubin v. United States, 119 S.Ct. 461, 462 (Breyer, J., dissenting from the denial of certiorari, characterizing the Upjohn holding); see also McGuire v. Sigma Coatings, Inc., 48 F.3d 902, 904 n. 4 (5th Cir. 1995) (citing Upjohn, 449 U.S. at 393); El Paso, 682 F.2d at 538 n. 8 ("as long as the communications were made to the attorney to assist him in giving legal advice to the client corporation"); LTV, 89 F.R.D. at 602 ("[T]he attorney-client privilege applies to communication made by corporate employees concerning matters pertinent to their job tasks, regardless of echelon if sought by the corporation's attorney in order to formulate and render legal advice to the corporation.").

While the privilege expressly protects only client communications, the protection has been extended to protect attorney communications as well. There are essentially two lines of thought on the protection of attorney communications. See Edna Selan Epstein, The Attorney-Client Privilege and the Work Product Doctrine, 40-41 (3d ed. 1997). Some circuits construe the privilege more narrowly so that it protects communications from the attorney only to the extent that disclosing an attorney communication would reveal the substance of a confidential client communication. See id. Thus, the protection of attorney communications in those circuits is derivative. The Fifth Circuit, however, is a "broad construction"*fn2 circuit, where the protection of attorney communications is direct. Id. at 44. Consequently, the attorney-client privilege protects "any communication from an attorney to his client when made in the course of giving legal advice, whether or not that advice is based on privileged communications from the client." Mobil, 149 F.R.D. at 536 (citing LTV, 89 F.R.D. at 602); see also Upjohn, 449 U.S. at 390 (the privilege exists to protect the giving of professional advice as well as the giving of information to the lawyer to enable him to give sound and informed advice).

The attorney-client privilege has also been extended to protect items such as research, notes, files and memoranda that are not themselves confidential communications, if disclosure would reveal the substance of any confidential communications between attorney and client that were made in the course of seeking or giving legal advice. See Upjohn, 449 U.S. at 401 (If an attorney's notes or memoranda "reveal communications, they are, in this case, protected by the attorney-client privilege."); LTV, 89 F.R.D. at 614 ("[N]otes of discussions between client and attorney" for the purpose of obtaining legal advice are privileged.); United States v. Willis, 565 F. Supp. 1186, 1194 (S.D.Iowa 1983) (If client confidences can be inferred from an attorneys' notes or research materials, then those items are privileged against production.); Cedrone v. Unity Sav. Ass'n, 103 F.R.D. 423, 429 (E.D.Pa. 1984) ("[I]t is inconceivable that an internal memorandum between attorneys in the same office concerning the representation of a client, utilizing confidential information provided by that client, could be anything but protected by the privilege."). Of course, in such situations, the party asserting the privilege still has the burden to show that disclosure of those items would reveal communications, not merely facts or non-communicative documents, and that those communications were made in the course of seeking or rendering legal services.

B. Work Product Doctrine

The federal attorney-work-product doctrine is codified in the Federal Rules of Civil Procedure:

Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, 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.
Fed.R.Civ.P. 26(b)(3).

The work-product doctrine thus provides qualified protection of documents and tangible things prepared in anticipation of litigation including "a lawyer's research, analysis of legal theories, mental impressions, notes, and memoranda of witnesses' statements." Dunn v. State Farm Fire & Cas. Co., 927 F.2d 869, 875 (5th Cir. 1991) (citing Upjohn, 449 U.S. at 400; El Paso, 682 F.2d at 543); see also United States v. Nobles, 422 U.S. 225, 237-39 (1975) (noting that the protection is qualified, not absolute). The level of protection from disclosure depends on whether work-product is classified as"ordinary" or "opinion" work-product. See Sporck v. Peil, 759 F.2d 312, 316 (3d Cir. 1985). Ordinary work-product generally consists of "primary information, such as verbatim witness testimony or objective data" collected by or for a party or a party's representative. Kent Corp. v. NLRB, 530 F.2d 612, 624 (5th Cir. 1976); but see Sporck, 759 F.2d at 315-16 (an attorney's compilation of otherwise unprotected documents can constitute opinion work-product because identification of the documents as a group reveal the lawyer's selection process and thus his mental impressions); LTV, 89 F.R.D. at 613 ("LTV's collations or choice of samples need not be identified. . . ."). A court may order production of ordinary work-product if the party seeking production can show that it has a "substantial need" for the material in the preparation of its case and that it cannot obtain the substantial equivalent of the material by other means without "undue hardship." Fed.R.Civ.P. 26(b)(3). Opinion work-product, on the other hand, which consists of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party, is afforded an almost absolute protection from discovery. See In re International Sys. and Controls Corp. Sec. Litig., 693 F.2d 1235, 1240 (5th Cir. 1982). A court cannot order production of opinion work-product absent a showing of even higher necessity, which is a rare situation if it exists at all. See Hickman v. Taylor, 329 U.S. 495, 513 (1947); In re International Sys., 693 F.2d at 1240.

The party asserting the protection bears the burden of showing that the materials warrant work-product protection. See Hodges, Grant & Kaufmann, 768 F.2d at 721. This burden is satisfied by demonstrating the presence of the following elements*fn3:

1) the materials are documents or tangible things*fn4

2) "prepared in anticipation of litigation or for trial,"*fn5 i.e.,
a) at a time when the party had reason to anticipate litigation,*fn6 and
b) "the primary motivating purpose behind the creation of the document was to aid in possible future litigation . . .,"*fn7
3) by or for a party or by or for a party's representative,*fn8 and
4) if seeking to show that material is opinion work-product, that the material contains the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party.*fn9
"[T]he burden of showing that the materials that constitute work-product should nonetheless be disclosed is on the party who seeks their production." Hodges, Grant & Kaufmann, 768 F.2d at 721. The party seeking discovery must show:
1) "substantial need of the materials in the preparation of the party's case"*fn10
2) inability "without undue hardship to obtain the substantial equivalent of the materials by other means,"*fn11 and
3) in the case of opinion work-product, circumstances that constitute the rare case that justifies production.*fn12
Ordinarily, the work-product doctrine should only be applied after it is decided that the attorney-client privilege does not apply. See, e.g., Upjohn, 449 U.S. at 397 ("To the extent that the material subject to the summons is not protected by the attorney-client privilege as disclosing communications between an employee and counsel, we must reach the ruling by the Court of Appeals that the work-product doctrine does not apply. . . ."); High Tech Communications, 1995 WL 45847, at *5 (ordering the magistrate judge to consider work-product protection if the party failed to establish the attorney-client privilege). This is because the work-product doctrine expressly applies only to "documents and tangible things otherwise discoverable." Fed.R.Civ.P. 26(b)(3). If the attorney-client privilege applies to a particular item, it is absolutely undiscoverable and the work-product rule does not apply.

The work-product doctrine is narrower than the attorney-client privilege in that it only protects materials prepared "in anticipation of litigation," Fed.R.Civ.P. 26(b)(3), whereas the attorney-client privilege protects confidential legal communications between an attorney and client regardless of whether they involve possible litigation. The work-product doctrine is obviously broader in that it protects materials prepared in anticipation of litigation "`by or for' the party or the party's representative," even if an attorney is not involved. LTV, 89 F.R.D. at 612 (quoting Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 603 (8th Cir. 1978)).

The work-product doctrine is also broader in that, unlike the attorney-client privilege, work-product protection is not necessarily waived by disclosure to a third party who does not have a common legal interest. Disclosure of work-product can result in waiver of the work-product protection, but only if it is disclosed to adversaries or treated in a manner that substantially increases the likelihood that an adversary will come into possession of the material. See High Tech Communications, Inc. v. Panasonic Co., Civ. A. No. 94-1477, 1995 WL 83614, at *5 (E.D.La. Feb. 24, 1995) (citing In re Convergent Technologies, 122 F.R.D. 555, 564 (N.D.Cal. 1988); Anderson v. Torrington Co., 120 F.R.D. 82, 86-87 (N.D.Ind. 1987)); Aiken v. Texas Farm Bureau Mutual Ins. Co., 151 F.R.D. 621, 623 n. 2 (E.D.Tex. 1993) (citing Shields v. Sturm, Ruger & Co., 864 F.2d 379, 382 (5th Cir. 1989); United States v. AT&T, 642 F.2d 1285, 1299 (D.C. Cir. 1980). Unlike the attorney-client privilege, the burden of proving waiver of work-product protection falls on the party asserting waiver. See High Tech Communications, 1995 WL 83614, at *5.

C. Joint Defense Privilege

The "joint defense" privilege, sometimes called the "common interest" or "community of interest" rule is not an independent privilege, but merely an exception to the general rule that no privilege attaches to communications that are made in the presence of or disclosed to a third party. See In re Auclair, 961 F.2d at 69 (holding that the joint defense privilege preserved the attorney-client privilege against waiver in the context of a group with common interests seeking common representation); LTV, 89 F.R.D. at 604 (The joint defense privilege merely "extends the attorney-client privilege to communications made in the course of joint defense activities."). If a communication satisfies all the elements of the attorney-client privilege except confidentiality, the joint-defense privilege will preserve the attorney-client privilege, so long as the only breach of confidentiality is sharing the communication "with a third person who has a common legal interest with respect to the subject matter of the communication." In re Auclair, 961 F.2d at 69 (quoting Hodges, Grant & Kaufman, 768 F.2d at 721). Thus, in addition to establishing the applicability of the attorney-client privilege, the elements necessary to invoke the joint defense privilege are: 1) a common legal interest between all persons with whom the communication is shared; and 2) a communication exchanged among those persons "in confidence, `not . . . for the purpose of allowing unlimited publication and use, but rather, . . . for the limited purpose of assisting in their common cause.'"*fn13 LTV, 89 F.R.D. at 604 (quoting Wilson P. Abraham Const. v. Armco Steel Corp., 559 F.2d 250, 253 (5th Cir. 1977) (citing Hunydee, 355 F.2d at 185).

The joint defense privilege has also been applied as an extension of the work-product doctrine in situations where disclosure of work-product could otherwise result in waiver. See Killebrew v. City of Greenwood, No. 4:95CV355-B-B, 1997 WL 208140, at *2 (N.D.Miss. April 11, 1997) ("The rule applies to both attorney-client and work product privilege."); see also Johnston v. Dillard Dept. Stores, Inc., Civ. A. No. 92-0740, 1993 WL 459932, at *1 (E.D.La. Oct. 29, 1993) (applying the "community of interest" rule to the work-product protection) (citing In re Crazy Eddie Sec. Litig., 131 F.R.D. 374, 379 (E.D.N.Y. 1990) ("Counsel may therefore share work product, including ideas, opinions, and legal theories, with those having similar interests in fully preparing litigation against a common adversary.")). However, the joint defense privilege is only applicable for protection of work-product where work-product is disclosed to persons who both share a common interest in litigation and are adversaries or so situated that disclosure to them makes it substantially more likely that an adversary will come into possession of the materials.

Should parties with a common legal interest who have shared privileged communications or work-product later become adverse, the joint defense privilege can be waived by any one of the persons who was privy to the communication or possessed the materials. "`[I]n any later controversy between or among those clients, the privilege could not stand as a bar to full disclosure at the instance of any one of them. . . . Nonetheless, in the absence of such event and in relation to the rest of the world, the attorney-client communications issuing from such a joint conference are invested with absolute secrecy.'" LTV, 89 F.R.D. at 605 (quoting In re a Grand Jury Subpoena Duces Tecum Dated November 16, 1974, 406 F. Supp. 388, 386 (S.D.N.Y. 1975)). "Even should such allies later become estranged, they would arguably still be entitled jointly to invoke the attorney-client privilege to protect shared confidences from disclosure at the behest of a third party." Id. at 604-05.

D. Evidence Considered in Evaluating Assertions of Privilege or Protection

The elements of attorney-client privilege, work-product protection, or joint defense privilege are usually established by affidavits from individuals with personal knowledge of the relevant facts, see Varo, Inc. v. Litton Systems, Inc., 129 F.R.D. 139, 142 (N.D.Tex. 1989), including in camera affidavits, see, e.g., Philadelphia Hous. Auth. v. American Radiator, 294 F. Supp. 1148, 1150 (E.D.Pa. 1969). However, courts may also rely on live testimony or in camera inspection of the documents, see Messagephone, Inc. v. SVI Sys., Inc., No. 3-97-CV-1813-H, 1998 WL 874945, at *1 (N.D.Tex. Dec. 8, 1998) (citing Varo, 129 F.R.D. at 141-42), privilege logs, see CSC Recovery Corp. v. Daido Steel Co., Ltd., No. 94CIV.9214 (LAP)(THK), 1997 WL 661122, at *2 (S.D.N.Y. Oct. 22, 1997) ("Daido's privilege log, combined with Ms. Newton's affidavit . . . and the documents themselves, which have been submitted for review, are more than sufficient to support the asserted claims of privilege."); Bowne of New York City v. AmBase Corp., 150 F.R.D. 465, 474 (S.D.N.Y. 1993) (noting that the court may rely on adequate privilege logs in allowing a party to prove the factual basis for its claims of privilege), deposition testimony, see Motley v. Marathon Oil Co., 71 F.3d 1547, 1550 (10th Cir. 1995); Bowne, 150 F.R.D. at 474 (In addition to the information contained in the privilege logs, "[o]ther required information . . . is then typically supplied by affidavit or deposition testimony."), and other information filed with the court such as pleadings, motions, briefs and exhibits, legal memoranda, discovery responses or other undisputed facts. See Paul R. Rice, supra § 11.10, at 87-89 (citing Motley, 71 F.3d 1547; International Tel. & Tel. Corp. v. United Tel. Co. of Florida, 60 F.R.D. 177, 182 (M.D.Fla. 1973)). The party asserting the privilege may attempt to rely on one or a combination of these methods so long as they demonstrate all elements of the privilege. However, depending on the circumstances of the case, a court may require proof by specific forms of evidence, for example, a separate affidavit establishing each element of the privilege or protection for each document. See, e.g., United States v. AT&T, 86 F.R.D. 603, 604-05 (D.D.C. 1979) (requiring parties to submit documents for in camera review with individual attachments including any information necessary to establish the factual elements required by the privilege invoked and a sworn affidavit verifying that information).

III. ANALYSIS

The court begins its analysis by addressing a deficiency that negates all of Defendants' claims of attorney-client privilege and joint defense privilege. Defendants assert that the allegedly privileged communications are privileged so long as they "[were] intended to remain confidential and [were] made under such circumstances that [they were] reasonably expected and understood to be confidential." Defs.' Resp. to Pls.' Mot. to Compel and Br. in Support at 4 (quoting In re Auclair, 961 F.2d at 70). And TADA Chief Counsel Karen Coffey's affidavit filed in support of the privileges states only that the documents in question were intended to be and were reasonably expected and understood to remain confidential. See Defs.' Resp. to Pls.' Mot. to Compel and Br. in Support, Ex. A, ("Coffey Affidavit") at 2-5. These assertions misstate the law and are insufficient to preserve the attorney-client privilege.

Defendants' conception mistakes a necessary element of the privilege for a condition that is sufficient to create the privilege. The proponent of the attorney-client privilege or joint defense privilege must show that the privileged communications not only were intended to be kept confidential, but that they were, in fact, kept confidential. A communication that would otherwise be privileged loses its protection if it is shared with a third party who does not have a common legal interest. See LTV, 89 F.R.D. at 603-04 ("[T]he communication must have been made and maintained in confidence under circumstances where it is reasonable to assume that disclosure to third parties was not intended") (citing Pipkins, 528 F.2d at 563 ("It is vital to a claim of privilege that the communication have been made and maintained in confidence.")); Griesdieck, 612 F. Supp. at 63 (presence of third parties destroys the privilege); El Paso, 682 F.2d at 539-41 (where the client's disclosure of its lawyer's tax-pool analysis to independent auditors resulted in waiver of the privilege).

In re Auclair, cited by Defendants, does not change this rule. Auclair dealt with the situation where multiple potential clients meet with an attorney regarding possible representation and make revelations to the attorney before representation is actually agreed upon. The Auclair court held that, in that situation, the potential clients do not waive the attorney-client privilege because of the presence of the other prospective clients. See Auclair, 961 F.2d at 70-71. This holding does not change the general rule that waiver results from disclosure to third parties who do not have a common legal interest. Rather, Auclair simply applies the joint defense privilege to the pre-representation stage. Defendants do not (and could not seriously) contend that the correspondence sent by Coffey to TADA members constitutes a pre-representation meeting; therefore, the Auclair holding is inapposite. Because Defendants have not ...


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