Opinion
Civil Action No. 04-542 (JDB).
February 11, 2005
MEMORANDUM AND ORDER
Before the Court is plaintiff's motion for a protective order relating to two pages of handwritten Farsi notes, as well as an English translation of those notes. The notes were prepared by plaintiff prior to his August 4, 2004 deposition, at which defendant's counsel sought to attach the notes to the deposition testimony as an exhibit. At the deposition, plaintiff claimed that the attorney-client privilege protected the notes, and therefore, they could not be attached to the deposition transcript. To resolve the matter, the parties agreed that a copy of the notes would be given to the translator present at the deposition, who would prepare an English translation for submission, under seal, to the Court. Def. Opp'n to Mot. for Prot. Order at 4.
According to a colloquy at the deposition, and the parties' filings, the notes were discussed the day before the deposition by plaintiff and his attorney, with plaintiff's son-in-law present and serving as an ad hoc interpreter. See Pl. Mot. to Seal at 1; Def. Opp'n to Mot. for Prot. Order at 1, 4. Defendant thus argues that any privilege in the notes in question was waived, or, indeed, perhaps never attached at all, because plaintiff's son-in-law was present in the room, serving as a translator, when plaintiff discussed the notes with his attorney. Accordingly, defendant opposes plaintiff's motion for a protective order and seeks production of the notes.
"The attorney-client privilege protects confidential communications made between clients and their attorneys when the communications are for the purpose of securing legal advice or services." In re Bruce R. Lindsey (Grand Jury Testimony), 158 F.3d 1263, 1267 (D.C. Cir. 1998) (per curiam) (citing In re Sealed Case, 737 F.2d 94, 98-99 (D.C. Cir. 1984)). For purposes of the attorney-client privilege, a communication has been defined as "any expression through which a privileged person . . . undertakes to convey information to another privileged person and any document or other record revealing such an expression." Restatement (Third) of the Law Governing Lawyers § 69 (2000). A communication may be made either orally or in writing. See id. cmt. b; see also 24 Charles Allen Wright and Kenneth W. Graham, Jr., Federal Practice and Procedure § 5484 (1986). Although written documents differ from oral communications in some aspects of privilege analysis, chiefly because a document is tangible whereas a conversation is a finite and unrepeatable event, if a document is created with the primary purpose of communicating with the attorney, the privilege may attach. 24 Wright and Graham, Federal Practice and Procedure § 5484 at 327 ("The best analysis is that no document — or other writing — should be treated as within the privilege if it did not come into existence for the primary purpose of communicating to the attorney.").
The notes in question here constitute a communication for purposes of the privilege. After in camera review of the translation, the Court is convinced that the notes came into existence for the primary purpose of communicating to the attorney regarding the representation generally, and that the notes do not contain discoverable facts. Axiomatically, a client cannot make a pre-existing document privileged simply by giving it to his attorney; however, this axiom refers not to the kind of document created for the narrow purpose of understanding and facilitating the attorney-client relationship, but rather to documents like business records that existed prior to the attorney-client relationship. In Derderian v. Polaroid Corp., 121 F.R.D. 13 (D. Mass. 1988), the court analyzed whether notes prepared by a client during the course of litigation, shared with the client's attorneys, and used by the client to refresh her memory prior to her deposition, were protected by the attorney-client privilege. Because the notes "were created for the purpose of communicating facts to counsel to enable counsel to give legal advice," id. at 15, and not used during the deposition to refresh the client's memory, the court held the notes to be protected by the privilege. Id. This is precisely the situation here as well.
Defendant is correct that, for the privilege to attach, a communication must be confidential. As the D.C. Circuit noted, "[t]he attorney-client privilege exists to protect confidential communications, to assure the client that any statements he makes in seeking legal advice will be kept strictly confidential between him and his attorney; in effect, to protect the attorney-client relationship." United States v. American Tel. and Tel. Co., 642 F.2d 1285, 1299 (D.C. Cir. 1980). The D.C. Circuit has, however, recognized a "reasonable necessity" exception to the strict confidentiality requirement, allowing use of an intermediary to facilitate communication between attorney and client without destroying — for purposes of the privilege — the confidentiality of a communication. This exception allows a court to "take into account the client's circumstances and the obstacles preventing direct communication with the attorney."Lindsey, 158 F.3d at 1279-80. The D.C. Circuit explained that:
In considering whether a client's communication with his or her lawyer through an agent is privileged under the intermediary doctrine, the "critical factor" is "that the communication be made `in confidence for the purpose of obtaining legal advice from the lawyer.'" (citations omitted). When an agent changes a message in a way not intended simply to ensure complete understanding ( as in the case of a translator), the agent is not acting consistently with this purpose; by changing the message, the agent injects himself or herself into the chain of communication, rather than effectuating the client's purpose of receiving advice from his or her lawyer.Id. at 1280-81 (emphasis added). Moreover, the D.C. Circuit took pains to emphasize that the intermediary may "add value" to attorney-client communication, and that "a translator adds value to the interaction between attorney and client. . . ." Id. at 1281.
The Lindsey court acknowledged that "reasonable necessity" typically "involves the client's fundamental inability to communicate without an intermediary," but that such necessity may even arise based on the "unavoidable, virtually full-time demands" of the office of President of the United States.Lindsey, 158 F.3d at 1280. Consonant with the D.C. Circuit's analysis in Lindsey, numerous courts have held that the attorney-client privilege survives, even when an interpreter is present for the communication. See, e.g., Hawes v. State, 7 So. 302, 313 (Ala. 1890) ("[A]n interpreter, intermediary, agent, or clerk of an attorney, through whom communications between attorney and client are made, stands upon the same footing as his principal, and will not be allowed to divulge any fact coming to his knowledge as the conduit of information between them.");Mileski v. Locker, 178 N.Y.S.2d 911, 915-16 (N.Y.Sup.Ct. 1958) ("[C]ommunications to any person whose intervention is necessary to secure and facilitate the communication between attorney and client are privileged, as communications through an interpreter, a messenger, or any other intermediary."); United States v. Kovel, 296 F.2d 918, 920-21 (2d Cir. 1961) (likening presence of accountant at attorney-client conversation to presence of linguist); Maas v. Bloch, 7 Ind. 202 (1855) (protecting entirety of conversations between attorney and client facilitated by interpreter). Thus, not only are the notes themselves protected, but neither plaintiff's son-in-law, nor plaintiff, may not be compelled to testify as to the contents of the conversation during which the notes were discussed.
The notes at issue in this case reflect the client's fundamental inability to communicate with his attorney without an intermediary; had plaintiff been able to communicate with his attorney directly, in English, his notes would not likely have been written in Farsi, nor would he have needed to bring a relative to translate for him when meeting his attorney, nor would an interpreter have been necessary at his deposition. Defendant alleges, obliquely, that a courtappointed interpreter's presence at the attorney-client meeting where the notes were discussed would not have affected the privilege, but such a distinction is irrelevant. The reasonable necessity exception, allowing clients to communicate through intermediaries under certain circumstances, envisages that "a communication by a client to his attorney by any form of agency employed or set in motion by the client is within the privilege." Mileski, 178 N.Y.S.2d at 255-56 (emphasis added). Accordingly, plaintiff's son-in-law may serve as an intermediary for the limited purpose of facilitating communication between attorney and client, without breaching the element of confidentiality required for the attorney-client privilege to attach.
For these reasons, the Court finds that the disputed two pages of handwritten, Farsi notes prepared by plaintiff, as well as the English translation prepared for purposes of this Court's review, are protected by the attorney-client privilege and need not be disclosed to any other party.
SO ORDERED.