Opinion
No. 2:98-CV-62-BO(2)
September 27, 2000
ORDER
This matter comes before the Court on Defendants' second motion to compel discovery. Plaintiff has filed a response, and this matter is ripe for ruling. Also before the Court is Plaintiff's motion to enlarge discovery and the dispositive motion filing period. Defendants oppose the extension of time, and this matter is also ripe for ruling.
Defendants withdrew their first motion to compel.
I. Background
Plaintiff claims that in 1996, Elizabeth City State University ("ECSU") discriminated against him on the basis of race when it denied him tenure. In June of that year, Plaintiff asked for a grievance appeal of his tenure denial and termination. Plaintiff hired Dr. Carol O'Dell, who was then a faculty member at ECSU and not an attorney, to represent him at his grievance hearing. Then, in the fall of 1996, as was evidently required by the existing procedures, Plaintiff filed a notarized form with the ECSU Vice Chancellor, Helen Caldwell, confirming the status of Dr. O'Dell as his representative. Dr. O'Dell wrote to the Hearing Committee, introducing herself as Plaintiff's representative, on November 27, 1996. Plaintiff's counsel contends that using lay-representatives is a very common procedure in academic grievance procedures. Defendants do not challenge Plaintiff's assertion that Dr. O'Dell was his representative, and the Court will assume that this was the normal procedure for the Faculty Grievance Hearings at ECSU and that Dr. O'Dell was Plaintiff's representative throughout the hearing process.
The controversy at the heart of this motion to compel is the effect on discovery of O'Dell's being a lay-representative. Claiming that such information was privileged, Plaintiff refused in his deposition to answer certain questions regarding his conversations with Dr. O'Dell after she agreed to represent him. Dr. O'Dell also refused to answer questions in her deposition concerning the conversations she had with Dr. Sohindar Sachdev, another faculty member at ECSU and one of the named Defendants in this case. (Evidently, Sachdev had earlier conferred with Dr. O'Dell about a potential grievance, unrelated to Plaintiff's denial of tenure, that he was contemplating bringing against ECSU). Finally, Plaintiff has refused to provide Defendants with numerous documents reflecting communications between O'Dell and Plaintiff between September 21, 1996 through November 4, 1996, claiming that such documents are work-product.
After Plaintiff filed this lawsuit on October 26, 1998, Plaintiff's counsel then retained O'Dell to assist with the case. However, in 1996, Plaintiff had not yet retained counsel. Therefore, Plaintiff cannot invoke the attorney-client privilege as to his prior conversations with O'Dell based on the fact that she now works with his attorney. See Ramseur v. Reich, No. 2:95-0382, available at 1997 WL 907896 at *9 (S.D.W. Va. March 31, 1997).
II. Motion to Compel
The purpose of the attorney-client 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 attorney-client privilege bars the discovery of statements made to a lawyer for the purpose of obtaining legal advice.See id. Stated more precisely, the privilege applies if:
(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the 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 an 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 or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.In re Allen, 106 F.3d 582, 600 (4th Cir. 1997) (internal quotation marks and citations omitted).
Because it "impedes the full and free discovery of the truth," see In re Grand Jury Subpoena, 204 F.3d 516, 520 (4th Cir. 2000), the attorney-client privilege "is to be narrowly construed" and "recognized `only to the very limited extent that . . . excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.'" Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998) (quoting Trammel v. United States, 445 U.S. 40, 50 (1980)). The party asserting the privilege bears the burden of proving that the privilege is applicable. See In re Grand Jury Proceedings, 33 F.3d 342, 353 (4th Cir. 1994).
Dr. O'Dell is not licensed to practice law. For that reason, Plaintiff's invoking of the attorney-client privilege may sound almost frivolous. However, the issue is not as clear-cut as it may first appear. The issue of whether clients of lay representatives at administrative proceedings can later claim the protection of the attorney-client privilege is "unsettled." See Ramseur v. Reich, No. 2:95-0382, available at 1997 WL 907896 at *9 (S.D.W. Va. March 31, 1997).
The recognition of a representative-client privilege in administrative proceedings does have some support in the case-law. In Woods v. New Jersey Department of Education, 858 F. Supp. 51 (D.N.J. 1993), the parents of a handicapped student sued state and local agencies in New Jersey for failure to fund the residential portion of the student's placement in an out-of-state residential education facility. See id. at 52. The Woods were represented in the state administrative hearings by a lay advocate, which was allowed under the state court rules. When the defendants subpoenaed the lay advocate, she argued that either the attorney-client privilege should be extended to lay advocates authorized to perform attorney-like functions or the court should recognize an analogous privilege. See id. at 52-54. The District Court for the District of New Jersey held that three factors warranted the existence of a privilege: 1) the state court rules specifically authorized lay advocacy in these matters; 2) the state administrative code provided that the lay advocate must follow the Rules of Professional Conduct; and 3) the substance of the relationship between plaintiffs and the lay advocate was one of attorney and client so that full and frank communications between plaintiffs and the lay advocate were necessary. See id. at 55; Accord Welfare Rights Organization v. Crisan, 661 P.2d 1073, 1077 (Cal. 1993) (holding, under a similar analysis, that communications between welfare claimants and lay representatives authorized to represent them in administrative hearings are privileged).
The District Court for the Eastern District of New York took an opposite view, however, in In re Grand Jury Subpoenas, 995 F. Supp. 332 (E.D.N.Y. 1998). That case involved a grand jury investigation of criminal conduct by a number of police officers. A few of these officers consulted with union representatives before the union retained counsel for them. See id. at 333. When the prosecutor subpoenaed the union representatives to appear before the grand jury, the union argued that the conversations between the officers and the union representatives (who were not attorneys) were privileged. See id. In ruling against the union, the district court stated, "Because the privilege `stands in derogation of the public's right to every man's evidence, . . . it ought to be strictly confined within the narrowest limits consistent with the logic of its principle.'" Id. at 337 (quoting In re Horowitz, 482 F.2d 72, 81 (2d Cir. 1973)) (internal quotes and citations omitted). The district court noted that the subpoenaed witnesses had not specified "what particular role each of them played in securing counsel for the four officers. . . . Neither do they indicate how the conversations between the witnesses and the police officers promoted full and frank conversations between those officers and their lawyers." Id. Because the Court found that the union was obligated to hire counsel for the officers, there was no policy requiring union officials to make any specific findings before honoring a request for counsel and the police officers were not obliged to discuss anything with the representatives before they were retained counsel. See id. at 338. Therefore, the district court refused to find the conversations privileged.
In a similar case involving an excessive force claim against a police officer, the District Court for the District of Utah also refused to find the attorney-client privilege applicable to conversations made between the officer and his union representative. See Walker v. Huie, 142 F.R.D. 497 (D. Utah 1992). Noting that evidentiary privileges must be "`strictly construed,'" the district court found that it would be a distortion of the common law definition of "lawyer" to include a police officer acting as a union representative. Id. at 501 (quoting Trammel, 445 U.S. at 50. Even though there was evidently a contractual agreement between the union and its members so that communications with a union representative were considered confidential, this did not render the communications privileged because "[t]he scope of federal common law cannot be dictated by agreement among private parties, particularly where the rights of other parties are involved." Id. at 501-02. The court could find no reason for expanding the attorney-client privilege in that instance. See id.
Although Plaintiff's case is admittedly more closely analogous toWoods, the Court nevertheless concludes that he is not entitled to invoke the attorney-client privilege as to his communications with O'Dell. While Plaintiff points out other state regulations where employees are not allowed to be represented by attorneys and where employees may be represented by lay-persons, Plaintiff has not shown the Court that the regulations concerning grievance hearings at ECSU specifically authorize lay persons to represent faculty at that institution. As the party claiming the privilege, Plaintiff has the burden of establishing its existence. See In re Grand Jury Proceedings, 33 F.3d at 353.
Furthermore, Plaintiff has not shown a North Carolina statute authorizing lay person representation at employee grievance hearings, nor has the Court discovered such a statute. In fact, the North Carolina Administrative Code states that in state employee grievance proceedings, "Neither the agency nor the employee shall be represented by any outside parties . . . ." 25 N.C. ADMIN. CODE § 1J.0501 (2000). Finally, the Court notes that under North Carolina law, Plaintiff was not required to employ the grievance procedures of ECSU because he alleged race discrimination. Instead, he was entitled to take appeal the decision directly to the State Personnel Commission. See N.C. GEN. STAT. § 126-36(a) (2000); 25 N.C. ADMIN. CODE § IJ.0506(a) (2000). While an extension of the attorney-client privilege to lay-persons might be found to exist where the state specifically authorizes lay-person representation and where the particular administrative procedure must be exhausted in order to file the claim in court, that is not the case here. Therefore, the Court declines Plaintiff's request to extend the attorney-client privilege in this matter, and Defendants' motion to compel IS ALLOWED. Plaintiff must answer questions concerning his conversations with O'Dell.
2. O'Dell's representation of Defendant Sachdev
Defendants argue that Dr. O'Dell must answer questions concerning the conversations she had with Dr. Sohindar Sachdev, another faculty member at ECSU and one of the named Defendants in this case. They again argue that the conversations were not privileged. However, even if the conversations were privileged, the privilege belongs to Sachdev, not O'Dell. See In re Allen, 106 F.3d at 600 (noting that in order for the privilege to be applicable, it must be asserted by the client and must not have been waived). Because Sachdev's attorneys are the ones demanding that O'Dell answer, it would seem that he is not asserting the privilege.
Defendants ask the Court to rule on the propriety of O'Dell's conversations with Sachdev, which they describe as ex parte. Without knowing the nature of the conversations between O'Dell and Sachdev, it is impossible to determine whether anything improper occurred. That two faculty members at the same institution, one of whom often represented faculty members in grievance proceedings, had conversations with one another does not alone seem improper.
It is not entirely clear why the information sought is relevant. However, given the broad definition of relevancy during discovery, the Court cannot deem the information sought as completely irrelevant to the issues in this case. See F.R. Civ. Proc. 26(b)(1) (stating that information requested need not be admissible at trial if it "appears reasonably calculated to lead to the discovery of admissible evidence");Alexander v. Cannon Mills Co., 112 F.R.D. 404, 406 (M.D.N.C. 1986) (construing the relevancy requirement in Rule 26 more broadly than the relevancy requirement in Rule 401 of the Federal Rules of Evidence). Therefore, Defendants motion to compel IS ALLOWED, and O'Dell must answer questions concerning her conversations with Sachdev.
3. Application of Work-Product Doctrine
A party seeking discovery of documents or other things "prepared in anticipation of litigation or for trial by or for another party" must show that the seeking party "has substantial need of the materials . . . and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means." F. R. Civ. Proc. 26(b)(3). This rule allows for a broad interpretation of who may serve as a party's representative and therefore "fall within the penumbra of the work product doctrine." National Educ. Training Group, Inc. v. Skillsoft Corp., No. M8-85, available at 1999 WL 378337 at *6 (S.D.N.Y. June 10, 1999); see also Maertin v. Armstrong World Industries, Inc., 172 F.R.D. 143, 150-51 (D.N.J. 1997) (noting the same). Therefore, merely because O'Dell is not an attorney would not make the work-product rule inapplicable.
The real issue is whether the documents were prepared in anticipation of litigation. The Fourth Circuit has offered some guidance for making this determination in National Union Fire Ins. Co. v. Murray Sheet Metal Co., Inc., 967 F.2d 980 (4th Cir. 1992). The court of appeals first noted, "[B]ecause litigation is an ever-present possibility in American life, it is more often the case than not that events are documented with the general possibility of litigation in mind." Id. at 984. Nevertheless, "`[t]he mere fact that litigation does eventually ensue does not, by itself, cloak materials' with work product immunity." Id. (quoting Binks Mfg. Co. v. National Presto Indus., Inc., 709 F.2d 1109, 1118 (7th Cir. 1983)). In order to be protected by the work product rule, a 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. When resolving a work product question, a court must determine "the driving force behind the preparation of each requested document." Id.
It is possible, theoretically, that some of the documents prepared by O'Dell were done at least partly with the realization that Nemecek would be filing this lawsuit in the future. Furthermore, at least one district court has ruled that the work product rule is applicable to documents done in preparation of administrative proceedings. See Woods, 858 F. Supp. at 55.
However, the burden of showing that the withheld documents were prepared in anticipation of litigation rests with Plaintiff. See Sandbag v. Virginia Bankshares, Inc., 979 F.2d 332, 355 (4th Cir. 1992). Plaintiff has not met this burden, for he has not given sufficient information about each document in question so that the Court may determine "the driving force" behind each document's preparation. See National Union Fire Ins. Co., 967 F.2d at 984. Indeed, Plaintiff has offered the Court no specific information regarding the content of the documents in question. Plaintiff cannot rely on conclusory statements in his memorandum alone as support. See Baltimore Scrap Corp. v. David J. Joseph Co., No. L-96-827, available at 1996 WL 720785 at *15 (D.Md. Nov. 20, 1996); Suggs v. Whitaker, 152 F.R.D. 501, 505 (M.D.N.C. 1993). Because Plaintiff has not met his burden, Defendants' motion to compel IS ALLOWED, and Plaintiff IS ORDERED to provide Defendants with copies of the requested documents within 7 days of the filing of this Order.
III. Motion for Extension of Time
Plaintiff requests that the discovery period as well as the time in which to file dispositive motions each be enlarged by 30 days. Plaintiff offers several reasons for the extension, including the stay of depositions during a mediated settlement conference, Defendants' delays in responding to discovery, as well as the current discovery dispute addressed above. Defendants strenuously object to the extension, claiming that the delays are attributable to Plaintiff.The extension of time will not affect the trial date in this matter. FOR GOOD CAUSE SHOWN, Plaintiff's requests for a 30-day extension of the discovery period and time in which to file dispositive motions IS ALLOWED.
IV. Conclusion
In sum, Defendants' motion to compel IS ALLOWED in full. Plaintiff must answer questions concerning his conversations with O'Dell. O'Dell cannot claim a privilege and must answer questions concerning her conversations with Sachdev. Furthermore, Plaintiff IS ORDERED to provide Defendants with copies of the requested documents within 7 days of the filing of this Order.
Plaintiff's motion for an extension of time IS ALLOWED.