Opinion
CASE NO. 2:08-cv-949-MEF (WO).
September 4, 2009
MEMORANDUM OPINION AND ORDER
INTRODUCTION
Plaintiff QBE Insurance Corporation ("QBE") filed this declaratory judgment action against Walter Griffin ("Griffin") and Mary Howard ("Howard") on December 3, 2008. (Doc. # 1.) QBE seeks a declaration that it has no duty to defend Griffin in an underlying state court lawsuit brought by Howard. A law firm not involved in this declaratory judgment action, Haskell, Slaughter, and Gallion, represents Griffin in the state court proceedings. The Case is presently before the Court on a Rule 72(a) Objection to Chief Magistrate Judge Walker's Order granting Defendant Mary Howard's Third Motion to Compel. (Doc. # 44.) The Court has carefully considered the submissions of the parties and the applicable authorities and has reviewed a recording of the hearing before the Magistrate Judge. For the reasons set forth below, the Court finds that the objections are due to be SUSTAINED in part and OVERRULED in part.
Haskell, Slaughter, and Gallion filed a Motion to Intervene in support of the Objections. (Doc. # 45). Because the Court sustains the objections with regard to the interests they seek to protect, the Motion to Intervene is due to be DENIED as moot.
FACTUAL AND PROCEDURAL BACKGROUND
As Chief Magistrate Judge Walker observed during the hearing on the motion in issue, discovery in this case has not proceeded smoothly. The latest incident is Howard's Third Motion to Compel Production of Documents. (Doc. # 37.) By that Motion, Howard sought an order directing QBE to respond to a series of requests for production. The requests to which QBE objected, numbered 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, and 15, requested the following documents:
Request No. 4: Any and all correspondence, documents, emails or writings of any kind sent from you to the attorneys at Haskell, Slaughter and Gallion regarding their defense of Walter Griffin in the Mary Howard case.
Request No. 5: Any and all correspondence, documents, emails or writings of any kind sent from you to Walter Griffin's attorneys at Haskell, Slaughter and Gallion from 2006 to the present that are not included in your response to Request No. 4.
Request No. 7: Any and all correspondence, documents, emails or writings of any kind reflecting that you exercised your enhanced obligation of good faith to your insured, Walter Griffin.
Request No. 8: Any and all correspondence, documents, memorandums, emails, interoffice emails, inter-office memorandums, or writings of any other kind reflecting that you and the attorneys at Haskell, Slaughter and Gallion understood that your insured, Walter Griffin was the client in the Mary Howard case.
Request No. 9: Any and all correspondence, documents, emails or writings of any kind sent from you to the attorneys at Haskell, Slaughter and Gallion regarding their representation of Walter Griffin in the Mary Howard case.
Request No. 10: Any and all documents, correspondence, memorandums, emails, interoffice emails, inter-office memorandums or writings of any kind reflecting any concerns you had for your monetary interests in the Mary Howard case.
Request No. 11: Any and all documents, correspondence, memorandums, emails, interoffice emails, inter-office memorandums or writings of any kind reflecting your concern, if any, for your insured's financial risk in the Mary Howard case.
Request No. 12: Any and all correspondence, documents, emails or writings of any kind that reflect your understanding stated with specificity and in detail regarding the duties and responsibilities of Walter Griffin as vice president or any other office of Southeast Pallet and Box/Kopac.
Request No. 13: Any and all documents, correspondence, memorandums, emails, interoffice emails, inter-office memorandums or writings of any kind either from you to your attorneys of [sic] from your attorney's [sic] to you, regarding Walter Griffin's potential liability in the Mary Howard case.
Request No. 14: Any and all correspondence, documents, emails or writings of any nature and kind sent by you to your insured regarding any and all developments in your investigation relevant to his policy coverage and the progress of his lawsuit.
Request No. 15: To the extent not already produced, any and all documents, correspondence, email or any other writings you have received from Haskell, Slaughter and Gallion regarding the Mary Howard case to the present.
Howard propounded these requests for production on February 27, 2009. However, at that time Howard had not filed her initial disclosures in violation of the Court's Uniform Scheduling Order and Federal Rule of Civil Procedure 16. On April 11, 2009, Howard sent QBE a ten-day letter requesting responses to her discovery requests. QBE responded in a letter dated April 22, 2009, claiming that the documents requested were immaterial and irrelevant and that it did not intend to engage in discovery until Howard filed her initial disclosures.
On May 27, 2009, Howard filed her initial disclosures. QBE began preparing its responses to Howard's first requests for production upon receipt of the initial disclosures and tendered those responses on June 11, 2009. Part of the responses included objections to many of the above-detailed requests. QBE objected that much of the material requested was irrelevant to the declaratory judgment action and was attorney work-product prepared by Haskell, Slaughter and Gallion in the course of its representation of Griffin in the underlying state case.
In response to QBE's objections, Howard filed a Motion to Compel Production of Documents on July 6, 2009. (Doc. # 37.) Chief Magistrate Judge Walker held a hearing on the Motion on July 30, 2009. At the conclusion of the hearing, she granted the Motion because she found that QBE waived its objections to the propounded requests for production because it did not object within thirty days of service. While she did discuss the arguments made in the Motion and QBE's Response, Magistrate Judge Walker did not orally recognize at the hearing that many of the documents sought by Howard were attorney work-product.
Pursuant to Federal Rule of Civil Procedure 72, QBE filed objections to Magistrate Judge Walker's Order on August 7, 2009. (Doc. # 44.) QBE makes substantially the same arguments in its objections as it made in response to the Motion to Compel: first, that it had good cause for the delay in filing objections; second, that much of the information sought is protected by the attorney-client and work-product privileges; third, that the information sought is irrelevant to the declaratory judgment action; and finally, that some of the requests are ambiguous.
DISCUSSION
The Court finds that by failing to object to the propounded requests for production within thirty days of service, QBE waived its objections as to relevance and ambiguity. Chief Magistrate Judge Walker's Order on these issues was neither clearly erroneous nor contrary to law and was in accord with well-established practice in this district. See Alexander v. Certegy Check Servs., Inc., No. 2:05-CV-449-MHT, 2006 WL 1515841 (M.D. Ala. May 30, 2006); see also Ramirez v. County of Los Angeles, 231 F.R.D. 407, 409 (C.D. Cal. 2005) ("If a party fails to file timely objections to [discovery] requests, such a failure constitutes a waiver of any objections which a party might have to the requests."); Krewson v. City of Quincy, 120 F.R.D. 6, 7 (D. Mass. 1988) (same); Third Party Verification, Inc. v. SignatureLink, Inc., No. 6:06-CV-415, 2007 WL 1288361 (M.D. Fla. May 2, 2007) (same). The circumstances in this case with respect to the attorney work-product and attorney-client privileges, however, command an exception to this general rule of waiver.QBE was unable to waive the attorney work-product privilege. Unlike the attorneyclient privilege, which belongs only to the client, the work-product privilege is shared between the attorney and the client. See In re Antitrust Grand Jury, 805 F. 2d 155, 164 (6th Cir. 1986). "[A]n attorney may not unilaterally waive the privilege that his client enjoys." Hanson v. U.S. Agency for Intern. Dev., 372 F. 3d 286, 294 (4th Cir. 2004) (discussing the attorney opinion work-product privilege). Nor can the client unilaterally waive the privilege; the attorney may contest disclosure even in the face of a client's waiver. Catino v. Travelers Ins. Co., Inc., 136 F.R.D. 534 (D. Mass. 1991). The privilege thus belongs to both Haskell, Slaughter, and Gallion and Griffin, but not to QBE. Hence, QBE was, even by failure to object to the propounded requests for production, not free to waive the work-product privilege. Moreover, Griffin is represented by different counsel in the underlying state case than is QBE in the federal declaratory judgment action. It would be manifestly unjust and contrary to law to allow QBE's counsel's inaction in the federal case to waive the privilege that belongs to Griffin and Haskell, Slaughter, and Gallion.
For purposes of ruling on the Objections, the Court assumes, without deciding, that the documents QBE objects to producing are covered by the work-product privilege. The Court leaves any dispute about the application of the work-product privilege to particular documents for resolution by the Magistrate Judge in the first instance.
Courts have rightly been hesitant to find implied waivers of the attorney work-product privilege. For example, the Third Circuit has held that "a party waives the [work-product] privilege only when he or she `has made the decision and taken the affirmative step in the litigation to place the advice of the attorney in issue.'" U.S. Fire Ins. Co. v. Asbestospray, Inc., 182 F. 3d 201, 212 (3d Cir. 1999); see also In re Lott, 139 Fed. Appx. 658, 660 (6th Cir. 2005) ("To be sure, litigants cannot hide behind the privilege if they are relying upon privileged communications to make their case. `[T]he attorney-client privilege cannot at once be used as a shield and a sword.' . . . But, while the sword stays sheathed, the privilege stands."); Pamida, Inc. v. E.S. Originals, Inc., 281 F. 3d 726, (8th Cir. 2002) (noting that when assessing a claim of implied or passive waiver of the work-product privilege, "the Court must not only look at whether [the party] intended to waive the privilege, but also whether the interests fairness and consistency mandate a finding of waiver.").
Applications in other contexts support prevention of casual waivers of the work-product privilege. As the Eleventh Circuit has held, some forms of privilege waiver are inapplicable to attorney work-product. For example, subject-matter waiver, which provides that a party loses the privilege by injecting an issue into the case that in fairness requires an examination of communications otherwise protected by the attorney-client privilege, does not extend to materials protected by the work-product privilege. Cox v. Administrator U.S. Steel Carnegie, 17 F. 3d 1386, 1422 (11th Cir. 1994) ("Where a party asserts that he believed his actions to be lawful, he waives the attorney-client privilege as to what his attorney told him about the legality of his actions . . .; his attorney's work-product, however, is a different matter."). Courts are particularly strict with respect to so-called "opinion" work-product, which is what the propounded requests appear to seek. See Williamson v. Moore, 221 F.3d 1177, 1182-83 (11th Cir. 2000) (holding that opinion work-product enjoys "almost absolute immunity" from discovery); Cox, 17 F.3d at 1422 (same); see also In re EchoStar Commc'ns Corp, 448 F. 3d 1294, 1302 (Fed. Cir. 2006) ("Second, a party may discover work-product if the party waives its immunity. . . . However, work-product waiver is not a broad waiver of all work-product related to the same subject matter like the attorney-client privilege. . . . Instead, work-product waiver only extends to "factual" or "non-opinion" work-product concerning the same subject matter as the disclosed work-product."); In re Martin Marietta Corp, 856 F. 2d 619, 624 (4th Cir. 1988) (holding that employer's prior disclosures to Government in attempt to settle criminal investigation against company constituted waiver of attorney-client privilege and non-opinion work-product privilege, but did not constitute waiver of opinion work-product privilege); In re Columbia/HCA Healthcare Corp. Billing Practices Litigation, 293 F. 3d 289, 294 (6th Cir. 2002) (noting that opinion work-product is available upon a showing of substantial need and inability to otherwise obtain without material hardship, but that "absent waiver, a party may not obtain the `opinion' work-product of his adversary").
Similar logic applies to the assertions of attorney-client privilege. QBE nominally objects that the materials are protected by the attorney-client privilege, but devotes no argumentation in support of, and provides no authority for, this assertion. Nevertheless, as was the case with the work-product privilege, QBE does not own the attorney-client privilege it asserts and so cannot waive it. The attorney-client privilege belongs to the client, Griffin. In re Grand Jury Proceedings, 73 F.R.D. 647, 652 (M.D. Fla. 1977) ("The privilege, however, belongs to the client, not the attorney; and an attorney can neither invoke nor waive the privilege if his client desires to the contrary."). It is only he who can waive the privilege. Id. Moreover, binding former Fifth Circuit authority suggests that failure to assert even one's own attorney-client privilege in a timely manner does not waive the privilege even when the privilege is asserted for the first time in a motion for reconsideration of a district court's order to produce. FDIC v. Cherry, Bekaert Holland, 131 F.R.D. 596, 606 (M.D. Fla. 1990) (citing Southern Railway Co. v. Lanham, 403 F.2d 119, 133-134 (5th Cir. 1968)).
Again, the Court assumes, without deciding, that the materials in question are protected from discovery by the attorney-client privilege. The Court has serious reservations about this assumption, however, as the documents were requested from a third party, QBE, and the privilege is between Haskell, Slaughter and Gallion (the attorneys) and Howard (the client). The Court leaves any dispute about the application of the attorney-client privilege to particular documents for resolution by the Magistrate Judge in the first instance.
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) ( en banc), the Eleventh Circuit Court of Appeals adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981.
CONCLUSION
For the foregoing reasons, the Court finds that QBE's failure to object to the propounded requests for production did not waive the attorney work-product privilege or the attorney-client privilege between Haskell, Slaughter and Gallion and Griffin. The waiver was good, however, with respect to QBE's relevance objections and its objections that some of the requests are ambiguous. Therefore, it is herebyORDERED that the Objections (Doc. # 44) are SUSTAINED in part and OVERRULED in part. The objections are sustained with respect to assertions of work-product and attorney-client privileges, and are overruled in all other respects. Accordingly, the portion of Magistrate Judge Walker's Order directing production of documents covered by the attorney-client or work-product privileges is VACATED. This Opinion and Order has no effect on the balance of Magistrate Judge Walker's Order.
It is further ORDERED that the Motion to Intervene (Doc. # 45) is DENIED as moot.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , 486 U.S. 196, 201, , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) : The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , 890 F.2d 371, 376 (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).