Opinion
CIVIL ACTION NO. 02-7175
April 17, 2003
ORDER AND OPINION
I. Introduction
In this case, plaintiff Michele Saltern alleges that she was the subject of discrimination and retaliation, and was ultimately terminated from her employment because she suffered from Chron's disease, in violation of the Americans With Disabilities Act ("ADA"). She has served upon defendant Nor-Car Federal Credit Union, ("Nor-Car"), a notice of deposition for its in-house counsel, Ms. Jenny Cheng. Nor-Car has filed a motion for a protective order, preventing Saltern from deposing Cheng. For the reasons set forth below, I will grant Nor-Car's motion.
II. Factual Background
In its motion, Nor-Car maintains that Cheng cannot be deposed because her actions relative to Nor-Car's treatment of Saltern are protected by the attorney-client privilege. Saltern argues, however, that Nor-Car has waived the privilege by injecting the issue of Cheng's advice into the litigation. They point to a document disclosed in discovery, which was written by Nor-Car's president, Mr. Symons, in which he wrote:
Effective October 15, 2001, I have terminated the employment of Michele Saltern. As you are aware, Pennsylvania is an "At-Will State". There was no contract involved and I completed the task after a review of my purpose and documentation by our Palmerton Attorney Ms. Jenny Cheng. Ms. Saltern began her employment February of this year and up until the 15th of October; her absentee total hit 36 ½ days. I have not seen at [sic] Ms. Saltern in this office in over three weeks. I cannot operate the Eastern Office in a projected short-staffed posture.
Memorandum, attached as Exhibit A to Saltern's response.
III. Legal Standards
Upon motion, and for good cause shown, a party may obtain an order protecting an individual from deposition. Fed.R.Civ.Pr. 26(c)(1). The attorney-client privilege, upon which Nor-Car relies, requires a communication between an attorney and her client which relates to a fact of which the attorney was informed (a) by his client; (b) without the presence of strangers; and (c) for the purpose of securing legal opinion, advice or services. Rhone-Poulenc Rorer Inc. v. Home Indemnity Co., 32 F.3d 851, 862 (3d Cir. 1994). The privilege must also have been asserted and not waived, and it may not be for the purpose of committing a crime or tort. Id.
A party to a lawsuit may waive the attorney-client privilege by asserting claims or defenses that put his attorney's advice in issue in the litigation. Rhone-Poulenc, supra, at 863. This can occur when a defendant asserts reliance on the advice of counsel as an affirmative defense. Id. It can also occur where the attorney's advice is interwoven into the substantive issues of fact and law in the case, such as in an attorney malpractice case, a patent suit, or a claim of failure to insure in bad faith. Id.; Jones v. Nationwide Insurance Co., Civ. A. No. 3:98-2108, 2000 WL 1231402 (M.D.Pa. Jul. 20, 2000).
However, advice is not placed in issue merely because it is relevant. Rhone-Poulenc supra. A waiver can be found only where a client has made the decision and taken an affirmative step in the litigation to place the advice of attorney in issue. Id. This occurs where the client attempts to prove a claim or defense by disclosing or describing an attorney client communication. Id.
IV. Discussion
Nor-Car's production of a document referring to its president having met with an attorney, without disclosing or describing the contents of that meeting, is insufficient to demonstrate a waiver of the attorney-client privilege. A case cited, strangely, by Saltern is on point. In Fidelity and Deposit Company of Maryland v. McCulloch, 168 F.R.D. 516 (E.D.Pa. 1996), the defendant asserted that the plaintiff waived the attorney-client privilege because "several documents . . . in which Fidelity employees refer to or mention attorney opinion letters `reveal that [Plaintiff] made its purported coverage decision and filed the instant action only after having sought the advice of counsel.'" 168 F.R.D. at 520.
After discussing the Rhone-Poulenc decision, the Fidelity court wrote:
Defendants' contentions are plainly insufficient under this standard. Fidelity asserts no claim or defense in its Complaint or in any of its Responses to Defendants' Counterclaims that rests on the advice of counsel, nor does it attempt to prove any claim or defense by disclosing such advice. . . . Indeed, the documents Defendant point to establish only that Fidelity's "state of mind" (to the extent that a corporation can have one) was affected in a relevant manner by the advice of its outside counsel. . . . As the Third Circuit stressed in Rhone-Poulenc, this simply does not amount to a waiver in this context.
Id.
The Fidelity reasoning is plainly correct. Disclosure of the fact of a meeting with counsel is not the affirmative act of waiver required by Rhone-Poulenc. As Nor-Car points out, there would be very little left of the attorney-client privilege if it was waived by the mere act of seeking legal advice. By contrast to Fidelity, in Glenmede Trust Co. v. Thompson, 56 F.3d 476 (3d. Cir. 1995), another case cited by Saltern, waiver was found where Glenmede not only raised reliance on the advice of counsel as an affirmative defense in the action underlying the appeal, but also voluntarily produced its attorney's Opinion Letter in discovery. 56 F.3d at 486.
For the foregoing reasons, I now enter the following: