Summary
finding common-interest exception to attorney-client privilege applied where insurer and insured had a common legal interest, including the insured's duty to defend
Summary of this case from Lawson v. Spirit AeroSystemsOpinion
Civil Action No. 01-2385-KHV, No. 01-2386-KHV
December 23, 2002
MEMORANDUM AND ORDER
This mater is before the Court on Plaintiffs' Motion to Compel Production of Documents (doc. 72). Plaintiffs ask the Court to overrule Defendant Southwest Airlines' ("Southwest") objections to Plaintiff Grace Fuller's First Request for Production of Documents that are based on the assertion of attorney-client privilege and work product protection and to compel production of the alleged privileged and protected documents. For the reasons set forth below, the Court will deny the motion to compel except as to six documents, which the Court will inspect in camera to determine whether they are protected by work product immunity.
I. Factual Background
In these two consolidated cases, Plaintiffs assert civil rights claims pursuant to 42 U.S.C. § 1981. In addition, Plaintiff Fuller alleges claims for intentional and negligent infliction of emotional distress, while Plaintiff Sawyer alleges only a claim for intentional infliction of emotional distress.
Global Aerospace ("Global") is Southwest's insurer and has a duty to defend Southwest with respect to the claims asserted in these consolidated cases. At issue in this motion to compel are documents that were exchanged between Southwest and Global in connection with this action.
Ida Loubier Aff, Ex. 1 attached to doc. 73.
In its August 17, 2002 responses to the requests for production, Southwest objected to producing any documents that were protected by the attorney-client privilege and work product doctrine. Southwest also objected to producing certain documents that it contended were protected from disclosure by the insurer/insured privilege. Southwest did not provide a privilege log until September 23, 2002. On October 4, 2002 Southwest served a consolidated privilege log, and Plaintiffs filed the instant motion to compel on October 17, 2002. Southwest responded to the motion to compel and provided an amended version of the privilege log ("Amended Privilege Log") on October 28, 2002.
In its response to the motion to compel, Southwest states that is has abandoned its assertion of the insurer/insured privilege and has provided to Plaintiffs the documents it withheld based on that privilege. Thus, those objections and documents are no longer at issue. The objections at issue are only those based upon the attorney-client privilege and work product doctrine.
II. Analysis
A. Did Southwest Waive the Right to Assert Attorney-Client Privilege and Work Product Protection by Failing to Timely Serve a Privilege Log?
Plaintiffs first argue that the motion to compel should be granted because Southwest waited more than two months after it served its initial responses to the requests for production to provide a meaningful privilege log. The Court will decline to find waiver. The Court will therefore proceed to analyze the merits of Southwest's privilege and work product objections and determine whether the Amended Privilege Log is sufficient to satisfy Southwest's obligations.
B. Attorney-Client Privilege
1. Applicable law
Whether the court applies federal or Kansas law generally makes no difference in determining whether the attorney-client privilege applies. This is because the essential elements of the attorney-client privilege are nearly identical under both Kansas and federal law. Moreover, "the Kansas statute concerning the attorney-client privilege and its exceptions is typical of the laws of other jurisdictions."
Simmons Foods, Inc. v. Willis, 191 F.R.D, 625, (D. Kan. 2000) (citations omitted).
Marten v. Yellow Freight Syst., Inc., No. 96-2013-GTV, 1998 WL 13244, at *7 (D. Kan. Jan. 6 1998).
In re A.H. Robins Co., 107 F.R.D. 2, 8 (D. Kan. 1985) (citation omitted.)
Under Kansas law, the essential elements of the privilege are:
(1) Where legal advice is sought (2) from a professional legal advisor in his capacity as such, (3) the communications made in the course of that relationship (4) made in confidence (5) by the client (6) are permanently protected (7) from disclosures by the client, the legal advisor, or any other witness (8) unless the privilege is waived.
State v. Maxwell, 10 Kan. App. 2d 62, 63, 691 P.2d 1316 (1984) (citation omitted).
Similarly, the essential elements of the privilege under federal common law are:
(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.
Great Plains Mut. Ins. Co., 150 F.R.D. 193, 196 n. 4 (D. Kan. 1993).
Under both Kansas and federal law, the attorney-client privilege protects confidential communications made by a client to an attorney in order to obtain legal assistance from the attorney in his or her capacity as a legal advisor. Under both laws, the term "communications" includes advice given by the attorney in the course of representing the client. It also includes disclosures by the client to the attorney's representative or employee incidental to the professional relationship. 2. Is the attorney-client privilege applicable here and has it been waived?
Simmons Foods, 191 F.R.D. at 632; Marten, 1998 WL 13244, at *6.
Simmons Foods, 191 F.R.D. at 632; Marten, 1998 WL 13244, at *6. See also K.S.A. 60-426(c)(2).
Simmons Foods, 191 F.R.D. at 632; Marten, 1998 W. 13244, at *6. See also K.S.A. 60-426(c)(2).
Plaintiffs assert that Southwest has waived any attorney-client privilege existing between Southwest and its attorney John Cowden by disclosing the documents to Global. Southwest responds that Global is also a client of Southwest's attorney John Cowden, and, thus, an attorney-client relationship also exists between Global and Cowden. Southwest further asserts that a claims attorney for Global requested legal advice and consultation from Cowden and that he provided that legal advice and consultation through written communications that are the subject of the motion to compel. In reply, Plaintiffs argue that the mere fact that Global is also a client of Cowden's does not save the privilege or protection. They argue that regardless of the attorney-client relationship between Global and Cowden, Global is still a third-party to any communications between Southwest and Cowden, and thus, when the communications between Cowden and Southwest were disclosed to Global, the privilege was waived. Plaintiffs claim that the proper objection in such a situation would have been for Southwest to assert objections based on either the joint defense doctrine or the common interest doctrine. Plaintiffs argue that because Southwest has never asserted either of these objections, any privilege existing under those doctrines has been waived.
The Court disagrees, and, for the reasons discussed below, finds the common interest doctrine to be applicable here. Although Southwest has not expressly asserted the doctrine by name, Southwest has established all of the necessary elements of the doctrine.
3. The common interest doctrine
Generally, when a communication between a client and an attorney occurs in the presence of third parties, the attorney-client privilege is waived. The common interest doctrine, however, affords two parties with a common legal interest a safe harbor in which they can openly share privileged information without risking the wider dissemination of that information. The common interest doctrine can only exist where there is an applicable underlying privilege, such as the attorney-client privilege or the work-product doctrine.
Lewis v. UNUM Corp. Severance Plan, 203 F.R.D. 615, 620 (D. Kan. 2001).
Johnson Matthey, Inc. v. Research Corp., No. 01CIV.8115MBMFM, 2002 WL 1728566, at *6 (S.D. N.Y. July 24, 2002)
Cavallaro v. U.S., 284 F.3d 236, 240 (lst Cir. 2002); In re Megan-Racine, 189 Bankr. at 571.
Admittedly, there is no Kansas statute or case that recognizes the common interest doctrine as a distinct privilege. The Court, however, does not find that to be fatal to the assertion of the doctrine. Most commentators and courts view it not as a separate privilege, but as an exception to waiver of the attorney-client privilege. The common interest doctrine thus acts as an exception to the general waiver rule by facilitating cooperative efforts among parties who share common interests.
In State v. Maxwell, 10 Kan. App. 2d 62, 691 P.2d 1316 (1984), the Kansas Court of Appeals addressed a similar doctrine relating to an attorney's joint defense of two or more clients. The Court finds that doctrine inapplicable here, however, as Global is not a co-defendant of Southwest in this litigation.
See, e.g., U.S. Info. Sys., Inc. v. Int'l Broth. of Elec. Workers Local Union No. 3, No. 00CIV.4763RMBJCF, 2002 WL 31296430, at *3 (S.D. N.Y., Oct. 11, 2002) ("[t]he joint defense privilege or common interest rule is not really a separate privilege. Rather, it is a limited exception to the general rule that the attorney-client privilege is waived when a protected communication is disclosed to a third party outside the attorney-client relationship.") (citation omitted); Johnson Matthey, Inc. v. Research Corp., No. 01CIV.8115MBMFM, 2002 WL 1728566, at *6 (S.D.N.Y. July 24, 2002) ("The common interest exception is not an independent privilege, but an extension of the attorney-client privilege which serves to protect the confidentiality of communications passing from one party to the attorney for another party where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel."); Miller v. Alagna, 138 F. Supp.2d 1252, 1256 (C.D. Cal. 2000) (California law recognizes a "joint client" or "common interest" exception to the attorney-client privilege); Roberts Aircraft Co. v. Kern, No. 96-N-1214, 1997 WL 524894, at 3 (D. Colo. March 20, 1997) ("The `common interest' doctrine is an exception to an otherwise applicable attorney-client privilege.").
In re Megan-Racine Assoc., Inc., 189 B.R. 562, 571 (N.D.N.Y. 1995).
For the common interest doctrine to attach, "most courts . . . insist that the two parties have in common an interest in securing legal advice related to the same matter — and that the communications be made to advance their shared interest in securing legal advice on that common matter." "The key consideration is that the nature of the interest be identical, not similar, and be legal, not solely commercial."
First Pacific Networks, Inc. v. Atlantic Mut. Ins. Co., 163 F.R.D. 574, 581 (N.D. Cal. 1995) (citations omitted); accord Strougo v. BEA Assoc., 199 F.R.D. 515, 525 (S.D.N.Y. 2001) (to invoke the "common interest" exception, a party must show that the communications were made in the course of a joint defense effort or that the clients share a common legal interest, and that the statements were designed to further the common effort); Libbey Glass, Inc. v. Oneida, Ltd., 197 F.R.D. 342, 348 (N.D. Ohio 1999) (parties must have a common legal, as opposed to commercial, interest and show that the communications are made in the course of formulating a common legal strategy).
Johnson Mathey, 2002 WL 1728566, at *6 (citations omitted).
The Court finds that these elements have been satisfied here. Southwest has established that Southwest and Global, who has a duty to defend Southwest in this case, have an interest in common and that the interest of a legal and not commercial nature. Southwest has provided the affidavit of Ida Loubier, a claims attorney for Global. Her affidavit establishes that, pursuant to Global's duty to defend Southwest, she retained Cowden as the attorney to defend Southwest in these consolidated cases and to provide legal advice in connection with all matters relating to the lawsuits. Her affidavit also establishes that, as a representative of Global, she requested and obtained legal advice from Cowden in connection with matters relating to the cases.
See Ex. 1, attached to doc. 73.
In light of the above, the Court holds that Southwest has established sufficient evidence to warrant application of the common interest exception to the waiver of any attorney-client privilege. Although Southwest did not use the term "common interest" doctrine or exception in asserting that the documents were privileged, it has shown that the necessary elements exist with respect to the claimed privileged documents. To fault Southwest for not using the correct terminology, when all of the elements have been satisfied, would elevate form over substance and would contravene the important policies underlying the attorney-client privilege. As the Kansas Supreme Court has emphasized, "the attorney-client privilege is important to the administration of justice and should not be set aside lightly."
Wallace Saunders, Austin, Brown Enochs, Chartered v. Louisburg Grain Co., Inc., 250 Kan. 54, 62, 824 P.2d 933 (1992).
In sum, the Court holds that the common interest doctrine applies here and the documents exchanged between Southwest and Global retain their attorney-client privileged status. Plaintiffs' motion to compel will therefore be denied with respect to the documents that Southwest has asserted are attorney-client privileged.
B. Work Product Protection
The Court will now proceed to determine whether Southwest has properly asserted work product protection. of the hundreds of documents listed in the Amended Privilege Log, only sixteen are identified solely as work product. This analysis thus pertains to only those sixteen documents.
Most of the documents identified in the Amended Privilege Log as work product are also identified as attorney-client privileged communications. Because the Court has upheld the assertion of the attorney-client privilege, the Court need not determine whether those documents are also protected by work product immunity.
1. Are the documents protected by work product immunity?
"Unlike the attorney client privilege, the work product privilege is governed, even in diversity cases, by a uniform federal standard embodied in Fed.R.Civ.P. 26(b)(3)." Thus, the Court will apply federal law to determine whether Southwest's assertion of work product protection should be upheld.
Frontier Refining, Inc. v. Gorman-Rupp Co., Inc., 136 F.3d 695, 702 (10th Cir. 1998) (citation omitted).
As the party asserting work product protection, Southwest has the burden of establishing that the work product doctrine applies. To carry that burden, Southwest must make a "clear showing" that the asserted objection applies. Southwest must show that "(1) the materials sought to be protected are documents or tangible things; (2) they were prepared in anticipation of litigation or for trial; and (3) they were prepared by or for a party or a representative of that party."
Disidore v. Mail Contractors of America, Inc., 196 F.R.D. 410, 413 (D. Kan. 2000) (citations omitted).
Id. (citations omitted).
Johnson v. Gmeinder, 191 F.R.D. 638, 643 (D. Kan. 2000) (citations omitted).
Applying these standards here, the Court finds that Southwest has established that all but the following documents are protected by work product immunity: PRIV 157, 158, 219, 245, 246, and 328. Southwest has failed to show that these six documents were prepared in anticipation of litigation or for trial. Southwest shall provide copies of those documents to the Court for an in camera inspection so that the Court may determine whether they are in fact protected by work product immunity. Southwest shall submit these documents to the Court within seven (7) days of the date of this Memorandum and Order.
2. Are Plaintiffs entitled to review the work product documents regardless of their protected status?
Plaintiffs assert that even if the Court finds that the documents are protected work product, Plaintiffs have a substantial need for these documents and that they should therefore be produced pursuant to Fed.R.Civ.P. 26(b)(3). Under that rule, a party may discover work product "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."
Plaintiffs have made no showing of "substantial need." The Court will therefore deny the motion to compel as it pertains to the documents that the Court has determined are protected by work product immunity.
IT IS THEREFORE ORDERED that Plaintiffs' Motion to Compel Production of Documents (doc. 72) is denied in all respects except with respect to the six documents identified as PRIV 157, 158, 219, 245, 246, and 328 in Southwest's Amended Privilege Log. Within seven (7) days of the date of this Memorandum and Order, Southwest shall provide copies of those documents to the Court for the Court's in camera inspection. The Court will defer ruling on the Motion to Compel as it pertains to those six documents until the Court has reviewed said documents.