Opinion
Civil Action No. 02-1235 Section "E" (1).
January 26, 2005
HEARING ON MOTION
Submitted on briefs
DEFENDANTS' MOTION TO COMPEL RESPONSE TO SUBPOENA (Rec. doc. 171).
GRANTED IN PART AND DENIED IN PART
Before the undersigned is the motion of the defendants, Clare W. Trinchard, Trinchard Trinchard, L.L.C., Leigh Ann Schell and Clarendon National Insurance Company, to compel a non-party, Mark W. Smith, to produce certain documents which he refused to produce pursuant to a subpoena served on him for his deposition on February 17, 2005. This is the second time this matter has been raised. On July 29, 2004, Smith's deposition was noticed by most of these same defendants and an identical subpoena was served upon him. Gerald Burge moved to quash the subpoena. Rec. doc. 116. At that time Burge suggested a resolution of the motion. Id. at pp. 13-14. All discovery was stayed and Burge's motion was dismissed as moot. Rec. doc. 132. The stay was lifted and Smith's deposition was re-noticed for February 17, 2005. Smith objected to the subpoena. As if to underscore the argument that there is a joint interest privilege, the plaintiff, H.S. Stanley, Jr. ("Stanley"), submitted a memorandum in opposition. Rec. doc. 172. Smith also submitted a privilege log for the documents that were withheld.
The primary issue is whether Smith waived the attorney client privilege when he disclosed information to Stanley, his counsel and Sheriff Strain's counsel. Smith and Stanley contend that there was no waiver because of the presence of a common interest. The Restatement (Third) of Law Governing Lawyers § 76 (2000) defines the common interest rule as follows:
If two or more clients with a common interest in a litigated or nonlitigated matter are represented by separate lawyers and they agree to exchange information concerning the matter, a communication of any such client that otherwise qualifies as privileged under §§ 68-72 that relates to the matter is privileged as against third persons. Any such client may invoke the privilege, unless it has been waived by the client who made the communication.Id. The Fifth Circuit refers to it as the common legal interest and applies it more narrowly. In 2001, it said:
According to our circuit precedents, the two types of communications protected under the CLI privilege are: (1) communications between co-defendants in actual litigation and their counsel; and (2) communications between potential co-defendants and their counsel. With respect to the latter category, the term potential has not been clearly defined. However, because the privilege is an obstacle to truthseeking, it must be construed narrowly to effectuate necessary consultation between legal advisers and clients.In re Santa Fe International Corporation, 272 F.3d 705, 710 (5th Cir. 2001) (Citations and quotation marks omitted and emphasis in original). In Ferko v. National Association for Stock Car Auto Racing, Inc., 219 F.R.D. 396 (E.D. Tex. 2003), the court declined to extend the doctrine to provide protection for documents shared by the plaintiff shareholder in a derivative action and the attorney for the nominal defendant, the corporation. Accordingly, it is questionable in the Fifth Circuit whether the common interest doctrine extends to plaintiffs. Even if it did, Smith's client, Burge, is not a co-plaintiff or potential co-plaintiff with Stanley and Sheriff Strain. Smith and Burge have a financial interest in the outcome of this litigation. This is an insufficient basis for finding a common legal interest, particularly in this litigation with its long history of nearly twenty-five years and shifting relationships among the parties to the various lawsuits.
Category No. 1
The defendants seek the insurance policies that Smith contends provide coverage for the claims in the state and federal litigation. Smith, as counsel for Burge, is not required to respond to contention discovery. The defendants will be permitted to obtain the evidence in support of the contentions made by Stanley and Sheriff Strain at the appropriate time. Smith indicated that he would produce all insurance policies in his possession in the Burge litigation. This is sufficient.
Category No. 2
The defendants seek Smith's communications concerning the claims in the malpractice litigation and claims in Burge v. Parish of St. Tammany, et al, CA 91-2321, that were sent to Hale, Meg Kern, Stanley, Bruce Canner, Robert Byrd, Charles Hughes, Dane Ciolino and Wayne Rasmussen. Smith agreed to produce the communications sent to Hale, Ciolino and Rasmussen. Stanley reports that Smith will also produce communications to Meg Kern, except for two documents, dated May 12, 2001 and December 31, 2001. Stanley contends these relate to the insurance coverage issue and are protected as work product. Any privilege for the communications to Cranner, Byrd, Hughes, Stanley and Kern was waived. Smith shall produce all documents sought by category no. 2.
Items 27 and 28 on Smith's privilege log.
Category No. 3.
The defendants seek all documents authored by or on behalf of Hale. Smith offers to produce all such documents except those authored by Claire Trinchard and Leigh Ann Schell. There is no basis for the limitation. He shall produce all documents sought by category no. 3.
Category No. 4.
The defendants seek all communications received by Smith or Burge from the persons identified in category no. 2. The ruling for category no. 2 is applicable to category no. 4.
Category No. 5.
The defendants seek video or audio tapes of any communication with any party to this litigation. Smith does not object to this request.
Category No. 6.
The defendants seek all opinion letters authored by any lawyer representing Hale or Sheriff Strain. Smith only objects to producing opinion letters authored by Trinchard or Schell. He shall produce all documents sought by category no. 6.
Category No. 7.
The defendants seek all documents that Smith contends supports the allegations made by the plaintiffs in the malpractice action. Smith is not required to respond to the defendants' contention discovery.
Category No. 8.
The defendants seek all documents that Smith contends supports the proposition that there existed more than $100,000 of general liability insurance subject to a $50,000 deductible. Smith is not required to respond to the defendants' contention discovery.
Category No. 9.
Smith does not object to this category. He shall produce the documents sought by category no. 9.
Category No. 10.
The defendants seek Smith's billing records. He reports that he does not maintain such records. No further response is required.
IT IS ORDERED that the defendants' motion to compel response to subpoena (Rec. doc. 171) is GRANTED in PART and DENIED in PART in accord with the terms of this minute entry.