Opinion
Civ. No. 04-1168 MCA/RHS.
March 31, 2005
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO QUASH
THIS MATTER comes before the Court on "Defendant's Objection to Plaintiffs' Subpoena Duces Tecum Issued to its Attorney, David Ray Rosales; Motion to Quash; and/or Motion for Protective Order" ("Motion to Quash"), filed on February 25, 2005 [Doc. 31]. The Court having considered the parties' submissions and being otherwise fully advised in the premises, finds that Defendant's Motion to Quash will be granted in part and denied in part.
Plaintiffs' subpoena duces tecum
Defendant raises several grounds for quashing Plaintiffs' subpoena duces tecum directed to David Rosales. First, Defendant asserts that a subpoena is not the proper mechanism for requesting documents from Mr. Rosales. (Motion to Quash at 4.) Defendant argues that while a Rule 45 subpoena may be properly served on a non-party, it is not appropriate to serve on a "party," such as Mr. Rosales. (Id. citing Hasbro, Inc. v. Serafino, 168 F.R.D. 99, 100 (D.Mass. 1996) (holding that the discovery of documents from a party is not accomplished pursuant to Rule 45)).
Although Defendant currently contends that Mr. Rosales is a "party," it previously described Mr. Rosales as "a non-party." (Ex. R, to Plaintiffs' Response to GEICO's Motion to Quash (emphasis added).)
However, even assuming that Mr. Rosales is a party, it is not at all clear that a subpoena duces tecum is an improper method of requesting documents. Although Defendant correctly notes that theHasbro court found that Rule 45 subpoenas do not apply to parties, other courts "have taken the opposite view." Mortgage Information Services, Inc. v. Kitchens, 210 F.R.D. 562, 564 (W.D.N.C. 2002) (finding that a Rule 45 subpoena may properly be served on a party). "Moreover, just as the courts are split on this issue, so too are the leading treatises." Id. (citing Wright Miller's Federal Practice and Procedure "for the proposition that [d]iscovery of documents from a party is not accomplished pursuant to Rule 45" and Moore's Federal Practice and Federal Procedure, Lawyers Edition for the conclusion that a Rule 45 subpoena may be issued to parties or non-parties).
(citing First City, Texas-Houston, N.A. v. Rafidain Bank, 197 F.R.D. 250 (S.D.N.Y. 200), aff'd, 281 F.3d 48 (2d Cir. 2002); Badman v. Stark, 139 F.R.D. 601 (M.D.Pa. 1991);Continental Coatings Corp. v. Metco, Inc., 50 F.R.D. 382 (N.D.Ill. 1970)).
Neither party cites a decision by the Tenth Circuit, or a district court in this circuit, that addresses this issue. Finally, I note, as did the court in Kitchens, that "the text of Rule 45 itself . . . [contains] no express limitation on the type of person who may be subject to the rule." Id. 210 F.R.D. at 565. Nor do the provisions of Rule 34 appear "to restrict the scope of Rule 45." Id. Thus, the Court will not grant Defendant's Motion to Quash on this basis.
Undue burden and expense
Next, Defendant contends that Plaintiffs' subpoena should be quashed because it "constitutes an undue burden and expense." (Motion to Quash at 5.) Defendant states that "every document Plaintiffs' Subpoena Duces Tecum commands Mr. Rosales to produce is in GEICO's possession." (Id.; see also affidavit of David Rosales ¶ 5, Ex. 1 to Motion to Quash.) Moreover, Defendant asserts that Plaintiff previously "request[ed], in part, the exact same documents [contained in the] Subpoena Duces Tecum" in a Rule 34 discovery request directed to GEICO. (Motion to Quash at 5.) Thus, Defendant argues that it would bear undue burden and expense if required to respond to both Plaintiff's Rule 34 request for production and Plaintiffs' Rule 45 subpoena.
I am not persuaded that Defendant would suffer an undue burden if required to respond to both of Plaintiffs' discovery requests. However, to the extent that Plaintiffs' subpoena requires the same documents as those described in Plaintiff's Rule 34 request, Defendant's compliance with both requests would result in unnecessary duplication of documents and additional expense. Thus, the Court will grant Defendant's Motion to Quash with respect to any documents requested in Plaintiff's subpoena that were previously requested in Plaintiff's Rule 34 discovery request directed to GEICO.
Attorney-client privilege and work product doctrine
Defendant also contends that "many of the documents [requested in Plaintiffs' subpoena] are protected by the attorney-client and/or work product privileges." (Motion to Quash at 6.) Specifically, Defendant objects to producing the documents requested in paragraphs 1-3, 6, 7 and 9 of Plaintiffs' subpoena. "As the party seeking to withhold documents, [Defendant] bears the burden to show that they are clearly protected." Employers Reinsurance Corp. v. Mid-Continent Cas. Co., 2002 WL 1067446, at *2 (D.Kan. Apr. 18, 2002) (not published in the Federal Reporter) (citing Peat, Marwick, Mitchell Co. v. West, 748 F.2d 540, 542 (10th Cir. 1984)). "In doing so, [Defendant] must establish all elements of privilege by an evidentiary showing based on competent evidence." Id. (citing Audiotext Comm. Network, Inc. v. U.S. Telecom, Inc., No. 94-2395-GTV, 1995 WL 625962, at *7 (D.Kan. Oct. 5, 1995).
Defendant raises no specific objections or claims of privilege with respect to materials requested in paragraphs 4, 5 and 8, thus, Defendant's Motion to Quash will be denied as to those items.
In order to establish attorney-client privilege, Defendant must show that the documents contain communications that were "not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication." N.M.R.A 11-503. "In order to show work product, [Defendant] must demonstrate that it prepared the documents `in anticipation of litigation or for trial.'" Employers, 2002 WL 1067446, at *2 (citing FED. R. CIV. P. 26(b)(3)). "Documents prepared in the ordinary course of business are not protected as work product."Id. (citing Simon v. G.D. Searle Co., 816 F.2d 397, 401 (8th Cir. 1987)).
Mr. Rosales stated that in August of 2004, "Plaintiffs made it clear after Mr. Stephen's examination under oath that he would retain legal counsel to represent him and his wife with regard to his auto-theft claim." (Affidavit of David Rosales ¶ 3, Ex. 1 to Motion to Quash.) Under these circumstances, it would be reasonable for Mr. Rosales and GEICO to anticipate that litigation would follow. On September 14, 2004, Mr. Rosales received "a courtesy copy of the [Plaintiffs'] Complaint" initiating this action. (Affidavit of David Rosales ¶ 17, Ex. 6 to Defendant's Reply.)
Defendant points to a privilege log to support its argument that the material requested in paragraphs 1-3, 6, 7, and 9 contain privileged information. (See Ex. 3 to Motion to Quash.) Items 30 through 53 of the privilege log are documents from Mr. Rosales' file that Defendant claims are privileged.
Paragraphs 2 and 3 of Plaintiffs' subpoena request Mr. Rosales to produce all written and e-mail correspondence between Mr. Rosales and various GEICO representatives regarding Plaintiffs' claim. Defendant asserts that the responsive communications listed in the privilege log for Mr. Rosales should not be disclosed because they are protected by attorney client privilege or work product doctrine. Mr. Rosales is a licensed attorney and authorized to practice law in the State of New Mexico. (Affidavit of David Rosales ¶ 1, Ex. 1 to Motion to Quash.) All of the correspondence reviewed by the Court that was authored by Mr. Rosales was on professional stationery clearly identifying him as an attorney with the law firm of Jeffries, Rugge Rosales, P.C.
Mr. Rosales stated that on July 19, 2004, GEICO "retained [his] legal services to provide legal advice and counsel regarding coverage matters about an auto-theft claim [that] Plaintiffs submitted." (Affidavit of David Rosales ¶¶ 2, 3, Ex. 1 to Motion to Quash.) Mr. Rosales further stated that his "communications . . . to and from GEICO were not intended for third parties. . . . [and] all such communications remained confidential." (Id. ¶ 4.) Robin Stevenson, a GEICO claims adjuster assigned to the Plaintiffs' claim, stated that "[i]t is not GEICO's ordinary practice . . . to retain an attorney to assist with a claim." (Affidavit of Robin Stevenson ¶ 5, Ex. 5 to Defendant's Reply.) However, in this case, Ms. Stevenson retained Mr. Rosales "on behalf of GEICO, to conduct the examinations under oath of [Plaintiffs], and to provide legal counsel and confidential legal advice regarding the [Plaintiffs'] claim for coverage." (Id.) Ms. Stevenson further stated that "GEICO's communications, including [her] communications, to and from attorney David Rosales were considered . . . to be confidential attorney-client communications, were not disclosed to third parties, and were not intended to be disclosed to third parties." (Id. ¶ 6.)
The evidence shows that Mr. Rosales was retained to provide legal services to GEICO in July of 2004, that Mr. Rosales and GEICO communicated with each other to facilitate the rendition of professional legal services to GEICO, and that Mr. Rosales and GEICO considered their communications to be confidential. I find that Defendant has met its burden of showing that documents responsive to paragraphs 2 and 3 that are listed in the privilege log for Mr. Rosales' claim file are protected under the attorney-client privilege.
Plaintiffs assert that "[b]ecause GEICO used Mr. Rosales to further fraudulent and unlawful conduct, the attorney-client privilege is waived under the crime-fraud exception." (Response at 13.) The attorney-client privilege does not apply when "the services of the lawyer were sought or obtained to enable or aid anyone to commit what the client knew or reasonably should have known to be a crime or fraud." N.M.R.A. 11-503(D)(1). The Court is not persuaded that Defendant has waived the attorney-client privilege pursuant to the crime-fraud exception. Accordingly, Defendant's Motion to Quash will be granted with respect to those documents requested in paragraphs 2 and 3 that are listed in the privilege log for Mr. Rosales' claim file.
Paragraphs 6 and 7 request that Mr. Rosales produce all written correspondence from him "to any person or entity seeking information regarding [Plaintiffs]" and "[a]ll documents . . . [Mr. Rosales] received regarding [Plaintiffs]." On its face, these paragraphs do not appear to request the production of privileged materials. Moreover, a review of the privilege log for Mr. Rosales' claim file does not reveal any documents that are responsive to these requests. Finally, Mr. Rosales concedes that "any communication(s) to or from merchants or vendors related to gathering information and documentation on the insurance claim" would not be protected by attorney-client privilege or work product doctrine. (Affidavit of David Rosales ¶ 19, Ex. 6 to Defendant's Reply.) Thus, Defendant's Motion to Quash will be denied with respect to the documents requested in paragraphs 6 and 7 of Plaintiffs' subpoena duces tecum.
Paragraph 9 of the subpoena requests Mr. Rosales to produce "[a]ll invoices or billing statements for charges to GEICO relating to GEICO Claim No. 0218706510101017 for claims adjusting services you provided." No invoices or billing statements are listed on the privilege log for Mr. Rosales' claim file. Nor does Defendant raise a specific claim of privilege with respect to these documents. Defendant's Motion to Quash will be denied with respect to the documents requested in paragraph 9 of Plaintiffs' subpoena.
Paragraph 1 requests that Mr. Rosales produce a "complete copy of [his] file regarding GEICO Claim No. 0218706510101017." The Court's rulings with respect to paragraphs 2 through 9 effectively address all of the documents listed on the privilege log for Mr. Rosales, except for item number 50, dated 12/05/04 and described as a "Summary Loss Report." The privilege log claims this report is a "[c]onfidential business trade secret document." (Privilege Log, Ex. 3 to Motion to Quash.) Nothing indicates the purpose of the document, who prepared it, or what makes it a "confidential trade secret." I find that Defendant has not met its burden of showing that this document is protected. Accordingly, Defendant's Motion to Quash with respect to paragraph 1 will be denied regarding the "Summary Loss Report" listed on the privilege log for Mr. Rosales' claim file, and will be denied as moot with respect to the remainder of paragraph 1.
Defendant does not claim that this document is protected under the attorney-client privilege or work product doctrine.
The parties should confer regarding the need for redaction and/or a protective order regarding the disclosure of the "Summary Loss Report."
Finally, Plaintiffs request the Court to conduct an in camera review of those materials for which a privilege is claimed. I do not find that an in camera review is required at this time. However, the Court may reconsider this request as discovery proceeds.
WHEREFORE,
IT IS ORDERED that Defendant's Motion to Quash [Doc. 31] is GRANTED in part and DENIED in part as follows:
1. Defendant's Motion to Quash is GRANTED with respect to any documents requested in Plaintiffs' subpoena duces tecum that were previously requested in Plaintiff's Rule 34 discovery request directed to GEICO.
2. Defendant's Motion to Quash is GRANTED with respect to the documents requested in paragraphs 2 and 3 of Plaintiffs' subpoena duces tecum that are listed in the privilege log for Mr. Rosales' claim file.
3. Defendant's Motion to Quash is DENIED with respect to the documents requested in paragraphs 4 through 8 of Plaintiff's subpoena duces tecum.
4. Defendant's Motion to Quash is DENIED with respect to the documents requested in paragraph 9 of Plaintiffs' subpoena duces tecum.
5. Defendant's Motion to Quash is DENIED with respect to paragraph 1 regarding the "Summary Loss Report" listed on the privilege log for Mr. Rosales' claim file, and is DENIED as moot with respect to the remainder of paragraph 1.IT IS FURTHER ORDERED that each party shall bear and pay their respective attorneys' fees and costs associated with the bringing and defense of this motion.