Summary
noting that an attorney-client relationship does not form between union members and a union attorney because the attorney's client is the union
Summary of this case from Garcia v. Bd. of Cnty. Comm'rsOpinion
CIVIL ACTION NO. 1:01-CV-0426-CAP
January 13, 2003
ORDER
This matter is now before the court on various discovery motions filed by both parties. For the reasons set forth below, the plaintiffs' motion for a protective order [Doc. No. 31-1] is GRANTED IN PART and DENIED IN PART, and the defendants' motion to compel [Doc. No. 33-1] is GRANTED IN PART and DENIED IN PART.
The defendants' motion for extension of time to reply to the plaintiffs' response on the motion to compel [Doc. No. 38-1] is GRANTED nunc pro tunc.
FACTUAL BACKGROUND
The plaintiffs brought this class action to recover benefits allegedly due under a collective bargaining agreement between the United Steelworkers of America, AFL-CIO-CLC ("the union") and Atlantic Steel Industries ("Atlantic Steel"). On October 12, 1998, Atlantic Steel notified the union that it intended to close its Atlanta-based plant, terminate the collective bargaining agreement, and modify or terminate retiree life and medical insurance benefits. The plaintiffs, the union and two individual retirees serving as class representatives' allege that retiree life and medical insurance benefits were vested under the collective bargaining agreement and thus could not legally be modified or terminated. The complaint includes four counts: (I) breach of contract, (II) breach of health plan terms, (III) breach of insurance plan terms, and (IV) promissory estoppel.
Class certification has been granted only as to counts I-III.
Discovery has been open in this case since April 4, 2001. The plaintiffs have now filed a motion seeking (1) a protective order prohibiting the defendants from requesting or using testimony, documents and other information protected by the attorney-client privilege or attorney work-product doctrine and (2) a protective order prohibiting the defendants from seeking other contracts in which the union has negotiated vested life or medical insurance coverage. In response, the defendants have filed a motion requesting that the court compel the plaintiffs to produce documents responding to various discovery requests, most of which are encompassed by the plaintiffs' request for a protective order.
LEGAL ANALYSIS I. Application of the attorney-client privilege and the attorney work-product doctrine
The plaintiffs first seek a protective order protecting from disclosure documents and information protected by the attorney-client privilege or the attorney work-product doctrine. The defendants raise two arguments in response: (1) the attorney-client and attorney work-product privileges do not apply; and (2) even if they do apply, the plaintiffs have waived them.
On April 5, 2001, the defendants served various discovery requests on the plaintiffs. The plaintiffs served their responses on June 12, without raising any objections. Subsequently, the defendants deposed several union representatives involved in the collective bargaining negotiations and served on each witness a subpoena duces tecum requesting various documents related to this case. Neither the deponents nor the union raised any objections at that time. On June 6, 2002, the defendants deposed Ernest Hicks, who is a retiree of Atlantic Steel and a former president of the local union but is not a member of the class. In response to the defendants' subpoena duces tecum, Mr. Hicks produced a letter dated April 3, 2000, and addressed to him from Joseph P. Stuligross, an attorney in the union's legal department. That letter purported to respond to a letter Mr. Hicks had written to the union's general counsel on January 6, 2000, and described the union's investigation of potential claims against Atlantic Steel for modifying and terminating retiree benefits.
After receiving the Stuligross letter, the defendants served the union a notice of deposition and a request for production of documents relating to the subject matter of the letter. The plaintiffs initially indicated that they would comply with the requests but then responded that the matters were privileged based on the attorney-client privilege and work-product doctrine.
A. Whether the attorney-client privilege and the attorney work-product doctrine apply in this case
1. The attorney-client privilege
The attorney-client privilege is a common law privilege that protects confidential communications between a lawyer and a client in securing legal advice. In re Federal Grand Jury Proceedings (FGJ 91-9), 975 F.2d 1488, 1492 (11th Cir. 1992). Communications between an attorney and a client are protected from disclosure where: (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made is a member of a bar of a court, or his subordinate, and is acting as a lawyer in connection with the communication; (3) the communication relates to a fact of which the attorney was informed by his client, without the presence of strangers, for the purpose of securing primarily an opinion on law, legal services, or assistance in some legal proceeding, and not for the purpose of committing a crime or tort; and (4) the privilege has been claimed and was not waived by the client. In re Federal Grand Jury Proceedings, 89-10 (MIA), 938 F.2d 1578, 1581 (11th Cir. 1991). Because invocation of the privilege serves to obscure the truth, courts construe the privilege as narrowly as is consistent with its purpose, which is to promote freedom of consultation between client and lawyer by eliminating the fear of subsequent compelled legal disclosure of confidential communications.States v. Suarez, 820 F.2d 1158, 1160 (11th Cir. 1987). The party invoking the privilege bears the burden of proving its applicability. In re Grand Jury Investigation, 842 F.2d 1223, 1225 (11th Cir. 1987).
The defendants contend that the attorney-client privilege does not apply to any of the communications at issue because they were not made in the attorney-client context. More specifically, the defendants argue that (1) the former union members could not reasonably have expected to become clients of the union, as it is not a law firm and (2) the union and its counsel have repeatedly indicated that they do not represent the former union members. The plaintiffs have not responded to these arguments. In fact, the only support they have provided to substantiate their claim to the privilege is the privilege log itemizing the various communications at issue and the affidavits of Mr. Stuligross and two individual retirees, indicating that the communications were between union lawyers and various retirees, that they involved the retirees seeking legal advice and representation concerning their loss of benefits, and that they were intended to be confidential. But none of this evidence, and none of the arguments the plaintiffs assert in their briefs, explains why the attorney-client privilege should apply to the communications that occurred between former union members and staff attorneys employed by the union.
Generally, an attorney-client relationship does not form between union members and a union staff attorney, because the attorney's client is the union rather than the union members (or former union members). See, e.g., Arnold v. Air Midwest, Inc., 100 F.3d 857, 862-63 (10th Cir. 1996) (finding that an attorney retained by a union acts as its representative, rather than as the representative of individual union members, and thus benefits from the immunity from suit given to union agents); Peterson v. Kennedy, 771 F.2d 1244, 1261 (9th Cir. 1985) (finding that a union member cannot maintain a malpractice action against an attorney acting on behalf of the union in the collective bargaining process; stating that in order to establish the existence of an attorney-client relationship between a union member and an attorney retained generally to represent his union, the union member must at least "prove that in his particular case the [attorney] was not acting pursuant to its obligation to provide representation for or on behalf of the union and that it had specifically agreed, instead, to provide direct representation to him as an individual client"); Gwin v. Nat'l Marine Eng'rs Beneficial Ass'n, 966 F. Supp. 4, 7 (D. D.C. 1997) ("It is well established, as a matter of law, that an attorney handling a labor grievance on behalf of a union does not enter into an `attorney-client' relationship with the union member asserting the grievance."). This is largely because "an attorney acting as an agent of the union has an obligation to act for the benefit of all its members, even if the majority interest clashes with individual interests," and, therefore, a union member generally has no reasonable expectation of confidentiality in that relationship. See Gwin, 966 F. Supp. at 7-8.
The plaintiffs have not shown any reasons why this general rule should not apply to the communications at issue in this case. In fact, the defendants have pointed to various remarks made by both union attorneys and retirees indicating that no attorney-client relationship existed between them, including statements made during the depositions expressing that the attorneys who were present represented the union and not individual retirees. The plaintiffs did not respond to this evidence, nor did they raise any arguments in their response brief as to why the privilege should nonetheless apply. As stated above, the party invoking the privilege bears the burden of proving that it applies. The court finds that the plaintiffs have not carried that burden, and, therefore, that the attorney-client privilege does not apply to the communications at issue.
2. The attorney work-product doctrine
The attorney work-product doctrine, which was first enumerated by the Supreme Court in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385 (1947), is now codified in Federal Rule of Civil Procedure 26(b)(3). That rule provides, "[A] party may obtain discovery of documents and tangible things otherwise discoverable . . . and prepared in anticipation of litigation or for trial by or for another party . . . only 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." The rule also states, "In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation." Thus, in order to obtain discovery of attorney work-product, the proponent must show both substantial need and undue hardship. Castle v. Sangarno Weston, Inc., 744 F.2d 1464, 1467 (11th Cir. 1984). However, where the work-product involves the attorney's mental impressions, conclusions, opinions or legal theories, such a showing will not suffice, as this "opinion work-product" enjoys a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances. Cox v. Administrator U.S. Steel Carnegie, 17 F.3d 1386, 1422 (11th Cir. 1994).
The defendants do not raise any arguments as to the applicability of the attorney work-product doctrine to the materials at issue, except regarding the waiver issue, which is addressed below. Because the materials appear to be related to the investigation by union counsel in preparation for litigation and because the defendants bear the burden of showing that the material should nonetheless be available to them based on substantial need and undue hardship, the court concludes that the attorney work product doctrine applies to the materials at issue.
B. Whether the plaintiffs waived any objections based on the attorney work-product doctrine
In their initial brief in support of this motion, the defendants complained that the plaintiffs had not provided adequate descriptions so as to determine whether the privilege applies to particular documents. In their response to the defendants' motion, the plaintiffs attached a revised privilege log, which more fully describes the individual documents. The court finds this log to be sufficiently specific to meet the Rule 26(b)(5) standard and also concludes that the documents for which the plaintiffs claim the attorney work-product privilege are covered by that privilege.
Because the court finds that only the attorney work-product doctrine applies in this case, the court will consider the defendants' waiver arguments only as they relate to attorney work product. In that regard, the defendants argue that the plaintiffs waived the privilege (1) by not raising their objections in response to earlier discovery requests and (2) by voluntarily disclosing the Stuligross letter.
1. Waiver by failure to raise objections previously
The defendants first argue that because the plaintiffs did not raise any objections based on the attorney work-product doctrine within 30 days of the first set of discovery requests and because the information now requested is within the scope of those discovery requests, the plaintiffs have waived their objections. The plaintiffs contend that they were not aware of the existence of the documents now at issue until the letter was produced by Mr. Hicks, and therefore they did not waive their objections.
Rule 34 of the Federal Rules of Civil Procedure provides, "Any party may serve on any other party a request . . . to produce and permit the party making the request . . . to inspect and copy, any designated documents. . . ." The rule also provides, "The party upon whom the request is served shall serve a written request within 30 days after the service of the request . . ., [which] shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for the objection shall be stated."
As a general rule, when a party fails to object timely to discovery requests, such objections are waived. See. e.g., Marx v. Kelly, Hart Hallman, P.C., 929 F.2d 8, 12 (1st Cir. 1991). In re United States, 864 F.2d 1153, 1156 (5th Cir. 1989). However, courts have recognized that waiver of the attorney-client privilege is an extreme sanction and that it therefore should be reserved for cases of unjustifiable delay, inexcusable conduct, or bad faith in responding to discovery requests. See, e.g., In re RDM Sports Group, Inc., 277 B.R. 415, 424-25 (Bkrtcy. N.D. Ga. 2002); Ritacca v. Abbott Labs., 203 F.R.D. 332, 335 (N.D. Ill. 2001); Scaturro v. Warren and Sweat Manuf. Co., 160 F.R.D. 44, 46 (M.D. Pa. 1995). See also Coker v. Duke Co., 177 F.R.D. 682, 685 (M.D. Ala. 1998) (concluding party had shown good cause for failure to respond to a discovery request and thus did not waive objections). Thus, minor procedural violations, good faith attempts at compliance, and other mitigating circumstances will militate against finding waiver.
In the instant case, the plaintiffs have indicated that they were not aware of the existence of the materials at issue until Mr. Hicks, who is not a class member and is not represented by plaintiffs' counsel, produced the letter from Mr. Stuligross. Soon after they became aware of these materials and in response to the defendants' request for additional discovery related to the letter, the plaintiffs moved for a protective order, raising their privilege claims. The court concludes that the plaintiffs' actions do not constitute unjustifiable delay, inexcusable conduct, or bad faith in responding to discovery requests, so as to warrant the extreme sanction of waiver. Compare Ritacca, 203 F.R.D. at 335-36 (finding waiver of privilege where party evaded disclosure of certain documents for tour months, appeared to have "hand picked" the documents and set them aside during document production, and misrepresented the nature of the documents to opposing counsel); Bratka v. Anheuser-Busch Co., 164 F.R.D. 448, 460 (S.D. Ohio 1995) (finding waiver of privilege where defendant repeatedly provided incomplete responses to discovery requests, plaintiff pointed out each time that the documents that were provided contained references to other documents not included, and defendant responded each time with additional but still incomplete documents).
Therefore, the court concludes that the plaintiffs did not waive objections based on the attorney work-product doctrine by not raising them in response to earlier discovery requests.
2. Waiver by disclosure
The defendants also argue that the plaintiffs waived the protections of the attorney work-product doctrine when Mr. Hicks voluntarily produced the Stuligross letter, which referred to the review by union attorneys of Atlantic Steel's modification and termination of retiree benefits.
The privilege derived from the attorney work-product doctrine is not absolute and thus may be waived. United States v. Nobles, 422 U.S. 225, 239, 95 S.Ct. 2160, 2170 (1975). In this instance, the defendants contend that Mr. Hicks' disclosure of the Stuligross letter effectively waived the plaintiffs work-product privilege as to all materials concerning the same subject matter as the letter.
Voluntary disclosure to an adversary waives the protection of the attorney work-product doctrine as to the items disclosed. See In re Steinhardt Partners, L.P., 9 F.3d 230, 235 (2d Cir. 1993); In re Chrysler Motors Corp. Overnight Evaluation Program Litig., 860 F.2d 844, 846 (8th Cir. 1988). However, disclosure of some documents generally does not destroy work-product protection for other documents relating to the same subject matter. See, e.g., Pittman v. Frazer, 129 F.3d 983, 988 (8th Cir. 1997) (finding that any waiver of work-product protection was limited to the photographs used as trial exhibits); In re Sealed Case, 676 F.2d 793, 818 (D.C. Cir. 1982) ("The purposes of the work product privilege . . . are not inconsistent with selective disclosure — even in some circumstances to an adversary."); Duplan Corp. v. Deering Milliken, Inc., 540 F.2d 1215, 1222-23 (4th Cir. 1976) (finding that subject matter waiver does not apply to attorney work-product in cases where disclosure was only inadvertent or partial and where no testimonial use was made of the work-product). See also Nobles, 422 U.S. at 239-40, 95 S.Ct. at 2170-71 (finding that party who presented an investigator as a witness and thereby made affirmative testimonial use of attorney work-product had waived the privilege with respect to matters covered in the investigator's testimony, and finding that district court had properly exercised its discretion in limiting the scope of the waiver to the portion of the investigator's report that related to the testimony he would offer). Therefore, the court concludes that even if the plaintiffs were found to have waived the privilege with regard to attorney work-product, that waiver would not extend beyond the letter itself.
Moreover, the work-product privilege belongs to both the client and the attorney, either one of whom may assert it; thus, a waiver of the privilege by the client does not deprive the attorney of his own privilege, and vice versa. See In re Grand Jury Proceedings, 43 F.3d 966, 972 (5th Cir. 1994); In re John Doe, 662 F.2d 1073, 1079 (4th Cir. 1981). Thus, in this instance, even if Mr. Hicks were considered a client of Mr. Stuligross (which this court has not found him to be), he could not have waived the work product privilege held by the union attorneys.
Therefore, the court concludes that the plaintiffs did not waive the protections of the attorney work-product doctrine by Mr. Hicks' voluntary disclosure of the Stuligross letter.
II. The plaintiffs' request for a protective order regarding other negotiated contracts with vested retiree benefits
The plaintiffs also seek a protective order prohibiting the defendants from seeking other contracts with vested retiree benefits. The defendants have requested that the union designate an individual to testify regarding "other employers with whom [the union] has negotiated vested life or medical insurance coverage and the relevant contract language" and that it produce "any and all documents referring to or reflecting vested non-terminable life or medical insurance benefits negotiated by [the union] with any employer." The plaintiffs contend that the information requested is not likely to lead to relevant evidence regarding any matter at issue in the case, as it does not relate to the specific contract language and specific facts involved in this case. They also argue that the request is unduly burdensome and expensive, as the union would have to analyze more than 2,000 contracts and additional documents to determine whether they provide vested benefits.
Federal Rule of Civil Procedure 26(b)(1) provides, "Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. . . ." The rule also states, "Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Section (b)(2) further provides that a court may limit discovery if it finds that "the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues."
At issue in this case is whether the language in the collective bargaining agreement between Atlantic Steel and the union vested certain retiree benefits. The defendants contend that similar or identical language in other contracts would directly bear on the union's intent in negotiating the language at issue and that the request is not unduly burdensome, as the union has indicated that contracts with vested retiree benefits are rare. The court agrees. The court concludes that the burden or expense this proposed discovery may impose on the plaintiffs is not outweighed by the likely benefit, particularly considering that the proposed discovery is relevant to the central issue in the case.
Accordingly, the plaintiffs' request for a protective order prohibiting the defendants from seeking other contracts with vested retiree benefits is denied.
III. The defendants' motion to compel production of documents
The defendants have moved to compel the production of various documents, mostly concerning information for which the plaintiffs have asserted privilege claims. This motion is, in part, a response to the plaintiffs' motion for a protective order with respect to recent discovery requests relating to the Stuligross letter. Additionally, the defendants seek (1) discovery responding to earlier discovery requests, which the defendants contend encompass the same information as their more recent requests, and (2) discovery of information that is related to documents the plaintiffs assert are privileged but that is not itself privileged. Finally, the defendants seek their costs and fees incurred in preparing this motion.
Because the court has found that the materials at issue are protected by the attorney work-product privilege, but not the attorney-client privilege, and that the work-product privilege has not been waived, the defendants' motion to compel is granted with respect to (1) materials for which the plaintiffs have asserted only the attorney-client privilege and (2) materials for which the plaintiffs have not asserted any privilege. The motion is denied with respect to materials for which the plaintiffs have asserted the attorney work-product privilege.
To the extent that the plaintiffs raise additional objections based on the scope of the defendants' discovery requests, the court concludes that such objections are not waived, for the same reasons as stated above (with regard to waiver of the work-product privilege for failure to raise objections previously). However, the court also finds that the plaintiffs have not shown that the scope of the defendants' discovery requests exceeds the bounds of Rule 26(b)(1). If the plaintiffs wish to challenge the inclusion of particular documents or particular types of documents, they may file a motion specifying how the burden or expense of discovery regarding those documents outweighs the likely benefit. Otherwise, the defendants are entitled to discovery of all documents, except those which the court has found to be privileged, responding to their various discovery requests.
The defendants also request their fees and costs associated with preparation of this motion. Federal Rule of Civil Procedure 37(a)(4) provides that when a court grants a party's motion to compel disclosure, "the court shall . . . require the party . . . whose conduct necessitated the motion or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney's fees, unless the court finds that . . . the opposing party's nondisclosure, response, or objection was substantially justified." Thus, an award of expenses is mandatory against a party or attorney whose conduct necessitated a motion to compel discovery, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.Merritt v. Int'l Bhd. of Teamsters, 649 F.2d 1013, 1019 (5th Cir. Unit A June 1981). The rule does not require a demonstration of bad faith.Devaney v. Cont'l Am. Life Ins. Co., 989 F.2d 1154, 1162 (11th Cir. 1993). An individual's discovery conduct should be found "substantially justified" if "it is a response to a `genuine dispute, or if reasonable people could differ as to the appropriateness of the contested action.'"Id. at 1163 (quoting Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 2550 (1988) (concerning meaning of "substantially justified" in 28 U.S.C. § 2412 (d)(1)(A))).
In this instance, the court finds that the plaintiffs' position regarding their privilege claims was substantially justified. Therefore, the defendants' request for fees and costs concerning this motion is denied.
CONCLUSION
For the foregoing reasons, the court hereby GRANTS IN PART and DENIES IN PART the plaintiffs' motion for a protective order [Doc. No. 31-1]; GRANTS IN PART and DENIES IN PART the defendants' motion to compel. [Doc. No. 33-1]; and GRANTS nunc pro tunc the defendants' motion for extension of time to reply to the plaintiffs' response on the motion to compel [Doc. No. 38-1].