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finding that the scope of waiver did not extend to "information beyond the privileged documents . . . actually disclosed"
Summary of this case from Alexis v. RogersOpinion
Civil No. 02-74-MA.
June 10, 2004
Roger A. Hennagin Lake Oswego, OR, Attorney for Plaintiff.
Robert E. Franz Springfield, OR, Attorney for Defendants.
OPINION ORDER
Now before me is plaintiff's Motion to Compel Production of Documents (#92). For the reasons set forth below, plaintiff's motion is granted in part and denied in part.
DISCUSSION
Plaintiff is seeking an order from this court compelling defendants to: (1) produce documents that defendants have withheld on the basis of privilege; and (2) disclose during deposition the contents of oral communications which occurred with City of Madras council members. Defendants counter that the requested documents are shielded by the attorney-client privilege and that such privilege has not been waived.Specifically, defendants assert that any communication between the Jefferson County District Attorney ("District Attorney") and defendants was for a shared common interest and, therefore, does not constitute a waiver of the attorney-client privilege. Alternatively, defendants argue that any waiver of privilege is limited to only one document which was produced to the District Attorney but not made public at plaintiff's criminal trial.
I. Legal Standards
The party asserting the attorney-client privilege bears the burden of demonstrating that the privilege applies to the information in question. Tornay v. United States, 840 F.2d 1424, 1426 (9th Cir. 1988) (citation omitted). Moreover, the Ninth Circuit has "admonished that the focal point of privilege waiver analysis should be the holder's disclosure of privileged communications to someone outside the attorney-client relationship, not the holder's intent to waive the privilege." Tennenbaum v. Deloitte Touche, 77 F.3d 337, 341 (9th Cir. 1996).
With an eye to "notions of fundamental fairness[,]" the "principal purpose" of the attorney client-privilege "is to protect against the unfairness that would result from a privilege holder selectively disclosing privileged communications to an adversary, revealing those that support the cause while claiming the shelter of the privilege to avoid disclosing those that are less favorable." Id. at 340-41; see also, Weil v. Inv./Indicators, Research Mgmt., Inc., 647 F.2d 18, 25 (9th Cir. 1981) (a "bare assertion" that a waiver was "not subjectively intended to waive the privilege is insufficient to make out the necessary element of nonwaiver"); United States v. Mendelsohn, 896 F.2d 1183, 1188-89 (9th Cir. 1990) (plaintiff's "intent or lack of intent to waive the attorney-client privilege is not dispositive").
II. Analysis
The parties do not dispute that the information plaintiff seeks was once shielded from production under the attorney-client privilege. Rather, the issue in dispute is whether the attorneyclient privilege was waived in a letter, dated August 9, 2001, between counsel for the City of Madras and the District Attorney. In an effort to assist the District Attorney in its criminal investigation of plaintiff, counsel for the City of Madras wrote:
We understand in your current investigation you may need to have access to the City's Executive Session minutes that deal with the William Sizemore contract and his subsequent termination. You also may need to talk with the former Mayor and former City Councilors that were involved in the negotiations of the contract with Mr. Sizemore, Finally, you may need to discuss with former City Attorney Dave Glenn, issues concerning Mr. Sizemore's contract with the City of Madras.
The purpose of this letter is to formally notify you that the City of Madras hereby authorizes you . . . to have access to the people and documents mentioned above. This letter will serve as a waiver of the City's executive privilege and attorney-client privilege with regard to these people and these documents on the issue of Mr. Sizemore's hiring, his contract with the City, and his termination.
Hennagin Dec., Ex A.
At this point, there remains only one document that was produced to the District Attorney but not made public. Defendants argue that this one document is protected by the attorney-client privilege because the City of Madras and the District Attorney were sharing a common interest in plaintiff. Defendants overstate the scope of the common interest privilege, which typically arises when two or more persons jointly defend criminal indictments. Hunydee v. United States, 355 F.2d 183, 185 (9th Cir. 1965).
The common interest privilege simply "expands application of the attorney-client privilege or the work-product doctrine to circumstances in which it otherwise might not apply." Griffith v. Davis, 161 F.R.D. 687, 691 (C.D. Cal. 1995); RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 126 (1996) (noting communications that "otherwise qualif[y] as privileged" will remain so if shared between "two or more clients with a common interest in a litigated or non-litigated matter [who] are represented by separate lawyers and . . . agree to exchange information concerning the matter").
In this instance, the common interest privilege does not apply for two reasons. First, the letter is a release for the District Attorney to access people and information gathered for the civil case involving the City of Madras. The letter does not allow the District Attorney to participate in any communications defendants had with counsel regarding a matter of common interest. Second, no evidence suggests that the parties agreed to share information. In short, defendants have supplied no evidence that they agreed to work in tandem with the District Attorney to pursue a joint legal enterprise when the communications at issue occurred. Accordingly, the information that was waived is not shielded by the common interest privilege.
Next, I must consider defendants' argument that the waiver extends to only the information actually shared, namely the one document produced to the District Attorney but not used in the criminal proceeding. The Ninth Circuit has explicitly refused to extend the scope of a waiver of the attorney-client privilege beyond the few privileged documents actually disclosed. Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1162 (9th Cir. 1992) (citing Weil v. Inv./Indicators, Research Mgmt, 647 F.2d 18, 24 (9th Cir. 1981)). In light of this precedent, plaintiff is not entitled to any information beyond the privileged documents defendants actually disclosed to the District Attorney. Therefore, unless disclosed to the District Attorney, plaintiff's request for disclosure at depositions of any privileged oral communications is denied.
CONCLUSION
Based on the foregoing, plaintiff's Motion to Compel (#92) is granted in part and denied in part as follows:
1. Defendants shall produce the one document provided to the District Attorney but never made public. Defendants shall produce this document no later than two weeks following the date of this order; and
2. Plaintiff is entitled only to attorney-client privileged communications that were orally disclosed to the District Attorney by the City of Madras council members, and not to any disclosure at depositions regarding matters that remain privileged.
IT IS SO ORDERED.