IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Southern Division
March 15, 2013
CAROLINE RAISSA EMANDOPNGOUBENE, ET AL., PLAINTIFF,
CORINE ELAT, DEFENDANTS.
The opinion of the court was delivered by: Paul W. Grimm United States District Judge
MEMORANDUM OPINION AND ORDER
This Memorandum Opinion addresses Defendants Caroline Ngoubene, Roxane Ngoubene, and Dany Ngoubene's Motion to Compel, ECF No. 82; Plaintiff Corine Elat's Opposition, ECF No. 98; and Defendants' Reply, ECF No. 103. For the reasons stated herein, Defendants' Motion to Compel is DENIED. This Order disposes of ECF Nos. 82, 98, and 103.
On October 13, 2011, Plaintiff filed an eighteen-count Complaint against Francois
Ngoubene, Marie Therese Ngoubene, Caroline Ngoubene, Roxane Nbougene, Dany Ngoubene, and Collins Ngoubene ("Ngoubene Family") alleging, inter alia, violations of the federal Trafficking Victims Protection Reauthorization Act 18 U.S.C. § § 1589, 1595 ("TVPRA"), the federal Fair Labor Standards Act and Maryland state law and common law. Compl., ECF No. 1. Subsequently, Defendants filed a Motion to Dismiss, ECF No. 24, asserting diplomatic immunity, which the Court granted as to Defendants Francois Ngoubene and Marie-Therese Ngoubene, ECF No. 43, permitting Plaintiff the opportunity to file an amended complaint against those defendants not entitled to diplomatic immunity, Caroline, Roxanne, and Dany Ngoubene.
On June 4, 2012, Plaintiff filed an amended complaint, 2nd Am. Compl., ECF No. 44, naming Caroline, Roxanne, and Dany Ngoubene as defendants, and asserting five claims: Violations of the TVPRA, False Imprisonment and conspiracy to commit False Imprisonment, Quantum Meruit, Unjust Enrichment, and Replevin. The TVPRA claim is a federal question claim. The remaining claims are state law claims filed pursuant to this Court's supplemental jurisdiction. In paragraphs 57--67 and 92--93, Plaintiff asserts that Defendants are equitably estopped from raising an affirmative defense of statute of limitations with respect to her state claims, because Defendants allegedly used physical violence and threats of physical violence against Plaintiff and her family to dissuade her from filing suit.
When deposed by Defendants, Plaintiff was questioned about the identity of various lawyers that she consulted with regard to her employment by the Ngoubene family prior to the expiration of the statute of limitations. Plaintiff identified these attorneys but, on advice of counsel, asserted the attorney-client privilege and refused to answer any questions regarding the contents of her communications with counsel regarding possible claims against Defendants.
Defendants have moved to compel the deposition of the three lawyers that Plaintiff consulted. Defs' Mot. to Compel, ECF No. 82. They claim that by interposing the doctrine of equitable estoppel as a defense against Defendants' statute of limitations defense Plaintiff has waived the attorney-client privilege. See id. Plaintiff has filed a Response in Opposition, ECF No. 98, and Defendants a Reply, ECF No. 103. Argument was heard on March 14, 2013.
Defendants seek production of Plaintiff's communications with her former attorneys to "ascertain why [Plaintiff] did not file this action within the applicable statutes of limitations despite the fact that she was represented by several attorneys during the limitations period." Def.'s Mot. 1. Because Fed. R. Civ. P. 26(b)(1) exempts privileged information from the scope of permissible discovery, Defendants may prevail only by showing that the information they seek is not privileged, or, if privileged, that there has been a waiver. Defendants have elected the later approach.
A. Choice of Law
As an initial matter, this Court first must decide whether state or
federal privilege law governs. The starting point for asserting a
privilege is Fed. R. Evid. 501. Rule 501 provides that, for claims and
defenses for which federal law applies, federal common law governs
privilege, unless the Constitution, federal statutory law, or the
Federal Rules provide otherwise. Fed. R. Evid. 501. Conversely, when
State law "supplies the rule of decision" for an element of a claim or
defense, the privilege "shall be determined in accordance with State
law." Id. Of course, in instances where both the federal and state
privilege law is the same, there is no practical difficulty. The
challenge arises when, as here, both federal and state substantive
laws apply and federal and state privilege laws differ.*fn1
See Cont'l Cas. Co. v. Under Armour, Inc., 537 F. Supp. 2d
761, 767 n.3 (D. Md. 2008). Under these circumstances, "Rule 501 would
seem to require that federal privilege law control the federal claims,
and state privilege law control the supplemental state law claims."
Id. Yet, "the majority of courts have held that federal privilege
trumps state law," and applies to all claims, "because were it
otherwise, the jury would be faced with a hopelessly confusing task."
Id. (collecting cases).
Here, the Complaint alleges a federal claim based on the TVRPA and supplemental Maryland state claims. Yet, the evidence sought from Plaintiff is relevant only to the state law claims because Defendants do not contend that the federal claim was untimely. Such a dispute does not appear to implicate conflicting state and federal privilege law, raising the question whether the general rule, that applies federal privilege law when both federal and state claims have been pleaded, controls. Courts confronting issues of privilege, in the context of the discoverability of evidence, do not assess the applicability of Rule 501 on a piecemeal, claim-by-claim basis. Instead, they apply the law of privilege consistently throughout an entire proceeding. Indeed, the Seventh Circuit has recognized that "courts have uniformly held that the federal law of privilege governs even where the evidence sought might be relevant to a pendent state claim." Hancock v. Hobbs, 967 F.2d 462, 466 (11th Cir. 1992) (collecting cases). Further, this approach appears consistent with the legislative history of Rule 501. In its report on Rule 501, the Senate Judiciary Committee stated: "It is . intended that the Federal law of privileges should be applied with respect to pendant State law claims when they arise in a Federal Question case." S. Rep. No. 1277, 93rd Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Ad. News 7051, 7059 n. 16 (emphasis added). Use of the word "case," makes clear that the Committee intended for privilege issues to be resolved consistently throughout the course of a single proceeding, regardless of whether a given evidentiary dispute relates to a federal claim or a state claim.*fn2 This approach has found approval in the Fourth Circuit. See Virmani v. Novant Health Inc., 259 F.3d 284, 287 (4th Cir. 2001) ("We agree with our sister circuits that in a case involving both federal and state law claims, the federal law of privilege applies.") (emphasis added)). Therefore, I conclude that the federal law of privilege controls in this civil proceeding where the Court's jurisdiction is premised upon a federal question, even if the evidence is relevant to only a supplemental state law claim which may be controlled by contrary state privilege law. See Hancock, 967 F.2d at 467. Accordingly, the federal law of privilege shall apply for the resolution of the present discovery dispute.
B. The Attorney-Client Privilege
Defendants seek production of Plaintiff's communications with her former counsel, Elizabeth Keyes, Edward Leavy, and Cecile Nantchouang because Plaintiff has waived privilege protection by asserting that equitable estoppel bars application of Defendants' statute of limitations defense as to the state claims. See Defs.' Mot. 7--12. Plaintiff argues these communications are protected by the attorney client privilege, that there has been no waiver, and thus are shielded from discovery. See Pl. Resp. 4--9.
The purpose of the attorney-client privilege is "to encourage 'full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.'" Swindler & Berlin, 524 U.S. at 403 (quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)). The Fourth Circuit adopted the "classic test for application of the attorney-client privilege" as set forth in United States v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950):
The [attorney-client] privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact to which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.
United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982) (per curiam) (quoting United Shoe); see United States v. Lentz, 524 F.3d 501, 523 (4th Cir. 2008) (quoting Jones). Put another way, [F]our elements are required to establish the existence of the attorney-client privilege:
(1) A communication;
(2) made between privileged persons;
(3) in confidence;
(4) for the purpose of seeking, obtaining, or providing legal assistance to the client.
Besides the existence of these elements, the privilege must be affirmatively raised and cannot have been waived.
Edna Selan Epstein, The Attorney-Client Privilege and the Work-Product Doctrine 65 (5th ed. 2007) (quoting Restatement, The Law Governing Lawyers § 118 (Tentative Draft No. 1, 1988)); see United States v. Cohn, 303 F. Supp. 2d 672, 683 (D. Md. 2003); Burlington Indus. v. Exxon Corp., 65 F.R.D. 26, 37 (D. Md. 1974). In applying these elements, courts have narrowly construed the attorney-client privilege. NLRB v. Harvey, 349 F.2d 900, 907 (4th Cir. 1965) ("'The privilege remains an exception to the general duty to disclose. . . . It is worth preserving for the sake of a general policy, but it is nonetheless an obstacle to the investigation for truth. It ought to be strictly confined within the narrowest possible limits consistent with the logic of its principles.'") (quoting 8 J. Wigmore, Evidence § 2291, at 554 (McNaughton rev. ed. 1961)).
Here, it is not disputed that the evidence sought from Plaintiff falls within the scope of the attorney-client privilege. Instead, Defendants argue that Plaintiff waived the privilege by "plac[ing] her communications with her prior counsel at issue in this litigation for her own benefit." Defs.' Mot. 12. They contend that "it would be inequitable to permit her to use the attorney-client privilege as a sword and as a shield to prevent inquiry into the asserted claim."
Id. Specifically, Defendants take issue with the fact that, during her deposition, "Plaintiff asserted the attorney client privilege by not answering questions concerning any communication with counsel concerning why she failed to file a complaint within the statute of limitations." Id. When asked about her consultation with former counsel, Plaintiff testified as follows:
Q: Six months earlier, this says, reading paragraph 68, that "On or about June 3rd, 2008, plaintiff's attorney sent a letter to Francois Ngoubene requesting a conversation about compensating plaintiff for her years of unpaid labor. Defendants did not respond in writing to this letter, but they did respond with physical violence," [. . .] Who did you go see, which attorney sent a letter on your behalf to Francois Ngoubene?
A: I believe Leavy did the first time.
Q: Edward Leavy?
Q: Well, did you go see Mr. Leavy for the purposes of filing a lawsuit against the Ngoubenes?
Q: And did Mr. Leavy file the lawsuit against the Ngoubenes?
Q: Did you discharge Mr. Leavy as your lawyer?
A: I didn't do it. He told me that -- I'm not supposed to say?
Q: Did you fire Mr. Leavy as your lawyer?
Q: How did he stop being your lawyer?
A: He just told me he MR. FUCSO: Hold, on. Don't talk about conversations you had with counsel.
Q: Were you upset with the job that Mr. Leavy did or did not do for you?
A: No. I didn't understand what exactly he was doing. He wrote a letter, and that was it. [. . .]
Q: Did you go to Mr. Leavy because you wanted to get a lawsuit filed against the Ngoubenes for the forced labor?
A: It was for my unpaid wages.
Q: Okay. And for your conditions generally?
Q: And do you know why it was never filed back then?
Defs.' Mot. 2--3 (quoting Elat Dep., Defs.'s Mot, Ex. 1.). Therefore, the question is whether Plaintiff, by asserting equitable estoppel, has waived the attorney-client privilege as to these communications.
As a general rule, a client may waive the attorney-client privilege either expressly or by implication. E.g., Sedco Int'l, S.A. v. Cory, 683 F.2d 1201, 1206 (8th Cir.), cert. denied, 459 U.S. 1017 (1982). Express, or actual, waiver occurs where confidential communications are disclosed to a party outside the attorney-client relationship, while implied waiver occurs where a litigant puts the substance of a confidential communication at issue in the litigation or by selective disclosure, where a litigant discloses a portion of the confidential communication and invokes the privilege to shield the remainder. Balt. Scrap Corp. v. David J. Joseph Co., No. L-96-827, 1996 WL 720785 (D. Md. Nov. 20, 1996). "While express waivers of the privilege are easy to identify, courts widely dispute at what point a client impliedly waives the privilege by injecting privileged communications into a case." Bertelsen v. Allstate Ins. Co., 796 N.W.2d 685, 703 (S.D. 2011). Indeed, this Court has recognized that "the problem in determining whether there has been an implied waiver of the attorney-client privilege is that it is commonly difficult to ascertain when a party has placed an otherwise protected attorney-client communication 'at issue.'" Balt. Scrap Corp., 1996 WL 720785, at *25.
As a result, two general approaches have emerged to determine whether a client has impliedly waived the attorney-client privilege. The first approach, and the one that Defendants urge the Court to adopt, first was articulated in Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975). Balancing the need for discovery with the importance of maintaining the privilege, the Hearn court set forth three criteria to determine whether a party has impliedly waived the privilege:
(1) assertion of the privilege was a result of some affirmative act, such as filing suit, by the asserting party; (2) through this affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and (3) application of the privilege would have denied the opposing party access to information vital to his defense.
Hearn, 69 F.R.D. at 581. The court concluded "where these three conditions exist, a court should find that the party asserting [the] privilege has impliedly waived it through his own affirmative conduct." Id.
While the Hearn rule often is cited as the "leading light of implied waiver jurisprudence," many sources criticize it on the grounds that it is vague and does not afford sufficient protection to the attorney-client privilege. See Kenneth Duvall, Rules, Standards, and the Attorney-Client Privilege: When the Privilege Is "At-Issue" in the Discovery Rule Context, 32 N. Ill. U. L. Rev. 1, 10 (2011). In Rhone, the court explained that, under the Hearn standard, "[s]ome decisions have extended the finding of a waiver of the privilege to cases in which the client's state of mind may be in issue in the litigation," allowing "the opposing party discovery of confidential attorney client communications in order to test the client's contentions" solely on the grounds that "the information sought is relevant and should in fairness be disclosed." Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 864 (3d Cir. 1994). Finding such decisions of "dubious validity," the court clarified: "Relevance is not the standard for determining whether or not evidence should be protected from disclosure as privileged, and that remains the case even if one might conclude the facts to be disclosed are vital, highly probative, directly relevant or even go to the heart of an issue." Consequently, the Rhone court articulated an alternative approach to assessing implied waiver, holding that a party only places the attorney's advice "at issue" when "the client asserts a claim or defense, and attempts to prove that claim or defense by disclosing or describing an attorney-client communication." Id. at 863 (emphasis added). The court explained:
Finding a waiver of the attorney client privilege when the client puts the attorney's advice in issue is consistent with the essential elements of the privilege. That is, in leaving to the client the decision whether or not to waive the privilege by putting the attorney's advice in issue, we provide certainty that the client's confidential communications will not be disclosed unless the client takes an affirmative step to waive the privilege, and we provide predictability for the client concerning the circumstances by which the client will waive that privilege. This certainty and predictability as to the circumstances of a waiver encourage clients to consult with counsel free from the apprehension that the communications will be disclosed without their consent.
Id. at 864. Moreover,
"[a] party does not lose the privilege to protect attorney-client communications from disclosure in discovery when his or her state of mind is put in issue in the action. While the attorney's advice may be relevant to the matters in issue, the privilege applies as the interests it is intended to protect are still served by confidentiality."
Id. The Fourth Circuit has yet to expressly adopt either test; however, a recent decision provides guidance. In Shaheen v. WellPoint Cos., Inc., the plaintiff argued that disclosure was warranted under the "at-issue" doctrine because:
(1) The privilege was asserted as a result of some affirmative act by WellPoint;
(2) through the affirmative act, WellPoint put the protected information at issue by making it relevant to the case; and (3) application of the privilege would deny Shaheen access to vital information. 490 Fed. Appx. 552, 557 (4th Cir. 2012) (unpublished). Rejecting the plaintiff's argument, the court explained "WellPoint never asserted advice of counsel as an affirmative defense" or "indicated that [it] relied on advice of counsel. . . [t]hus, the "at issue" doctrine does not apply." Id. (citing Rhone--Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 863 (3d Cir.1994) ("Advice is not in issue merely because it is relevant.... The advice of counsel is placed in issue where the client asserts a claim or defense, and attempts to prove that claim or defense by disclosing or describing an attorney client communication."); Billings, 635 F.Supp.2d at 446 ("[Defendant] does not assert the defense of advice of counsel in this case; thus, the narrow 'at-issue' exception does not apply."); Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D.Wa.1975) (noting that cases finding a waiver of attorney-client privilege share a "common denominator" in that "the party asserting the privilege placed information protected by it in issue through some affirmative act for his own benefit")) . Moreover, an earlier opinion from this Court adopted a similar approach. In Balt. Scrap Corp. v. David J. Joseph Co., Judge Gauvey explained:
In determining whether a party has impliedly waived the attorney-client privilege, I am persuaded that the principal inquiry should focus upon whether or not the proponent of the privilege is relying upon the privileged communication to prove his or her case. Because there is no evidence in the present case that [Plaintiff] is relying upon communications with its counsel in the zoning matter as a sword. . . I will not find that it has impliedly waived its privileged communications with counsel in the zoning litigation. 1996 WL 720785, at *26.
These opinions make clear that the central inquiry in determining whether a party has impliedly waived the attorney-client privilege is whether that party affirmatively attempts to "rely" on advice of counsel. To this end, I am persuaded that the Rhone rule is the better reasoned test.*fn3 It makes clear when there is an implied waiver because it unambiguously identifies the circumstances under which a party places an attorney's advice "at issue," which is occasioned by a party clearly injecting attorney advice into the action. Such a rule preserves the spirit of the attorney client privilege and promotes predictability. It also achieves an appropriate level of fairness by preventing a party from asserting advice of counsel only to its benefit, thereby eliminating the risk that a party will attempt to use the advice-of-counsel as both a sword and a shield.
In this case, there is no evidence that Plaintiff has "relied" upon communications with her counsel. In fact, Plaintiff's attorney-client communications only were raised as a result of questions raised by Defendants' counsel during her deposition. At Plaintiff's February 8, 2013 deposition, Defendants asked Plaintiff about her consultation with former counsel, specifically inquiring as to the reason for Plaintiff's termination of the representation. Only in response to this narrow line of inquiry was the attorney-client privilege raised as a basis for Plaintiff's refusal to answer certain questions. Plaintiff neither affirmatively injected attorney-client communications, nor sought to rely on advice of counsel. Further, she has not pleaded advice of counsel as an affirmative defense, or made it an element of her claim in this case. See Rhone-- Poulenc Rorer Inc., 32 F.3d at 863. Nor has she taken affirmative steps to place the privileged communication into issue for her own benefit. See Balt. Scrap Corp., 1996 WL 720785, at *24. In fact, a fair reading of Plaintiff's Complaint reveals that she blames her apparent failure to file her state law claims within the applicable period of limitations on fear that she and her family would be physically harmed if she filed suit. 2nd Am. Comp. ¶¶ 57--67, 92--93. Thus, it was Defendants' alleged violent acts and threats of violent acts that Plaintiff claims intimidated her into foregoing the filing of her lawsuit. Under this theory, even if she had actual knowledge that the statute of limitations had passed, that would not preclude her from attempting to prove that Defendants were equitably estopped from raising the statute of limitations because of their violence and threats of violence. Plaintiff is not claiming that to prove equitable estoppel she needs to introduce evidence of what her lawyers knew or told her. To the contrary, she seeks to prove equitable estoppel by what she claims the Defendants said and did to her and her family. This issue will be resolved by the Plaintiff's testimony, that of her witnesses, and testimony by the Defendants and their witnesses. In the context of this case, Plaintiff simply has not put the substance of any communications with counsel at issue by pleading equitable estoppel.*fn4
Therefore, pursuant to thestandard articulated in Rhone, I find Plaintiff has not impliedly waived the attorney client privilege.
For the reasons stated above, Defendant's Motion to Compel discovery of communications between Plaintiff and her prior counsel is DENIED.