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.
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:
(2) made between privileged ...