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Elat v. Ngoubene

United States District Court, Fourth Circuit

August 16, 2013

CORINE ELAT, Plaintiff,
v.
CAROLINE NGOUBENE, et al., Defendants.

MEMORANDUM OPINION

PAUL W. GRIMM, District Judge.

This Memorandum Opinion addresses Defendants Caroline Ngoubene, Roxane Ngoubene, and Dany Ngoubene's Joint Defense Privilege Brief, ECF No. 116, which the Court construes as a motion to invoke the common interest rule; Plaintiff Corine Elat's Opposition, ECF No. 118; and Defendants' Reply, ECF No. 124; as well as Plaintiff's Motion to Seal ECF No. 118, ECF No. 119. For the reasons stated herein, Defendants' motion to invoke the common interest rule is GRANTED, and Plaintiff's Motion to Seal ECF No. 118 is GRANTED.

I. BACKGROUND

This lawsuit arises from Plaintiff's claim that the Ngoubene family brought her to the United States from Cameroon under false pretenses and compelled her into domestic service without compensation. 2d Am. Compl. ¶ 52, ECF No. 44. The Ngoubene family consists of François and Marie-Therèse Ngobene and their six children: Arlette, Caroline, Christian, Collins, Dany, and Roxane ("Ngoubene family"). In her Complaint, ECF No. 1, Plaintiff named as defendants all but Arlette and Christian Ngoubene. Subsequently, the original defendants filed a Motion to Dismiss, ECF Nos. 24 & 33, asserting diplomatic immunity, which the Court granted as to François, Marie-Therèse, and Collins Ngoubene, ECF No. 43, permitting Plaintiff the opportunity to file an amended complaint against those defendants not entitled to diplomatic immunity, Caroline, Roxane, and Dany Ngoubene. On June 4, 2012, Plaintiff filed an amended complaint, naming Caroline, Roxane, and Dany Ngoubene as defendants, [1] and asserting five claims: Violations of the Trafficking Victims Protection Reauthorization Act 18 U.S.C. §§ 1589 & 1595 ("TVPRA"), false imprisonment, quantum meruit, unjust enrichment, and replevin. 2d Am. Compl. ¶¶ 68-93.

When deposing Defendants, Plaintiff questioned them about various communications they had with other Ngoubene family members regarding this case. Pl.'s Opp'n 1. Defendants, on the advice of counsel, asserted the "joint defense privilege" and refused to answer any questions regarding the contents of these communications. Id. Plaintiff seeks production of and/or further information about Defendants' communications with other members of their family. Id. at 2. She contends that Defendants have failed to demonstrate the existence of the joint defense privilege, arguing that "Defendants' blanket assertion of the joint defense privilege over these communications contravenes the precedents of this Court and the Fourth Circuit, as well as the fundamental norms of fair and liberal discovery." Id. at 1. Plaintiff also argues that, even if Defendants properly asserted the privilege, they waived the privilege. Id. at 8. Defendants maintain that the privilege applies to communications between all members of the Ngoubene family since November, 2010, when counsel was retained on behalf of the Ngoubene family. Defs.' Br. 3. Defendants argue that all members of their family "share a common legal interest as defendants or potential defendants of Plaintiff's claims." Id. at 3.

II. COMMON INTEREST RULE

The joint defense privilege is "an extension of the attorney-client privilege" that "protects communications between parties who share a common interest in litigation." In re Grand Jury Subpoena: Under Seal, 415 F.3d 333, 341 (4th Cir. 2005). Although it originated in the criminal law context, it has been extended to the civil arena, where it is commonly referred to as the "common interest rule." In re Grand Jury Subpoenas, 89-3 & 89-4, John Doe 89-129, 902 F.2d 244, 249 (4th Cir. 1990); Mainstreet Collection, Inc. v. Kirkland's, Inc., 2010 WL 3945107, at *4 (E.D. N.C. 2010).

[T]he common interest doctrine applies when two or more parties consult or retain an attorney concerning a legal matter in which they share a common interest. In this context the communications between each of the clients and the attorney are privileged against third parties, and it is unnecessary that there be actual litigation in progress for this privilege to apply.

Hanson v. U.S. Agency for Int'l Dev., 372 F.3d 286, 292 (4th Cir. 2004) (internal citations omitted). Thus, the common interest rule is "an exception to the general rule that no attorney-client privilege attaches when confidential communications are communicated in the presence of or to third parties." Edna Selan Epstein, The Attorney-Client Privilege and the Work-Product Doctrine 274 (5th ed. 2004). It "permits parties whose legal interests coincide to share privileged materials with one another in order to more effectively prosecute or defend their claims." Hunton & Williams v. U.S. Dep't of Justice, 590 F.3d 272, 277 (4th Cir. 2010) (citing In re Grand Jury Subpoenas, 902 F.2d at 248-49).

Pursuant to this rule, if the attorney-client privilege otherwise would protect a communication, and a third party who shared the client's legal interest was privy to the communication, the privilege is not waived. Epstein, supra, at 274-75; see In re Grand Jury Investigations, 918 F.2d 374, 386 n.20 (3d Cir. 1990) ("The presence of a third-party, such as a consultant does not destroy the attorney-client privilege where the party is the client's agent or possesses a "commonality of interest with the client.") (internal quotation marks omitted). For this exception to apply, it is "essential" that the client's and third party's "legal interests be fully allied." Epstein, supra, at 275; see Neuberger Berman Real Estate Income Fund v. Lola Brown Trust No. 1B, 230 F.R.D. 398, 416 (D. Md. 2005) (stating that sharing an attorney or even similar interests is not enough; "courts engage in a painstaking analysis to determine whether the third party... shares an identical, and not merely similar, legal interest as the client with respect to the subject matter of the communication between the client and its attorney.'") (citation omitted); Duplan Corp. v. Deering Milliken, Inc., 397 F.Supp. 1146, 1172 (D.S.C. 1975) ("A community of interest exists among different persons or separate corporations where they have an identical legal interest with respect to the subject matter of a communication between an attorney and a client concerning legal advice.... The key consideration is that the nature of the interest be identical, not similar, and be legal, not solely commercial.").

For the Court to apply this rule, "the proponent of the privilege must at least demonstrate that (1) the communicating parties shared an identical legal interest, (2) the communication was made in the course of and in furtherance of the joint legal effort, and (3) the privilege had not been waived." Glynn v. EDO Corp., No. JFM-07-01660, 2010 WL 3294347, at *7 (D. Md. Aug. 20, 2010); Mainstreet Collection, 2010 WL 3945107, at *4 (same). The privilege only can be waived by "consent of all parties who share the privilege." In re Grand Jury Subpoenas, 902 F.2d at 248.

Plaintiff argues that Defendants cannot invoke the common interest rule now for three reasons: (1) they provided a privilege log lacking in specificity; (2) even if the log were sufficient, Defendants did not share an identical interest with the family members with whom they communicated, and their communications were not in furtherance of their defense of this case; and (3) even if they shared a legal interest and communicated about their joint defense, they waived any privilege that they had. Pl.'s Opp'n 4-8. It is Plaintiff's position that Defendants do not share a common legal interest with François, Marie-Therèse and Collins Ngoubene because these former defendants each were excused from liability on grounds of diplomatic immunity. Id. at 7. Additionally, Plaintiff maintains that Defendants' legal interests are not fully aligned with their siblings, Arlette and Christian, because neither Arlette nor Christian ever has been a party to this suit. Id. at 6. Further, Plaintiff claims that "Defendants have waived their privilege because they selectively disclosed information in their depositions about the substance of some conversations but not others." Id. at 8. As explained below, these arguments are unpersuasive.

III. APPLICATION OF THE COMMON INTEREST RULE

To invoke the common interest rule, Defendants objected on the basis of the "joint defense privilege" during depositions and provided Plaintiff with a privilege log that purportedly identifies seven documents that they are withholding from production pursuant to Fed.R.Civ.P. 26(b)(5). Pl.'s Opp'n Ex. G, ECF No. 118-1. For each document, Defendants identify the sender(s); the recipient(s), if any; the date; the type of document ("E-mail, " "Draft, Unexecuted Affidavit, " or "Facebook chat"); and the privilege asserted (attorney-client privilege, joint defense privilege, or work product protection). Id. Plaintiff contends that, despite the requirements of Fed.R.Civ.P. 26(b)(5) and Discovery Guidelines 7 and 10.d of this Court that claims of privilege must be particularized, Defendants did not include the necessary details in the log to particularize their claims. Pl.'s Opp'n 1 & n.3. Additionally, Plaintiff alleges that Defendants are withholding communications, both written and oral, that are not listed in the ...


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