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Gresser v. Wells Fargo Bank, N.A.

United States District Court, Fourth Circuit

January 24, 2014

ANNE GRESSER, et al., Plaintiffs,
WELLS FARGO BANK, N.A., Defendant.


TIMOTHY J. SULLIVAN, Magistrate Judge.

This Memorandum Opinion addresses Plaintiffs'"Motion for Partial Waiver of Defendant Wells Fargo Bank, N.A.'s Attorney-Client Privilege and Attorney Work Product and to Compel Production of Documents [Responsive] to Request No. 19" ("Motion to Compel") (ECF No. 133-1).[1] Having reviewed the parties' submissions, [2] I find that no hearing is necessary. See Local Rule 105.6. For the reasons set forth below, Plaintiffs' Motion to Compel is DENIED.


KH Funding was a sub-prime mortgage lender and bond issuer that issued Series 3 Senior Secured Investment Debt Securities and Series 4 Subordinated Unsecured Investment Debt Securities ("the notes") to Plaintiffs. (ECF Nos. 72 at 1-2 & 77 at 4). Pursuant to an indenture between KH Funding and Defendant Wells Fargo Bank N.A. ("Wells Fargo"), Wells Fargo undertook a number of duties as indenture trustee. These included the duty to exercise their rights and powers as an indenture trustee "as a prudent man would exercise or use under the circumstances in the conduct of his own affairs" in the event of default to protect the value of the notes. (ECF No. 77 at 4). In 2009, Wells Fargo retained the law firm of Thompson Hine LLP ("Thompson Hine"), in part, to seek advice as it executed its duties as the indenture trustee under the contract with KH Funding. Plaintiffs' lawsuit alleges that Wells Fargo breached its contractual duties as the indenture trustee by failing to act according to the "prudent man" duty of care.

In October 2012, Plaintiffs served document production requests on Wells Fargo. Wells Fargo responded in December 2012. From December 2012 through February 2013, by written correspondence and telephone conferences, the parties attempted to resolve what has become the present discovery dispute. In May 2013, Wells Fargo produced a privilege log that listed documents withheld on the basis of attorney-client privilege and the work-product doctrine. Plaintiffs' Motion to Compel was served on Wells Fargo on September 3, 2013.[3]


The Court's jurisdiction lies in diversity of citizenship, pursuant to 28 U.S.C. ยง 1332. Maryland law governs both of the breach of contract claims in the Amended Complaint. Rule 501 of the Federal Rules of Evidence provides that "in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision." Accordingly, Maryland law, which supplies the rule of decision, also governs the applicability of the attorney-client privilege. With respect to the work product doctrine, which is not a privilege, but a qualified immunity from discovery, federal law applies. See Continental Cas. Co. v. Under Armour, Inc., 537 F.Supp.2d 761, 769 (D. Md. 2008) (collecting cases).

Federal Rule of Civil Procedure 34 governs document production requests. Pursuant to Rule 34, a party may request that the opposing party "produce and permit the requesting party... to inspect, copy, test, or sample" relevant documents, electronically stored information, and tangible things that are within the party's "possession, custody, or control." Fed.R.Civ.P. 34(a)(1). The party served with a document production request may object to the request if a legitimate basis for doing so exists. See Fed.R.Civ.P. 34(b)(2). Thus, a party may object that a document production request exceeds the scope of discovery permitted by Fed.R.Civ.P. 26(b)(1); that it should be denied for the grounds stated in Fed.R.Civ.P. 26(b)(2)(C); that it impermissibly requests privileged or work product material, see Fed.R.Civ.P. 26(b)(3); or that documents should not be produced without implementation of a protective order, see Fed.R.Civ.P. 26(c).

Federal Rule of Civil Procedure 26(b)(2)(C) "cautions that al I permissible discovery must be measured against the yardstick of proportionality." Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 523 (D. Md. 2010). Under that rule, a court, acting sua sponte or at a party's request, "must limit the frequency or extent of discovery" if: (i) "the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive"; (ii) "the party seeking discovery has had ample opportunity to obtain the information by discovery in the action"; or (iii) "the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues." Fed.R.Civ.P. 26(b)(2)(C)(i)-(iii).

A. The Fiduciary Exception to the Attorney-Client Privilege

Maryland has "adopted Wigmore's test for deciphering the existence and scope of an attorney-client privilege":

(1) Where legal advice of [any] kind is sought, (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence, (5) by the client, (6) are at his insistence permanently protected, (7) from disclosure by himself or by the legal adviser, (8) except the protection [may] be waived.

Greenberg v. State, 421 Md. 396, 409 (2011) (internal citations omitted).

"Generally, the attorney-client privilege bars compelled disclosure, without the client's consent, of attorney-client communications made in confidence between the attorney and client." Pewter & Wobber v. Miles & Stockbridge, 359 Md. 671, 690 (2000). The privilege is "grounded in the public policy of encouraging a client to consult freely with and seek legal advice from an attorney without fear of the attorney being ...

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