United States District Court, D. Maryland
REPORT AND RECOMMENDATION
TIMOTHY J. SULLIVAN, Magistrate Judge.
This Report and Recommendation addresses Defendant Southbound One, Inc.'s ("Southbound") Motion for Protective Order (ECF No. 57) and Plaintiff Teal Bay Alliances, Inc.'s ("Teal Bay") Cross-Motion to Compel Production (ECF No. 72). On April 15, 2014, I conducted a telephone conference with the parties. For the reasons stated herein, I recommend that Defendant's Motion for Protective Order be granted in part and denied in part, and Plaintiff's Cross-Motion to Compel Production be granted in part and denied in part.
I. SCOPE OF REFERRAL FOR IN CAMERA REVIEW
Judge Garbis's letter to counsel dated March 7, 2014 (ECF No. 58) outlines the scope of this discovery-related referral. Teal Bay was directed to select 10 documents "that the Plaintiff believes are most likely to support its position that withholding of production and/or redaction was not appropriate" and "advise Defendant of that selection." (ECF No. 58 at 1). As directed, Southbound transmitted the 10 documents selected by Teal Bay to my chambers for an in camera review. Judge Garbis directs that this report and recommendation state (1) whether Plaintiff's contentions are valid and (2) whether there appears to be a need for a further in camera review.
A. Standard of Review
Federal Rule of Evidence 501 provides that in general, the "common law-as interpreted by United States courts in the light of reason and experience-governs a claim of privilege." Fed.R.Evid. 501. Under the attorney-client privilege, confidential communications made between a client and an attorney in an effort to obtain legal services are protected from disclosure. Chaudhry v. Gallerizzo, 174 F.3d 394, 402 (4th Cir. 1999). The burden is on the proponent of the attorney-client privilege to demonstrate its applicability. United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982). The Fourth Circuit has stated that
[t]he classic test for application of the attorney-client privilege is set forth in United States v. United Shoe Machinery Corp., 89 F.Supp. 357, 358-59 (Mass. 1950):
The 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 of 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). The Fourth Circuit has also endorsed the Wigmore eight-factor test for determining whether the privilege exists. United States v. Tedder, 801 F.2d 1437, 1441 (4th Cir. 1986). Wigmore holds the privilege to exist:
(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 instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.
Id. (citing 8 Wigmore, Evidence § 2292 (McNaughton rev. 1981)).
With respect to the work-product doctrine, which is not a privilege, but a qualified immunity from discovery, federal law also applies. See Continental Cas. Co. v. Under Armour, Inc., 537 F.Supp.2d 761, 769 (D. Md. 2008) (collecting cases). The work-product doctrine is partially codified in Rule 26(b)(3) of the Federal Rules of Civil Procedure:
Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). ...