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Jackson v. Standard Fire Insurance Co.

United States District Court, D. Maryland

October 24, 2018

William Jackson
v.
The Standard Fire Insurance Company

          LETTER TO COUNSEL

         Dear Counsel:

         Pending before the Court is Plaintiff William Jackson's (“Jackson”) Motion for Protective Order (ECF No. 50).[1] Having considered the submissions of the parties (ECF Nos. 50, 51, and 52), I find that a hearing is unnecessary. See Loc. R. 105.6. For the reasons set forth below, Jackson's Motion for Protective Order is GRANTED IN PART and DENIED IN PART. Defendant The Standard Fire Insurance Company's (“Travelers”) request for fees (ECF No. 51 at 16) is DENIED.

         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 in this diversity case, governs the applicability of 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).[2] “The party who is resisting discovery and is asserting a protective privilege bears the burden of establishing its existence and applicability.” E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc., 351 Md. 396, 406 (1998).

         Jackson asserts that 28 documents (hereinafter, the “withheld documents”) that are responsive to Travelers' discovery requests are protected from disclosure by the attorney-client privilege. (ECF No. 50.) Jackson states that after he discovered the water damage at issue in this case, but before retaining the law firm of Futrovsky, Forster & Scherr, Chartered, he “sought advice and counsel from a Maryland-barred attorney, Ms. Jasmine Dabney [(“Dabney”)] . . . concerning the water loss and the resulting claim with Travelers.” (ECF No. 50 at 2.) He argues that the advice that Dabney has given him throughout this case has been sought by him and provided by her in her capacity as an attorney.

         Travelers argues that the withheld documents are not protected by the attorney-client privilege because Jackson's communications with Dabney were not primarily for the purpose of obtaining legal services. (ECF No. 51 at 1.) Instead, Jackson's communications with Dabney related to the business services that she provided as the proprietor of 2J Enterprises, LLC, in the context of Jackson and Dabney's landlord-tenant relationship, and regarding matters of a personal nature between Jackson and Dabney. (Id. at 3-5.) Travelers also points to Jackson's equivocal statements regarding his understanding of whether Dabney was acting in her capacity as a “legal adviser.” (Id. at 5.)

         The Court has considered the parties' arguments and has conducted an in camera review of the withheld documents.[3] The Court's ruling is as follows.

         With a few exceptions, all of the email communications authored by Todd Forster or Scott Futrovsky (Jackson's retained attorneys in this case) are protected from disclosure by the attorney-client privilege. These communications were clearly transmitted by Forster and Futrovsky in their capacity as professional “legal advisers.” The emails concern Jackson's lawsuit against Travelers and were created in connection with Jackson's retention of Forster and Futrovsky for legal advice and representation. Because of the unique nature of Dabney's relationship with Jackson, I do not find that the inclusion of Dabney on the emails authored by Forster or Futrovsky amounted to a waiver.[4] It is clear to the Court, from a review of Jackson's submissions and a review of the withheld documents themselves, that Forster and Futrovsky included Dabney as a recipient of the emails in her capacity as a “legal adviser” to Jackson. The same is true for the January 16, 2018, email from Jackson. Accordingly the withheld documents listed on the table below are protected from disclosure by the attorney-client privilege. Jackson's Motion is granted as to the following documents[5]:

Author

Date and Time

Subject

Forster

July 18, 2016; 4:11 p.m.

Conversation with Ed Cameron - Atlantic Estimating

Forster

December 6, 2016; 9:29 a.m.

FW: Status U7V7985/Jackson

Forster

December 7, 2016; 2:26 p.m.[6]

FW: Status U7V7985/Jackson

Forster

December 7, 2016; 2:33 p.m.

RE: Status U7V7985/Jackson

Forster

January 4, 2017; 4:28 p.m.

RE: Status U7V7985/Jackson Barfield, Ashanti

Forster

April 18, 2017; 4:28 p.m.

RE: William Jackson - Draft Complaint

Forster

April 19, 2017; 5:30 p.m.

RE: William Jackson - Draft Complaint

Forster

April 21, 2017; 11:19 a.m.

RE: William Jackson - Amended (Draft) Complaint

Forster

June 14, 2017; 3:58 p.m.

FW: Activity in Case 8:17-cv-01612-TDC Jackson v. The Standard Fire Insurance Company Notice of Removal

Forster

June 16, 2017; 6:14 p.m.

Re: Activity in Case 8:17-cv-01612-TDC Jackson v. The Standard Fire Insurance Company Notice of Removal

Forster

July 24, 2017; 3:46 p.m.

FW: Jackson v. The Standard Fire Insurance Company, TDC 17-1612

Forster

January 12, 2017; 12:01 p.m.

RE: Water Pressure at 12627 Prestwick

Jackson

January 16, 2018; 10:58 p.m.

Jacuzzi toilet info request

Forster

February 15, 2018; 2:05 p.m.

RE: Past Due Balance

         The withheld documents listed on the following table are not protected by the attorney-client privilege. Some of these documents only concern matters not encompassed within the privilege, including the existence of the attorney-client relationship and fee arrangements. See Chesek v. Jones, 406 Md. 446, 463, 959 A.2d 795, 805 (2008) (“Ordinarily fee arrangements are not within the scope of attorney-client privilege because revealing such information generally does not expose confidential communication between the attorney and client.”) Others concern the scheduling of meetings, and the confirmation of the receipt of emails that are not themselves privileged. These communications reflect the “structural framework” of the attorney-client relationship, not the substance of confidential communications. See generally Cohen v. Uniroyal, Inc., 80 F.R.D. 480, 483 (E.D. Pa. 1978) (noting that “the attorney-client privilege does not foreclose inquiry into the general nature of the lawyer's activities on behalf of a client, conditions of the lawyer's employment or any other external trappings of the relationship”); see also Condon v. Petacque, 90 F.R.D. 53, 54 (N.D. Ill. 1981) (“The privilege does not foreclose inquiry into the fact of representation itself or the dates upon which services are rendered as long as the substance of the attorney-client relationship is shielded from disclosure.”). Although these documents are probably not relevant to any claims or defenses in this case under Rule 26(b), Jackson will be required to produce them to Travelers, along with any attachments, in order to further the Court's interest in transparency. Jackson's motion is denied as to the documents listed below and any attachments thereto:

Author

Date and Time

Subject

Forster

March 25, 2016; 3:05 p.m.

Jackson Retainer v2.pdf

Forster

March 25, 2016; 6:08 p.m.

Jackson Retainer v3.pdf

Forster

April 13, 2016; 12:50 p.m.

Contact Information

Forster

November 17, 2016; 10:18 a.m.

RE: William Jackson - Travelers Claim for Personal Property (1 of 3)

Forster

July 6, 2017; 12:50 p.m.

Update

Forster

August 14, 2017; 12:26 p.m.

FW: Activity in Case 8:17-cv-01612-TDC Jackson v. The Standard Fire Insurance Company Order for Settlement Conference

         The Court is unable to conclude whether the following document is privileged. For the email titled “RE: Contact Information, ” Jackson is directed to produce to the Court the attachment titled “Timeline.doc, ” which was not included with his ex parte submission. The Court will review this document in camera. Jackson's Motion is held sub curia as to the following document:

Author

Date and Time

Subject

Forster

April 13, 2016; 1:37 p.m.

RE: Contact Information


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