Baylor v. Mitchell Rubenstein & Assocs., P.C.

• Decision Date: 17 September 2015
• Docket Number: Civil Action No. 13–1995 (ABJ)
• Citation: 130 F.Supp.3d 326
• Parties: Demetra Baylor, Plaintiff, v. Mitchell Rubenstein & Associates, P.C., Defendant.
• Court: U.S. District Court — District of Columbia

130 F.Supp.3d 326

Demetra Baylor, Plaintiff,

v.Mitchell Rubenstein & Associates, P.C., Defendant.

Civil Action No. 13–1995 (ABJ)

United States District Court, District of Columbia.

Signed September 17, 2015

Radi Dennis, Consumer Justice Esq., Washington, DC, for Plaintiff.

Birgit Dachtera Stuart, Ronald S. Canter, Law Offices of Ronald S. Canter, LLC, Rockville, MD, for Defendant.

MEMORANDUM OPINION

AMY BERMAN JACKSON United States District Judge

On April 1, 2015, pursuant to Local Civil Rule 72.2(a), this case was referred to Magistrate Judge G. Michael Harvey for the resolution of several discovery disputes. Referral to M.J. Order [Dkt. # 67]. The disputes arose when plaintiff propounded discovery requests seeking communications between the defendant, which is a law firm involved in debt collection, and Sunrise Credit Services, Inc. See Mem. Op. (July 31, 2015) [Dkt. # 81] at 6–7. Defendant asserts that Sunrise was acting as the agent for Arrowood Indemnity Company, to whom plaintiff owed a debt, when Sunrise retained defendant on Arrowood's behalf to sue on that debt. Def.'s Reply to Pl.'s Resp. to Supp. Privilege Log, Aff. & Errata [Dkt. # 80] at 2 & n.1. Defendant refused to produce the documents plaintiff sought on the grounds that they were privileged communications between an attorney (defendant) and its client (Arrowood), made through the client's agent (Sunrise). Id. ; see also Mem. Op. (July 31, 2015) at 1, 6–7.

On May 20, 2015, plaintiff filed a motion to compel the production of those records and others, objecting to, among other things, defendant's withholding of documents based on "false claims of privilege." Pl.'s Mot. to Compel Produc. of Docs. & Resps. to Interrogs. [Dkt. # 69] ("Pl.'s Mot.") at 1. On June 29, the Magistrate Judge granted plaintiff's motion in part and denied it in part, and he ordered defendant to respond to some, but not all, of the disputed discovery requests. Order (June 29, 2015) [Dkt. # 75]. He also ordered "that each side shall bear its own costs related to plaintiff's motion to compel." Id. at 4. Finally, the Magistrate Judge held plaintiff's motion to compel in abeyance with respect to defendant's claims of attorney-client and work-product privilege, and he ordered defendant to produce a revised privilege log to plaintiff and to submit the allegedly privileged documents for in camera review. Id. at 2–3.

After reviewing the documents, the Magistrate Judge concluded that Sunrise was acting as Arrowood's agent in its role as intermediary between Arrowood and defendant, and that the attorney-client privilege could therefore apply to the communications between defendant and Sunrise. Mem. Op. (July 31, 2015) at 7–9. He found that some of the communications defendant had identified as privileged had "nothing to do with the provisioning or seeking of legal advice," a prerequisite to the application of the attorney-client privilege, but that others did. Id. at 10–13. He also determined that defendant had properly asserted the work-product privilege over two documents that were prepared in anticipation of litigation over plaintiff's debt. Id. at 13–14. Thus, the Magistrate Judge granted the remaining portion of plaintiff's motion to compel in part and denied it in part, and he ordered defendant to produce five of the twenty-two documents over which it had asserted the attorney-client and work-product privileges. Order (July 31, 2015) [Dkt. # 82]; Mem. Op. (July 31, 2015) at 14–15. He permitted defendant to withhold the seventeen remaining documents as privileged. Mem. Op. (July 31, 2015) at 15–16.

On August 14, 2015, plaintiff filed her objections to the Magistrate Judge's Orders of June 29 and July 31. Pl.'s Objs. to the Magistrate's June 29, 2015 & July 31, 2015 Orders [Dkt. # 87] ("Pl.'s Objs."). Plaintiff "objects to the Magistrate's determination that the documents withheld by the Defendant and identified in the Court's July 31st Order are privilege [sic] based on Defendant's assertion of attorney-client privilege and work product on behalf of an entity not a party to the instant lawsuit." Id. at 1. She also objects to the June 29 Order denying her attorneys' fees and costs for the litigation of the discovery dispute. Id. at 1–2. Defendant responded to plaintiff's objections on August 21, 2015. Def.'s Resp. to Pl.'s Objs. [Dkt. # 89].

STANDARD OF REVIEW

A court may refer nondispositive matters, including discovery disputes, to a magistrate judge for resolution. Fed.R.Civ.P. 72(a) ; LCvR 72.2(a). Upon referral, the magistrate judge must "promptly conduct the required proceedings and, when appropriate, issue a written order stating the decision." Fed.R.Civ.P. 72(a) ; see also LCvR 72.2(a). Any party may file written objections to the magistrate judge's decision "within 14 days after being served with the order of the magistrate judge." LCvR 72.2(b) ; see also Fed.R.Civ.P. 72(a). The court shall consider timely objections and "may modify or set aside any portion of a magistrate judge's order ... found to be clearly erroneous or contrary to law." LCvR 72.2(c) ; see also Fed.R.Civ.P. 72(a).¹ "Under that deferential standard, a magistrate judge's factual findings or discretionary decisions must be affirmed unless, ‘although there is evidence to support [them], the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ " Am. Ctr. for Civil Justice v. Ambush, 794 F.Supp.2d 123, 129 (D.D.C.2011), quoting Fed. Sav. & Loan Ins. Corp. v. Commonwealth Land Title Ins. Co., 130 F.R.D. 507, 508 (D.D.C.1990).

ANALYSIS

I. The Magistrate Judge's findings that the attorney-client and work-product privileges applied to the contested documents were not clearly erroneous or contrary to law.

After reviewing in camera the documents over which defendant asserted privilege, the Magistrate Judge determined that seventeen of the twenty-two documents at issue were protected by the attorney-client and work-product doctrines. Mem. Op. (July 31, 2015) at 10–16. Plaintiff argues that neither privilege applies to the communications between defendant and Sunrise, because Sunrise was not Arrowood's agent and because defendant was acting as a debt collector, and not as an attorney. Pl.'s Objs. at 12–27. But nowhere in her twenty-seven page pleading does plaintiff offer any evidence or authority to show that the Magistrate Judge's determination was clearly erroneous or contrary to law. Instead, her objections simply express her dissatisfaction with the Magistrate Judge's findings of fact and conclusions of law. This is insufficient to satisfy plaintiff's burden, and so the objections will be overruled.

A. The Attorney–Client Privilege

Both Maryland and the District of Columbia recognize that the attorney-client privilege protects communications not only between a client and an attorney, but also between their agents.² See, e.g.,United States ex rel. Barko v. Halliburton Co., 74 F.Supp.3d 183, 187 & n. 4 (D.D.C.2014) ("[T]he attorney-client privilege shelters confidential communications between an attorney and client, including their agents, made with a primary purpose of seeking or providing legal advice."), citing In re Kellogg Brown & Root, Inc., 756 F.3d 754, 757 (D.C.Cir.2014) ; Kreuzer v. George Washington Univ., 896 A.2d 238, 249 (D.C.2006) (finding that trial court correctly permitted the University "to invoke the attorney-client privilege to shield communications between its contractor/agent ... and the University's counsel that were made for the purpose of seeking legal advice"); Cutchin v. State, 143 Md.App. 81, 792 A.2d 359, 364 (2002) ("The [attorney-client] privilege includes communications to agents employed by an attorney."). "In considering whether a client's communication with his or her lawyer through an agent is privileged under the intermediary doctrine, the ‘critical factor’ is ‘that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer.’ " In re Lindsey, 158 F.3d 1263, 1280 (D.C.Cir.1998), quoting Linde Thomson Langworthy Kohn & Van Dyke, P.C. v. Resolution Trust Corp., 5 F.3d 1508, 1514 (D.C.Cir.1993).

The Magistrate Judge specifically determined that "Sunrise acted as Arrowood's agent for obtaining legal advice from defendant," making the attorney-client privilege enforceable. Mem. Op. (July 31, 2015) at 7–8. Plaintiff objects to this finding, and she contends that Sunrise was not Arrowood's agent and that "at all times relevant Defendant was acting in its capacity as a debt collector and not as an attorney." Pl.'s Objs. at 2–3.

At bottom, most of plaintiff's objections boil down to her claim that defendant failed to offer evidence sufficient to show an agency relationship between Arrowood and Sunrise that would give rise to an attorney-client privilege. See, e.g.,id. at 2 ("Defendant has not established with evidence that it had an attorney-client relationship with Arrowood as oppose [sic] to a mere debt collector-corporate client relationship during the relevant period."); id. at 3 ("[T]hough it is Defendant's burden, Defendant did not prove that Sunrise is a ‘forwarder’ ...."); id. at 13 ("[I]t is not Plaintiff's burden to prove or provide evidence that the attorney-client privilege does not exist but is the Defendant's burden to provide evidence that it does. Defendant did not meet its burden."); id. at 24 ("It is solely the Defendant's burden to prove all the facts that led the Magistrate to its conclusions in its July 31st Order.... Defendant failed to meet its burden...."). But the Magistrate Judge explicitly recognized that "[t]he party asserting the privilege bears the burden to present the court with facts sufficient to establish the privilege," Mem. Op. (July 31, 2015) at 4, citing Cutchin, 792 A.2d at 366, and E.I. du Pont de Nemours & Co. v. Forma–Pack, Inc., 351 Md. 396, 718 A.2d 1129, 1138 (1998), and he found that defendant proffered adequate evidence in this case to satisfy...