Pastura v. CVS Caremark
| Decision Date | 23 May 2012 |
| Docket Number | Case No. 1:11-cv-400 |
| Parties | FRANK PASTURA, Plaintiff, v. CVS CAREMARK, Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
Litkovitz, M.J.
ORDERThis matter is before the Court pursuant to an informal telephone discovery conference held May 22, 2012 before the undersigned magistrate judge. The parties sought Court intervention to resolve the following issues: (1) whether statements made by plaintiff in the presence of his sister, a non-party, during an initial consultation with his future attorney are protected by the attorney-client privilege; (2) whether, if plaintiff waived his right to assert the attorney-client privilege regarding that initial consultation, the waiver extends to all future attorney-client communications regarding the same subject matter; and (3) whether conversations between plaintiff and his counsel during deposition breaks are proper and/or privileged. Having considered the arguments and authority presented by plaintiff and defendant and for the reasons stated during the telephonic conference, the Court finds as follows:
It is undisputed that plaintiff met with Randolph H. Freking, Esq., for an initial consultation regarding the instant lawsuit. Plaintiff's sister was present during the entirety of this consultation. During plaintiff's deposition, counsel for defendant asked plaintiff questions regarding the substance of his conversation with Mr. Freking. Plaintiff's counsel objected, asserting that the conversation was protected by the attorney-client privilege and instructedplaintiff not to respond. Defendant asserts that plaintiff waived the privilege by having his sister present during the conversation and, consequently, defendant is entitled to discover the substance of the conversation.
The Sixth Circuit has held that the following criteria must be satisfied in order to hold that a communication is protected under the attorney-client privilege:
(1) Where legal advice of any kind is sought (2) from a professional legal advisor 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 advisor, (8) unless the protection is waived.
Reed v. Baxter, 134 F.3d 351, 355-56 (6th Cir. 1998) (citing Fausek v. White, 965 F.2d 126, 129 (6th Cir. 1992)) (emphasis added). Thus, in order for the privilege to attach to a communication it must have been made in confidence. Here, plaintiff's communication with Mr. Freking at the initial consultation is not protected by the attorney-client privilege because the communication was not "made in confidence" by virtue of the presence of plaintiff's sister during the conference. Id. at 358 () (citing 8 John Henry Wigmore, Wigmore on Evidence § 2311 (3d ed. 1940)) ("One of the circumstances [ ] by which it is commonly apparent that the communication is not confidential is the presence of a third person ...."). Contrary to defendant's argument, the privilege was not "waived" because the privilege never attached in the first instance. Consequently, because the statements are not protected by the attorney-client privilege, defendant may seek discovery regarding the substance of the conversation between plaintiff and Mr. Freking at the initial consultation.
Defendant further asserts that plaintiff waived his attorney-client privilege with respect to all subsequent conversations with his attorneys on the same subject matter as was discussedduring the initial consultation. As stated above, however, no attorney-client privileged attached to plaintiff's initial conversation with Mr. Freking due to the presence of a third person, namely plaintiff's sister. Plaintiff cannot waive a privilege that does not exist. Accordingly, the Court finds that plaintiff's subsequent conversations with his attorneys are protected by the attorney-client privilege and are not discoverable.
Lastly, defendant contends that plaintiff engaged in improper conversations with his attorney during breaks at plaintiff's deposition and seeks to discover the substance of these discussions. The parties have related substantially similar versions of the facts relating to plaintiff's deposition: during a deposition break and after plaintiff testified that his sister was present during the initial consultation with Mr. Freking, plaintiff's attorney had a conversation with plaintiff to determine if plaintiff's conversation with Mr. Freking was covered by the attorney-client privilege. Upon resuming the deposition and in response to defense counsel's questioning, plaintiff testified that during the break he had discussed the substance of his testimony with his attorney.
Defendant claims that plaintiff's conversation during the break was improper and is subject to discovery, relying on Morales v. Zondo, Inc., 204 F.R.D. 50, 54-58 (S.D.N.Y. 2001). Notably, Morales held that "in general, a deponent and the deponent's attorney have no right to confer during a deposition, except for the purpose of determining whether a privilege shall be asserted." Id. (emphasis added). See also U.S. v. Phillip Morris Inc., 212 F.R.D. 418, 420 (D.D.C. 2002) (); BNSF Ry. Co. v. San Joaquin Valley R. Co., No. 1:08-cv-1086, 2009 WL 3872043, at *3 (E.D. Cal. Nov. 17, 2009) (same). Here, plaintiff's counsel, Katherine Neff, Esq., has represented that the purpose of her conversation with plaintiff during the depositionbreak was to determine whether to assert the attorney-client privilege in response to defense counsel's questions. This is an appropriate basis upon which an attorney may consult with her client. See Id. As to the subsequent break in the deposition, in light of counsel's representation and in the absence of any contradicting evidence from defendant that the conversation was improper, the Court finds that plaintiff's conversations with his attorney during the deposition breaks are protected by the attorney-client privilege and are not subject to discovery.
In conclusion, defendant may seek discovery regarding the substance of the conversation between plaintiff and Mr. Freking during the initial consultation but further conversations between plaintiff and his attorneys are protected by the attorney-client privilege and, consequently, are not discoverable.1
BRIAN P. GILLAN
*Admitted in Kentucky and Ohio
*** Admitted in Colorado, . Kentucky and Ohio
litkovitz_chambers@ohsd.uscourts. gov
Dear Judge Litkovitz:
The purpose of this correspondence is to provide the Court with Plaintiff's position in preparation for the May 22, 2012 continued discovery conference with the Court.
During Plaintiff's deposition, Defendant asked Plaintiff whether anyone was present during his conversations with counsel. Plaintiff testified that his only sister attended his initial consultation with Randolph H. Freking, Esq., as his wife could not attend. Defense counsel did not inquire whether Mr. Freking gave Plaintiff any legal advice during the initial consultation. Moreover, Plaintiff testified that he did not retain Freking & Betz, LLC at the time of his consultation. Defense counsel did not ask whether Plaintiff received a copy of the representation agreement during his initial consultation.
Defendant requested that Plaintiff detail his conversation with Mr. Freking. Plaintiff's counsel objected asserting attorney-client privilege and instructed Plaintiff not to answer the question.
During a break, Plaintiff and his counsel discussed the communications made during Plaintiff's initial consultation so counsel could determine whether the communication was protected by attorney-client privilege. Plaintiff's counsel then asked Defense counsel for an agreement that if Plaintiff disclosed what he could remember from his initial consultation with Mr. Freking, Defendant would not assert that Plaintiff had waived his right to assert attorney-client privilege for any further communications simply because he testified about his consultation. Defense counsel would not agree.
During the May 15, 2012 conference with the Court, Defendant asserted that Plaintiff waived his right to attorney-client privilege for all communications with counsel because his sister attended the initial consultation prior to Plaintiff retaining counsel. Defendant did not cite to any authority in support of its assertion. Defendant's assertion that Plaintiff waived his privilege with respect to all future communication with counsel must be rejected.
Should the Court determine that attorney-client privilege applied to Plaintiff's initial consultation and that Plaintiff waived his privilege because his sister attended the consultation, the Court must apply a narrow, rather than expansive standard in determining the scope of the waiver. See Cline v. Reliance Trust Co. 2005 U.S. Dist. LEXIS 26066, *12 (N.D. Ohio Oct. 31, 2005). Additionally, courts should be guided by fairness concerns to determine whether the opposing party would be prejudiced should the waiver not be broadened. See id.; see also In re Grand Jury Proceedings October 12, 1995, 78 F.3d 251,...
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