Russell v. Curtin Matheson Scientific, Inc.

• Citation: 493 F. Supp. 456
• Decision Date: 23 June 1980
• Docket Number: Civ. A. No. 76-H-881.
• Parties: C. M. RUSSELL, Jr., et al., Plaintiffs, v. CURTIN MATHESON SCIENTIFIC, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

493 F. Supp. 456

C. M. RUSSELL, Jr., et al., Plaintiffs, v. CURTIN MATHESON SCIENTIFIC, INC., et al., Defendants.

Civ. A. No. 76-H-881.

United States District Court, S. D. Texas, Houston Division.

June 23, 1980.

Carol C. Nelkin, Nelkin & Nelkin, Houston, Tex., for plaintiffs.

Clinton S. Morse, James V. Carroll, III, Andrews, Kurth, Campbell & Jones, Houston, Tex., for defendants.

ORDER

McDONALD, District Judge.

Came on to be heard the defendants' Motion for Reconsideration of Defendants' Motion to Compel Answers to Depositions. The defendants seek an order:

(i) directing that plaintiffs C. M. Russell, Jr. and R. E. James appear for further deposition and there to answer questions of Defendants' counsel specifically relating to all legal advice that Mr. John Breed or any other lawyer extended to either Mr. James, Mr. Russell, or both prior to December 30, 1975 concerning procedural problems which either faced in bringing an ADEA action and/or how either might satisfy the procedural prerequisites for bringing such an action, and (ii) permitting Defendants to depose, if necessary, Mr. John Breed and/or Ms. Carol Nelkin concerning what, if any, advice he or she extended to either C. M. Russell, Jr., or R. E. James prior to December 30, 1975 concerning such issues.

Defendants' Brief in Support of Motion to Compel Answer to Deposition, at 6. The defendants filed their original motion to compel answers to depositions on February 21, 1980. The plaintiffs did not respond. On April 15, 1980, United States Magistrate Frank G. Waltermire, in a written Memorandum and Order, denied defendants' motion in its entirety. On April 28, 1980, pursuant to 28 U.S.C. § 636(b)(1), the defendants filed this motion for reconsideration. The plaintiffs filed no response.

In order to properly understand the pending motion, it is necessary to review some of the procedural history of the instant case. This action was filed under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq., on May 26, 1976. On August 9, 1977, the defendants filed a motion to dismiss. The basis of that motion, in part, was the failure of the plaintiffs to file the necessary notice of intent to file suit within the statutorily proscribed 180-day period. See 26 U.S.C. § 626(d)(1). That motion was denied by United States District Court Judge John V. Singleton in an Order dated April 28, 1978. Relying on an affidavit filed by plaintiff Russell, Judge Singleton found that, "Mr. Russell was affirmatively misled by the Department of Labor to believe that the complaint he filed with the DOL in November, 1973, was sufficient to protect his rights to bring suit against his employer under ADEA." Order of April 28, 1978, at 8. That fact, Judge Singleton held, equitably tolled the running of the 180-day notice requirement "in Mr. Russell's case until he received actual notice of the requirement on December 12, 1975." Id. at 9.

As discovery progressed, it became clear that Judge Singleton may not have had an opportunity to consider all of the evidence relevant to the equitable tolling issue. Specifically, the depositions of plaintiffs James and Russell indicate that both plaintiffs spoke with an attorney, Mr. John Breed, in reference to their age discrimination claims, more than 180 days prior to December 30, 1975. See Deposition of Robert Elmer James, Jr., at 81-89; Deposition of Carson McCloud Russell, Jr., at 124-125. Although plaintiffs James and Russell testified at deposition that they discussed their claims with Mr. Breed and that Mr. Breed decided not to represent them, they refused, on the advice of counsel, to say any more about the subject. See Deposition of Robert Elmer James, Jr., supra; Deposition of Carson McCloud Russell, Jr., supra. They claim that this information is protected by the attorney-client privilege.

In Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D.Wash.1975), the court reviewed the exceptions to the rules of privilege. All of them, it said:

have a common denominator; in each instance, the party asserting the privilege placed information protected by it in issue through some affirmative act for his own benefit, and to allow the privilege to protect against disclosure of such information would have been manifestly unfair to the opposing party.

That is precisely the situation in the present case. The plaintiffs assert the attorney-client privilege. They have, however, by an "affirmative act for their own benefit," the raising of the equitable tolling issue, "placed information protected by the privilege in issue." It is essential to proper resolution of the equitable tolling issue to know when the plaintiffs learned of the 180-day requirement, whether they learned of it from their attorney or someone else. See Edwards v. Kaiser Aluminum & Chemical Sales, Inc., 515 F.2d 1195 (5th Cir. 1975); Dartt v. Shell Oil Company, 539 F.2d 1256, 1261 n. 4 (10th Cir. 1976), affirmed by an equally divided Court, 434 U.S. 99, 98 S.Ct. 600, 54 L.Ed.2d 270 (1977). To "protect against disclosure of such information would be manifestly unfair to the defendants." As Magistrate Waltermire fully acknowledged in his Order of April...