Montgomery v. Leftwich, Moore & Douglas

161 F.R.D. 224, 1995 WL 247944
CourtDistrict Court, District of Columbia
DecidedApril 25, 1995
DocketCiv. A. No. 93-0329(GK)(PJA)
StatusPublished
Cited by9 cases

This text of 161 F.R.D. 224 (Montgomery v. Leftwich, Moore & Douglas) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Montgomery v. Leftwich, Moore & Douglas, 161 F.R.D. 224, 1995 WL 247944 (D.D.C. 1995).

Opinion

MEMORANDUM ORDER

ATTRIDGE, United States Magistrate Judge.

Pending before the Court are the plaintiffs’ motion to compel the production of documents [110] claimed by the defendants to be exempt from discovery by the attorney-client privilege as well as the plaintiffs’ motion to [225]*225compel the deposition of defendants Willie Leftwich and Potomac Fathers, Inc. [121].

Regarding the motion to compel the production of documents, all of the requested documents relate to work done by the Tucker, Flyer & Lewis law firm on behalf of the defendants Potomac entities and Willie L. Leftwich. After conducting an in camera inspection of the documents, the Court is satisfied that many documents are not privileged, and accordingly directs that these documents be released to the plaintiffs.

Background

The plaintiffs—Dr. Stephen W. Montgomery, his professional corporation, and his pension trust (hereinafter collectively referred to as “Montgomery”)—have brought a civil action alleging, among other counts, fraud and securities violations against Leftwich, Moore & Douglas; Willie L. Leftwich, P.C.; Potomac Surety Insurance Company, Inc.; Potomac Insurance Holding Company, Inc.; Potomac Fathers, Inc., Potomac Surety Insurance Group;1 and several other defendants.

The crux of Montgomery’s complaint is that Leftwich fraudulently induced him, in 1991, to invest $250,000 in an insurance company (which, according to the plaintiff, was at various times referred to as Potomac Fathers, Potomac Group, Potomac Insurance, and Potomac Holdings). The false representations the defendants allegedly made include communicating to Montgomery that Ronald H. Brown, a nationally known figure, had agreed to be the chairman of the entity’s board of directors; and that other investors would be contributing amounts of money equal to Montgomery’s share. Am.Compl. at 9-12. According to Montgomery, after the insurance company failed to become operational, yet began to incur sizeable rent and legal fees to Leftwich’s law firm, Montgomery demanded, on February 11, 1993, the return of his investment. See Am.Compl. at 21-22. The defendants deny making the allegedly false statements, deny that plaintiffs invested $250,000, and claim that they have insufficient information to form a belief as to whether Montgomery asked for a return of his investment.

I. Discussion

A. Motion to Compel Document Production

Federal Rule of Civil Procedure 26(b)(1) provides in pertinent part that “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” Because the defendants do not deny the materials’ relevancy to the pending litigation, the issue for the Court to resolve is whether the documents are exempt from discovery because of the attorney-client privilege.

By promoting full and frank communications between attorneys and their clients, the attorney-client privilege encourages observance of the law and aids in the administration of justice. Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 348,105 S.Ct. 1986, 1990-91, 85 L.Ed.2d 372 (1985) (citations omitted). The privilege should be narrowly construed, however, because it “has the effect of withholding relevant information from the factfinder.” United States v. Zolin, 491 U.S. 554, 562, 109 S.Ct. 2619, 2626, 105 L.Ed.2d 469 (1989) (quoting Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39 (1976)). For this reason, “evidentiary privileges in litigation are not favored.” See Herbert v. Lando, 441 U.S. 153, 175, 99 S.Ct. 1635, 1648, 60 L.Ed.2d 115 (1979) (footnote omitted). Moreover, the party asserting the privilege has the burden of establishing its applicability. In Re Sealed Case, 737 F.2d 94, 99 (D.C.Cir.1984) (citations omitted).

Specifically, in order for the privilege to apply,

(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 [226]*226services 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.

Id. at 98-99 (citation omitted).

Additionally, communications made by the attorney to the client are only “shielded if they rest on confidential information obtained from the client.” Id. at 99 (citing Mead Data Central, Inc. v. United States Dep’t of Air Force, 566 F.2d 242, 254 (D.C.Cir.1977). Conversely, “when an attorney conveys to his client facts acquired from other persons or sources, those facts are not privileged.” Brinton v. Department of State, 636 F.2d 600, 604 (D.C.Cir.1980), cert. denied, 452 U.S. 905, 101 S.Ct. 3030, 69 L.Ed.2d 405 (1981).

Although both sides have strongly argued their respective positions regarding the dis-coverability of the materials, it is necessary that the Court examine each document according to the guidance of the In Re Sealed Case. Without an in camera inspection of the documents, the Court cannot be satisfied that a basis for asserting the privilege exists. Schreiber v. Society For Sav. Bancorp. Inc., 11 F.3d 217, 221 (D.C.Cir.1993) (failure to conduct in camera inspection was reversible error).

1.' Documents Privileged

Upon inspection, the Court is satisfied that the following documents fall within the narrow protections of the attorney-client privilege. All of these documents are either confidential disclosures made by Leftwich to his attorney for the purpose of securing legal advice, or communications to Leftwich by his attorney, based on confidential information imparted by Leftwich. None appear to relate to advice sought for the purpose of committing a crime or tort.

Accordingly, the following documents so numbered are deemed privileged and therefore are not discoverable: 2058-59, 2138-39, 2170-71, 2857, 2857A, 2859-864, 2932-935, 2939, 2944-945, 2948-49, 4075, 4090, 4109-116, 4118-135, 4141-43, 4396, 4454, 4513-15, 4531-37, 4541-561, 4564-66, 4569, 4569A, 4570-592, 4598^622, 4625-668, 4711-781, 4783-4814, 4820-24, 4831-844, 4849-850, 4854-860.

2. Documents Not Privileged

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161 F.R.D. 224, 1995 WL 247944, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montgomery-v-leftwich-moore-douglas-dcd-1995.