Rendon Group, Inc. v. Rigsby

268 F.R.D. 124, 2010 U.S. Dist. LEXIS 60138, 2010 WL 2426035
CourtDistrict Court, D. Massachusetts
DecidedJune 16, 2010
DocketNos. 1:10-mc-00164 (HHK/JMF), 1:06-cv-0433 LTS-RHW
StatusPublished
Cited by2 cases

This text of 268 F.R.D. 124 (Rendon Group, Inc. v. Rigsby) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rendon Group, Inc. v. Rigsby, 268 F.R.D. 124, 2010 U.S. Dist. LEXIS 60138, 2010 WL 2426035 (D. Mass. 2010).

Opinion

MEMORANDUM OPINION

JOHN M. FACCIOLA, United States Magistrate Judge.

This case involves the records in the possession of a public relations firm that provided service to lawyers in Mississippi.

The complicated story begins with the Rigsby sisters, who, while working as claims adjusters for E.A. Renfroe & Company, a contractor for State Farm Mutual Insurance Company (“State Farm”), found information that they claim showed that State Farm was defrauding the United States in the manner in which it was processing the claims that the insureds were making for damage to their homes and businesses caused by Hurricane Katrina. Several law firms in Mississippi then began to investigate and prosecute claims by those insureds against State Farm. [126]*126The Rigsby sisters also brought a qui tam action against State Farm in Mississippi. The law firms in Mississippi hired The Rendon Group, Inc. (“TRG”), a Washington D.C.based public relations firm, which apparently had the obligation to create a favorable public atmosphere for the lawsuits that the Scruggs Law Firm, P.A. (“Scruggs”) and other law firms who were bringing or going to bring in relation to Hurricane Katrina. The atmosphere became a lot less favorable to the Rigsbys and the law firms when an Alabama court was convinced that the Rigs-by sisters had illegally taken from State Farm the documents upon which the law firms were predicating their claims against State Farm. Additionally, there was an apparent public disclosure that the Rigsby sisters had accepted a large amount of money from Scruggs for their services as plaintiffs. To make it all the more interesting, Richard “Dickie” Scruggs, the head of Scruggs, has since gone to jail for bribing a judge in what I can only hope is an unrelated matter. The Scruggs law firm1 has since dissolved.

In the meanwhile, the qui tam action has been distilled to a single claim by the Rigsby sisters pertaining to a single home on the Gulf Coast, “the McIntosh House.” Motion to Quash or Modify Subpoena for Documents [# 1] (“Mot. to Quash”) at Ex. D. State Farm filed a counter-claim against the Rigsby sisters, premised on their misappropriation of confidential State Farm information relating to Hurricane Katrina claims and their subsequent improper disclosure of this information to lawyers representing Hurricane Katrina claimants.2 Mot. to Quash at Ex. C. The trial of the qui tam action and counter-claim have been bifurcated and discovery stayed on the counterclaims until after the trial of the qui tam action, set for December 2010. Mot. to Quash at Ex. E.

State Farm served a subpoena duces tecum on TRG that sought records pertaining to work it did for the Mississippi firms, including, of course, Scruggs. Mot. to Quash at Ex. A. Efforts to narrow the scope of the subpoena failed,3 and TRG has moved to quash it. Mot. to Quash 1.

I. Legal Standard

Under Rule 26 of the Federal Rules of Civil Procedure, “[pjarties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Fed.R.Civ.P. 26(b)(1). If, however, the discovery sought, in this case through a subpoena to a third party, “requires disclosure of privileged or other protected matter, if no exception or waiver applies; or [ ] subjects a person to undue burden,” the third party may move to quash the subpoena under Rule 45 of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 45(c)(3); see also Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 403 (D.C.Cir.1984). Rule 26 of the Federal Rules of Civil Procedure defines and governs the scope of discovery for all discovery devices, and, therefore, Rule 45 must be read in light of it. 9A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2452 at 392-393 (3d ed.2008); see also Briggs v. Wash. Metropolitan Area Transit Auth., No. 01-CV-1876, 2005 WL 357190, at *5 (D.D.C. Feb. 15, 2005) (citing Heat & Control, Inc. v. Hester Indus., Inc., 785 F.2d 1017, 1023 (Fed.Cir.1986)) (noting that Rule 45 must be read in light of Rule 26(b)). Thus, “courts generally employ a balancing test, weighing the burdensomeness to the moving party against the [issuing [127]*127party’s] need for, and the relevance of, the information being sought.” Flanagan v. Wyndham Intern. Inc., 231 F.R.D. 98, 102-03 (D.D.C.2005) (citing Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir.1985); Wyoming v. U.S. Dep’t. of Agric., 208 F.R.D. 449, 452-53 (D.D.C.2002); Alexander v. FBI, 186 F.R.D. 71, 75 (D.D.C. 1998); Insulate Am. v. Masco Corp., 227 F.R.D. 427, 432 (W.D.N.C.2005)).

II. Analysis

TRG seeks to quash the subpoena duces tecum first on the grounds that the records may be protected by the attorney-client privilege. Mot. to Quash 8-10. TRG cannot, however, assert this claim; no one is claiming that there was ever an attorney-client privilege between TRG and the Mississippi firms. The firms’ clients were, one supposes, State Farm insureds who sued State Farm or who were once relators in the qui tarn action. The Rigsby sisters were only the latter. Those persons might or might not have grounds to claim an attorney-client privilege for information in the possession of their lawyers that reflects a confidential communication between them for the purpose of seeking legal advice or securing legal services. Had such a claim been asserted by such persons, it would then be pertinent to explore whether the lawyers’ transmittal of privileged information to a public relations firm was or was not a communication that vitiated or forfeited the privilege. See Fed. Trade Comm’n v. GlaxoSmithKline, 294 F.3d 141, 147-48 (D.C.Cir. 2002); Trustees of Elec. Workers Local No. 26 Pension Trust Fund v. Trust Fund Advisors, Inc., No. 03-CV-2662, 266 F.R.D. 1, 8 (D.D.C.2010). It hardly follows, however, that a third party can claim a privilege that it has never held. Indeed, the only putative holder of the privilege who has communicated its intentions, the Rigsby sisters, has sent a letter, made available to me, in which they, by their counsel, insist that they will not intervene and assert any claim of privilege. See Supplemental Support for Motion to Quash

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268 F.R.D. 124, 2010 U.S. Dist. LEXIS 60138, 2010 WL 2426035, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rendon-group-inc-v-rigsby-mad-2010.