United States ex rel. Fisher v. Network Software Associates

217 F.R.D. 240, 2003 U.S. Dist. LEXIS 14968, 2003 WL 22025393
CourtDistrict Court, District of Columbia
DecidedAugust 28, 2003
DocketCiv.A. No. 99-3095 (PLF/JMF)
StatusPublished
Cited by11 cases

This text of 217 F.R.D. 240 (United States ex rel. Fisher v. Network Software Associates) 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
United States ex rel. Fisher v. Network Software Associates, 217 F.R.D. 240, 2003 U.S. Dist. LEXIS 14968, 2003 WL 22025393 (D.D.C. 2003).

Opinion

MEMORANDUM OPINION

FACCIOLA, United States Magistrate Judge.

This case has been referred to me by Judge Friedman pursuant to LCvR 72.2(a) for the purpose of resolving Defendant Network Virginia’s Motion for Partial Reconsideration and the parties’ Joint Motion for Clarification. For the reasons set forth below, defendant Network Virginia’s motion for partial reconsideration will be granted. Furthermore, the parties’ joint motion for clarification will be granted, resolving all pending relevancy and burdensome objections.

BACKGROUND

I. The Attorney-Client Privilege Documents

In my Memorandum Opinion, dated January 29, 2003, I denied the application of the attorney-client privilege for the document labeled NSVA0121207-0121209 (herein referred to as “Document B”) because I found it to be “the same document as NSVA 0004051-0004053 [ (herein referred to as ‘Document A’) ].” Memorandum Opinion, January 29, 2008 at 8.

Document A is a letter from a client to an attorney regarding the valuation of stock and a spreadsheet as to the stock’s value. I denied the attorney-client privilege claims as to these documents because I found that the letter and the spreadsheet did not disclose a communication intended to be confidential. Id. at 4. I then denied the privilege as to Document B because it appeared to convey the same substantive information as Document A, despite its difference in appearance. Defendant has now asked that I re-examine my conclusions.

II. The Relevancy and Burdensome Documents

On approximately March 8, 2002, relator served his first set of requests for production [244]*244of documents on defendants. Relator’s Statement of Points and Authorities in Support of His Motion to Compel Immediate Production of Documents at 3. The following week, relator filed its third amended complaint and served defendants with the amended first requests for production. Id. None of the defendants produced any documents by the June 2002 deadline; instead, defendants cited a need for a protective order. Id. A protective order was subsequently granted on November 17, 2002. However, prior to entering into the protective order, relator filed a motion to compel on July 22, 2002.

In my Memorandum Opinion and Order, dated January 29, 2003, I required defendants to immediately disclose “all documents not protected by the attorney-client privilege.” Order, January 29, 200S at 1. Subsequently, an issue regarding the interpretation of that Order arose. Relator interprets that Order as requiring defendants to “produce all documents they have withheld on grounds other than attorney-client privilege.” Joint Motion for Clarification at 2. However, defendant interprets it to include only those documents challenged under the attorney-client privilege, leaving “all remaining issues involving the Motion to Compel and defendant’s oppositions to that motion” for future resolution. Id. at 3. Both relator and defendant have asked me to clarify the scope of my order, and I shall do so now.

DISCUSSION

III. Legal Standard for the Attorney-Client Privilege

The attorney-client privilege “protects confidential communications made between clients and their attorneys when the communications are for the purpose of securing legal advice or services.” Overseas Private Inv. Corp. v. Mandelbaum, 1998 WL 647208, at *1 (D.D.C. Aug. 19, 1998). The privilege does not automatically attach to any and all communications between an attorney and a client; it is specific and narrow in scope. See Athridge v. Aetna Casualty and Surety Co., 184 F.R.D. 200, 209 (D.D.C.1998) (affirming that the District of Columbia Circuit is “one of the Circuits which construe the attorney-client privilege strictly” and noting that “the strict-eonstruction cases reason that a lawyer’s communications can be privileged only derivatively—if disclosure of the lawyers’ communications would reveal the content of the client’s communication to the lawyer”). The privilege attaches to a client’s communication with his or her attorney when the “communication was made for the purpose of securing primarily either (i) an opinion of law or (ii) legal services or (iii) assistance in some legal proceedings.” Overseas Private Inv. Corp., 1998 WL 647208, at *1 (quoting In re Sealed Case, 737 F.2d 94, 98-9 (D.C.Cir.1984)). The privilege attaches to an attorney’s communication with his or her client “only insofar as the attorney’s communications disclose the confidential communications from the client.” Evans v. Atwood, 177 F.R.D. 1, 4 (D.D.C.1997) (quoting Brin-ton v. Dep’t of State, 636 F.2d 600, 603-04 (D.C.Cir.1980)).

Confidential communication in the context of the attorney-client privilege means “the information is to be protected if one can say that the person who communicated the information never intended it to be disclosed and, but for its disclosure now, it would never have been known.” Evans, 177 F.R.D. at 6. A client engages in confidential communication with an attorney when the client “reasonably believes that no one will learn the contents of the communication.” Id. (quoting Restatement (Third) of the Law Governing Lawyers § 121 (Proposed Final Draft No. 1, 1996)).

The crucial questions are: (1) whether the communication by the client to its attorney was for the purpose of seeking legal advice or legal representation; (2) whether the client had a reasonable belief that the communication was confidential and intended it to be confidential; and (3) whether the disclosure of this communication would tend to reveal this confidential information. U.S. v. Motorola, Inc. and Nextel Communications, Inc., 1999 WL 552553, at *2 (D.D.C. May 28, 1999).

IV. Document B and the Attorney-Client Privilege

As stated in my Memorandum Opinion of January 29, 2003, Document A is not confi[245]*245dential and is, therefore, not privileged. Document A is a letter and a spreadsheet that transmit information regarding the valuation of stock from Ms. Kim Hargis (“Har-gis”), a client, to Mr. Larry S. Stern (“Stern”), her attorney. The substance of both the letter and the spreadsheet explains the valuation of the company’s stock as of December 31, 1997. Defendant Network Virginia’s Motion for Partial Reconsideration (“D.Mot.”). There is nothing in the document suggesting that its author had the intention or expectation that its content never be disclosed. To the contrary, the author was describing an accounting process that was a known fact.

Document B is a communication between Stern and Mr. Raoul Socher (“Socher”), Stern’s client. This document contains no information regarding the value of the stock as of December 31, 1997. I, therefore, now conclude that Document A is substantively different from Document B and must now determine whether the attorney-client privilege applies to it, irrespective of the application of the attorney-client privilege to Document A.

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217 F.R.D. 240, 2003 U.S. Dist. LEXIS 14968, 2003 WL 22025393, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-ex-rel-fisher-v-network-software-associates-dcd-2003.