United States v. Gumbaytay

276 F.R.D. 671, 2011 U.S. Dist. LEXIS 47142, 2011 WL 5248358
District Court, M.D. Alabama·Decided January 19, 2011·No. Civil Action No. 2:08cv573-MEF·Published·Cited by 6 cases

Opinion

ORDER

SUSAN RUSS WALKER, United States Chief Magistrate Judge.

This case is before the court for resolution of two discovery disputes. The first of these relates to defendants Franklin, Gumbaytay, Jorgensen and Williams’ motion for determination as to privilege (Doc. #220); defendants Franklin, Gumbaytay, Jorgensen and Williams’ motion to amend their motion for determination as to privilege (Doc. #222); defendants Franklin, Gumbaytay, Jorgensen and Williams’ supplement to their motion for determination as to privilege (Doc. #225); plaintiffs response and cross-motion for protective order (Doc. #226); and plaintiffs motion to seal (Doc. # 227). The court held a hearing on these motions on November 10, 2010.

Defendants seek a determination from this court as to whether the United States may assert what is sometimes referred to as the common interest doctrine to prevent inquiry — during depositions and other discovery— into its communications with the “aggrieved persons”1 on whose behalf it has brought suit. Specifically, defendants desire to discover what the aggrieved persons were told when they were contacted by the United States during its “victim location” process, during which the government identified a number of female tenants or prospective tenants who allegedly were victims of sexual harassment by defendant Gumbaytay, a former property manager for certain rental housing properties in Montgomery, Alabama. The United States contends that such communications may not be discovered.

In the instant case, “[f]ederal privilege law governs the application of the attorney-client privilege because the court has federal question jurisdiction over the subject matter.” Hope For Families & Community Service, Inc. v. Warren, 2009 WL 1066525, 4 (M.D.Ala.2009). “ ‘The attorney-client privilege exists to protect confidential communications between client and lawyer made for the purpose of securing legal advice.’ ” Id. (citations omitted). “The privilege encourages ‘full and frank communication between attorneys and their clients and thereby pro-motets] broader public interests in the observance of law and the administration of justice.’ ” Id. (citation omitted).

The common interest doctrine is most often characterized as an exception to waiver of the attorney-client privilege rather than a privilege itself. See, e.g., id. at 7 (“ ‘Although occasionally termed a privilege itself, the [674]*674common interest doctrine is really an exception to the rule that no privilege attaches to communications between a client and an attorney in the presence of a third person.’ ”) (citing United States v. BDO Seidman, LLP, 492 F.3d 806, 815 (7th Cir.2007)). This formulation of the doctrine holds that “‘the common interest doctrine only will apply where the parties undertake a joint effort with respect to a common legal interest, and the doctrine is limited strictly to those communications made to further an ongoing enterprise.’ ” Id. at 8 (citing Seidman, 492 F.3d 806 at 815-16). As the Eleventh Circuit has noted, “ ‘[t]he need to protect the free flow of information from client to attorney logically exists whenever multiple clients share a common interest about a legal matter.’” United States v. Almeida, 341 F.3d 1318, 1324 (11th Cir.2003).

In the instant case, the aggrieved persons on whose behalf the government sues clearly have an interest in common with the United States. Under the Fair Housing Act, once an aggrieved person files a complaint of housing discrimination with the U.S. Department of Housing and Urban Development (HUD) and a formal charge is issued, the “aggrieved person on whose behalf the complaint was filed, may elect to have the claims asserted in that charge decided in a civil action” in federal district court. 42 U.S.C. § 3612(a). If such an election is made, “the Attorney General shall commence and maintain, a civil action on behalf of the aggrieved person in a United States district court seeking relief,” 42 U.S.C. § 3612(o) (emphasis added), and the government may seek actual and punitive damages for that person as well as any permanent or temporary injunction, temporary restraining order, or other order. 42 U.S.C. §§ 3612(o )(3), 3613(c)(1). In short, in this case — as the government notes, and defendants do not appear to dispute — “the government’s interests in large measure coincide with those of aggrieved parties____” See OLC Memorandum (Jan. 20, 1995) (http://www.usdoj.gov/ olc/civrts2mem.htm).

However — as defendants correctly point out, and the government concedes — the aggrieved persons on whose behalf the United States sues in this case are neither clients represented by counsel nor parties to this litigation. Thus, their communications with counsel for the United States do not precisely fit the mold of the common interest rule as it is ordinarily formulated — for example, by the Restatement (Third) of the Law Governing Lawyers:

If two or more clients with a common interest in a litigated or nonlitigated matter are represented by separate lawyers and they agree to exchange information concerning the matter, a communication of any such client that otherwise qualifies as privileged ... that relates to the matter is privileged as against third persons.

REST 3d LGOVL § 76. Nevertheless, two federal district courts have applied the common interest doctrine in the Fair Housing Act context, despite the fact that the aggrieved persons neither were represented by counsel nor were parties to the lawsuits in question.2 In United States v. Prestonwood Properties, Inc., the court granted a motion for protective order barring inquiry into communications between counsel for the United States and aggrieved persons, finding “that there is a common interest in litigation privilege that protects communications between counsel for the United States and the HUD complainants and other alleged aggrieved persons in matters such as this where the United States acts in its capacity to protect the interests of HUD complainants and the aggrieved persons to vindicate alleged violations of the Fair Housing Act.” United States v. Prestonwood Properties, Inc., No. 3:19-CV-495, Order Granting Motion for Protective Order at 2 (N.D.Tex. Sept. 15, 1999). Similarly, in circumstances comparable to those found in the instant case, the court in United States v. Webb denied defendants’ motion to compel deposition testimony concerning conversations between aggrieved persons and government attorneys. United States v. Webb, No. 4:00-CV-698, Order denying Motion to Compel at 2-3 (E.D.Ark. Aug. 1, 2000). The court recognized

[675]*675a privilege which protects communications between a governmental agency and persons on whose behalf the governmental agency brings suit.

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United States v. Gumbaytay, 276 F.R.D. 671, 2011 U.S. Dist. LEXIS 47142, 2011 WL 5248358 (M.D. Ala. 2011).

276 F.R.D. 671 (United States v. Gumbaytay) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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