Datatreasury Corporation v. Wells Fargo & Company Et Al - Document No. 697

Datatreasury Corporation v. Wells Fargo & Company et al Doc.
697
Case 2:06-cv-00072-DF-CMC Document 697 Filed 05/17/2007 Page 1 of 8
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
DATA TREASURY CORP. §

§
V. § NO. 2:06-CV-72
§
WELLS FARGO & CO., ET AL. §
ORDER RE: “HOTLINE” HEARING
Participants: Ben King, Esq.

Attorney for plaintiff Data Treasury Corp.
Shepherd Lane, Esq.

In-house counsel for Data Treasury Corp.
Christopher Broderick, Esq.

Attorney for defendant LaSalle Bank
Date: May 16, 2007
Time: 1:45 p.m.
Action on: Deposition Dispute
Case Assigned To: Hon. David Folsom, referred to Hon. Caroline Craven
Dockets.Justia.com
NATURE OF THE DISPUTE
In this patent infringement case, plaintiff is conducting the oral deposition of
Mr. Jeffrey Griffiths (“Griffiths”), a Rule 30(b)(6) representative of defendant,
LaSalle Bank (“LaSalle”). Griffith is an employee of Huron Consulting Group, an
entity retained by LaSalle for the purpose of gathering electronic and paper docu-
ments relevant to this litigation.
Plaintiff’s attorney, Mr. Ben King (“King”) asked Griffiths questions regarding
communications between Griffiths and defendant’s attorneys, Sidley Austin LLP
(“Sidley Austin”). Mr. Christopher Broderick (“Broderick”), attorney for LaSalle,
instructed Griffiths not to answer such questions asserting that the communications
in question were protected by the attorney client privilege.
King proceeded to ask Griffiths other questions regarding the relationship
between Griffiths, his employer, and Sidley Austin. At some point during this
questioning, King noted that the videographer was running out of tape, and called a
recess.
When the deposition resumed after approximately nine minutes, King resumed
his examination of Griffiths. King first inquired whether Griffiths and Broderick had
talked during the recess. King then asked further questions regarding the relationship
between Griffiths, his employer, and Sidley Austin. After receiving clarifying re-
Page 2 of 8
sponses from Griffiths as to the nature of Sidley Austin’s representation of Griffiths
and his employer, King inquired as to the contents of the communication between
Griffiths and Broderick during the recess. Broderick instructed Griffiths not to
answer, again asserting the communication was protected by the attorney-client
privilege.
Plaintiff’s counsel, King, invoked the hotline to assert a motion to compel the
witness to answer questions regarding the communications between Griffiths and
counsel described above.
DISCUSSION
This deposition dispute has two facets. First, there is an issue as to whether an
attorney-client relationship exists between the deponent and Sidley Austin such that
the privilege can be invoked with respect to questions pertaining to communications
at meetings between Griffiths and Sidley Austin regarding the gathering of docu-
ments. Second, even if the privilege exists, there is an issue as to whether it applies to
communications between Broderick and Griffiths during deposition recesses.
Page 3 of 8
A. Communications with Counsel re Gathering Documents
After consideration, the undersigned concludes that the first issue is not
appropriate for intuitive and fast-draw resolution via the discovery hotline. Griffiths’s
deposition testimony is conflicting as to the nature of the relationship between
Griffiths, his employer, and Sidley Austin. Consequently, resolution of this issue may
turn on additional facts not available to the hotline judge, and a studied analysis of
agency principles.
Although Griffiths and his employer are not themselves parties to the litiga-
tion, they were hired by a party to assist in discovery matters. In some limited
instances, communications between a client’s representative and the client’s attorney
are protected by the attorney-client privilege. See generally In re Bieter Co., 16 F.3d
929 (8th Cir. 1984) (holding that communications with an individual deeply
involved in the business of the client, although not an employee or agent of the
client, were protected by the attorney-client privilege). However, not every represen-
tative of a client is entitled to protection of the privilege, and not every communica-
tion between a representative of the client and the client’s attorney is for the pur-
poses of securing legal advice or services for the client. Analysis of the precise
relationship between Mr. Griffiths and Sidley Austin is necessary to determine if the
privilege protects these communications.
Page 4 of 8
Therefore, resolution of this question, if important, is best left to the preroga-
tive of the presiding judge who, with the benefit of written briefs and superior
knowledge and familiarity with the parties and the case generally, can make a
principled determination.
B. Communications During Deposition Recesses
Assuming arguendo that the attorney-client privilege generally protects commu-
nications between Griffiths and Broderick, the privilege does not apply to all commu-
nications between the two during recesses of Griffiths’s deposition. Plaintiff relies on
Hall v. Clifton Precision, 150 F.R.D. 525, 526 (E.D. Penn. 1993) as forbidding
private conferences during recesses. In dicta, the Hall court stated that to the extent
such conferences do occur, except to confer with respect to whether to assert a claim
of privilege, they are not covered by the attorney-client privilege, and are fair game
for inquiry by the deposing attorney to ascertain whether there has been any coach-
ing and, if so, what. The court stated that, “during a civil trial, a witness and his or
her lawyer are not permitted to confer at their pleasure during the witness’s testimony”
(emphasis added). “To allow private conferences initiated by the witness would be to
allow the witness to listen to the question, ask his or her lawyer for the answer, and
then parrot the lawyer’s response” (emphasis added).
Page 5 of 8
Hall does not purport to establish a hard and fast rule applicable to every
situation. In In re Stratosphere Corporation Securities Litigation, the court stated
that Hall goes “too far” because it is one thing to preclude attorney-coaching of
witnesses and quite another to deny someone the right to counsel.” 182 F.R.D. 614,
620 (D. Nev. 1998). Similarly, Odone v. Croda Int’l PLC refused to penalize an
attorney for utilizing a five-minute recess that he did not request to learn whether the
client misunderstood or misinterpreted questions. 170 F.R.D. 66, 69 (D.C.Cir.
1997). In McKinley Infuser, Inc. v. Zdeb, 200 F.R.D. 648, 650 (D. Colo. 2001), the
court held that consultations during periodic deposition breaks, luncheon and
overnight recesses, and more prolonged recesses ordinarily are appropriate.
The undersigned concludes that application of Hall is appropriate when
circumstances suggest witness coaching or other abuses of the deposition process
described illustratively in that decision. Blanket application of Hall risks infringing a
party’s right to assistance of counsel. In Potashnick v. Port City Constr. Co., 609
F.2d 1101, 1118 (5th Cir. 1980), the Fifth Circuit held that such a blanket ban on
communications during a trial infringed on the right to counsel. In Potashnick, a
district judge issued an order forbidding contact between witnesses and attorneys
during recesses in trial. Id. The court stated “[r]ecognizing that a civil litigant has a
constitutional right to retain hired counsel, we hold that Judge Hand’s rule prohibit-
Page 6 of 8
ing a litigant from consulting with his attorney during breaks and recesses in the
litigant’s testimony impinges upon that right.” Id.
Distillation of these principles results in the conclusion that plaintiff’s motion
to compel should be partially granted and partially denied as follows:
DECISION
It is ORDERED that plaintiff’s motion to compel is:
1. GRANTED to the extent it seeks an order directing the witness to

testify regarding his knowledge of facts relevant to a claim or defense.
Relevant information is not protected by the attorney-client privilege,
even if that information is communicated to counsel. The privilege
protects only attorney-client communication.
2. DENIED to the extent it seeks an order directing the witness to testify

generally regarding communications with counsel pertinent to the
gathering of documents, without prejudice, however, to reassertion by
formal motion.
3. DENIED to the extent it seeks an order directing the witness to testify

as to conversations with counsel during deposition recesses except as
follows:
a) If the witness changed, clarified, or amplified an answer given

before the recess, or if the witness’s attorney attempted to reha-
bilitate the witness regarding a previous answer given before the
recess, examining counsel may inquire, and the witness shall
answer:
(i) questions regarding the subject matter of all recess conver-

sations
(ii) questions regarding the substance of recess conversations

concerning the changed, clarified, or amplified answers.
Page 7 of 8
(b) If a recess was requested by the witness, his counsel, or anyone

other than the attorney conducting the deposition when a ques-
tion was pending, or before the current topic of the examination
was completed:
(i) counsel may inquire and the witness shall answer questions
regarding the subject matter of all topics of conversation
with counsel during the recess
(ii) counsel may inquire and the witness shall answer questions
regarding the substance of all conversations during the
recess regarding the pending question or unfinished topic.
(c) Regarding all other recesses:
(i) counsel may inquire and the witness shall answer questions
regarding the subject matter of all recess conversations.
(ii) counsel may not inquire as to the substance of these con-

versations, except upon further order of the court and a
showing of strong indicia of likely witness coaching.
17 day of May, 2007.

SIGNED this _____
__________________________________________
Earl S. Hines
United States Magistrate Judge
Page 8 of 8

Datatreasury Corporation v. Wells Fargo & Company Et Al - Document No. 697

Uploaded by

Copyright:

Available Formats

Datatreasury Corporation v. Wells Fargo & Company Et Al - Document No. 697

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Datatreasury Corporation v. Wells Fargo & Company Et Al - Document No. 697

Uploaded by

Copyright:

Available Formats

Datatreasury Corporation v. Wells Fargo & Company et al Doc.

UNITED STATES DISTRICT COURT

DATA TREASURY CORP. §

ORDER RE: “HOTLINE” HEARING

Participants: Ben King, Esq.

Shepherd Lane, Esq.

Christopher Broderick, Esq.

Date: May 16, 2007

Time: 1:45 p.m.

Action on: Deposition Dispute

NATURE OF THE DISPUTE

In this patent infringement case, plaintiff is conducting the oral deposition of

Mr. Jeffrey Griffiths (“Griffiths”), a Rule 30(b)(6) representative of defendant,

LaSalle Bank (“LaSalle”). Griffith is an employee of Huron Consulting Group, an

ments relevant to this litigation.

communications between Griffiths and defendant’s attorneys, Sidley Austin LLP

(“Sidley Austin”). Mr. Christopher Broderick (“Broderick”), attorney for LaSalle,

in question were protected by the attorney client privilege.

King proceeded to ask Griffiths other questions regarding the relationship

sponses from Griffiths as to the nature of Sidley Austin’s representation of Griffiths

answer, again asserting the communication was protected by the attorney-client

witness to answer questions regarding the communications between Griffiths and

counsel described above.

the privilege can be invoked with respect to questions pertaining to communications

communications between Broderick and Griffiths during deposition recesses.

A. Communications with Counsel re Gathering Documents

deposition testimony is conflicting as to the nature of the relationship between

instances, communications between a client’s representative and the client’s attorney

privilege protects these communications.

Therefore, resolution of this question, if important, is best left to the preroga-

B. Communications During Deposition Recesses

Assuming arguendo that the attorney-client privilege generally protects commu-

then parrot the lawyer’s response” (emphasis added).

situation. In In re Stratosphere Corporation Securities Litigation, the court stated

client misunderstood or misinterpreted questions. 170 F.R.D. 66, 69 (D.C.Cir.

overnight recesses, and more prolonged recesses ordinarily are appropriate.

The undersigned concludes that application of Hall is appropriate when

circumstances suggest witness coaching or other abuses of the deposition process

described illustratively in that decision. Blanket application of Hall risks infringing a

communications during a trial infringed on the right to counsel. In Potashnick, a

litigant’s testimony impinges upon that right.” Id.

Distillation of these principles results in the conclusion that plaintiff’s motion

to compel should be partially granted and partially denied as follows:

It is ORDERED that plaintiff’s motion to compel is:

1. GRANTED to the extent it seeks an order directing the witness to

2. DENIED to the extent it seeks an order directing the witness to testify

3. DENIED to the extent it seeks an order directing the witness to testify

a) If the witness changed, clarified, or amplified an answer given

(i) questions regarding the subject matter of all recess conver-

(ii) questions regarding the substance of recess conversations

(b) If a recess was requested by the witness, his counsel, or anyone

(c) Regarding all other recesses:

(ii) counsel may not inquire as to the substance of these con-

17 day of May, 2007.

You might also like