United States District Court, D. Oregon
THOMAS M. COFFIN, Magistrate Judge.
Before the court are various motions to compel, motions for protective orders, and a motion to quash a subpoena. In addition, plaintiff in her briefing (Response to Defendant's Supplemental Memorandum, ECF #128) raises the issue of whether defendant should be required to waive its attorney-client privilege during discovery or strike a portion of its answer wherein it denies a central allegation of plaintiff's case, i.e., that she provided information in a prior lawsuit against the Bank that was supportive of the plaintiff in that action.
A central issue in this lawsuit is whether defendant Willamette Community Bank retaliated against plaintiff Janice Becker because she assisted a former supervisor (Maureen Connolly) in her wrongful termination/retaliation civil lawsuit against the Bank. Becker alleges in her complaint that after
the filing of Connolly's lawsuit, an attorney representing Willamette Community Bank interviewed plaintiff on three separate occasions in 2011 in connection with the Connolly lawsuit. Plaintiff provided information that was supportive of Ms. Connolly's case.
Complaint (#1) at ¶ 16.
The Bank, asserting that its attorney-client privilege applied to the interviews with plaintiff, moved to strike this paragraph from the pleadings. This court denied the motion, ruling that while the Bank had a legitimate expectation of confidentiality vis-a-vis third parties, there was nothing secret between plaintiff and the attorney regarding the contents of the communications. In addition to denying the Bank's motion to strike, I also denied its motion for a protective order precluding discovery and disclosure of information communicated between plaintiff and the Bank's attorney during those interviews. Order of February 14, 2013 (ECF #26).
The court's ruling has been followed by a series of discovery disputes between the parties as plaintiff endeavors to probe for information about whether officers and other Bank personnel had knowledge of Becker's "supportive" position of Connolly in her lawsuit against the Bank, while the Bank vigorously asserts the attorney-client privilege and work-product doctrine to block any such inquiries.
As noted in my above order (ECF #26), the parameters of the corporate attorney-client privilege do not neatly fit within the traditional rationale and construct of the privilege. This case starkly illustrates the point. Plaintiff was "represented" by corporate counsel (and was thus her client) when she was being interviewed about the Connolly litigation, but now finds herself conflicted with that same counsel (Caroline Guest) in her own lawsuit against the Bank in which she alleges that the Bank retaliated against her because of the content of those interviews. Unlike the traditional attorney-client relationship, plaintiff cannot simply waive the privilege and examine counsel regarding the communications at issue because she is not the corporate officer vested with such authority. Thus, the attorney is cast into a dual role - representing a corporate officer as she undertakes to interview her in a lawsuit against the corporation and then reporting the results of those interviews to higher-ups in the corporate chain who had the power to promote, demote, or fire the interviewee. To state the obvious, the corporation places its employees and counsel in a potentially adversarial situation fraught with delicate legal issues. See, e.g., 24 Fed. Prac. & Proc. Evid. § 5476 (1st ed.) Client - "Corporation" at p. 4. (positing the question of whether the corporation "can feed an employee to the wolves" by claiming corporate privilege).
The essential question presented here is whether the Bank can factor the information provided by plaintiff to corporate counsel into its decision regarding her employment and insulate itself from scrutiny through the application of the attorney-client privilege and the work product doctrine.
The breadth of the Bank's position is illustrated by its efforts to preclude the plaintiff herself from disclosing her communications with corporate counsel during the interviews. Had this application of the privilege been adopted by the court, plaintiff, as well as any other employee in similar circumstances, would be unable to pursue a retaliation claim because she would be completely barred from proving the conduct or speech that allegedly triggered the retaliation.
Thus plaintiff, being privy to her communications with Ms. Guest, may freely recount and testify about the content of her interviews. The Bank, however, retains its attorney-client privilege in communications between other corporate officers and counsel regarding those interviews and other matters so long as those communications fall within the parameters of the privilege:
The attorney-client privilege protects confidential communications between attorneys and clients, which are made for the purpose of giving legal advice. Upjohn Co. v. United States , 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). The party asserting the attorney-client privilege has the burden of establishing the relationship and privileged nature of the communication. United States v. Bauer , 132 F.3d 504, 507 (9th Cir.1997). The attorney-client privilege exists where: "(1) [ ] legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection be waived." Graf, 610 F.3d at 1156.
United States v. Richey , 632 F.3d 559, 566 ...