276 F.R.D. 671
M.D. Ala.2011Background
- The matter concerns discovery disputes over the common interest privilege in an FHA case brought by the United States on behalf of aggrieved persons.
- Aggrieved persons are not parties or represented by counsel in this litigation, but the United States sues to vindicate their FHA rights.
- Defendants seek to depose or obtain communications between government counsel and aggrieved persons during HUD’s victim-location effort targeting alleged harassment by Gumbaytay.
- CAFHC produced documents in eight categories; only category 1 notes by Pollock about calls are at issue for privilege.
- The court recognizes the common interest privilege applies to communications between a government counsel and aggrieved persons when the government sues to enforce rights on their behalf.
- Pollock’s notes, created under the supervision of CAFHC and in response to a form letter to aggrieved tenants, are found to be confidential and privileged.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the common interest doctrine applies to protect gov't-aggrieved person communications | United States; aggrieved persons share a common interest | Defendants; the aggrieved persons aren’t clients/parties to the suit | Yes; common interest privilege protects such communications where interests align |
| Whether Pollock's notes of telephone conversations are privileged | Notes relate to confidential attorney-client communications | Notes are by a paralegal and may not be privileged | Yes; notes are privileged as confidential attorney-client communications and as to the notes themselves |
| Whether disclosure to HUD/DOJ waives the privilege | No waiver as notes not disclosed; forms used do not waive | Disclosure of information to agencies may waive | No waiver; privilege remains for the notes |
| Whether CAFHC subpoena seeking Pollock notes should be granted | Notes are privileged and should not be disclosed | Notes may be discoverable | Quashed; CAFHC notes protected |
| Whether the court should limit or sanction conduct in depositions | Unprofessional conduct by defense counsel; protective measures warranted | Disciplinary measures not yet necessary | Court declines sweeping sanctions; emphasizes professional conduct and potential sanctions if repeated |
Key Cases Cited
- United States v. Almeida, 341 F.3d 1318 (11th Cir. 2003) (common interests in government litigation support privilege protection)
- United States v. BDO Seidman, LLP, 492 F.3d 806 (7th Cir. 2007) (common-interest doctrine as an exception to waiver in joint defense)
- United States v. Schwimmer, 892 F.2d 237 (2d Cir. 1989) (confidentiality required for attorney-client communications)
- United States v. Bay State Ambulance and Hosp. Rental Service, Inc., 874 F.2d 20 (1st Cir. 1989) (confidential communications between government and clients involve privilege)
- United States v. Keplinger, 776 F.2d 678 (7th Cir. 1985) (recognizes confidentiality expectations in privilege analysis)
- In re Grand Jury Proceedings, 902 F.2d 244 (4th Cir. 1990) (extends privilege to co-party/co-defendant-like communications in joint efforts)