31 F.R.D. 264 | W.D. Pa. | 1962
The defendant has filed a “Motion for Production of Documents”, pursuant to Rule 34, Fed.R.Civ.P., 28 U.S.C., by which it seeks to obtain correspondence between plaintiff and his brother-in-law, and various attorneys. The plaintiff opposes the motion on the ground that the correspondence is within the attorney-client privilege,
In our opinion the motion should be denied as to all the requested documents for the reasons that they are privileged and that the defendant has failed to show “good cause”.
The elements of the attorney-client privilege are set forth in 8 Wig-more, Evidence § 2292 (McNaughton rev. 1961):
“(1) Where 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) except the protection be waived.”
Furthermore, it appears from the letters that plaintiff’s brother-in-law was acting as plaintiff’s agent in communicating with various attorneys, and, therefore, the letters between him and the attorneys are also within the privilege. 8 Wigmore, Evidence § 2317 (McNaughton rev. 1961); 139 A.L.R. 1250.
Defendant insists that plaintiff has waived his privilege as to some of the documents by making, and allowing his attorney to make, certain “assertions of fact” based on the documents, and by revealing part of their substance during the taking of the plaintiff’s deposition. We have reviewed these alleged waivers made by plaintiff and his attorney and find the statements made by them to be so general, so insignificant, or so remotely connected with the legal advice given concerning the plaintiff’s rights, that they cannot be deemed to constitute a waiver of the privilege.
Overriding the question of privilege is the question of whether or not the defendant here has shown “good cause” as required by Rule 34, Fed.R.Civ. P. Hickman v. Taylor, 329 U.S. 495, 512, 67 S.Ct. 385, 91 L.Ed. 451 (1947); Alltmont v. United States, 177 F.2d 971, 975 (3d Cir. 1950); Sacco v. Greyhound Corporation, supra. Generally speaking, showing “good cause” means that the movant must satisfy the court that the production of the requested document is necessary to enable him to prepare his case, or will facilitate proof or progress at the trial. United States v. Five Cases, etc., 9 F.R.D. 81 (D.C.Conn.1949), aff’d 179 F.2d 519 (2d Cir. 1950) ; Gordon v. Pennsylvania R. Co., 5 F.R.D. 510 (D.C. Pa.1946); see also, Moore’s Federal Practice, 2d ed., vol. 4, ¶ 34.08, pp. 2450-2451.
In the affidavit in support of the motion, counsel for defendant states that, the plaintiff’s allegations raise the issues of whether or not the plaintiff’s alleged invention “is covered by the concept of
As the affidavit contains not even a bare averment that the documents are necessary for defendant to prepare its case or that obtaining them will in any way facilitate proof or progress at the trial, we believe that defendant has not shown “good cause” for obtaining them.
An appropriate order will be entered.
. Rule 34, Fed.R.Civ.P., provides in part as follows:
“Upon motion of any party showing good cause therefor and upon notice to all other parties, and subject to the provisions of Rule 30(b), the court in which an action is pending may (1) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents * * * not privileged * *
. Exhibit 10(a) is a copy of a letter sent by one of the prospective attorneys to defendant; Ex. 11(a) is a copy of the diagram of the “Schevenell Patent” No. 2,-654,284; and Exhibit 12(b) is a copy of a letter sent by defendant to Paul T. O’Neil. It does not appear that either the original or a copy of each of these documents is unavailable to defendant;' hence, “good cause” for their production has not been shown.
. Attached to defendant’s “Reply Brief” are six letters (Exs. A through F), which defendant asserts it received from these prospective attorneys in response to inquiries concerning the nature of the relationship which existed between the plaintiff and them at the time of the correspondence involved in this motion. In addition to the fact that these letters cannot be considered as evidence bearing on the motion sub judice since they were not included in an affidavit, it appears that all the responses, with the exception of Exhibit A, indicate that the attorneys believe that the attorney-client privilege existed at that time between them and plaintiff. The writer of Exhibit A implies that he believes that unless a lawyer is specifically retained, or a “statement of charges” is made, that the attorney-client privilege does not apply to their communications. We think this -is erroneous. See: United States v. Funk, 84 F.Supp. 967, 968 (E.D.Ky. 1949). ,