DAVID R. HAWKINS, Plaintiff-Appellant, v. ANDREA L. STABLES, Defendant-Appellee.
No. 97-1684
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Argued: May 6, 1998 Decided: July 1, 1998
Before ERVIN, WILKINS, and WILLIAMS, Circuit Judges.
PUBLISHED. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, District Judge. (CA-96-1040-3)
COUNSEL
ARGUED: Neil Kuchinsky, Colonial Heights, Virginia, for Appellant. Peter Dean Eliades, Hopewell, Virginia, for Appellee.
WILLIAMS, Circuit Judge:
David Hawkins appeals the district court‘s ruling barring Andrea Stables‘s attorney from testifying on the grounds of attorney-client privilege. He claims that the privilege was impliedly waived when Stables answered a question regarding advice the lawyer had given her during a deposition. We agree that the district court misapplied the law of privilege and must be reversed. The law of attorney-client privilege places the burden of proof on the proponent of the privilege. The district court, however, assumed that the privilege applied and placed the burden of proof on the opponent of the privilege. Because the proponent, Stables, testified under oath that no confidential communication had occurred, it is impossible for her tо meet the burden of proof. We, therefore, reverse the decision of the district court and remand for further proceedings consistent with this opinion.
I.
David Hawkins and Andrea Stables are former spouses. They divorced in February of 1993. Hawkins alleges that in January 1996, Stables began to visit Hawkins‘s house and converse with Robin Cox, his girlfriend. Hawkins further alleges that during these conversations, Stables revealed to Cox that during a period from May through October 1991, before Hawkins and Stables had separated, she had placed a wiretap on the home telephone and reсorded Hawkins‘s phone conversations. Cox reported that during the conversations she had with Stables, Stables stated that she had gleaned “damaging” information about Hawkins from the phone tap.
II.
As a result of the conversations that occurred between Stables and Cox, Hawkins filed a complaint on December 31, 1996, in the district court under
At a deposition on March 20, 1997, Stables answered many ques
Q: Is it true or not that Larry Diehl, in his capacity as your [divorce] attorney, told you to take a wiretap off the phone at the marital residence?
A: No, sir. Because I wouldn‘t have discussed that with him, since it didn‘t happen. So, therefore, he would have no need to make mention of that to me.
(J.A. at 119-A5 -- 119-A6.) Although Stables was represented by counsel during the deposition, no objection on the ground of attorney-client privilege was lodged.
After the close of the evidence, the district court issuеd a Memorandum Opinion addressing Hawkins‘s claim in which it determined that Hawkins had failed to prove his case by a preponderance of the evidence. More specifically, the district court determined that Cox was a biased witness with a weak memory and that no other evidence had been presented during the course of the trial to buttress Hawkins‘s contention that any wiretap had existed during his marriage to Stables.
Hawkins filed a timely notice of appeal. On appeal he asserts that the district court erred when it ruled that Diehl‘s testimony fell under the protection of the attorney-client privilege.2
A.
We review attorney-client privilege determinations by district courts under a two-fold standard of review. See Better Gov‘t Bureau v. McGraw, 106 F.3d 582, 601 (4th Cir. 1997), cert. denied, 118 S. Ct. 689 (1998). If the district court‘s ruling below rests on findings of fact, we review for clear error. See id. If, however, the district court‘s decision rests on legal principles, we apply the de novo standard of review. See id. Here, the district court did not hinge its conclusion on factual findings; therefore, we review the decision de novo.
A proper analysis of privilege questions must begin with a determination of the applicablе law.
Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the prinсiples of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.
The current matter is a civil case based upon a federal cause of action,
“The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law,” Upjohn Co. v.United States, 449 U.S. 383, 389 (1981); see also United States v. Aramony, 88 F.3d 1369, 1389 (4th Cir. 1996), cert. denied, 117 S. Ct. 1842 (1997), and “rеsts on the need for the advocate and counselor to know all that relates to the client‘s reasons for seeking representation if the professional mission is to be carried out,” Trammel v. United States, 445 U.S. 40, 51 (1980). The protection of “full and frank” communication between lawyer and client “encourages observance of the law and aids in the administration of justice.” Commodities Futures Trading Comm‘n v. Weintraub, 471 U.S. 343, 348 (1985). Therefore, when the privilege applies, it affords confidential communications between lawyer and client complete protection from disclosure. See United States v. (Under Seal), 748 F.2d 871, 874 (4th Cir. 1984) (stating that attorney-client privilegе protects from revelation the substance of confidential client communications), vacated in part on other grounds, 757 F.2d 600 (4th Cir. 1985). The privilege, however, “`impedes [the] full and free discovery of the truth.‘” In re Grand Jury Proceedings, 727 F.2d 1352, 1355 (4th Cir. 1984) (alteration in original) (quoting Weil v. Investment/Indicators, Research & Management, 647 F.2d 18, 24 (9th Cir. 1981)); see also United States v. Nixon, 418 U.S. 683, 710 (1974) (noting that the privilege stands “in derogation of the search for truth“). Therefore, thе attorney-client privilege is to be narrowly construed, see United States v. Oloyede, 982 F.2d 133, 141 (4th Cir. 1993) (noting narrow construction of privilege); In re Grand Jury Subpoenas, 902 F.2d 244, 248 (4th Cir. 1990) (same); In re Grand Jury Proceedings, 727 F.2d at 1355 (same), and recognized “only to the very limited extent that . . . excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth,” Trammel, 445 U.S. at 50 (internal quotation marks omitted).
This Circuit has adopted the “classic test” for determining the existence of attorney-client privilege:
“The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed
(a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) аn opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.”
United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982) (quoting United States v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-59 (Mass. 1950)). “The burden is on the proponent of the attorney-client privilege to demonstrate its applicability.” Jones, 696 F.2d at 1072.
B.
After reviewing the record of the bench trial that occurred in this matter, it is obvious that the requisite elements of the attorney-client privilege were not fully examined by the district court or by counsel. The district court assumed from opening arguments onward that any conversation that had occurred between Diehl and Stables regarding a phone tap was privileged. The district court interrupted Hawkins‘s counsel during his opening statement and said, “[Y]ou have got a problem . . . if the discussion . . . of the wiretapping took plaсe with the lawyer and he said take it off the line, that would remain privileged.” (J.A. at 22-23.) Later, when Diehl had taken the stand to give testimony, the district court stated, “[t]he issue before us is whether or not there is any reason for the Court to pierce this privilege that exists and has not been waived.” (J.A. at 66.) Hawkins‘s counsel, too, assumed that the privilege applied, and argued in response to the objections at trial only that the privilege had been waived.
The district court misplaced the burden in this case. The burden of proving that a communication falls under the attorney-client privilege rests on the proponent of the privilege. See Jones, 696 F.2d at 1072. Here, rather than requiring Stables to prove the elements of the attorney-client privilege, the district court assumed that it applied, and placed the burden on Hawkins to disprove its applicability. This realignment оf the burden of proof not only harmed Hawkins‘s case below, but it also harms Stables‘s case on appellate review.
Although there is generalized evidence contаined in the record that Stables communicated with Diehl regarding her divorce, there was no specific evidence presented that they ever had a conversation, much less a confidential communication, regarding a possible wiretap. Indeed, if Stables‘s deposition and trial testimony are credited, there is evidence on the record that no communication on this subject ever occurred.
Although the question asked during the deposition clearly elicited information regarding confidential communications Stables may have had with Diehl, and was objectionable on its face on the ground of attorney-client privilege, neither Stables nor her attorney asserted an objection. In response to the question, Stables simply stated that she never had a discussion of the matter with her attorney. By answering the question as she did, Stables both waived her privilege and provided probative evidence that she had had no conversation with her attorney on the subject of a phone tap.3 Without a communication, there is nothing to which the privilege can attach. Based on her own testimony, Stables cannot meet her burden of proof.4
Because we conclude that the district court committed prejudicial error when it disallowed Diehl‘s testimony on the subject of the
REVERSED AND REMANDED