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Ishee v. Federal National Mortgage Association

United States District Court, S.D. Mississippi, Eastern Division

May 23, 2014

PORTIA B. ISHEE, Plaintiff,
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION, ET AL., Defendants.

ORDER

MICHAEL T. PARKER, Magistrate Judge.

THIS MATTER is before the Court on the Motion to Quash [44] filed by Underwood Law Firm, PLLC. Having considered the pleadings and the applicable law, the Court finds that the Motion [44] should be granted in part and denied in part.

BACKGROUND

This action involves the Plaintiff's home, the mortgage on that home, and the actions taken by the parties prior to and after the home was destroyed by a fire and an insurance company issued a check to cover the damage. The discovery dispute currently before the Court relates to the legal services provided by Underwood Law Firm, LLC after fire destroyed Plaintiff's home. According to Plaintiff, Underwood was retained by GMAC Mortgage, LLC[1] to explore the options of reforming Plaintiff's deed of trust and foreclosing on Plaintiff's property.

On April 14, 2014, Plaintiff served a subpoena on Underwood. See Subpoena [43]. On April 24, 2014, Underwood filed its Motion to Quash [44] the subpoena, arguing that certain sought-after documents are protected by the attorney-client privilege and/or protected by the work product doctrine. Underwood also argues that certain requests found in the subpoena are vague and overly broad or seek information that is confidential and/or irrelevant to this action.

The primary dispute between Plaintiff and Underwood concerns the scope and/or applicability of the attorney-client privilege and work product doctrine. Thus, the Court will first address whether the documents sought are protected by the attorney-client privilege and/or work product doctrine. Thereafter, the Court will address the specific requests and whether they should be quashed or modified.

ANALYSIS

A Court may quash or modify a subpoena if it requires disclosure of privileged or otherwise protected matter, if no exception or waiver applies or if it subjects a person to undue burden. Fed.R.Civ.P. 45(c)(3)(iii)-(iv). Underwood argues that many of the documents requested in Plaintiff's subpoena are protected by the attorney-client privilege. Underwood included a privilege log with its Motion to Quash. The privilege log submitted by Underwood, however, does not comply with the Federal Rules of Civil Procedure, the local rules, or the precedent of this Court. Underwood is required to provide sufficient detail in its privilege log for the Court to make a meaningful determination regarding the merits of the claim of privilege. A privilege log must contain at least the name of the document, description of the document, and the nature of the privilege asserted. See Fed.R.Civ.P. 45 (e)(2)(A); L. U. Civ. R. 26(a)(1)(C); Solis v. Bruister, 2013 WL 493374, at *2 (S.D.Miss. Jan. 22, 2013).[2]

Nevertheless, Plaintiff does not object to Underwood's Motion on that ground, instead focusing primarily on waiver issues and the applicability of the attorney-client privilege and work product doctrine. Thus, the Court will not deny the Motion on that ground but will direct Underwood to revise its privilege log as set forth below.

Attorney-Client Privilege

The attorney-client privilege prevents disclosure of communications between an attorney and client that were made while seeking or rendering legal services. Upjohn Co. v. US, 449 U.S. 383, 395 (1981). The party asserting the privilege bears the burden of demonstrating the privilege exists under the circumstances presented. In re Santa Fe Intern. Corp., 272 F.3d 705, 710 (5th Cir. 2001).

Waiver

Plaintiff argues that the attorney-client privilege between GMAC and Underwood was waived when one of the Defendants, Green Tree Financial Servicing, LLC, [3] produced in discovery some of the communications between Nancy Dilworth (GMAC) and Blanche Grubbs (Underwood) regarding the Plaintiff's property. The attorney-client privilege is broad, but it may be waived. A waiver may occur when a client reveals otherwise privileged communications to a third party. See Jackson Medical Clinic for Women, P.A. v. Moore, 836 So.2d 767 (Miss. 2003).

Underwood, however, argues that Green Tree cannot waive the attorney-client privilege that existed between GMAC and Underwood. Presumably, GMAC held the attorney-client privilege jointly with Green Tree under the common interest privilege.[4] The "common interest" or "joint defense" privilege is an exception to the general rule that no privilege attaches to communications that are made in the presence of or disclosed to a third party. In re Auclair, 961 F.2d 65, 69 (5th Cir. 1992) (holding that the joint defense or common interest privilege preserved the attorney-client privilege against waiver in the context of a group with common legal interests); Knight v. State, 751 So.2d 1144, 1152 (Miss. App. 1999). The Fourth Circuit has provided a concise explanation of this privilege:

[T]he common interest doctrine applies when two or more parties consult or retain an attorney concerning a legal matter in which they share a common interest. In this context the communications between each of the clients and the attorney are privileged against third parties, and it is ...

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