United States District Court, S.D. California
ORDER RESOLVING JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE AND DENYING DEFENDANTS' MOTION TO COMPEL (Dkt. No. 64.)
NITA L. STORMES, Magistrate Judge.
Plaintiff Betty Ann Bird ("Plaintiff") commenced this action in California Superior Court, alleging several causes of action arising from Defendants' termination of her employment. The case was removed to federal court by Defendants. (Dkt. No. 1.)
Currently pending before the Court is the parties' joint motion for determination of discovery dispute. (Dkt. No. 64.) The parties seek to resolve the issue of whether certain communications between Plaintiff and her domestic partner, Julie Hussey, are entitled to the protections afforded the attorney-client relationship. Id. After discovery was conducted on the issue, the parties filed the pending joint motion. Id. After reviewing the submissions, the Court ordered Plaintiff and Ms. Hussey to file declarations to supplement the record, and they were timely provided. (Dkt. Nos. 67-69.) Defendants filed a response to the supplemental declarations. (Dkt. No. 70.) The matter is now fully briefed and ripe for determination.
Plaintiff and Julie Hussey are domestic partners. (Dkt. No. 64-5 ¶ 2.) Ms. Hussey is a civil litigator and is employed at DLA Piper. (Dkt. No. 66-1 at 6.) Plaintiff is represented in this action by Edelson & Rezzo ("trial counsel"). (Dkt. No. 64-6 ¶ 1.)
Earlier in these proceedings, it came to this Court's attention that Plaintiff invoked attorney-client privilege and work product protection regarding certain communications with Ms. Hussey. (Dkt. Nos. 15 at 7-10, 15-2 at 26-33.) This Court deferred ruling on the propriety of these claims until after Plaintiff and Ms. Hussey were deposed, to allow Defendants the opportunity to investigate whether an attorney-client relationship existed. (Dkt. No. 22 at 8.) If there was an attorney-client relationship between Plaintiff and Ms. Hussey at the time of the communications, Plaintiff is entitled to designate them as privileged and therefore withhold them from disclosure. Complicating the issue is the fact that Plaintiff also forwarded communications from her trial counsel to Ms. Hussey. (Dkt. No. 64-5 ¶ 4.) If Plaintiff and Ms. Hussey did not have an attorney-client relationship, this forwarding of information could constitute waiver of the privilege that existed between Plaintiff and her trial counsel. See Cal. Evid. Code § 912.
A. Plaintiff's Argument
Plaintiff essentially argues that she had an implied attorney-client relationship with Ms. Hussey. Although Ms. Hussey was not officially retained as counsel, Plaintiff asked Ms. Hussey for "legal guidance and legal opinion" regarding her dispute with her employer, and sought input on her "legal rights and options." (Dkt. No. 64-5 ¶ 4.) According to Plaintiff's trial counsel, a meeting took place between them, Plaintiff, and Ms. Hussey, where it was agreed that Ms. Hussey would be part of the "attorney team" and that she would be included in confidential communications. (Dkt. Nos. 64-4 ¶¶ 3-4, 64-6 ¶ 2.) In supplemental briefing ordered by the Court, Plaintiff states she was informed by her trial counsel that the attorney-client privilege would not be in jeopardy because Ms. Hussey was an attorney, and Plaintiff also states that she understood that Ms. Hussey would give her "guidance from a legal perspective." (Dkt. No. 68 ¶¶ 4-5.) Plaintiff states she shared information related to this lawsuit with Ms. Hussey solely because she is an attorney, and not because she was her partner. Id. ¶ 9. Ms. Hussey confirmed that she agreed to "help [Plaintiff] understand the litigation process." (Dkt. No. 69 ¶ 4.) She also unequivocally states that she has never been retained as Plaintiff's counsel. Id. at 6.
B. Defendants' Argument
Defendants assert that the communications withheld by Plaintiff should not be protected by the attorney-client privilege. They note that Ms. Hussey never actually represented Plaintiff, and argue that she could not have represented her due to a potential conflict of interest. (Dkt. No. 70 at 4-7.) Plaintiff admits that she understood Ms. Hussey would not directly represent her in this action. (Dkt. No. 68 ¶ 8.) Defendants also argue that Plaintiff is not entitled to rely on trial counsel's advice that her communications with her partner would be privileged. (Dkt. No. 70 at 2.)
A. Governing Law
In an action in federal court that is based on diversity of citizenship, state law governs questions of attorney-client privilege. Fed.R.Evid. 501; Star Editorial, Inc. v. United States District Court for the Central District of California (Dangerfield), 7 F.3d 856, 859 (9th Cir. 1993) (California law governs questions of privilege in a diversity action where state law provides the rule of decision). In California, privileges such as the one between attorney and client are created and governed by statute. HLC Properties, Ltd. v. Superior Court, 35 Cal.4th 54, 59 (2005).
The attorney-client privilege under California law is outlined in § 954 of the California Evidence Code. It provides that "the client...has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer[.]" The Code also defines both "lawyer" and "client." Section 950 of the Code defines a "lawyer" as "a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation." "Client" is defined as "a person who, directly or through an authorized representative, consults a lawyer for ...