Hawkins v. Stables, 4th Cir. (1998)
Hawkins v. Stables, 4th Cir. (1998)
Hawkins v. Stables, 4th Cir. (1998)
No. 97-1684
ANDREA L. STABLES,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-96-1040-3)
Argued: May 6, 1998
Decided: July 1, 1998
Before ERVIN, WILKINS, and WILLIAMS, Circuit Judges.
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Reversed and remanded by published opinion. Judge Williams wrote
the opinion, in which Judge Ervin and Judge Wilkins joined.
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COUNSEL
ARGUED: Neil Kuchinsky, Colonial Heights, Virginia, for Appellant. Peter Dean Eliades, Hopewell, Virginia, for Appellee.
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OPINION
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 to 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 wire tap on the home telephone and recorded 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 18 U.S.C.A. 2520 (West Supp. 1998), claiming that Stables had disclosed information obtained during an illegal wiretap and
requesting statutory damages of $10,000.1
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1 18 U.S.C.A. 2520 states in pertinent part:
(a) [A]ny person whose wire, oral, or electronic communica2
At a deposition on March 20, 1997, Stables answered many questions, including the following:
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 attorneyclient privilege was lodged.
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tion is intercepted, disclosed, or intentionally used in violation of
this chapter may in a civil action recover from the person or
entity which engaged in that violation such relief as may be
appropriate.
(b) [A]ppropriate relief includes -(1) such preliminary and other equitable or declaratory
relief as may be appropriate;
(2) damages under subsection (c) and punitive damages in
appropriate cases; and
(3) a reasonable attorney's fee and other litigation costs
reasonably incurred.
(c) Computation of damages. -....
(2) [T]he court may assess as damages whichever is the
greater of -(A) the sum of the actual damages suffered by the
plaintiff and any profits made by the violator as a result of
the violation; or
(B) statutory damages of whichever is the greater of
$100 a day for each day of violation or $10,000.
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III.
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 applicable law. Federal Rule of Evidence 501 addresses
that issue:
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 principles 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.
Fed. R. Evid. 501; see also Jaffee v. Redmond , 518 U.S. 1, 8 (1996).
The current matter is a civil case based upon a federal cause of
action, 18 U.S.C.A. 2520 (West Supp. 1998). Therefore, following
the mandate of Rule 501, we must apply "the principles of the common law as they may be interpreted by the courts of the United States
in the light of reason and experience." Fed. R. Evid. 501.
"The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law," Upjohn Co. v.
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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 "rests 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 privilege 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, the
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
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IV.
Because we conclude that the district court committed prejudicial
error when it disallowed Diehl's testimony on the subject of the
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The client is the holder of the attorney-client privilege, see In re Grand
Jury Proceedings, 727 F.2d 1352, 1355-56 (4th Cir. 1984) (noting that
the client must claim the privilege), and can waive it either expressly, or
through conduct, see Richard L. Marcus, The Perils of Privilege: Waiver
and the Litigator, 84 Mich. L. Rev. 1605, 1615-1626 (1986). The latter
type of waiver is referred to as "implied waiver." See generally, 26A
Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and
Procedure 5722 (1992). As a general rule, implied waiver occurs when
the party claiming the privilege has made any disclosure of a confidential
communication to any individual who is not embraced by the privilege.
See Sheet Metal Workers Int'l Assoc. v. Sweeney, 29 F.3d 120, 125 (4th
Cir. 1994) (noting that any voluntary disclosure to a third party waives
the privilege); United States v. Oloyede, 982 F.2d 133, 141 (4th Cir.
1993) (same); In re Martin Marietta Corp., 856 F.2d 619, 623 (4th Cir.
1988) (same); In re Grand Jury Proceedings, 727 F.2d at 1357 (same);
United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982) (same). Such
a disclosure vitiates the confidentiality that constitutes the essence of the
attorney-client privilege. See Wright & Graham, supra at 5722.
Furthermore, such a disclosure not only waives the privilege as to the
specific information revealed, but also waives the privilege as to the subject matter of the disclosure. See Sheet Metal Workers Int'l Assoc., 29
F.3d at 125; Oloyede, 982 F.2d at 141; In re Martin Marietta Corp., 856
F.2d at 623; In re Grand Jury Proceedings, 727 F.2d at 1357; Jones, 696
F.2d at 1072. Therefore, under our precedents, Stables waived the privilege as to the subject matter of the phone tap. Because the privilege had
been impliedly waived by Stables, Hawkins was entitled to question
Diehl regarding the alleged wiretap. See, e.g. , In re Martin Marietta, 856
F.2d at 623.
Subject matter waiver is limited to "other communications relating to
the same subject matter." Jones, 696 F.2d at 1072. In this case, the subject matter revealed related to the wiretap. Thus, on remand Diehl's testimony should be limited to the wiretapping issue. Stables's subject matter
waiver does not open up the possibility of a fishing expedition of all confidential communications that she had with Diehl during the course of
the divorce representation.
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alleged phone tap, we reverse the judgment of the district court and
remand this case for further proceedings consistent with this opinion.
REVERSED AND REMANDED
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