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Bumgarner v. Hart

January 4, 2007

CAMDEN VICINAGE LARRY BUMGARNER, PLAINTIFF,
v.
JANE ANN HART, ET. AL., DEFENDANTS.



The opinion of the court was delivered by: Schneider, United States Magistrate Judge

[Doc. No. 40]

OPINION

This matter has come before the Court upon the Motion of pro se Plaintiff, Larry Bumgarner, seeking to compel responsive and complete Answers to Interrogatories from Defendant, Jane Ann Hart (hereinafter "Hart") [Doc. No. 40]. After reviewing the submissions of the parties and for the following reasons, Plaintiff's Motion to Compel is granted in part and denied in part.

Plaintiff, Larry Bumgarner, entered into a business relationship with JAH Meeting Planners and Hart.*fn1 On July 12, 2005, Plaintiff alleges that Hart transferred his copyrighted web designs to another password-protected website that Plaintiff could not access. (See Plaintiff's Brief in Support of his Motion to Compel Discovery at 3). On August 5, 2005, Plaintiff filed an action in this Court, Civil No. 05-3900, against Hart, JAH Meeting Planners and Dandy.net. Id. Plaintiff alleges that Hart willfully committed copyright infringement by using his work product without permission. Id. Hart retained Defendant, Cooper, Levenson, April, Niedelman, Wagenheim (hereinafter "Cooper Levenson"), to represent her in the copyright infringement action. Hart filed a counterclaim alleging that Plaintiff was in possession of a 2003 Nissan Pathfinder (hereinafter "Pathfinder"), owned by JAH Meeting Planners, without permission. Id. at 4. Plaintiff filed a Motion for Summary Judgment as to Hart's counterclaim. Id. at 5.

Plaintiff alleges that Hart, at the direction of Cooper Levenson, filed a false police report on September 21, 2005 stating that the Pathfinder allegedly provided to Plaintiff through their business relationship was in fact stolen by Plaintiff. Id. The Brigantine Police seized the Pathfinder on October 7, 2005. Plaintiff was originally charged with theft of the Pathfinder. However, the charges were later downgraded to a motor vehicle violation. Id. All charges against Plaintiff that were pending in Brigantine Municipal Court for allegedly stealing the Pathfinder were later dismissed. Id. at 6.

On January 11, 2006, Plaintiff filed a second action, Civil No. 06-142, against Hart and Cooper Levenson, as well as a number of other Defendants, alleging a violation of Plaintiff's Fourth, Fifth, Sixth, Eighth and Fourteenth Amendment rights, obstruction of justice, and perjury for knowingly filing a false police report stemming from the charges filed against him and the seizure of his vehicle. (See Plaintiff's Complaint in Civil No. 06-142 at ¶¶42 and 49). The two actions have been consolidated under Civil No. 05-3900 [Doc. No. 56].

Plaintiff filed this Motion to Compel Answers to Interrogatories against Hart seeking complete and responsive answers to Interrogatory Nos. 1 through 11, 15, 18 through 22 and 24 [Doc. No. 40 under Civil No. 06-142]. Hart objected to Interrogatory Nos. 1 through 8, 20 and 21, asserting the attorney-client privilege. She also objected to Interrogatory Nos. 9 through 11, 15, 18, 19, 22, and 24 arguing that the information requested is not relevant to this action and, therefore, beyond the scope of discovery.

Pursuant to Fed. R. Civ. P. 37(a), "[a] party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling disclosure or discovery." The Court may make such orders in regard to the failure as are just. Fed. R. Civ. P. 37(b)(2). "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the claim or defense of any party." Fed. R. Civ. P. 26(b)(1). Although it is well settled that the scope of discovery is to be construed broadly, "discovery, like all matters of procedure, has ultimate and necessary boundaries." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)(quoting Hickman v. Taylor, 329 U.S. 495, 507 (1947)).

Plaintiff's request to compel responses to Interrogatory Nos. 1 through 8 and 20 and 21 is denied. The information sought is protected by the attorney-client privilege and is not subject to any exception. Plaintiff's request to compel responses to Interrogatory Nos. 9, 10, 11, 15 and 22 is denied because Hart has represented that complete answers to these Interrogatories have been provided. Plaintiff's request to compel responses to Interrogatory Nos. 18, 19 and 24 is granted. Contrary to Hart's assertions, the information sought is relevant and Hart has failed to provide adequate responses.

Plaintiff asks the Court to overrule Hart's attorney-client privilege objections to Interrogatory Nos. 1 through 8 and 20 and 21. Interrogatory Nos. 1 and 2 seek information regarding whether or not anyone from Cooper Levenson suggested or aided in the drafting of a letter sent by Hart to Plaintiff indicating that Hart will report the Pathfinder as stolen. (See Plaintiff's Brief in Support of Motion to Compel at 7). In Interrogatory Nos. 3 and 4, Plaintiff inquires into whether anyone at Cooper Levenson informed Hart that it would be a crime to make a false representation or statement to the police. Id. at 8. Interrogatory Nos. 5 and 6 inquire into whether anyone at Cooper Levenson informed Hart that filing auto theft charges was a way to circumvent Plaintiff's pending motions in this case. Id. Interrogatory Nos. 7 and 8 inquire into whether anyone at Cooper Levenson suggested to Hart that referring to Plaintiff as an employee would help her defense in this action. Id. In Interrogatory No. 20, Plaintiff inquires into whether anyone at Cooper Levenson informed Hart that the October 6, 2005 municipal court hearing was Plaintiff's opportunity to face his accuser and present evidence. Id. Interrogatory No. 21 inquires into whether anyone at Cooper Levenson recommended or told Hart to contact the police to have the Pathfinder taken away from Plaintiff.

The common law governs the attorney-client privilege, like all questions of privilege that arise in federal court. Fed. R. Evid. 501. The attorney-client privilege is recognized as "the oldest of the privileges for confidential communications known to the common law." Upjohn Co. v. U.S., 449 U.S. 383, 389 (1981). The central purpose of the privilege is "to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice." Id. Clients must be free to fully disclose to their attorneys any past wrongdoings. Fisher v. U.S., 425 U.S. 391, 403 (1979). The attorney-client privilege covers all "confidential disclosures by a client to an attorney made in order to obtain legal assistance." Id. at 403.

The privilege, however, is not absolute. "Since the privilege has the effect of withholding relevant information from the factfinder, it applies only where necessary to achieve its purpose." Id. The attorney-client privilege must protect the confidences of wrongdoers, however, the reason for the privilege ceases when the advice sought refers not to prior but to future wrongdoing. Clark v. U.S., 289 U.S. 1, 15 (1933). "The privilege takes flight if the relation is abused. A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law." Id. The attorney-client privilege "does not extend to communications 'made for the purpose of getting advice for the commission of a fraud' or crime." U.S. v.Zolin, 491 U.S. 554 (1989). "The client's intention controls and the privilege may be denied even if the lawyer is not altogether innocent." In re Grand Jury Proceedings, 604 F.2d 798, 802 (3d Cir. 1979). However, the privilege is not lost if the client innocently proposes an illegal course of conduct to explore with counsel he may or may not do. U.S. v. Doe, 429 F.3d 450, 454 (3d Cir. 2005). Only when a client knowingly seeks legal counsel to further a continuing or future crime does the crime-fraud exception apply. Id.

The party seeking to invoke the crime-fraud exception to the attorney-client privilege has the burden of making a prima facie showing of a fraud or crime. See Haines v. Liggett, 975 F.2d 81, 95 (3d Cir. 1992). This requirement is necessary because without it a party could pierce the privilege by simply making a bald, general allegation without any supporting facts. Thus, the party seeking discovery must make a prima facie showing that: "(1) the client was committing or intending to commit a fraud or crime, and (2) the attorney-client communications were in furtherance of that alleged crime or fraud." In re Grand Jury Investigation, 445 F.3d at 274. " A prima facie showing requires presentation of evidence which, if believed by the fact-finder, would be sufficient to support a finding that the elements of the crime-fraud exception were met." See id.; see also Haines, 975 F.2d at 95-96. The evidence must be "something to give colour to the charge"; there must be "prima facie evidence that has some foundation in fact." Clark, 289 U.S. at 14-15.

Hart has asserted the attorney-client privilege in response to Plaintiff's Interrogatory Nos. 1 through 8, 20 and 21. It is undisputed that the communications Plaintiff inquires about, if they occurred, concern communications between a client and his attorney within the scope of the attorney-client relationship. Plaintiff has not argued that the privilege should not apply at all, but rather argues that the communications fall within the crime-fraud exception to the privilege. The Court, however, finds that the crime fraud exception does not apply to the information sought in Interrogatory Nos. 1 through 8, 20 and 21 ...


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