Jane Doe et al v. Drummond Company, Inc et al

Filing 352

MEMORANDUM OPINION AND ORDER -With regard to the pltfs who have been deposed to date, the testimony regarding introductory remarks made by the atty is due to be unsealed because pltfs have not established the applicability of atty cliient privilege. The clerk is DIRECTED to unseal the deposition testimony filed 3/7/2012 327 . Signed by Judge R David Proctor on 4/17/2012. (AVC)

FILED
2012 Apr-17 PM 04:03
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CLAUDIA BALCERO GIRALDO, et
al.,
Plaintiffs,
v.
DRUMMOND COMPANY, INC., et
al.,
Defendants.

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Case No.: 2:09-CV-1041-RDP

MEMORANDUM OPINION AND ORDER
On January 27, 2012, the parties contacted the court for guidance on an issue that had
surfaced during the depositions of several Plaintiffs in this case. (See generally Doc. #309; see also
Doc. #325 at 3). Specifically, some of the deposed Plaintiffs testified that they attended at least one
meeting in which individuals may have been present who were not potential plaintiffs in this case
or seeking legal advice as to options available for those who had been victims of alleged paramilitary
violence. (See Doc. #314 at 1; see also Doc. #325 at 3). The question is whether the conversations
during these meetings might be protected by the attorney-client privilege. The parties have filed
briefs concerning their respective positions on the issue, (see Docs. #314, 325, 335) and it is now
before the court for review.
I.

Background
The testimony obtained at this time in discovery has evidenced that the deposed Plaintiffs

attended meetings at houses and hotels which were held for the purpose of discussing matters related
to victims who had been killed by paramilitaries. (See Doc. #314 at 1-2) (“Importantly, in making

their initial remarks at the meetings, the lawyers were responding to a key known fact about all
attendees: they had loved ones who had been killed in the region by the AUC and they wanted to
understand whether they could seek legal redress for these deaths.”); see also Doc. #325 at 1-2
(“[T]he purpose of these four (4) meetings was to inform the groups that a lawsuit would be filed
and to generally discuss the allegations of the lawsuit.”)). At the first of these meetings, which was
held at Jerardith Nieto Cuello’s house and included some 30 attendants, an attorney identified as
“Ricardo” made some remarks, including that he had “proof” (apparently of Drummond’s liability)
but could not show it to those in attendance because of its confidential nature; “[W]e spoke about
the lawsuit and nothing else.” (See Doc. #325 at 1, 3; Exh. A at 64, 66; see also Doc. #314 at 2).
A man named Santander Valencia was present at this first meeting. (Doc. #314 at 3). According
to Jerardith Cuello, Valencia is a Drummond employee and a union member. (See Doc. #314, Exh.
A at 98). Valencia was “facilitating” the communication between the clients and the lawyer;
however, he spoke the same language as the attendees and did not (and does not) have his own claim
in this case. (See Doc. #314, Exh. A at 98-101). Valenica was not present at subsequent meetings.
When the parties contacted the court for guidance on January 27, 2012, they were in the
midst of a dispute as to the breadth of questioning that could be pursued by defense counsel.
Specifically, defense counsel wanted to know what the attorney Ricardo said to start off the meetings
and any additional comments throughout while Plaintiffs’ counsel was not allowing the questioning.
(See Doc. #314, Exh. A at 92, 97).
The court ruled that “to the extent there was anyone in any meeting that was not a potential
plaintiff or . . . seeking legal advice for their own selves, that’s a waiver.” (Doc. #314, Exh. A at
101). For later meetings, at which Valencia was not present, the court conditionally ruled: “[W]ith
2

respect to any meetings where there [were] only individuals actually seeking advice about whether
they should pursue a claim against known or unknown persons, I’m going to permit . . . in camera
response [of asking about introductory remarks made by Ricardo and having the defense attorneys
step out of the room while the question is answered].” (Doc. #314, Exh. A at 101). The parties
were, however, permitted to brief the privilege issue. They have chosen to do so and, again, the
dispute is before the court for review.
II.

Analysis
The party invoking the attorney client privilege bears the burden of proving that an attorney-

client relationship existed and that the particular communications were confidential. See Bogle v.
McClure, 332 F.3d 1347 (11th Cir. 2003), citing United States v. Schaltenbrand, 930 F.2d 1554,
1562 (11th Cir. 1991). To determine if a particular communication is confidential and protected by
the attorney-client privilege, the privilege holder must prove the communication was (1) intended
to remain confidential and (2) under the circumstances was reasonably expected and understood to
be confidential. Id., citing United States v. Bell, 776 F.2d 965, 971 (11th Cir. 1985). That is, the
attorney client privilege is not absolute. Because it “serves to obscure the truth, . . . it should be
construed as narrowly as it is consistent with its purpose.” United States v. Suarez, 820 F.2d 1158,
1160 (11th Cir. 1987).
A.

Effect of the Presence of Santander Valencia at the First Meeting

The parties do not dispute that Santander Valencia is a third party to the litigation. (See Doc.
#314 at 8; see also Doc. #325 at 6). Generally, the presence of a third party who is neither an
attorney nor a co-defendant or co-plaintiff waives the attorney client privilege because the
communication is no longer confidential. Charles W. Gamble, McElroy’s Alabama Evidence, §
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392.01 (3d ed. 1977) (noting that the attorney client privilege does not exist when the
communications are made in the presence of a third party whose presence is not necessary for the
successful communication between the attorney and the client). Certain exceptions do exist
including the common interest exception and the facilitating communications exception which
Plaintiffs contend are applicable here. (See Doc. #325 at 7, 9). See Hodges, Grant & Kaufmann v.
United States Government, 768 F.2d 719, 720-21 (5th Cir. 1985) (“The privilege is not, however,
waived if a privileged communication is shared with a third person who has a common legal interest
with respect to the subject matter of the communication.”); see also Oxyn Telecommunications, Inc.
v. Onse Telecom, 2003 WL 660848 at *2-4 (S.D. N.Y. Feb. 23, 2003) (holding that privilege was
not destroyed where two third parties were present during meetings to enhance the effectiveness of
communications with the lawyers).
According to Plaintiffs, a common legal interest is established by the fact that Valencia is a
union organizer and a trusted member of the community. (See Doc. #325 at 7-8). Valenica’s union,
Sintramienergetica, “is deeply involved in human rights issues at Drummond, and was a lead
Plaintiff in Drummond I.” (Doc. #325 at 8). Jerardith Cuello testified that Valencia acted as a
“bridge” from the Plaintiffs to the attorney. (Doc. #325, Exh. A at 21-22, 120). “Mr. Valenica and
the Drummond union have a shared interest in ensuring that their workers, and the families of the
workers, seek redress for violence the AUC committed with the support and assistance of
Drummond.” (Doc. #325 at 9). Further, Plaintiffs contend that they are not sophisticated and have
no familiarity with the American legal system, and that Valenica’s presence was effectively that of
a friend who had knowledge of both cultures and could explain attorney communications. (See Doc.
#325 at 10-11).
4

The court does not find these arguments persuasive. Valenica is neither a plaintiff in this
lawsuit, nor could he fairly be described as a potential plaintiff. (Doc. #314, Exh. A at 21, 62).
Sintramienergetica is not a party in this lawsuit and Plaintiffs are not members of
Sintramienergetica. There is no binding authority for extending the privilege to the third party in this
case as Plaintiffs suggest. See United States v. Almeida, 341 F.3d 1318 (11th Cir. 2003) (holding
that the common interest exception to be applicable where an attorney has multiple clients); see also
United States v. American Tel. & Tel. Co., 642 F.2d 1285, 1298 (D.C. Cir. 1980) (holding the
common interest exception to be applicable to co-parties); Anderson v. Torrington Co., 120 F.R.D.
82, 84-86 (N.D. Ind. 1987) (in applying the common interest exception, noting that the key
consideration is that the nature of the interest be identical, not similar). In addition, there is no
evidence before the court that Valenica’s presence facilitated communications between the attorney
and the potential plaintiffs. Although Jerardith Cuello testified that Valencia acted as a “bridge”
from the Plaintiffs to the attorney (Doc. #325, Exh. A at 21-22, 120), there is no evidence that the
potential Plaintiffs needed such a messenger or intermediary nor that Valencia was of such stature
that he could act in such a capacity. The court’s previous ruling, that the entirety of any meetings
held in the presence of non-party Santander Valenica are not privileged, remains unchanged.1
B.

Subsequent Meetings in which the Identity of all Participants Cannot be
Ascertained

Defendants contend that even for those meetings not attended by Valenica the privilege is

1

The attorney work product doctrine does not shield Plaintiffs from this ruling. Although
oral statements can be privileged under the work product doctrine, the testimony shows that at this
meeting, attorneys were not discussing their mental impressions of the case. See Hickman v. Taylor,
329 U.S. 495 (1947). (Doc. #314, Exh. A at 117).
5

nevertheless waived because “strangers” were present at the meetings.2 (Doc. #314, Exh. A at 103104; Exh. E at 36-37; Exh. F at 28-29; Exh. G at 28-29; Exh. H at 24-25). Communications made
“in a room full of dozens of strangers,” Defendants contend, “made without knowledge of whether
those strangers were attorneys, potential plaintiffs, or whether they were otherwise involved in a
lawsuit, fundamentally fail the Eleventh Circuit’s test for confidentiality – a reasonable expectation
or understanding that the communications were to be confidential.” (Doc. #314 at 14-15) (citing
McCafferty’s, Inc. v. Bank of Glen Burnie, 179 F.R.D. 163, 167-168 (D. Md. 1998) (acknowledging
that the attorney client privilege is waived where “conversations between attorneys and clients in a
public place are overheard by others”)). The question, however, seems to be not so much whether
everyone knew everyone at the meetings, but rather whether everyone was gathered for the purpose
of obtaining legal advice as victims of paramilitary violence. Absent this commonality, the
participants were “disinterested” and “strangers” much like Santander Valenica.
The testimony of certain Plaintiffs reveals that the meetings were called to discuss matters
related to the victims of paramilitary violence. (Doc. #314, Exh. A at 17-18). Jerardith Cuello, at
whose house four meetings were held, testified that all participants at the meetings at her house
became Plaintiffs in this case. (Doc. #314, Exh. A at 23, 64). She testified that she recruited
participants for the meetings by traveling through towns, at the expense of Ricardo, and encouraging
others to become part of a lawsuit against Drummond. (Doc. #314, Exh. A at 70-72). Jerardith
Cuello found people to call on by “go[ing] to the towns and . . . meet[ing] perhaps with the president

2

Defendants’ brief in this regard argues that the entire meeting, for any meeting within which
the identity of all participants cannot be ascertained, is not privileged. This is a little different from
the question that was posed to the court in late January, i.e. whether opening remarks made by an
attorney to the group are privileged.
6

of the community action committee and he would say, well, so and so or so and so, and I would go
and I would tell them.” (Doc. #314, Exh. A at 72). Other Plaintiffs testified that they had no idea
of the purpose of the meetings prior to attending. (Doc. #314, Exh. E at 20-21, 26-27; Exh. I at 2425).3 However, at these meetings the participants were told that Drummond might have been
3

Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:

Did she tell you what the meeting was going to be about?
No.
She didn’t give you any information about what this meeting was going to be
about?
No.
Did you ask her?
Yes.
And she didn’t give you an answer?
No.
Why did you go to the meeting?
Well, you know, I went to find out what it was about. You know, since she
came to tell me about it, I went to see, to find out.

...
Q:
A:

Did anyone ask you who you were when you got to the meeting?
No.

...
Q:
A:

Before you got to the meeting, did you have any understanding of what it was
going to be about?
No.

(Doc. #314, Exh. E at 20-27).
Q:
A:
Q:
A:
Q:
A:

Did she give you any information about what the meeting was to be about?
No.
Did she tell you that if you went to the meeting that you could be given or
you might be given money?
Yes.
Did she tell you how much money you might be given?
No.

...
7

involved with paramilitary activity in Colombia. (Doc. #314, Exh. A at 78-79).
This dichotomy of information presents an interesting question on the applicability of the
attorney client privilege. Plaintiffs cannot positively identify all attendees as Plaintiffs or potential
Plaintiffs, yet that seems to have been their intent, especially given the fact that some of the meetings
occurred after this lawsuit had already been initiated. (See Doc. #314, Exh. F at 20; Exh. E at 36-37;
see also Doc. #325 at 14-16). The locations of the meetings were less than completely private4 and
the testimony is murky concerning exactly which attendees were present and whether those present
were there to seek legal advice. (See Doc. #325 at 20) (“The circumstances of this case are not
unlike those in which courts have held that prospective clients were seeking legal advice when they
attended meetings with lawyers ‘to explore the possibility of raising potential . . . claims . . .’”). This
could very well be because those deposed are “unsophisticated.” (Doc. #325 at 19). Therefore, with
regard to the Plaintiffs who have been deposed to date, the testimony regarding introductory remarks

Q:
A:

And was anyone else present at this meeting, other than the people who had
lost relatives or loved ones?
No.

...
Q:
A:

As a result of going to these meetings, did you make a decision to file a
lawsuit?
Uh-huh, yes.

(Doc. #314, Exh. I at 25-26, 29).
4

Subsequent meetings were held in abandoned liquor stores, private homes, and in private
outdoor locations. Despite the fact that they intended for the meetings to remain confidential, there
are questions about whether Plaintiffs exercised diligence in seeking to maintain the confidentiality
of the meetings (see Doc. #325 at 17) (citing McCafferty’s, 179 F.R.D. at 164 (noting that relevant
to the determination is the “diligence the party claiming the privilege exercised in seeking to
maintain confidentiality” and the “intent to maintain confidentiality”)).
8

made by the attorney is due to be unsealed because Plaintiffs have not established the applicability
of attorney client privilege. See Bogle, 332 F.3d at 1347. And with respect to Plaintiffs’ depositions
which may still be taken, Defendants shall be permitted to question about any introductory remarks
made by the attorney at the meetings where non-clients were present. However, where meetings
were held after this lawsuit had been filed, no further questioning as to the matters discussed therein
will be allowed. See Bell, 776 F.2d at 971.
III.

Conclusion
For the foregoing reasons, the clerk of the court is DIRECTED to unseal the deposition

testimony filed on March 7, 2012 as Document #327.
DONE and ORDERED this

17th

day of April, 2012.

___________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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