Tohono O'odham Nation v. Ducey et al
Filing
230
ORDER re: 227 Brief (Non Appeal) filed by Tohono O'odham Nation, 228 Brief (Non Appeal) filed by Daniel Bergin. Signed by Judge David G Campbell on 7/25/2016. (DGC, nvo)
Case 2:15-cv-01135-DGC Document 230 Filed 07/25/16 Page 1 of 5
1
WO
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
7
FOR THE DISTRICT OF ARIZONA
8
9
Tohono O'odham Nation,
Plaintiff,
10
11
ORDER
v.
12
No. CV-15-01135-PHX-DGC
Douglas A Ducey, et al.,
13
Defendants.
14
15
This discovery dispute involves the propriety of Director Bergin’s assertion of the
16
common interest privilege. After a telephonic discovery conference, the Court ordered
17
Director Bergin to submit for in camera review Entry 102 on his privilege log. After
18
reviewing the document, the Court requested additional briefing. The Court has reviewed
19
the briefing (Docs. 227, 228), and concludes that the common interest privilege does not
20
protect Entry 102 from disclosure.
21
The common interest privilege was first adopted in the criminal defense context.
22
In Continental Oil Co. v. United States, 330 F.2d 347 (9th Cir. 1964), two defendants
23
were summoned to testify before a grand jury. They retained separate attorneys, each of
24
whom interviewed his or her client, prepared a summary of the interview, and exchanged
25
the summary with the other defense lawyer. Id. at 348. The purpose of this exchange
26
was to make “representation of their clients in connection with the Grand Jury
27
investigation and any resulting litigation, more effective.”
28
government subsequently sought to discover these summaries, and the trial court held
Id. at 348-49.
The
Case 2:15-cv-01135-DGC Document 230 Filed 07/25/16 Page 2 of 5
1
that they were not privileged. Id. The Ninth Circuit reversed, finding that the attorney-
2
client privilege had not been waived when the summaries were shared.
3
recognized a “joint-defendant exception” to the ordinary rule that privileges are waived
4
when privileged material is shared with third parties. Id. at 350; see also Hunydee v.
5
United States, 355 F.2d 183, 185 (9th Cir. 1965) (“[W]here two or more persons who are
6
subject to possible indictment in connection with the same transactions make confidential
7
statements to their attorneys, these statements, even though they are exchanged between
8
attorneys, should be privileged to the extent that they concern common issues and are
9
intended to facilitate representation in possible subsequent proceedings.”).
The court
10
The joint defense privilege has been extended to civil cases. In United States v.
11
Gonzalez, 669 F.3d 974 (9th Cir. 2012), a husband and wife were convicted in separate
12
trials for fraud arising from an insurance scam. The wife subsequently filed a petition for
13
habeas corpus – technically, a civil proceeding – arguing that her trial counsel had been
14
ineffective for failing to call as an exculpatory witness the husband, who had given a
15
statement that the wife had nothing to do with the crime before ultimately claiming at
16
trial that the wife was responsible. Id. at 976. When the government subpoenaed the
17
wife’s trial counsel about communications received from the husband’s lawyer, the
18
husband moved to quash the subpoena on the basis of the joint defense privilege. Id. at
19
976-77.
20
The Ninth Circuit acknowledged that it “has long recognized that the joint defense
21
privilege is ‘an extension of the attorney-client privilege.’” Id. at 978 (citations omitted).
22
The court explained:
23
24
25
26
27
28
[w]hether the jointly interested persons are defendants or plaintiffs, and
whether the litigation or potential litigation is civil or criminal, the rationale
for the joint defense rule remains unchanged: persons who share a
common interest in litigation should be able to communicate with their
respective attorneys and with each other to more effectively prosecute or
defend their claims.
Id. at 978 (citing In re Grand Jury Subpoenas, 902 F.2d 244, 249 (4th Cir. 1990)
-2-
Case 2:15-cv-01135-DGC Document 230 Filed 07/25/16 Page 3 of 5
1
(emphasis added)). The court also made clear that parties invoking the privilege “need
2
not have identical interests and may even have some adverse motives,” but they must at
3
least “be engaged in maintaining substantially the same cause on behalf of other parties in
4
the same litigation.” Id. at 980-81 (quotation marks and citations omitted). The Ninth
5
Circuit found that a joint defense agreement existed between the husband and wife prior
6
to the trials, but found that the arrangement may have ended before the trials and
7
therefore remanded for further proceedings. Id. at 983.
8
From these cases we learn that the joint defense privilege, or, more broadly, the
9
common interest privilege, is essentially an extension of the attorney-client privilege.
10
Director Bergin argues that the privilege applies in the absence of pending litigation.
11
Doc. 228 at 2-4. He is correct; pending litigation is not a prerequisite. Gonzalez, 669
12
F.3d at 978 (citing In re Grand Jury Subpoenas, 902 F.2d at 249).
13
Director Bergin next argues that the privilege may apply in the regulatory context.
14
Doc. 228 at 4. The Director cites cases involving the regulatory context, but none is
15
particularly helpful. This case is unlike United States v. Bergonzi, 216 F.R.D. 487 (N.D.
16
Cal. 2003), which involved a direct adversity between the regulator and the regulated
17
party that is absent here. Nor is this case like Broessel v. Triad Guaranty Insurance Co.,
18
238 F.R.D. 215 (W.D. Ky. 2006), which recognized a common legal interest “that
19
extends to legislative and regulatory matters, as well as in matters in litigation or could
20
lead to litigation.” Id. at 220. Broessel does not shed light on whether a regulator like
21
the Arizona Department of Gaming may enter into a common interest agreement with an
22
entity it regulates for the purpose of opposing the actions of another entity it regulates.
23
The closest case to this dispute appears to be In re Lidoderm Antitrust Litigation,
24
MDL No. 2521, 2016 WL 861019 (N.D. Cal. 2016), which involved the denial of the
25
common interest privilege to parties that shared only a common commercial or business
26
interest, rather than a common legal interest. Id. at *4. As the court in Lidoderm
27
explained: “the common interest privilege protects documents shared between parties
28
who have a common legal interest; it does not extend to and cannot protect disclosure of
-3-
Case 2:15-cv-01135-DGC Document 230 Filed 07/25/16 Page 4 of 5
1
communications regarding a common business interest.” Id. (emphasis in original); see
2
also In re Pac. Pictures Corp., 679 F.3d 1121, 1129 (9th Cir. 2012) (“a shared desire to
3
see the same outcome in a legal matter is insufficient to bring a communication between
4
two parties within this exception”); Nidec Corp. v. Victor Co. of Japan, 249 F.R.D. 575,
5
578 (N.D. Cal. 2007) (“that legal assistance must pertain to the matter in which the
6
parties have a joint legal interest, and the communication must be designed to further that
7
specific legal interest”).
8
Director Bergin has not identified a common legal interest between the Arizona
9
Department of Gaming and Gila River. True, they share a common goal of stopping the
10
West Valley Resort, but this common interest is not akin to those shared by parties faced
11
with or seeking to assert the same criminal or civil claims. Gila River has a strong
12
commercial incentive to stop the West Valley Casino. Director Bergin’s interest is not
13
commercial. As a state regulator, he seeks to bar what he views as a fraudulently
14
procured casino operation. Despite multiple opportunities to do so, Director Bergin has
15
been unable to locate, and the Court has not found, a single case recognizing a common
16
interest privilege in similar circumstances.
17
The Nation notes, correctly, that recognition of a common interest privilege in this
18
case would constitute a significant extension of the doctrine. Doc. 227 at 4-5. The Court
19
cannot find in the roots of the joint defense privilege a reasonable basis for extending the
20
doctrine to parties who merely share a common goal with no common legal interests.
21
The Court also finds troubling the notion that a state regulatory body could join in
22
a privilege-protected partnership with one of the entities it regulates to thwart expansion
23
efforts of another entity it regulates, whether or not the regulatory body has a valid basis
24
for opposing the expansion. That appears to be what is happening here. The Nation
25
identifies several relevant circumstances surrounding Entry 102, including the timing
26
with respect to the vendor letters, the involvement of a lobbyist for Gila River, and
27
additional letters to the Congressional Budget Office and the Arizona Department of
28
Liquor Licenses and Control.
-4-
Case 2:15-cv-01135-DGC Document 230 Filed 07/25/16 Page 5 of 5
1
Whether it is appropriate for the Director to partner with a regulated entity in such
2
actions is a question beyond the scope of this order or the jurisdiction of this Court, but to
3
say that their communications in such an endeavor are privileged and immune from
4
discovery is quite another matter. The Court can find no basis for such an expansive
5
privilege in the case law, and sees ample reasons for caution before recognizing it. The
6
Court therefore declines to recognize the common interest privilege asserted by the
7
Director.
8
9
10
IT IS ORDERED that Director Bergin shall produce Entry 102 to the Nation
within three business days of this order.
Dated this 25th day of July, 2016.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-5-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?