Michael FLYNN, Plaintiff,
v.
CHURCH OF SCIENTOLOGY INTERNATIONAL, et al., Defendants.
MBD No. 86-109.
United States District Court,
D. Massachusetts.
Aug. 28, 1986.
Defendant in civil action sought to compel deposition testimony of three
persons and answers to deposition questions propounded to fourth person. The
District Court, Joyce London Alexander, United States Magistrate, held that:
(1) plaintiff's attorney and his wife, who was law office employee, were
entitled to protection of attorney-client and work-product privileges, and any
questions relating to their personal, fiduciary, and client financial records
would be irrelevant, so deposition subpoena would be quashed and protective
order granted; (2) assistant United States attorney assigned to ongoing
criminal investigation and working with grand jury also could not be compelled
to give deposition testimony and was protected under privilege for law
enforcement investigative information and by criminal rule prohibiting
disclosure of matters occuring before grand jury; and (3) member of law firm
representing plaintiff had properly refused to answer deposition questions on
grounds of lack of relevance and attorney-client and work-product privileges.
Ordered accordingly.
[1] WITNESSES
One who consults lawyer with view to obtaining professional legal services from
him is regarded as client, for purposes of attorney-client privilege.
[2] WITNESSES
Communications from client to attorney are ordinarily privileged if they are
legally related and have expectation of confidentiality.
[2] WITNESSES
Communications from client to attorney are ordinarily privileged if they are
legally related and have expectation of confidentiality.
[3] FEDERAL CIVIL PROCEDURE
Attorney's work-product privilege protects against disclosure of his mental
impressions, conclusion, opinions, or legal theories.
[4] FEDERAL CIVIL PROCEDURE
Party seeking discovery of lawyer's work product must establish adequate
reasons to justify such production; when desired material can be obtained
elsewhere, burden of showing such special circumstances has not been met.
[5] FEDERAL CIVIL PROCEDURE
Attorney and his wife, who was his law office employee, were entitled to
protection of attorney-client and work-product privileges in regard to
deposition subpoena; discovery sought could be obtained by less intrusive
sources, and even though defendants asserted that deposition focused on
questions relating to attorney's personal, fiduciary, and client financial
records, those matters were irrelevant. Fed.Rules Civ.Proc.Rule 26, 28
U.S.C.A.
[6] FEDERAL CIVIL PROCEDURE
Attorney fees for motion to quash deposition subpoena would not be awarded,
absent evidence that opposition to that motion or subpoena itself was motivated
by bad faith. Fed.Rules Civ.Proc.Rule 37(a)(4), 28 U.S.C.A.
[7] FEDERAL CIVIL PROCEDURE
Assistant United States attorney assigned to ongoing criminal investigation and
working with grand jury could not be compelled to give deposition testimony in
civil suit regarding matters that were subject of that investigation;
possibility of disclosure of confidential information and sources in and of
itself satisfied burden of showing applicability of privilege for law
enforcement investigative information, and assertion of privilege against
disclosure of matters before grand jury on question-by-question basis would
involve possibility of risk of disclosure. Fed.Rules Cr.Proc.Rule 6(e)(2),
18 U.S.C.A.; Fed.Rules Civ.Proc.Rule 26, 28 U.S.C.A.
[8] FEDERAL CIVIL PROCEDURE
Plaintiff's attorney and another member of his law firm could refuse to answer
deposition questions on grounds of lack of relevance and attorney-client and
work-product privileges. Fed.Rules Civ.Proc.Rule 26, 28 U.S.C.A.
*2 Roger Geller, Geller & Weinberg, Boston, Mass., for plaintiff.
Ada Rose Bitterbaum, Flynn & Joyce, Boston, Mass., for defendants.
ORDER ON WITNESS WAYNE B. HOLLINGSWORTH AND JUNE L. HOLLINGSWORTH'S MOTION TO
QUASH DEPOSITION SUBPOENAS, FOR PROTECTIVE ORDER AND FOR COSTS (# 21);
BRACKETT B. DENNISTON'S MOTION TO QUASH SUBPOENA (# 32); AND MOTION TO COMPEL
ANSWERS TO DEPOSITION QUESTIONS PROPOUNDED TO DAVID BANASH
JOYCE LONDON ALEXANDER, United States Magistrate.
The present motions arise from an action in which plaintiff, Michael Flynn,
seeks damages for emotional and economic injuries based on acts of the
defendants. Plaintiff alleges that defendants published information concerning
his alleged involvement in the unsuccessful attempt to pass a forged
$2,000,000.00 check. [FN1]
FN1. Defendants' Opposition to Motion of Deposition Witnesses Wayne B.
Hollingsworth and June Hollingsworth to Quash Subpoenas and Protective
Orders and Costs (# 26), p. 1-2.
Defendants, Church of Scientology (Scientology), seek to compel the deposition
testimony of Wayne B. Hollingsworth, June L. Hollingsworth, Brackett Denniston
III and the answers to deposition questions propounded to David Banash.
WAYNE AND JUNE HOLLINGSWORTH
Defendants subpoenaed Wayne and June Hollingsworth commanding them to provide
deposition testimony. [FN2] Witnesses, Wayne B. Hollingsworth (Hollingsworth)
and June L. Hollingsworth move to quash these deposition subpoenas. [FN3] They
also seek protective orders and costs, including reasonable attorney's fees.
[FN4]
FN2. Witness, June L. Hollingsworth, was not served in hand with her
deposition subpoena pursuant to Fed.R.Civ.P. 45. Witness Wayne B.
Hollingsworth and June L. Hollingsworth's Motion to Quash Deposition
Subpoenas for Protective Orders and For Costs (# 21), p. 1.
FN3. Id., (# 21), p. 1.
FN4. Id., (# 21), p. 1.
Hollingsworth is an attorney and since 1981 has represented the plaintiff
against various individuals and entities related to Scientology. [FN5] As
such, he asserts that the deposition subpoena should be quashed and protective
order granted, because any information he has received concerning Scientology
matters is covered by the attorney-client privilege or work product immunity
within the meaning of Fed.R.Civ.P. 26. [FN6]
FN5. Defendants' Opposition to Motion of Deposition Witness Wayne B.
Hollingsworth and June L. Hollingsworth to Quash Subpoenas for Protective
Orders and Costs (# 26), p. 1.
FN6. Witness Wayne B. Hollingsworth and June L. Hollingsworth's Motion to
Quash Deposition Subpoenas for Protective Orders and for Costs (# 21), p.
2.
Defendants state that although Hollingsworth represented Flynn in litigation
against Scientology, this is an insufficient basis to quash the deposition
subpoena or grant a protective order. [FN7] Defendants further assert that
they had no intention of questioning Hollingsworth on his actual representation
of Flynn. Rather, the deposition will focus on areas for which no attorney-
client privilege exists, such as Flynn's physical appearance, non-legal
*3 business affairs with deponent, or amount and sources of fees paid. [FN8]
FN7. Defendants' Opposition to Motion of Deposition Witnesses Wayne B.
Hollingsworth and June Hollingsworth to Quash Subpoenas and Protective
Orders and Costs (# 26), p. 3.
FN8. Defendants' Opposition to Motion of Deposition Witnesses Wayne B.
Hollingsworth and June Hollingsworth to Quash Subpoenas and Protective
Orders and Costs (# 26), p. 4.
Hollingsworth, who has represented the plaintiff in litigation against
Scientology, [FN9] states that Scientology's deposition subpoena is motivated
by bad faith. He asserts that it is the defendant's latest attempt to harass
attorneys who represent or have represented the plaintiff by seeking privileged
information from them. [FN10] Hollingsworth further asserts that defendants
seek "irrelevant and first amendment privileged information" such as
Hollingsworth's personal, fiduciary and client financial records, that cannot
lead to the discovery of admissible evidence. [FN11]
FN9. Defendant's Opposition to Motion of Deposition Witnesses Wayne B.
Hollingsworth and June Hollingsworth to Quash Subpoenas and Protective
Orders and Costs (# 26), p. 1.
FN10. Hollingsworth provides that: Martin O'Malley, Paul Jenkins, Gary
Pappas, Daniel Lenzo, Thomas Green and William Weld are other attorneys who
were deposed. Witness Wayne B. Hollingsworth and June L. Hollingsworth's
Motion to Quash Deposition Subpoenas, for Protective Order and for Costs
(# 21), p. 2.
FN11. Id., (# 21), p. 2.
Defendants allege that there has been no showing of harassment, and the
material sought is relevant and crucial to defendant's defense. [FN12]
FN12. Defendants' Opposition to Motion of Deposition Witnesses Wayne B.
Hollingsworth and June Hollingsworth to Quash Subpoenas and for Protective
Orders and Costs (# 25), p. 5.
[1][2] Cases show that one who consults a lawyer with a view to obtaining
professional legal services from him is regarded as a client for purposes of
the attorney-client privilege. [FN13] Federal Practice & Procedure, Wright and
Miller, Vol. 8, p. 135. Communications from a client to his attorney are
ordinarily privileged if legally related and have an expectation of
confidentiality. Duplan Corporation v. Deering Milliken, Inc., 370 F.Supp.
761, 768 (D.S.C.1972). "The attorney-client privilege is the oldest of the
privileges for confidential communications known to the common law. Its
purpose 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. The privilege recognizes that sound legal
advice or advocacy serves public ends and that such advice or advocacy depends
upon the lawyer's being fully informed by the client." Upjohn Co. v. United
States, 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66 L.Ed.2d 584 (1981).
FN13. "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 (a) by his client (b) without the presence of strangers (c) for
the purpose of securing primarily either (i) an opinion on law or (ii)
legal services or (iii) assistance in some legal proceeding, and not (d)
for the purpose of committing a crime or tort; and (4) the privilege has
been (a) claimed and (b) not waived by client." United States v. United
Shoe Machinery Corp., 89 F.Supp. 357, 358-359 (D.Mass.1950).
[3][4] An attorney's work product privilege protects against the disclosure
of his mental impressions, conclusions, opinions or legal theories. Mervin
v. Federal Trade Commission, 591 F.2d 821, 825 (D.C.Cir.1978). The party
seeking discovery of the lawyer's "work-product" must establish adequate
reasons to justify such production. When the desired material can be obtained
elsewhere, the burden of showing such special circumstances has not been met.
Hickman v. Taylor, 329 U.S. 495, 511-513, 67 S.Ct. 385, 393-394, 91 L.Ed.
451 (1946).
It is axiomatic that Fed.R.Civ.P. 26(b) provides that only relevant matter
may be the subject of discovery. "[W]here the relevance of information sought
in discovery proceedings is questionable ... discovery of the requested
information will be denied." Moore Federal Practice, Vol. 4, p. 26-431.
*4 [5] The Court concludes that information concerning Scientology
matters which Hollingsworth has received is entitled to the protection of the
attorney-client and work product privileges as a result of his representation
of the plaintiff. The Court further concludes that discovery sought by
defendants may be obtained by less intrusive sources than the intrusion of
Hollingsworth's work product.
In addition, the Court cannot find the requisite relevance of questions
relating to Hollingsworth's personal, fiduciary and client financial records to
the case sub judice. As such, the Court concludes that such information cannot
lead to the discovery of relevant evidence.
Witness June L. Hollingsworth is the wife of Wayne B. Hollingsworth. [FN14]
Mrs. Hollingsworth asserts that since 1981 she was employed by her husband's
law firm. [FN15] She submits that her deposition should be quashed and a
protective order granted in that she has no knowledge of any relevant facts
that are not privileged. [FN16]
FN14. Witness Wayne B. Hollingsworth and June L. Hollingsworth's Motion to
Quash Deposition Subpoenas for Protective Order and for Costs (# 21), p. 3.
FN15. Id., (# 21), p. 3.
FN16. Id., (# 21), p. 3.
Defendants state that the deposition testimony of Mrs. Hollingsworth, as an
employee of Hollingsworth's law office, is calculated to lead to the discovery
of relevant evidence. [FN17]
FN17. Defendant's Opposition to Motion of Deposition Witnesses Wayne B.
Hollingsworth and June Hollingsworth to Quash Subpoena and for Protective
Orders and for Costs (# 26), p. 1.
The Court has concluded that Mr. Hollingsworth has properly asserted both
attorney-client and work product privileges. [FN18] "[C]onfidences imputed to
the attorney are presumed shared among his partners and employees associated
with him...." State of Arkansas v. Dean Foods Products Company, 605 F.2d
380, 385 (8th Cir.1979).
FN18. Witness Wayne B. Hollingsworth and June Hollingsworth's Motion to
Quash Deposition Subpoenas, for Protective Order and for Costs (# 21), p.
2.
This Court finds that as an employee of the law firm which represented the
plaintiff, any privileges asserted by Mr. Hollingsworth extend to June
Hollingsworth, and any relevant information she may have acquired is protected.
Consonant with the foregoing, Wayne B. Hollingsworth and June Hollingsworth's
Motions to quash and for protective orders are hereby ALLOWED.
[6] Wayne and June Hollingsworth also seek costs including reasonable
attorney's fees as a part of their motion before the Court.
Fed.R.Civ.P. 37(a)(4) provides:
"If the motion is granted, the court shall ... require the party or deponent
whose conduct necessitated the motion ... to pay to the moving party the
reasonable expenses incurred in obtaining the order, including attorney's fees,
unless the court finds that the opposition to the motion was substantially
justified or that other circumstances make an award of expenses unjust."
The Court cannot conclude that defendants' opposition to Wayne and June
Hollingsworth's motions to quash were substantially unjustified or motivated by
bad faith. Nor can this Court find that Wayne Hollingsworth has provided
sufficient information to substantiate his claim that the deposition subpoena
was motivated by bad faith. Accordingly, the Court denies the Hollingsworth's
request for attorney's fees and costs.
BRACKETT DENNISTON III
[7] On April 9, 1986, defendants subpoenaed Brackett B. Denniston III
(Denniston), commanding him to appear and give deposition testimony. [FN19]
Denniston now moves to quash the subpoena. [FN20]
FN19. Motion to Quash Subpoena (# 32), p. 1.
FN20. Motion to Quash Subpoena (# 32), p. 1.
*5 Denniston, an Assistant United States Attorney, states that he is
assigned to an ongoing criminal investigation of matters about which
Scientology seeks to take his deposition. He is also working with a Grand Jury
on these matters. [FN21]
FN21. Bracket Denniston is Chief of the Major Frauds Unit of the United
States Attorney's Office for the District of Massachusetts. Memorandum in
Support of Motion to Quash Subpoena (# 33), p. 1.
Denniston asserts that the subpoena should be quashed because his testimony is
not authorized by the Department of Justice. Denniston submits that federal
regulations prohibit him, as an employee of the Department of Justice, from
disclosing information based on material contained in the files of the
Department, without prior approval of the proper Department official. [FN22]
FN22. Memorandum in Support of Motion to Quash Subpoena (# 33), p. 3.
28 C.F.R. s 16.22(a) General prohibition of production or disclosure in
Federal and State proceedings in which the United States is not a party,
provides:
"In any federal or state case or matter in which the United States is not a
party, no employee or former employee of the Department of Justice shall,
in response to a demand, produce any material contained in the files of the
Department, or disclose any information relating to or based upon material
contained in the files of the Department, or disclose any information or
produce any material acquired as part of the performance of that person's
official status without prior approval of the proper Department
official...."
At the hearing, it was stated that after discussing this matter with U.S.
Attorney Weld, Denniston was denied authority to testify. Denniston states
that such denial was proper. [FN23]
FN23. Denniston submits that compliance with a subpoena will not be
allowed if disclosure would reveal a confidential source or informant or
would interfere with enforcement proceedings. Denniston asserts that
compulsion of his testimony would seriously compromise the ongoing criminal
investigation and would reveal confidential sources of information, and
thus the denial of authorization was proper. Memorandum in Support of
Motion to Quash Subpoena (# 33), p. 4.
Defendants stated at the hearing that the U.S. Attorney's denial of
Denniston's authorization to testify is not a final determination. Rather, the
decision is reviewable by the Court.
The Court concludes that the U.S. Attorney's denial of Denniston's
authorization to testify was proper. [FN24]
FN24. Memorandum in Support of Motion to Quash Subpoena (# 33), p. 3.
Denniston submits that the subpoena calls for privileged matter from an
ongoing criminal investigation. [FN25] Denniston states that any information
he has stems solely from his criminal investigation on behalf of the U.S.
Attorney's Office. Such information is protected under the privilege for law
enforcement investigative information. [FN26]
FN25. Memorandum in Support of Motion to Quash Subpoena (# 33), p. 4.
FN26. Memorandum in Support of Motion to Quash Subpoena (# 33), p. 4.
Defendants submit that the government has the burden of demonstrating the
applicability of its asserted privilege, and the government has not met its
burden of showing how the deposition will impede the ongoing criminal
investigation. [FN27]
FN27. Defendant's Memorandum in Support of Motion to Compel Attendance of
Witness at Deposition and Opposition to Motion to Quash Subpoena of
Brackett B. Denniston III (# 38), p. 13-14.
The Court notes that "there is indeed a public interest in minimizing
disclosure of documents that would tend to reveal law enforcement investigative
techniques or sources." Black v. Sheraton Corporation of America, 564 F.2d
531, 545 (D.C.Cir.1977). "It is well established that the government has a
qualified privilege to prevent public disclosure of investigative files and
related material prepared in the course of an ongoing criminal
investigation." Jabara v. Kelley, 75 F.R.D. 475, 493 (E.D.Mich.1977). The
Court finds that the possibility of disclosure of confidential information and
sources is enough in and of itself to satisfy Denniston's burden of showing the
applicability of the privilege asserted.
Denniston further submits that compelling his testimony would violate
Fed.R. *6 Crim.P. 6(e), which prohibits disclosure of matters before the
Grand Jury. [FN28]
FN28. Memorandum in Support of Motion to Quash Subpoena (# 33), p. 5-6.
Defendants assert that they do not seek to question Denniston about grand jury
testimony, and further, such information may be protected by Denniston's
opportunity to assert the privilege if necessary. [FN29]
FN29. Defendants' Memorandum in Support of Motion to Compel Attendance of
Witness at Deposition and Opposition to Motion to Quash Subpoena of Bracket
B. Denniston III (# 38), p. 21.
Fed.R.Crim.P. 6(e)(2) provides that, "... an attorney for the government,
or any person to whom disclosure is made ... shall not disclose matters
occurring before the grand jury...."
The Court finds that allowing the privilege to be asserted on a question-by-
question basis involves the possibility of the risk of disclosure. As such, to
assure the secrecy and nondisclosure of the investigation before the grand jury
the Court concludes that Denniston's assertion of Fed.R.Crim.P. 6(e)(2) is
proper.
For the reasons stated above, Brackett B. Denniston III's Motion to Quash
Subpoena is hereby ALLOWED.
DAVID BANASH
[8] Defendants move to compel David Banash (Banash) to answer certain
deposition questions propounded to him which he refused to answer during his
deposition on March 12, 1986. [FN30]
FN30. Banash's refusal to answer certain deposition questions was based on
three grounds: a) lack of relevance; b) attorney-client privilege; and
c) attorney work product. Motion to Compel Answers to Deposition Questions
Propounded to David Banash, p. 1-3.
In support of their motion to compel, the defendants make the following
proffers:
First, defendants state that Banash's objections based on the grounds of
relevancy are without merit. They assert that all information sought is
relevant and reasonably calculated to lead to the discovery of admissible
evidence and should thus be provided. [FN31]
FN31. Motion to Compel Answers to Deposition Questions Propounded to David
Banash, p. 5.
Next, defendants assert that Banash's objections based on the attorney-client
privilege are also without merit, in that Banash has failed to meet his burden
in demonstrating how the questions propounded interfere with his attorney-
client relationship. [FN32]
FN32. Motion to Compel Answers to Deposition Questions Propounded to David
Banash, p. 10.
Finally, defendants submit that Banash's failure to answer questions on
Hollingsworth's "physical and emotional demeanor" is without merit, because
physical appearance is not a privileged matter. [FN33]
FN33. Id., p. 14.
As to the first contention, Banash submits that his refusal to answer certain
questions on the grounds of relevancy was proper. [FN34] At hearing, counsel
for Banash asserted that defendants were asking for broad and irrelevant
discovery of Mr. Hollingsworth, who is not even a party in this case. [FN35]
FN34. Plaintiff and Deponent's Memorandum in Opposition to Defendant's
Motion to Compel Answers to Deposition Questions Propounded to David
Banash, p. 4.
FN35. Counsel for Banash stated that questions such as: How Hollingsworth
billed his clients; questions relating to Hollingsworth's personal
finances, personal habits, friendships and relations, have no relevance to
the allegations about the plaintiff in the case. Plaintiff and Deponent's
Memorandum in Opposition to Defendants' Motion to Compel Answers to
Deposition Questions Propounded to David Banash, p. 6.
Banash next states that he is an attorney and was not only a member of
Hollingsworth's law firm, but he has also represented both the plaintiff and
Mr. Hollingsworth. [FN36] Banash states that he has also provided legal advice
to Mr. Hollingsworth and advised him regarding his rights *7 against
Scientology. [FN37] At hearing, counsel for Banash asserted that Banash has
represented Hollingsworth and the plaintiff during the relevant time periods
for which defendant's seek Banash's deposition. Counsel stated that this is
enough in itself to show that Banash has met the burden of demonstrating an
interference with his attorney-client relationship if compelled to answer
questions which may relate to this representation. As such, Banash asserts
that his objections based on the attorney-client privilege were proper. [FN38]
FN36. Plaintiff and Deponent's Memorandum in Opposition to Defendants'
Motion to Compel Answers to Deposition Questions Propounded to David
Banash, p. 2.
FN37. Id.
FN38. Plaintiff and Deponent's Memorandum in Opposition to Defendants'
Motion to Compel Answers to Deposition Questions Propounded to David
Banash, p. 3.
Finally, Banash asserts that the information sought based on his observations
and impressions of Hollingsworth were properly refused and are protected by his
work product privilege. [FN39] At hearing, counsel for Banash submitted that
there is a distinction between the objective physical observation, which
defendants are entitled to, such as information based on a client's height,
weight, clothes, and the subjective physical observation, such as information
related to the clients distress, which is clearly protected. [FN40] Banash
further states that information protected by the work product doctrine may only
be reached where there is inability to obtain it otherwise. [FN41]
FN39. Banash states that the work product doctrine is reflected in
Fed.R.Civ.P. 26(b)(3) and it protects an attorney's mental impressions,
thought processes and personal beliefs concerning a case. Plaintiff and
Deponent's Memorandum in Opposition to Defendant's Motion to Compel Answers
to Deposition Questions Propounded to David Banash, p. 14-15.
FN40. Counsel stated that an attorney's subjective physical observation of
his client is impossible to distinguish from the privileged work product
mental impressions that an attorney uses to decide how to handle a case,
and thus, subjective physical observation is clearly protected.
FN41. Banash submits that there are numerous sources from which defendants
can obtain information about the plaintiff's damages without requiring an
attorney to reveal his work product. This includes: plaintiff's family;
non-lawyer colleagues; friends; and the deposing of the plaintiff
himself. Plaintiff's and deponent's Memorandum in Opposition to
Defendant's Motion to Compel Answers to Deposition Questions Propounded to
David Banash, p. 17.
Fed.R.Civ.P. 26(b) provides that only relevant matter may be the subject of
discovery. "[W]here the relevance of information sought in discovery
proceedings is questionable and the request is overly broad, or compliance with
such a request would be unduly burdensome, discovery of the requested
information will be denied." Moore's Federal Practice, Vol. 4, p. 26-431.
Under a generous reading of the defendant's memoranda, this Court is unable to
find the relevance of the information sought. [FN42] Accordingly, the Court
finds that Banash's refusal to answer deposition questions on the grounds of
relevancy was proper.
FN42. The Court may deny motion to compel further deposition questioning
when the Court determines questions are irrelevant. Commercial Union
Insurance Co. v. Westrope, 730 F.2d 729, 732 (11th Cir.1984).
The Court also finds that Banash's refusal to answer deposition questions on
the grounds of attorney-client and work product privileges were proper. The
Court concludes this based on the same reasoning as cited above in the
Hollingsworth order.
Consonant with the foregoing, Defendant's Motion to Compel Answers to
Deposition Questions Propounded to David Banash is hereby DENIED.
SO ORDERED.