Assuming arguendo that the privilege would attach and that Mrs. Lavin could assert the privilege independent of her husband, the court concludes that any such assertion of the privilege was waived by both Mr. and Mrs. Lavin.
The confidential marital communications privilege derives from the belief that it fosters a trust between the spouses which is essential to the growth and success of marriage. Wolfle, 291 U.S. at 14. In addition, as a matter of public policy, society has an aversion to straying too far into the sanctity of the marital haven. McCormick on Evidence, Section 82 (4th ed. 1992).
Testimonial privileges, such as the confidential marital communications privilege between spouses, are compromises between the justice system's unyielding search for the truth and society's desire to foster certain relationships. Trammel v. United States, 445 U.S. 40, 50, 63 L. Ed. 2d 186, 100 S. Ct. 906 (1980). Consequently, privileges must be construed strictly and "accepted '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 the truth.'" Id. (quoting Elkins v. United States, 364 U.S. 206, 234, 4 L. Ed. 2d 1669, 80 S. Ct. 1437 (1960)(Frankfurter, J., dissenting)); see also University of Pennsylvania v. E.E.O.C., 493 U.S. 182, 189, 107 L. Ed. 2d 571, 110 S. Ct. 577 (1990) (privileges should be narrowly construed).
As a result, the holder of a privilege is responsible for guarding the privilege with all the means at his or her disposal. In re Sealed Case, 278 U.S. App. D.C. 188, 877 F.2d 976, 980 (D.C. Cir. 1989)(attorney-client privilege). The Lavins have not adequately safeguarded the confidential marital communications privilege with the requisite vigor and have, therefore, waived any privilege that may otherwise have attached. First, the Lavins have not actively sought to secure the copies of the tapes already in the possession of three other organizations.
Second, by inserting a portion of the taped conversations in their pleadings, the Lavins have waived the privilege.
1. Possession of The Tapes by Other Entities
Privileges must be zealously guarded by their holder. In re Sealed Case, 877 F.2d at 980. Privileges must be treated as if they are "crown jewel[s]." Id. The Lavins have not given their conversations such treatment. Three organizations currently have tape recordings of the conversations. The Lavins, however, have not instituted any proceedings in order to retrieve the tapes or prevent their further inspection by these entities.
Mr. Lavin states that sometime after July 1994, he learned that conversations on his Chicago telephone were being tape recorded.
Mr. Lavin asserts that when he became aware of this fact, he ordered the taping stopped.
Mr. Vallette testified that after receiving this request, he immediately had Mr. Lavin's telephone taken off of the taping system.
It is undisputed by the parties that the tape-recording of Mr. Lavin's telephone ceased as of September 2, 1994.
Even though Mr. Lavin knew by no later than September 2, 1994 that any telephone conversation he had engaged in previous to that date with his wife had been tape recorded, he did not seek to retrieve any of the recordings from BT. Between September 2, 1994 and mid-November 1994, Mr. Lavin did nothing to minimize the damage to the confidentiality of his telephone conversations with his wife caused by the tape recording. See United States v. De La Jara, 973 F.2d 746, 750 (9th Cir. 1992). Such a "failure to act" allowed "'the mantle of confidentiality'" surrounding the telephone conversations to be impugned. Id. (quoting Permian Corp. v. United States, 214 U.S. App. D.C. 396, 665 F.2d 1214, 1220 (D.C. Cir. 1981)).
Not until mid-November 1994, when the Lavins were notified that copies of the tapes had been turned over to the Federal Reserve Bank of New York, did the Lavins alert BT and its counsel that they would be asserting the confidential marital communications privilege as to the tape recorded conversations. Furthermore, it was not until January 1995 that the Lavins actually requested that BT turn over the tapes.
This request was denied. The Lavins did nothing at that point to attempt to compel BT, its attorneys, or the Federal Reserve Bank to turn over the outstanding copies of the tapes.
More significantly, when the Lavins intervened in the Ohio case,
to which BT was a party, the Lavins did not request that that court order BT to turn over the tapes to them. The Federal Reserve Bank, BT, and its four outside law firms still enjoy unfettered access to the tapes. Consequently, the Lavins' actions are not consistent with zealous protection of confidential marital communications and, as such, constitute a waiver of any privilege that may have attached to the conversations at issue in this case.
2. Disclosure of Contents of Conversations
If a privileged communication is voluntarily revealed to a third party, the privilege is waived as to that communication. United States v. AT&T, 206 U.S. App. D.C. 317, 642 F.2d 1285 (D.C. Cir. 1980) (attorney-client privilege). The reasons for such disclosure are irrelevant so long as the disclosure is voluntary. In re Sealed Case, 877 F.2d at 980 (court will not "distinguish between various degrees of voluntariness"). Even inadvertent disclosures have triggered an implied waiver of privileges. See Id. ; Wichita Land & Cattle Co. v. American Federal Bank, 148 F.R.D. 456 (D.D.C. 1992); In re U.M.W., 156 F.R.D. 507 (D.D.C. 1994).
Moreover, voluntary disclosure to a third party in order to gain an advantage in litigation waives the privilege. In re Sealed Case, 219 U.S. App. D.C. 195, 676 F.2d 793, 818 (D.C. Cir. 1982). In fact, anything "short of court-compelled disclosure" or some other extraordinary circumstance will waive the confidential attorney-client privilege.
In re Sealed Case, 877 F.2d at 980 (emphasis added); see also In re SUBPOENAS DUCES TECUM TO FULBRIGHT & JAWORSKI, 99 F.R.D. 582, 585 (D.D.C. 1983), aff'd, 238 U.S. App. D.C. 221, 738 F.2d 1367 (D.C. Cir. 1984) (unrequested and uncompelled disclosure to SEC waives privilege). The attorney-client privilege seeks to foster a trusting and open relationship between attorney and client, and this goal is similar to that which the confidential marital communications privilege hopes to impart upon the institution of marriage. United States v. Byrd, 750 F.2d 585, 589 (7th Cir. 1984). Therefore both privileges must be narrowly construed because they are "in derogation of the search for the truth..." Id.
Presently, by selectively disclosing a portion of the taped conversations to gain a litigation advantage, the Lavins have waived any privilege that may have attached to the conversations.
It would be inequitable for the court to allow the Lavins to selectively disclose conversations at issue in this case and then foreclose the opportunity for the SEC to examine the tapes and the context of the statements embraced by them. See In re Sealed Case, 676 F.2d at 818.
Therefore, the court concludes that the Lavins' actions constitute a waiver of any confidential marital communications privilege that may have attached to their conversations.
Accordingly, it is, on this 13 day of August 1996,
ORDERED that Jack and Robin Lavin comply with the subpoena issued to Jack Lavin and disclose the tapes of the conversations at issue to the court; and it is
FURTHER ORDERED that the court will issue reacted transcripts of the conversations to the SEC unless Jack and Robin Lavin file a notice of appeal within sixty (60) days of the entry of this order. See Fed. R. App. P. 4(a)(1).
Ricardo M. Urbina
United States District Court Judge