The opinion of the court was delivered by: Alan Kay United States Magistrate Judge
Pending before this Court is Non-Party [Petitioner] Alex Menendez's Motion to Quash Subpoena ("Motion to Quash") ; Defendant's opposition to the Motion ("Opposition") ; and Non-Party's reply to the Opposition ("Reply") . This matter is pending in this Court only for determination of the instant Motion to Quash; the underlying civil action, captioned Duran v. Andrew, 08-cv-1400-JCH, is pending in the United States District Court for the Eastern District of Missouri. In that action, Plaintiff Daniel Duran ("Duran") seeks injunctive relief and monetary damages from Defendant Christopher Andrew ("Andrew") for alleged defamation and injurious falsehood. In the Motion to Quash, Non-Party Alex Menendez ("Menendez") moves to quash a subpoena ad testificandum and duces tecum issued by Andrew. Menendez is a partner in the law firm of McLeod, Watkinson & Miller ("MWM"), the firm which represents Non-Party U.S. Soybean Export Council ("USSEC"), the former employer of both the Plaintiff and Defendant.*fn1 Upon consideration of the Motion, the Memorandum in support thereof, the Opposition thereto and the record in this case, for the reasons set forth below, Plaintiff's Motion is denied in part and granted in part. An appropriate Order accompanies this Memorandum Opinion.
The subpoena at issue in this Motion directs Menendez to appear for a deposition and to bring the following documents:
For the period June 1, 2008 through March 3, 2009, all documents concerning allegations of wrongdoing made against Daniel Duran by any person or entity, including, but not limited to: (a) all handwritten, electronic and/or typewritten notes of interviews and /or communications between yourself, and Tom Nishio, Christopher Andrew, Masako Tateishi, Daniel Duran, Akira Ogawa, Mark Pietz, Miguel Escobar and/or Rick Ostlie; (b) any other documents reflecting, in any way, on the truth or falsity of allegations of wrongdoing made against Daniel Duran (Subpoena attached as Motion to Quash, Exh. A.)
The underlying civil action pending in the United States District Court for the Eastern District of Missouri involves defamation claims by Duran against Andrew relating to statements made by Andrew that malign Plaintiff's "competencies and conduct." (Complaint ¶8, attached to Andrew Declaration at Exhibit R.) In his Opposition to the Motion to Quash, Andrew notes that "[t]he allegedly defamatory statements... arise from many of the same operative facts which were allegedly investigated by MWM between June and July of 2008, namely,... that Duran carried on an inappropriate relationship with a member of [Tom] Nishio's staff, [Duran's] issuance of no-bid contracts and a knife assault by Duran against an unarmed individual in Branson, Missouri." (Opposition at 3.)*fn2
As a preliminary matter, this Court notes that any ruling directing that the Menendez deposition shall proceed and/or that documents shall be produced does not dictate whether the information obtained from Menendez by Andrews will be admissible at trial; that is an issue left for the trial court to determine.
Federal Rule of Civil Procedure 45 provides for the issuance of a subpoena "command[ing] each person to whom it is directed to... attend and testify; produce documents, electronically stored information, or tangible things in that person's possession, custody or control..." Fed. R. Civ. P. 45(a)(1)(A)(iii). On timely motion, the court which issued the subpoena may quash or modify such subpoena, if the subpoena "requires disclosure of privileged or protected matter, if no exception or waiver applies;...." Fed. R. Civ. P. 45(c)(3)(A)(iii).
The attorney-client privilege "protects confidential communications made between clients and their attorneys when the communications are for the purpose of securing legal advice or services." In Re Lindsey, 158 F.3d 1263, 1267 (D.C. Cir. 1998) (citation omitted). The privilege extends to confidential communications rather than facts. Upjohn Co. v United States, 449 U.S. 383, 395-96 (1981). Accordingly, not every communication with an attorney is necessarily privileged. Such communication must be made in confidence for the express purpose of securing legal advice. SEC v. Gulf & Western Indus., Inc., 518 F. Supp. 675, 681-82 (D.D.C. 1981) More specifically, the privilege applies where:
(1) the asserted holder of the privilege is or sought to become a client;
(2) the person to who 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 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 ...