United States District Court, D. Columbia.
DEMETRA BAYLOR, Plaintiff: Radi Dennis, LEAD ATTORNEY,
CONSUMER JUSTICE ESQ, Washington, DC.
MITCHELL RUBENSTEIN & ASSOCIATES, P.C., RUBENSTEIN & COGAN,
P.C., Defendants: Ronald S. Canter, LEAD ATTORNEY, LAW
OFFICES OF RONALD S. CANTER, LLC, Rockville, MD.
BERMAN JACKSON, United States District Judge.
April 1, 2015, pursuant to Local Civil Rule 72.2(a), this
case was referred to Magistrate Judge G. Michael Harvey for
the resolution of several discovery disputes. Referral to
M.J. Order [Dkt. # 67]. The disputes arose when plaintiff
propounded discovery requests seeking communications between
the defendant, which is a law firm involved in debt
collection, and Sunrise Credit Services, Inc. See
Mem. Op. (July 31, 2015) [Dkt. # 81] at 6-7. Defendant
asserts that Sunrise was acting as the agent for Arrowood
Indemnity Company, to whom plaintiff owed a debt, when
Sunrise retained defendant on Arrowood's behalf to sue on
that debt. Def.'s Reply to Pl.'s Resp. to Supp.
Privilege Log, Aff. & Errata [Dkt. # 80] at 2 & n.1.
Defendant refused to produce the documents plaintiff sought
on the grounds that they were privileged communications
between an attorney (defendant) and its client (Arrowood),
made through the client's agent (Sunrise). Id.; see
also Mem. Op. (July 31, 2015) at 1, 6-7.
20, 2015, plaintiff filed a motion to compel the production
of those records and others, objecting to, among other
things, defendant's withholding of documents based on
" false claims of privilege." Pl.'s Mot. to
Compel Produc. of Docs. & Resps. to Interrogs. [Dkt. # 69]
(" Pl.'s Mot." ) at 1. On June 29, the
Magistrate Judge granted plaintiff's motion in part and
denied it in part, and he ordered defendant to respond to
some, but not all, of the disputed discovery requests. Order
(June 29, 2015) [Dkt. # 75]. He also ordered " that each
side shall bear its own costs related to plaintiff's
motion to compel." Id. at 4. Finally, the
Magistrate Judge held plaintiff's motion to compel in
abeyance with respect to defendant's claims of
attorney-client and work-product privilege, and he ordered
defendant to produce a revised privilege log to plaintiff and
to submit the allegedly privileged documents for in
camera review. Id. at 2-3.
reviewing the documents, the Magistrate Judge concluded that
Sunrise was acting as Arrowood's agent in its role as
intermediary between Arrowood and defendant, and that the
attorney-client privilege could therefore apply to the
communications between defendant and Sunrise. Mem. Op. (July
31, 2015) at 7-9. He found that some of the communications
defendant had identified as privileged had " nothing to
do with the provisioning or seeking of legal advice," a
prerequisite to the application of the attorney-client
but that others did. Id. at 10-13. He also
determined that defendant had properly asserted the
work-product privilege over two documents that were prepared
in anticipation of litigation over plaintiff's debt.
Id. at 13-14. Thus, the Magistrate Judge granted the
remaining portion of plaintiff's motion to compel in part
and denied it in part, and he ordered defendant to produce
five of the twenty-two documents over which it had asserted
the attorney-client and work-product privileges. Order (July
31, 2015) [Dkt. # 82]; Mem. Op. (July 31, 2015) at 14-15. He
permitted defendant to withhold the seventeen remaining
documents as privileged. Mem. Op. (July 31, 2015) at 15-16.
August 14, 2015, plaintiff filed her objections to the
Magistrate Judge's Orders of June 29 and July 31.
Pl.'s Objs. to the Magistrate's June 29, 2015 & July
31, 2015 Orders [Dkt. # 87] (" Pl.'s Objs." ).
Plaintiff " objects to the Magistrate's
determination that the documents withheld by the Defendant
and identified in the Court's July 31st Order are
privilege [sic] based on Defendant's assertion of
attorney-client privilege and work product on behalf of an
entity not a party to the instant lawsuit." Id.
at 1. She also objects to the June 29 Order denying her
attorneys' fees and costs for the litigation of the
discovery dispute. Id. at 1-2. Defendant responded
to plaintiff's objections on August 21, 2015. Def.'s
Resp. to Pl.'s Objs. [Dkt. # 89].
may refer nondispositive matters, including discovery
disputes, to a magistrate judge for resolution. Fed.R.Civ.P.
72(a); LCvR 72.2(a). Upon referral, the magistrate judge must
" promptly conduct the required proceedings and, when
appropriate, issue a written order stating the
decision." Fed.R.Civ.P. 72(a); see also LCvR
72.2(a). Any party may file written objections to the
magistrate judge's decision " within 14 days after
being served with the order of the magistrate judge."
LCvR 72.2(b); see also Fed.R.Civ.P. 72(a). The court
shall consider timely objections and " may modify or set
aside any portion of a magistrate judge's order . . .
found to be clearly erroneous or contrary to law." LCvR
72.2(c); see also Fed.R.Civ.P. 72(a). " Under
that deferential standard, a magistrate judge's factual
findings or discretionary decisions must be affirmed unless,
'although there is evidence to support [them], the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.'" Am. Ctr. for Civil Justice v.
Ambush, 794 F.Supp.2d 123, 129 (D.D.C. 2011), quoting
Fed. Sav. & Loan Ins. Corp. v. Commonwealth Land Title
Ins. Co., 130 F.R.D. 507, 508 (D.D.C. 1990).
The Magistrate Judge's findings that the attorney-client
and work-product privileges applied to the contested
documents were not clearly erroneous or contrary to
reviewing in camera the documents over which
defendant asserted privilege, the Magistrate Judge determined
that seventeen of the twenty-two documents at issue were
protected by the attorney-client and work-product doctrines.
Mem. Op. (July 31, 2015) at 10-16. Plaintiff argues that
neither privilege applies to the communications between
defendant and Sunrise, because Sunrise was not Arrowood's
agent and because defendant was acting as a debt collector,
and not as an attorney. Pl.'s Objs. at 12-27. But nowhere
in her twenty-seven page pleading does plaintiff offer any
evidence or authority to show that the Magistrate Judge's
determination was clearly erroneous or contrary to law.
Instead, her objections simply express her dissatisfaction
with the Magistrate Judge's findings of fact and
conclusions of law. This is insufficient to satisfy
plaintiff's burden, and so the objections will be
The Attorney-Client Privilege
Maryland and the District of Columbia recognize that the
attorney-client privilege protects communications not only
between a client and an attorney, but also between their
agents. See, e.g., United States
ex rel. Barko v. Halliburton Co., 74 F.Supp.3d 183, 187
& n.4 (D.D.C. 2014) (" [T]he attorney-client privilege
shelters confidential communications between an attorney and
client, including their agents, made with a primary purpose
of seeking or providing legal advice." ), citing In
re Kellogg Brown & Root, Inc., 756 F.3d 754, 757, 410
U.S. App.D.C. 382 (D.C. Cir. 2014); Kreuzer v. George
Washington Univ., 896 A.2d 238, 249 (D.C. 2006) (finding
that trial court correctly permitted the University " to
invoke the attorney-client privilege to shield communications
between its contractor/agent . . . and the University's
counsel that were made for the purpose of seeking legal
advice" ); Cutchin v. State, 143 Md.App. 81,
792 A.2d 359, 364 (Md. 2002) (" The [attorney-client]
privilege includes communications to agents employed by an
attorney." ). " In considering whether a
client's communication with his or her lawyer through an
agent is privileged under the intermediary doctrine, the
'critical factor' is 'that the communication be
made in confidence for the purpose of obtaining legal advice
from the lawyer.'" In re Lindsey, 158 F.3d
1263, 1280, 332 U.S. App.D.C. 357 (D.C. Cir. 1998), quoting
Linde Thomson Langworthy Kohn & Van Dyke, P.C. v.
Resolution Trust Corp., 5 F.3d 1508, 1514, 303 U.S.
App.D.C. 316 (D.C. Cir. 1993).
Magistrate Judge specifically determined that " Sunrise
acted as Arrowood's agent for obtaining legal advice from
defendant," making the attorney-client privilege
enforceable. Mem. Op. (July 31, 2015) at 7-8. Plaintiff
objects to this finding, and she contends that Sunrise was
not Arrowood's agent and that " at all times
relevant Defendant was acting in ...