Free Letter - District Court of Delaware - Delaware

Case 1 :04-cv-01422-GIVIS Document Filed O3/26/2007 Page 1 of 2
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JOSEPH R. BIDEN, Ill s2¤NNE¢;\fri%iii Arronnsv GENERAL vviumneton, DELAWARE warn rw mz; svvsrss
March 26_, 2007
The Honorable Gregory M. Sleet
United States District Court
844 N. King Street
Wilmington, DE l980l
RE: Hamilton v. Guessford, et al.
CA. N0. 04-1422-GMS
Dear Judge Sleet:
l. ani writing in response to Plaintiff s letter to the Court dated March 21, 2007.
[D.l. 68]. In the letter, Plaintiff seeks production of three e-mails, which are protected
from discovery by the attorney—clie11t privilege and} or the work product doctrine. The e-
mails are between Rebecca McBride, a defendant in this case, and Loren Myers, Esquire
and Gregory Smith, Esquire, both of whom are Deputies Attorney General with the
Delaware Department of Justice. Undersigned counsel represents that the e-mails
concern the subject matter underlying this lawsuit.
Plaintiff claims that, by assertion of the affirmative defense of qualified
immunity, Defendants have waived any claim of attorney-client privilege. This argument
is not supported by Third Circuit jurisprudence.
The Third Circuit has held that a party can waive the attorney—client privilege by
asserting claims or defenses that put the attorney’s advice in issue in the litigation.
R}/t0ne—P0uZenc Rcrer, Inc. v. Home Iridem. C0., 32 F.3d 851, 863 {3d Cir. 1994). For
example, the client may waive the privilege by asserting reliance on the advice of counsel
as an affirmative defense. fd. However, "[a]dvice is not in issue merely because it is
relevant, and does not necessarily become in issue merely because the attorney’s advice
might affect the client’s state of mine in a relevant manner, The advice of counsel is
placed in issue where the client asserts a claim or defense, and attempts to prove that

Case 1:04-cv-01422-Gl\/IS Document 69 Filed O3/26/2007 Page 2 of 2
The Honorable Gregory M, Sleet
March 26, 2007
Page Two
claim or defense by disclosing or describing an attorney client com1nunication." Id. See
also US. Fire Ins. Ce. v. Asbeszosprrzy, Inc., 182 F.3d 201, 212 (3d Cir. 1999) (no waiver
of privilege where defendants did not assert any claim or take any aftirmative step that
placed advice of counsel at issue).
Plaintiff has attached as Exhibit 3 to his March 21, 2007 letter correspondence
dated October 30, 2006. ln the October 30 letter, Plaintiff relies on Henri: v. Ray, 68
F.l?,.D. 574 (_E.D. Wash. 1975) in support of his argument that Defendants have waived
the attorney-client privilege. The Third Circuit has explicitly rejected Hearn, which
holds that the attorney-client privilege is waived where the client’s state ofmind is in
issue in the litigation The Third Circuit stated that "[r]elevance is not the standard for
determining whether or not evidence should be protected from disclosure as privileged,
and that remains the case even if one might conclude the facts to be disclosed are vital,
highly probative, directly relevant or even go to the heart of an issue.” Rhone—P0uZerzc,
32 F.3d at 864, Thus, a party does not waive the attorney-client privilege merely because
his state of mind is at issue in the litigation. Id.
in this ease, Defendants have not asserted the defense of reliance on counsel, and
have not put counsel’s advice in issue. Thus, there has been no waiver ofthe attorney-
client privilege. Plaintiffs letter motion seeking production of the e-mails in question
must be denied.
Respectfully,
fsf Eileen Kelly
Eileen Kelly
Deputy Attorney General
cc: Gary W. Aber, Esquire