United States District Court, E.D. Pennsylvania
May 27, 2004.
GWEN OWENS, Plaintiff, V. QVC, Defendant
The opinion of the court was delivered by: EDUARDO ROBRENO, District Judge
Before the court is Ms. Mason's motion to either quash or modify a
subpoena to appear as a witness at trial. Ms. Mason argues first that
complying with the subpoena would require her to disclose privileged
information and secondly that complying with the subpoena would subject
her to an undue burden. In the alternative, Ms. Mason asks that her
testimony be permitted in camera. For the reasons that follow the motion
will be denied.
On May 2d 2002, Ms. Mason was deposed by the Plaintiff's counsel,
Alan Rich, Esquire. At the time of the deposition Mr. Rich did not
represent Ms. Mason; however, counsel had represented Ms. Mason
previously in matters concerning this litigation.*fn1 Ms. Mason argues that Mr. Rich has the benefit of
confidential communications with her. She claims those communications are
protected by the attorney client privilege and she does not want them
disclosed. Plaintiff asserts that Ms. Mason has waived the privilege.
On Jan 14th, 2002, counsel for Ms. Mason at the time, wrote a letter to
Mr. Rich, stating "this letter also confirms that we have rethought our
position on the attorney client privilege claims asserted January 9. Lisa
has decided to answer your questions to the best of her ability and not
assert privilege." (Mason Dep. Ex. 21.) Then at the Jan 16th deposition,
Mr. Rich asked Ms. Mason "I think we can stipulate that this is a fax
from Deirdre Agnew (counsel for Ms. Masons at the deposition) to me, and
it represents that you're waiving any possible attorney client privilege
with regard to the deposition?" (Jan 16th, 2002 Mason Dep. Tr. at 5.) Ms.
Mason answered "That's correct." (Dep. Tr. at 5.) Mr. Rich then asked
"And you discussed that matter with Ms. Agnew before you came to that
decision, correct?" (Dep. Tr. at 5-6.) Ms. Mason answered "That's
correct, yes." Dep. Tr. at 6.) Ms. Mason then went on to answer all the
questions asked without objection. During the course of the deposition Ms. Mason disclosed, inter alia, the
subject matter and content of conversations she and Mr. Rich had when he
was still her lawyer.
The attorney client privilege is one of the "oldest of the privileges
for confidential communication known to common law." Upjohn Co. V.
U.S. 449 U.S. 383, 389 (1981). The purpose of the privilege is to
encourage clients to make full disclosures to their attorneys.
Fisher v. U.S. 425 U.S. 391, 403 (1976). However, since the
privilege may keep relevant information from the factfinder, it "applies
only where necessary to achieve its purpose." Id. When a client
voluntarily discloses privileged communications to a third party, the
attorney client privilege is waived. Westinghouse Elec. Corp. v.
Republic of Philippines, 951 F.2d 1414 (3d Cir. 1991).
At her deposition, Ms. Mason disclosed privileged communications to a
third party i.e., all persons present at the deposition.*fn2 Because she
disclosed the communication to third parties, Ms. Mason waived her right
to keep her previous communications with Mr. Rich confidential. See
Westinghouse Elec. Corp., at 1414; Murray v. Gemplus
International, 217 F.R.D. 362, 366 (E.D.Pa. 2003). Ms. Mason contends, however, that her waiver was not voluntary because
she did not have sufficient knowledge as to the scope of her waiver. The
argument has no merit. Ms. Mason was represented by counsel, the waiver
was clear and unequivocal, and she answered all questions propounded by
Mr. Rich at the deposition without objection.
Alternatively, Ms. Mason argues that testifying at trial would cause
her undue burden. To establish undue burden, the movant must show that
compliance with the subpoena would be unreasonable and oppressive.
Composition Roofers Union Local 30 Welfare Trust Fund v. Graveley
Roofing Enterprises, Inc., 160 F.R.D. 70, 73 (E.D.Pa. 1995). Being
placed in an "awkward position vis-a-vis the public, her career, and her
employer" is not sufficient hardship to justify quashing the subpoena.
Ms. Mason's testimony will not involve subject matters intended to
embarrass or harass her, but rather will relate to her knowledge of
comments made by her superiors while working at QVC. For the court to
accept Ms. Mason's justification for avoiding her duty to testify at
trial would offend the time honored principle that under our system of
justice every litigant is entitled to another person's relevant and non
privileged testimony in a judicial proceeding.
Neither does Ms. Mason's predicament qualify as an exceptional
circumstance permitting Ms. Mason to testify in camera.*fn3 The assertion that Ms. Mason's status as a public
personality states an exceptional circumstance is not supported by the
authority cited by the movant. Furthermore, Ms. Mason is not a minor, and
rulings allowing minors to testify in camera do not apply to her.
42 Pa. C.S.A. § 5985.*fn4
Ms. Mason's motion to quash or modify the subpoena will be denied
because she waived her attorney/client privilege in regards to
communication with Mr. Rich. Nor has Ms. Mason shown a sufficient
hardship or exceptional circumstances permitting her either to be excused
from testifying or providing for her testimony in camera.