The opinion of the court was delivered by: (Judge McClure)
On May 18, 2006, plaintiff Melinda Knepp instituted this civil action against defendant, United Stone Veneer, LLC ("USV"). In her complaint, plaintiff alleges a cause of action based on Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act ("PHRA"). Specifically, plaintiff complains that she was sexually harassed by an employee of USV and then terminated from employment when she repeatedly refused the employee's advances. Defendant filed an answer to the complaint on June 22, 2006.
The parties are now conducting discovery. On July 11, 2007, plaintiff attempted to conduct the deposition of Robin Barrett, the wife of David Barrett, the employee who allegedly sexually harassed plaintiff. During the deposition, Robin Barrett, who was retained by defense counsel for the purposes of representation at the deposition, invoked the attorney-client privilege and spousal privilege. Plaintiff disagreed with the assertion of both privileges, and after an effort to resolve the dispute, the parties contacted the court for guidance. The court directed the parties to stop the deposition and directed defendant to file a motion for a protective order. On July 17, 2007, defendant filed a motion for a protective order and supporting brief. Opposing and reply briefs have been filed and the matter is ripe for disposition. Now, for the following reasons, we will grant in-part and deny in-part defendant's motion.
Rule 26(b)(1) of the Federal Rules of Civil Procedure sets the contours for discovery and provides that "[p]arties may obtain discovery of any matter, not privileged, that is relevant to the claim or defense of any party." (emphasis added). Furthermore, Rule 26(c) allows a party to move for a protective order to prevent the discovery of certain evidence in order to "protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . ." Finally, Rule 501 of the Federal Rules of Evidence governs evidentiary privileges and states that:
T]he privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of witness, person, government, State, or political subdivision thereof shall be determined in accordance with state law.
In other words, Rule 501 states that federal privilege law applies to federal claims, and state privilege law applies to state claims. Pearson v. Miller, 211 F.3d 57, 66 (3d Cir. 2000). Yet, the Third Circuit has noted that in a case that involves both federal and state claims in the same action, the problems associated with the application of two separate privilege rules are readily apparent. Id. at 66. For example, it is unworkable to attempt to apply two separate privilege rules with respect to a federal and state claim tried to the same jury. Id. (quoting Wm. T. Thompson Co. v. General Nutrition Corp., 671 F.2d 100, 104 (3d Cir. 1982). The Third Circuit resolved this potential conflict by creating a rule that states that "when there are federal law claims in a case also presenting state law claims, the federal rule favoring admissibility, rather than the state law privilege, is the controlling rule." Id. (citing Wm. T. Thompson, 671 F.2d at 104).*fn1
II. Attorney-Client Privilege
Prior to her deposition, Robin Barrett retained defense counsel in order to represent her at the deposition. At the deposition, plaintiff's counsel attempted to ask her questions about her discussions with counsel prior to the deposition. Defendant's counsel objected to these questions on the basis of attorney-client privilege and the deposition then proceeded to the next topic.
Under federal law, communications are protected under the attorney-client privilege when: (1) legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence, (5) by the client, (6) are at his insistence permanently protected (7) from disclosure by himself or by the legal advisor, (8) except the protection may be waived. In re Grand Jury Proceeding Impounded, 241 F.3d 308, 316 n. 6 (3d Cir. 2001) (citation omitted).
Plaintiff has conceded in her opposition brief that if Robin Barrett has retained defense counsel to represent her for the purpose of seeking a legal opinion, she has a right to assert the attorney-client privilege to protect those conversations. (Rec. Doc. No. 54, at 14.) That is exactly what appears to have occurred here and we find that such conversations are therefore protected by the attorney-client privilege. We will therefore grant defendant's ...