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Harper v. Brinke

August 30, 2007

TAMMI HARPER, PLAINTIFF,
v.
HANS BRINKE, SR., AND JIMMIE BRINKE, DEFENDANTS.



The opinion of the court was delivered by: H. Bruce Guyton United States Magistrate Judge

(JORDAN/GUYTON)

MEMORANDUM AND ORDER

This civil action is before the Court pursuant to 28 U.S.C. § 636(b), the Rules of this Court, and by Order [Doc. 22] of the Honorable R. Leon Jordan, Senior United States District Judge, for disposition of Defendants' Motion to Compel Production of Complete and Unredacted Diary Entries [Doc. 21]. The defendants move the Court to order the plaintiff to disclose the complete and unredacted contents of her personal diary. The plaintiff opposes the defendants' motion, arguing that the redacted information is privileged. The Court notes that the plaintiff has provided the defendants with a copy of her diary entries, but that copy contained twenty-four redactions of what the plaintiff contends is privileged information. The plaintiff has also provided a privilege log identifying the privilege associated with each redaction. The Court has conducted an in camera review of the unredacted diary entries and the matter is now ripe for adjudication. For the reasons that follow, the defendants' motion will be denied.

The plaintiff has identified two different privileges that she argues protect the twenty-four redacted diary entries. Plaintiff contends that some of the redacted entries, specifically redactions 7 - 10 and 12-24 ("Group 1"), are protected by the attorney-client privilege because the diary entries recount protected communications between the plaintiff and her attorney. Plaintiff contends that the remaining redactions, redactions 1-6 and 11 ("Group 2") are protected spousal communications.

I. Choice of Law

Before addressing whether the redacted entries are protected by the claimed privileges, the Court must first determine what state's laws apply. The long standing rule is that "all matters respecting the remedy and admissibility of evidence depend upon the law of the State where the suit is brought." The Supreme Lodge v. Meyer, 198 U.S. 508, 517 (1905). Thus, the Court will look to the law of the forum, Tennessee, to determine whether the diary entries are privileged communications.

II. Attorney-Client Privilege

In Tennessee the attorney-client privilege is found at Tenn. Code Ann. § 23-3-105 and is simply a codification of the common law principle. Kalyawongsa v. Moffett, 105 F.3d 283, 290 n.3 (6th Cir. 1997). The common law principle mandates that "[c]onfidential disclosures by a client to an attorney made in order to obtain legal assistance are privileged." Fisher v. United States, 425 U.S. 391, 403 (1976). "As a general rule, the attorney-client privilege is waived by voluntary disclosure of private communications by an individual or corporation to third parties. In addition, a client may waive the privilege by conduct which implies a waiver of the privilege or a consent to disclosure." Tenn. Laborers Health & Welfare Fund v. Columbia/HCA Healthcare Corp., 293 F.3d 289, 294 (6th Cir. 2002) (citations omitted). Having performed an in camera review of the unredacted diary entries, the Court finds that the Group 1 entries are covered by the attorney-client privilege. Therefore, the Court must determine whether that privilege has been waived.

The defendants contend that the plaintiff has waived the privilege by memorializing her potentially privileged communications with her attorney in her diary. The Court is unaware of any Tennessee jurisprudence addressing whether an individual waives the attorney-client privilege by recording the protected communication in a private diary, nor have the parties referenced any such jurisprudence. However, other courts have addressed the issue and held that the attorney-client privilege is not waived when the client memorializes the protected communications in his or her diary. United States v. Defonte, 441 F.3d 92, 95 (2d Cir. 2006) (holding that memorializing protected communications in a private journal did not waive the attorney-client privilege); Alexander v. Federal Bureau of Investigation, 186 F.R.D. 154, 161 (D.D.C. 1999) ("[T]he attorney client privilege applies to entries in a client's diaries that describe communications from attorneys or are based on such communications. This principle has been followed by each court to have addressed this matter."). The Court finds these cases to be persuasive and holds that the plaintiff has not waived the privilege by memorializing her privileged communications with her attorney in her private diary. Accordingly, the defendants' motion [Doc. 21] is denied with respect to the Group 1 diary entries.

III. Spousal Privilege

Tennessee's spousal privilege states in pertinent part that: In a civil proceeding, confidential communications between married persons are privileged and inadmissible if either spouse objects. This communications privilege shall not apply to proceedings between spouses or to proceedings concerning abuse of one (1) of the spouses or abuse of a minor in the custody of or under the dominion and control of either spouse, including, but not limited to, proceedings arising under title 36, chapter 1, part 1; title 37, chapter 1, parts 1, 4 and 6; title 37, chapter 2, part 4; and title 71, chapter 6, part 1. This confidential communications privilege shall not apply to any insured's obligations under a contract of insurance in civil proceedings.

Tenn. Code Ann. § 24-1-201. The defendants contend that the plain language of the statute creates an exception for any communications "concerning the abuse of one (1) of the spouses," therefore the privilege does not apply in this case.

"It is an elementary rule of statutory construction that [courts] . . . . initially look to the plain language of the statute to determine the meaning of legislation." McBarron v. S & T Indus., Inc., 771 F.2d 94, 97 (6th Cir. 1985). The Sixth Circuit has observed that:

The primary function of the courts in construing legislation is to effectuate the legislative intent. Legislative intent may be ascertained from the clear language of the statute itself or from available legislative materials which clearly reveal this intent. Where the literal language of the statute does not conclusively reveal legislative intent, the ...


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