Rodriguez v. Seabreeze JetLev, LLC

Background

This wrongful-death action arose from the October 2019 death of Jamal Marquez Jordan in Hawaii. Rochelle Nicole Rodriguez, identified as the decedent’s widow and the personal representative of his estate, sought wrongful-death and survival damages for the estate and emotional-distress damages for herself.

The discovery dispute involved the decedent’s daughter, Savannah Jordan; his sister, Shirena Brown; and Savannah Jordan’s mother, Tracy Maldonado. These witnesses were not parties to the action. During depositions, their counsel instructed them not to answer various questions about their attorneys, communications with Rodriguez, disagreements concerning the litigation, possible claims, settlement-related matters, and other subjects. The witnesses also withheld documents based on attorney-client privilege, the work-product doctrine, and the common-interest doctrine. They did not provide a privilege log.

The defendants moved to compel answers to the deposition questions and production of the withheld documents. They also asked the court to require counsel for the witnesses to pay the cost of re-noticing the depositions.

Legal standards

Because the claims arose under federal maritime law and Hawaii law and the complaint alleged federal jurisdiction, the court applied federal law to the privilege issues. Attorney-client privilege protects confidential communications made for the purpose of obtaining legal advice, but it does not generally protect underlying facts, the identity of a client, the general purpose of legal work, or the dates and duration of attorney meetings. The party asserting the privilege bears the burden of establishing it.

The common-interest doctrine is not a separate privilege. It is a limited exception to the usual rule that sharing a privileged communication with another person waives the privilege. It can preserve protection when parties with a common legal interest communicate as part of an agreed joint legal strategy. A shared financial interest or a desire for the same result is not, by itself, enough. The court also explained that work-product protection operates differently: sharing work product with someone who is not an adversary does not necessarily waive that protection.

Analysis and ruling

The court held that the witnesses’ communications with lawyers were privileged to the extent they met the requirements for attorney-client privilege. But the privilege did not cover facts that would not reveal legal strategy, including information such as when the witnesses obtained counsel, the general purpose of legal work, and the dates and duration of attorney meetings. The court found that several questions the witnesses refused to answer did not necessarily seek privileged communications. It also found that counsel’s blanket objection to questions about disagreements between Shirena Brown and Rodriguez was unjustified.

The court concluded that a mere financial interest in maximizing damages did not give non-beneficiary witnesses a common legal interest with Rodriguez. It recognized a common legal interest between Rodriguez and estate beneficiaries because Rodriguez was the person able to maintain the wrongful-death action under the applicable maritime law, while the beneficiaries had an interest in maximizing the estate’s recovery. The court stated that Savannah Jordan was presumably the only beneficiary among the three witnesses.

The court further held that no agreement to pursue a joint legal strategy existed as of December 2021. The common-interest doctrine therefore preserved privilege only for Rodriguez’s communications with estate beneficiaries made after the beneficiaries agreed, with the assistance of their own counsel, to pursue a joint legal strategy—likely in January or February 2022. It did not preserve privilege for communications between Rodriguez and non-beneficiary witnesses, regardless of when those communications occurred. Work product shared with the witnesses remained protected because they were not Rodriguez’s adversaries.

The court granted the defendants’ motion to compel. It ordered the witnesses to appear for continued depositions within fourteen days and answer questions that did not seek information protected by attorney-client privilege, the common-interest doctrine, or the work-product doctrine. It also ordered them to produce non-privileged responsive documents within fourteen days. Any documents withheld under attorney-client privilege or the work-product doctrine had to be identified in a privilege log detailed enough for defendants to assess the claimed protection. The court declined to compel counsel for the witnesses or Rodriguez to pay the cost of re-noticing the depositions. Judge Laurel Beeler stated that the order resolved ECF No. 140.