“When relayed to a third party that is not rendering legal services on the client’s behalf, a communication is no longer confidential, and thus it falls outside of the reaches of the privilege.”
How later courts described this case
- “When relayed to a third party that is not rendering legal services on the client’s behalf, a communication is no longer confidential, and thus it falls outside of the reaches of the privilege.”
- “Disclosure of any significant portion of a confidential communication waives the privilege as to the whole.”
- patient’s disclosure of advice from her attorney to her therapist, as recorded in the therapist’s notes, “waived the attorney-client privilege that previously attached to the communication”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
REGINALD WILLIAMS CIVIL ACTION
VERSUS NO. 19-663-BAJ-SDJ
NATIONSTAR MORTGAGE LLC
______________________________________________________________________________
ORDER
Before the Court is a Motion to Compel Discovery Responses (R. Doc. 47), filed on August
5, 2021, by Defendant, Nationstar Mortgage LLC. In its Motion, Nationstar seeks an order
compelling Plaintiff, Reginald Williams, to respond to deposition questions about conversations
with his therapist regarding the instant litigation.1 In addition, Nationstar requests “reasonable
costs and attorney’s fees incurred” as a result of this Motion.2 Plaintiff opposes this Motion, filing
his Opposition thereto on August 17, 2021 (R. Doc. 53). For the reasons set forth below,
Nationstar’s Motion is granted in part and denied in part.
I. Motion to Compel
According to Nationstar, Plaintiff’s deposition was taken on July 28 and 29, 2021.3 During
the deposition, defense counsel “questioned the Plaintiff on his counseling sessions with Holly
Besse, a licensed professional counselor whom Plaintiff has identified as providing treatment for
his alleged mental anguish.”4 As part of document production in this case, Plaintiff produced the
session notes from his meetings with Besse.5 The session notes make reference to discussions
1 R. Doc. 47 at 1.
2 R. Doc. 47-1 at 5.
3 Id. at 1.
4 Id.
5 Id.
between Plaintiff and Besse regarding this case as well as discussions Plaintiff had with his
attorney about the case.6 As such, during Plaintiff’s deposition, defense counsel questioned
Plaintiff about his conversations with Besse regarding this case and his discussions with his
attorney.7 Plaintiff’s counsel, however, objected to these questions, claiming Plaintiff’s
discussions with his attorney are protected by the attorney-client privilege, and instructed Plaintiff
not to answer the questions for the same reason.8 Believing Plaintiff waived his attorney-client
privilege in disclosing to Besse his discussions with his counsel, Nationstar filed the instant Motion
to Compel. In its Motion, Defendant seeks an order compelling Plaintiff “to fully answer
Nationstar’s deposition questions regarding his conversations with Holly Besse regarding this case
and his discussions with his attorney regarding this case.”9
Plaintiff argues in response that, instead of disclosing specific communications with his
attorney, Plaintiff provided only “his own evaluation of certain communications he had with his
attorney.”10 As such, per Plaintiff, “these references do not constitute a waiver of the attorney
client privilege.”11 Plaintiff further claims that, should waiver be found, Plaintiff’s discussions
with Besse do not involve disclosures of a significant portion of the confidential communications
between Plaintiff and his counsel, meaning there is no waiver of the attorney-client privilege as a
whole.12 Plaintiff then argues that, even if the Court finds that a significant portion of the
communications was disclosed, subject matter disclosure is not warranted pursuant to Federal Rule
of Evidence 502 (“FRE 502”).13 In the alternative, Plaintiff asserts that if the Court determines
6 Id.
7 Id. at 2.
8 Id.
9 R. Doc. 47 at 1.
10 R. Doc. 53 at 5.
11 Id.
12 Id.
13 Id. at 5-6.
the strictures of Rule 502 do not apply, the alleged waiver of the attorney-client privilege should
extend only to communications related to the same subject matter.14
Here, the question is whether Plaintiff has waived his attorney-client privilege by
disclosing to his treating therapist discussions he had with his attorney. In general, disclosure of
confidential attorney-client communications to a third party waives the attorney-client privilege.
See Nguyen v. Excel Corp., 197 F.3d 200, 207 (5th Cir. 1999) (“When relayed to a third party that
is not rendering legal services on the client’s behalf, a communication is no longer confidential,
and thus it falls outside of the reaches of the privilege.”); Tonti Mgmt. Co., Inc. v. Soggy Doggie,
LLC, No. 19-13134, 2020 WL 9172077, at *4 (E.D. La. June 25, 2020) (“Disclosure of privileged
communications to a third party generally eliminates the confidentiality of the attorney-client
privilege and serves to waive the privilege.”). While the case law on the issue of whether
disclosure of confidential attorney-client communications to a treating mental health professional
also waives the privilege is sparse, courts have found that such disclosures do, in fact, waive any
attorney-client privilege that may have attached to the communications. See Salser v. Dyncorp
Int’l, Inc., No. 12-10960, 2014 WL 7139886, at *4 (E.D. Mich. Dec. 12, 2014) (finding plaintiff’s
“disclosure of information to her therapist about her attorney and about her case constitutes a
waiver of the attorney-client privilege”); Ziemann v. Burlington County Bridge Comm’n, 155
F.R.D. 497, 503 (D.N.J. 1994) (patient’s disclosure of advice from her attorney to her therapist, as
recorded in the therapist’s notes, “waived the attorney-client privilege that previously attached to
the communication”). Based on Plaintiff’s disclosure of information discussed with her attorney
to her therapist, a third party, and his production of session notes, the Court finds that Plaintiff has
waived the attorney-client privilege. See Indus. Clearinghouse, Inc. v. Browning Mfg. Div. of
14 Id. at 6.
Emerson Elec. Co., 953 F.2d 1004, 1007 (5th Cir. 1992) (“The confidentiality of a client’s
communications may be compromised either through the publication of evidence of the
communications themselves or through the publication of evidence of attorney statements or
documents that disclose the client’s confidential communications.”).
However, the Court finds that the entire attorney-client privilege has not been waived.
First, disclosure of a “significant portion” of the confidential communications with his attorney by
a client results in a complete waiver of the privilege. See Nguyen, 197 F.3d at 208 (“Disclosure of
any significant portion of a confidential communication waives the privilege as to the whole.”);
Indus. Clearinghouse, 953 F.2d at 1007 (same). Second, FRE 502 limits any waiver to the actual
disclosures at issue. According to FRE 502(a):
When the disclosure is made in a federal proceeding … and waives the attorney-
client privilege or work-product protection, the waiver extends to an undisclosed
communication or information in a federal or state proceeding only if: (1) the
waiver is intentional; (2) the disclosed and undisclosed communications or
information concern the same subject matter; and (3) they ought in fairness to be
considered together.
As further explained in the Advisory Committee Notes for FRE 502, regarding “Subdivision (a),”:
The rule provides that a voluntary disclosure in a federal proceeding or to a federal
office or agency, if a waiver, generally results in a waiver only of the
communication or information disclosed; a subject matter waiver … is reserved for
those unusual situations in which fairness requires a further disclosure of related,
protected information, in order to prevent a selective and misleading presentation
of evidence to the disadvantage of the adversary.15
Courts have provided additional clarification, finding that subject matter waiver under FRE 502(a)
“is limited ‘to situations in which a party intentionally puts protected information into the litigation
in a selective, misleading and unfair manner.’” RLIS, Inc. v. Cerner Corp., No. 12-209, 2014 WL
15 Advisory Committee Notes for FRE 502, Explanatory Note (Revised 11/28/2007).
12599509, at *1 (S.D. Tex. Dec. 24, 2014) (quoting Fed. R. Evid. 502(a) advisory committee’s
note).
Here, the references to communications between Plaintiff and his attorney found in the
session notes, as listed by Plaintiff in his Opposition, are:
1) His lawyer is pressuring him to settle for the 90,000 the opposing counsel is
offering, but Reginald is refusing.
2) He also had a good conversation with his lawyer regarding the case and they are
both on the same page now regarding what he is willing to accept in a settlement.
3) He is somewhat upset that his lawyer didn’t submit the correct paperwork and their
trial has been pushed back to January 2022.
4) He has had a talk with his lawyer to not push it back anymore because he took
time off in May for court and now it’s not happening.16
The Court, after reviewing all session notes filed by Nationstar under seal, agrees with Plaintiff
that these are the statements that disclose confidential communications he made with his attorney.
While other references are made to this case in the session notes, they either pertain to Plaintiff’s
reactions to or feelings about the case or are simply facts about the case. Based on these
disclosures, the Court does not find that Plaintiff disclosed a “significant portion” of his
confidential communications with his attorney. As such, there is no complete waiver of the
attorney-client privilege. Additionally, as Plaintiff has claimed—and Nationstar has not
challenged—these “disclosures were not intentional” waivers, meaning all three elements of an
FRE 502(a) subject matter disclosure are not met.17 Moreover, the Court does not find that
additional disclosures are needed to “to prevent a selective and misleading presentation of
evidence” to Nationstar’s disadvantage or that Plaintiff produced this information in an unfair or
16 R. Doc. 53 at 2. The Court notes that these statements are taken from notes for sessions occurring on March 9,
2021; March 24, 2021; and April 7, 2021. Id.
17 Id. at 6.
misleading manner and notes that Nationstar is not specifically seeking any other disclosures. As
such, the Court finds that the waiver of the attorney-client privilege by Plaintiff extends only to
these specific disclosures.
“[B]ecause the assertion of privileges inhibits the search for truth, the attorney-client
privilege is generally construed narrowly by courts.” Stoffels v. SBC Commc’ns, Inc., 263 F.R.D.
406, 410 (W.D. Tex. 2009) (quoting Trammel v. U.S., 445 U.S. 40, 50, 100 S.Ct. 906, 63 L.Ed.2d
186 (1980)). In its Motion to Compel, as stated above, Nationstar seeks an order compelling
Plaintiff “to fully answer Nationstar’s deposition questions regarding his conversations with Holly
Besse regarding this case and his discussions with his attorney regarding this case.”18 Based on
Plaintiff’s disclosures, the Court will grant Nationstar’s request in part. As the Court has found a
waiver of the disclosures listed above, should Nationstar re-depose Plaintiff, Plaintiff is required
to answer questions about the particular disclosures set forth above. Nationstar, however, is
cautioned that it should strictly adhere to the boundaries set forth in this Order.19
II. Request for Attorney’s Fees and Costs
In its Motion to Compel, Defendant also seeks “reasonable costs and attorney’s fees
incurred in bringing this Motion to Compel” because “Plaintiff and his counsel had the opportunity
to obviate the need for this Motion.”20 According to Federal Rule of Civil Procedure 37(a)(5)(A):
If the motion [to compel] is granted—or if the disclosure or requested discovery is
provided after the motion was filed—the court must, after giving an opportunity to
be heard, require the party or deponent whose conduct necessitated the motion, the
party or attorney advising that conduct, or both to pay the movant’s reasonable
18 R. Doc. 47 at 1.
19 In the prior deposition of Plaintiff, Nationstar’s questions included, for example, “Did your counsel suggest that
you seek counseling from somebody who could serve as an expert in a lawsuit prior to you starting your sessions with
Dr. Spruiell?” and “What has your attorney told you about your chance of success at trial in this lawsuit?” R. Doc.
53 at 4; R. Doc. 53-1 at 13, 15. Questions such as these do not pertain to Plaintiff’s disclosures and are not covered
by this Order.
20 R. Doc. 47-1 at 5.
expenses incurred in making the motion, including attorney’s fees. But the court
must not order this payment if:
(i) the movant filed the motion before attempting in good faith to obtain the
disclosure or discovery without court action;
(ii) the opposing party’s nondisclosure, response, or objection was substantially
justified; or
(iii) other circumstances make an award of expenses unjust.
Although the Court is granting Defendant’s Motion to Compel in part, it finds that other
circumstances here preclude an award of attorney’s fees and/or costs. As explained in the Advisory
Committee Note for the 1970 Amendment to Rule 37, “[o]n many occasions, to be sure, the dispute
over discovery between the parties is genuine, though ultimately resolved one way or the other by
the court,” and continues that “[i]n such cases, the losing party is substantially justified in carrying
the matter to court.” While Defendant claims Plaintiff could have obviated the need for this
Motion, the Court finds that the response of Plaintiff and Plaintiff’s counsel to the questions in the
deposition was substantially justified, particularly as the waiver alleged by Nationstar is broader
than that determined by this Court. See Nguyen, 197 F.3d at 208 (“Because of the importance of
the attorney-client privilege, we pause to reaffirm that the privilege serves the valuable purpose of
encouraging full and frank communication between clients and their attorneys, thereby promoting
the broad public interests in the observance of law and the administration of justice.”); Jolivet v.
Compass Group USA, Inc., ---F.R.D.---, 2021 WL 5176930, at *23 (N.D. Tex. Sept. 14, 2021)
(recognizing “[t]he attorney-client privilege is an important doctrine”). As such, the Court here
invokes the exception found in Rule 37(a)(5)(A)(iii) and declines to award Defendant its attorney’s
fees or costs associated with filing this Motion.
III. Conclusion
Accordingly,
IT IS ORDERED that Defendant Nationstar Mortgage LLC’s Motion to Compel
Discovery Responses (R. Doc. 47) is GRANTED to the extent set forth in this Order.
IT IS FURTHER ORDERED that Defendant Nationstar Mortgage LLC’s Motion to
Compel (R. Doc. 47) is DENIED to the extent Defendant seeks reasonable costs and attorney’s
fees associated with the instant Motion to Compel. See Fed. R. Civ. P. 37(a)(5)(A)(iii)
(circumstances make an award of expenses unjust).
Signed in Baton Rouge, Louisiana, on February 8, 2022.
S
SCOTT D. JOHNSON
UNITED STATES MAGISTRATE JUDGE