U.S. court rejects paralegal’s invocation of privilege

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RICHMOND, Va. — A federal court denied in part a motion to quash filed by a man who allegedly worked as a paralegal for defendants’ counsel in a civil suit, finding that paralegals may not assert attorney-client privilege on behalf of their clients.

“While attorneys may assert the privilege on behalf of their clients, the Fourth Circuit has never held that a paralegal may do the same,” U.S. Magistrate Judge Joel C. Hoppe wrote.

The judge added that paralegals “act solely at the direction of an attorney who represents the client. Thus, it makes sense to impose a duty on the lawyer to assert a privilege for his client, but not extend that same duty to the paralegal who works for the lawyer.”

The motion to quash was granted in part regarding information about the defendants’ counsel of record’s office policies.

Hoppe authored the 17-page opinion in Orlando v. Neal, et al. (VLW 023-3-710) for the U.S. District Court for the Western District of Virginia.

Background

The plaintiff, Samuel Joseph Orlando, filed suit in October 2022, alleging one of the defendants sexually abused him as a child and another “knew about and did nothing to stop or prevent the abuse.”

In May 2023, Orlando subpoenaed nonparty David Briggman to depose him in the matter. Per the opinion, Briggman “is a nonparty, who has done work for Defendants and/or their counsel of record, Bradley Pollack, in some capacity.”

Briggman moved to quash Orlando’s subpoena, for a protective order and for sanction. In filing, he argued information sought by Orlando is irrelevant and privileged and that the subpoena was filed for “‘[the] improper purpose’ of ‘harassment.’”

Orlando claimed the court should not quash the subpoena. The plaintiff responded, stating the information he sought “is nonprivileged and relevant” and the subpoena was not filed for reasons of harassment.

Attorney-client privilege

Orlando wanted information on communications between the defendants and Briggman “regarding the actual claims and defenses in this case.” Briggman contended that attorney-client privilege shielded his communications as he “was Pollack’s paralegal in this case and he communicated with Defendants in that capacity.”

Hoppe noted that attorney-client privilege applies to confidential communications between clients and their attorneys as well as such communications between clients and “their attorneys’ subordinates, including paralegals.”

Attorneys can assert the privilege on behalf of their clients, but the Fourth Circuit has never held that a paralegal may do so.

“Moreover, the Fourth Circuit has reasoned that attorneys may — and sometime must — assert the privilege on behalf of clients because attorneys’ rules of professional conduct impose certain duties on them, including the duty of confidentiality,” Hoppe said.

These rules do not bind paralegals, and paralegals “act solely at the direction of an attorney who represents the client,” he added.

“Thus, it makes sense to impose a duty on the lawyer to assert a privilege for his client, but not extend that same duty to the paralegal who works for the lawyer,” Hoppe wrote.

Even if the privilege was extended to paralegals to assert, Briggman “has not adequately done so.” The magistrate judge said Briggman only offered an invoice showing that Pollack paid him for “Motion for Stay Research and Writing Draft” in the case.

“This invoice does not satisfy Briggman’s burden of proof,” Hoppe wrote. “The invoice does not show that Briggman was necessarily Pollack’s subordinate in this matter.”

The evidence, at most, shows Briggman “invoiced Pollack for ghostwriting a brief in this matter,” rather than that Pollack retained Briggman to communicate with the defendants as a paralegal or perform other services.

“Therefore, Briggman has not adequately shown that attorney-client privilege protects the information Orlando seeks,” Hoppe wrote.

The magistrate judge said the defendants and their attorney can assert attorney-client privilege; neither have waived the privilege in this case.

“Rather, I find that Briggman, as a purported paralegal, cannot assert the privilege on Defendants’ behalf and that even if he could, he has not carried his burden to show that the privilege applies,” Hoppe wrote.

Relevance

Hoppe noted that “relevance” isn’t defined by Rule 26(b)(1), but precedent says that “[c]ertainly, information is relevant if it logically relates to a party’s claim or defense.”

In the motion to quash, Briggman argued he shouldn’t be subject to the deposition because he “has no relevant information,” as he lacked personal knowledge or the allegations in the complaint. Orlando contended the subpoena “was proper to discover several areas of relevant information.”

The first of those — Pollack’s internal ethical screening practices — was sought by Orlando because he said it was “relevant to determining whether to pursue Pollack’s disqualification from this case.”

But Hoppe determined the information is not discoverable.

“This argument misunderstands relevance in the context of discovery,” Hoppe wrote. “The information Orlando seeks regarding Pollack’s internal screening processes is straightforwardly irrelevant to the claims and defenses in this case.”

The magistrate judge further ruled that information about the credibility of one of the defendants “has no connection to the claims or defenses in this case.” He prohibited Orlando from questioning Briggman on that information.

In sum, Hoppe determined information sought by Orlando on the office policies, credibility and motivations for bringing the suit was irrelevant and not discoverable. He granted Briggman’s motion to quash on these claims.

Hoppe denied an additional claim by Briggman that the court should quash the subpoena on harassment grounds.