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Quashed subpoena duces tecum might be revived.

Byline: Virginia Lawyers Weekly

A previously quashed subpoena duces tecum served on a law firm can be revived and served if plaintiff's post-judgment discovery efforts are unsuccessful in the underlying case and if plaintiff makes certain showings concerning the document's prior availability.

Facts

In the underlying case, plaintiff obtained a judgment against defendant Peachtree Communities in a Georgia state court. The judgment remains unpaid. Defense counsel, the Sack Law Firm, also represents Peachtree Investment Group, which is not a party to the Georgia case. The Sack Law Firm represented defendant and Peachtree Investments in a sale of defendant's assets to Century Communities of Georgia about four years ago.

In October 2017, defendant did not respond to plaintiff's discovery requests in the Georgia case. Plaintiff did not press the matter. Plaintiff also sought discovery from Century. The Georgia court granted a motion to compel but ordered plaintiff to maintain the confidentiality of the sought-after asset purchase agreement and to use it only to execute judgment.

Plaintiff then served the Sack Law Firm with a subpoena duces tecum for all documents and communications between the firm and its clients regarding the asset sale. This court previously quashed the subpoena. The matter is before the court on reconsideration. The law firm has resisted the subpoena on the basis of attorney-client privilege.

Discussion

Plaintiff points to Virginia Power v. Westmoreland-LG&E Partners, 259 Va. 319 (2000), for the proposition that privilege does not attach "merely because a client delivers [a document] to his attorney." Plaintiff argues that the case allows discovery unless the document was prepared with the intention of obtaining legal advice.

"Virginia Power is a very different case than the instant case." In Virginia Power, the subpoena duces tecum was served on a party. This court reads the case as inapplicable "where a subpoena duces tecum was served directly on a party's independent law firm, not on the party, to obtain documents that the party opponent apparently made little effort to obtain from the party, even though there was apparently a forum available in which discovery could have been pursued."

There is no Virginia authority governing service of a subpoena duces tecum on an independent law firm. Thus, the starting point must be Virginia's Rules of Professional Conduct relating to attorney-client privilege. In a similar case, the U.S. Supreme Court examined the Virginia Rules of Professional Conduct in Fisher v. United States, 425 U.S. 391 (1976).

The Court explained that the privilege "protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege. This Court and the lower courts have thus uniformly held that pre-existing documents which could have been obtained by court process from the client when he was in possession may also be obtained from the attorney by similar process following transfer by the client in order to obtain more informed legal advice."

It is "a fair inference" that the documents sought from the Sack Law Firm were obtained to provide defendant with legal assistance. To compel production, plaintiff must show "that the documents could have been obtained by court process from Defendant when they were in Defendant's possession. Without such a showing by Plaintiff, the court concludes that the documents are not available to Plaintiff from the Sack Law Firm." Plaintiff has not made this showing. It never pursued discovery after defendant failed to respond in the Georgia case, "so Plaintiff (as well as this court) has no idea what documents could have been obtained by court process from Defendant when Defendant was in possession of them."

Subpoenaservicepossible

"[T]he court will allow Plaintiff to serve a subpoena duces tecum on the Sack Law Firm if Plaintiff pursues further post-judgment discovery in Georgia against Defendant, but is unable to obtain discovery from Defendant, and Plaintiff shows that the documents could have been obtained by court process from Defendant when they were in Defendant's possession and that the documents were the result of 'transfer by [Defendant]' to the law firm."

Randal Lowe Plumbing v. Peachtree Communities, LLC. Case No. CM-18-405, Jan. 25, 2019; Fairfax Cir. Ct. (Gardiner). Shawn C. Whittaker, Tom Cummins, James Sack for the parties. VLW 019-8-008, 6 pp.

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Title Annotation:Randal Lowe Plumbing v. Peachtree Communities, LLC, Fairfax Circuit Court, Virginia
Publication:Virginia Lawyers Weekly
Date:Feb 10, 2019
Words:709
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