UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BERLINER CORCORAN & ROWE LLP,
Plaintiff,
Civil Action No. 06-1543 (CKK)
v.
MORDECHAI ORIAN, et al.,
Defendants.
MEMORANDUM OPINION
(October 13, 2009)
On August 17, 2009, the Court issued a Memorandum Opinion resolving this case and
allowing the parties to confer and propose placing portions of the opinion under seal pursuant to
United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980). Plaintiffs did not propose any
redactions, but Defendants proposed several redactions on the basis of attorney-client privilege.
On August 27, 2009, the Court issued an order giving Defendants an opportunity to file a brief
supporting their proposed redactions, which they did on September 3, 2009. The Court, having
considered Defendants’ brief and the applicable legal authorities, concludes that there is a public
need for the redacted information and that the attorney-client privilege is either inapplicable to or
has been waived with respect to their proposed redactions. Therefore, the Court shall release an
unsealed, unredacted version of the Memorandum Opinion on the public docket.
BACKGROUND
This case involved a dispute over attorneys’ fees.1 Plaintiff Berliner Corcoran & Rowe
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A more complete factual and procedural background is provided in the Court’s August
17, 2009 Memorandum Opinion.
LLP (“BCR”) represented Defendants Global Horizons, Inc. (“Global”) and Mordechai Orian
(“Orian”) as legal counsel in two administrative proceedings before the Department of Labor
(“DOL”) for which Defendants did not pay a portion of BCR’s attorneys’ fees. BCR’s
Complaint asserted three claims for relief: (1) breach of contract; (2) failure to pay accounts
stated; and (3) quantum meruit. Defendants filed an Answer with Counterclaims, which was
later amended, with seven counterclaims: (1) breach of contract; (2) breach of implied covenant
of good faith and fair dealing; (3) promissory estoppel; (4) fraud and misrepresentation; (5)
unjust enrichment; (6) legal malpractice; and (7) breach of fiduciary duty. After extensive
discovery and one round of summary judgment briefing, the parties filed a second round of
motions for summary judgment.
Defendants moved for summary judgment on all counts of Plaintiff’s Complaint. In
support of this motion, Defendants filed a brief and several supporting exhibits under seal,
including a declaration from Defendant Orian and correspondence between BCR and Defendants
regarding fees. See Def.’s Mot. for Summ. J. BCR filed a motion for summary judgment under
seal with dozens of supporting exhibits, including correspondence between BCR and Defendants
regarding BCR’s representation and payment for its services. See Pl.’s Mot. for Reconsideration
& Summ. J. BCR also filed under seal a motion for summary judgment on Defendants’
counterclaims. The parties filed oppositions and reply briefs under seal. On August 17, 2009,
the Court issued a Memorandum Opinion and Order granting BCR’s motions for summary
judgment and denying Defendants’ motions for summary judgment. The Court’s Memorandum
Opinion was filed under seal and cited several exhibits that had been filed under seal by the
parties. The Court permitted the parties to propose redactions to the unsealed opinion, and only
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Defendants proposed redactions, invoking the attorney-client privilege.
LEGAL ANALYSIS AND DISCUSSION
When determining whether to unseal court records, courts in this Circuit must begin with
a “strong presumption in favor of access to judicial proceedings.” Johnson v. Greater Se. Cmty.
Hosp. Corp., 951 F.2d 1268, 1277 (D.C. Cir. 1991). In United States v. Hubbard, 650 F.2d 293
(D.C. Cir. 1980), the D.C. Circuit
identified six factors that might act to overcome this presumption: (1) the need for
public access to the documents at issue; (2) the extent of previous public access to
the documents at issue; (3) the fact that someone has objected to disclosure, and the
identity of that person; (4) the strength of any property and privacy interests asserted;
(5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for
which the documents were introduced during the judicial proceedings.
EEOC v. Nat’l Children’s Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996) (citing Hubbard, 650
F.2d at 317-22). The Court shall address each of these factors in turn.
1. The Need for Public Access
Public access to judicial records is “fundamental to a democratic state” and “serves the
important functions of ensuring the integrity of judicial proceedings in particular and of the law
enforcement process more generally.” Hubbard, 650 F.2d at 315 & n.79; see also Nixon v.
Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978) (recognizing a common law right to view
court documents). The generalized need for public access reaches its apex when a matter has
reached the adjudication stage. United States ex rel. Schweizer v. Oce, N.V., 577 F. Supp. 2d
169, 172 (D.D.C. 2008) (citing Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982) (“An adjudication
is a formal act of government, the basis of which should, absent exceptional circumstances, be
subject to public scrutiny.”)). “[T]here is a ‘need for public access’ in those instances where ‘the
documents at issue [are] . . . specifically referred to in the trial judge’s public decision.’” Nat’l
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Children’s Ctr., 98 F.3d at 1409 (quoting Hubbard, 650 F.2d at 318). Because the Court
specifically relies in its Memorandum Opinion on the evidence that Defendants propose to
redact, there is a generalized public need to access that information. Therefore, the Court finds
this factor weighs in favor of unsealing.
2. Previous Public Access to the Documents At Issue
The citations that Defendants seek to redact from the Memorandum Opinion were filed
under seal, and there is no indication in the record that there has ever been public access to those
documents. “Determining whether, when and under what conditions the public has already had
access to court records in a given case cannot of course guide decision concerning whether, when
and under what conditions the public should have access as an original matter.” Hubbard, 650
F.2d at 318 (emphasis added). Accordingly, there is no previous public access to weigh in favor
of unsealing. Id. at 318-19.
3. Objections to Unsealing
Defendants are the only parties who object to unsealing the full Memorandum Opinion.2
Defendants object on the basis of the attorney-client privilege, which they claim will be vitiated
by the publication of certain communications between them and Plaintiff, their former counsel.
While the fact that a party objects may be a significant factor for the court to consider when
deciding whether to unseal a record, see Hubbard, 650 F.2d at 319, a party’s objection is only
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Defendants contend that Plaintiff “ha[s] objected to the disclosure of the sealed
evidence” because it filed the initial motion to seal. See Defs./Counter-Cls.’ Br. Re Redaction of
Sealed Evid. Cited in Memo. Op. at 4. However, Plaintiff made clear in the last Joint Status
Report that it takes no position with respect to Defendants’ proposed redactions and that it “does
not have an affirmative obligation to redact a document filed by any entity other than Plaintiff
BCR, such as this Court.” Joint Status Report (Aug. 24, 2009) at 1.
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cognizable if the attorney-client privilege actually applies to the contested documents and the
privilege has not been waived. United States ex rel. Schweizer v. Oce, N.V., 577 F. Supp. 2d 169,
174 (D.D.C. 2008). Accordingly, the Court must determine whether Defendants’ proposed
redactions cover materials protected by the attorney-client privilege and, if so, if that privilege
has been waived. Because this a diversity case in which state law applies, state law will also
determine the scope of the privilege and its waiver. See Fed. R. Evid. 501. This Court has
already determined that District of Columbia law applies to this case. See Aug. 17, 2009 Mem.
Op. at 15-16.3
The party asserting the privilege has the burden of proving that it applies. Jones v. United
States, 828 A.2d 169, 175 (D.C. 2003). The attorney-client privilege applies only in the
following circumstances:
(1) where legal advice of any kind is sought (2) from a professional legal advisor in
his capacity as such, (3) the communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance permanently protected (7) from
disclosure by himself or by the legal adviser, (8) except the protection be waived.
Id. (quoting 8 WIGMORE , EVIDENCE § 2290 (McNaughton rev. 1961)). The purpose of the
privilege “is to encourage full and frank communication between attorneys and their clients and
thereby promote broader public interests in the observance of law and administration of justice.”
Wender v. United Servs. Auto. Ass’n, 434 A.2d 1372, 1373 (D.C. 1981). “But the privilege
should be narrowly construed to protect only the purposes which it serves.” Adams v. Franklin,
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Defendants argue that California privilege law applies. See Defs./Counter-Cls.’ Br. Re
Redaction of Sealed Evid. Cited in Memo. Op. at 5. However, under the law of the case
doctrine, the Court’s prior decision regarding choice of law is binding here. See LaShawn A. v.
Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) (“[T]he same issue presented a second time in the
same case in the same court should lead to the same result.”)
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924 A.2d 993 (D.C. 2007) (citing Wender, 434 A.2d at 1374).
Many of the statements Defendants propose to redact are communications between BCR
and Defendants regarding Defendants’ promises to pay outstanding legal bills. See Aug. 17, 2009
Memo. Op. at 8-10, 31. Although District of Columbia courts do not appear to have addressed
this issue, the weight of authority holds that communications relating solely to the payment of
attorneys’ fees are not covered by the attorney-client privilege unless they reveal confidences
about the nature of legal services rendered. See Montgomery County v. MicroVote Corp., 175
F.3d 296, 304 (3d Cir. 1999) (holding that attorney fee agreement letter is not privileged);
Chaudhry v. Gallerizzo, 174 F.3d 394, 402 (4th Cir. 1999) (“Typically, the attorney-client
privilege does not extend to billing records and expense reports.”); Lefcourt v. United States, 125
F.3d 79, 86 (2d Cir. 1997) (“As a general rule, a client’s identity and fee information are not
privileged.”); Clarke v. Am. Commerce Nat’l Bank, 974 F.2d 127, 129 (9th Cir. 1992) (holding
that billing correspondence is not protected unless it “also reveal[s] the motive of the client in
seeking representation, litigation strategy, or the specific nature of the services provided, such as
researching particular areas of law”). To the extent that the statements at issue pertain solely to
the timing of payments and promises to pay and do not implicate the nature of services provided
or other confidential information, they are not subject to the attorney-client privilege.
The remaining statements Defendants propose to redact relate to the substance of
Plaintiff’s representation of Defendants and are presumably subject to the attorney-client
privilege. However, clients are deemed to waive the privilege when they place privileged
information at issue through some affirmative act for their own benefit. Ideal Elec. Sec. Co. v.
Int’l Fid. Ins. Co., 129 F.3d 143, 151 (D.C. Cir. 1997) (“Under the common-law doctrine of
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implied waiver, the attorney-client privilege is waived when the client places otherwise privileged
matters in controversy.”) (applying D.C. law); Wender, 434 A.2d at 1374 (citing Hearn v. Rhay,
68 F.R.D. 574, 581 (E.D. Wash. 1975)); see also 1 MCCORMICK ON EVIDENCE § 91.1 (Kenneth S.
Broun ed., 6th ed. 2006) (“The weight of authority seems to support the view that when client and
attorney become embroiled in a controversy between themselves, as in an action by the attorney
for compensation or by the client for damages for the attorney’s negligence, the seal is removed
from the attorney’s lips.”). Defendants put the issue of Plaintiff’s representation before this Court
when they filed their counterclaims for breach of contract, breach of implied covenant of good
faith and fair dealing, promissory estoppel, fraud and misrepresentation, unjust enrichment, legal
malpractice, and breach of fiduciary duty. See Def.’s Am. Countercls. The statements which
Defendants seek to redact are directly related to these claims. Therefore, Defendants have waived
the attorney-client privilege with respect to these communications.
Because the attorney-client privilege either does not apply or has been waived with respect
to the communications that Defendants object to unsealing, their objections do not weigh against
unsealing the Memorandum Opinion in full.
4. Strength of Property and Privacy Interests Asserted
Defendants do not assert any property or privacy interests in the proposed redactions
beyond their attorney-client privilege assertions. Accordingly, this factor does not weigh in favor
or against unsealing the record. See Oce, 577 F. Supp. 2d at 176.
5. Possibility of Prejudice
The possibility that disclosure of the sealed information may prejudice a party is a factor
that may weigh against unsealing the record. Hubbard, 650 F.2d at 320-21. Here, however, the
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possibility of prejudice is minimal. The statements that Defendants propose to redact do not
reveal any substantive information that is not already discernable from the other, public portions
of the Memorandum Opinion. Although Defendants might be embarrassed by the public
disclosure of formerly confidential communications, they have not identified any legal prejudice
they would suffer if the redactions are not made. Compare Hubbard, 650 F.2d at 320-21 (citing
possibility of prejudice that a sensational disclosure might have on defendants who have yet to be
put on trial). Therefore, this factor does not weigh in favor of or against unsealing.
6. Purposes for Sealed Materials’ Introduction
The parties filed exhibits under seal for the purpose of proving their cases to the Court at
the summary judgment stage. As such, the parties explicitly intended the Court to rely on these
materials in adjudicating their dispute. The Court’s citation to these records is therefore
consistent with the purpose for which they were introduced. This factor thus weighs in favor of
unsealing the Memorandum Opinion.
CONCLUSION
Having weighed the six Hubbard factors, the Court concludes that two factors strongly
favor unsealing, while no factors counsel against. Thus, in accordance with the “strong
presumption in favor of public access to judicial proceedings,” Johnson, 951 F.2d at 1277, the
Court shall order that its August 17, 2009 Memorandum Opinion be released on the public docket
in unsealed, unredacted form. An appropriate order accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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