The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER ON WAIVER OF PRIVILEGES
Plaintiff moves the court for an order requiring defendants to produce certain attorney-client and work product documents. Defendants oppose plaintiff's motion. The motion is denied.
Plaintiff argues that defendants have waived privilege as to seven specific subject matters because defendants intend to use attorney-client and work product documents as a sword while simultaneously invoking the privileges as a shield. Plaintiff cites portions of deposition testimony, alleging that such testimony establishes voluntary disclosure of selected portions of privileged information, failure to object to questions that involve attorney-client privilege, and assertion of advice of counsel as the basis for defendants' denial of claims based on time filing. Plaintiff contends that a waiver as to one communication waives the privilege with respect to all other communications.
Defendants respond that plaintiff's motion must be denied as untimely because discovery has ended. Even if the motion is timely, defendants argue that plaintiff's motion should be denied because the affirmative defense of advice of counsel is not present in this case. Defendants further argue that the deposition excerpts cited by plaintiff only show a discussion of mere facts, not the actual content of the legal advice, the specific bases underlying the legal advice, or any other legal impressions.
The attorney-client privilege may be implicitly waived. United States v. Workman, 138 F.3d 1261, 1263 (8th Cir. 1998). To find an implied waiver of the privilege by virtue of affirmative reliance on some matter that has been put into issue, three factors must be satisfied. Hearn v. Rhay, 68 F.R.D. 574, 580-81 (E.D. Wash. 1975). These factors include: "(1) assertion of the privilege was a result of some affirmative act, such as filing suit, by the asserting party; (2) through this affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and (3) application of the privilege would have denied the opposing party access to information vital to his defense." Id. at 581. Several jurisdictions have either adopted or cited with approval this three-factor test.*fn1 These factors have been widely followed by courts. See Williams v. Sprint/United Mgmt. Co., 464 F. Supp. 2d 1100, 1104-1105 (D. Kan. 2006) (stating that it believes that the Tenth Circuit would adopt the Hearn test); Home Indem. Co. v. Lane Powell Moss and Miller, 43 F.3d 1322, 1326 (9th Cir. 1995) (applying the Hearn factors to determine whether an implied waiver of attorney-client privilege occurred); and Conkling v. Turner, 883 F.2d 431, 434 (5th Cir. 1989) (citing Hearn in its discussion regarding when the attorney-client privilege is waived).*fn2
1. Decision to Apply the Time Filing Program in Some States and Not Apply it in Others
Plaintiff claims that defendants have waived the privilege as to the decision to apply the time filing program in some states and not apply it in other states. To make this argument, plaintiff relies on an excerpt from the deposition testimony of Lisa Wagner, defendants' corporate representative. In this deposition testimony, Wagner states the legal department informed defendants that there were certain states in which the time filing provision should not be enforced because those states did not support the enforcement of time filing provisions. Wagner also testified that in determining whether to apply the time filing provision in South Dakota as opposed to California, defendants relied on the advice of counsel. Docket 304-2 at 7-8.
Here, plaintiff has not satisfied the first factor of the three-factor test. To satisfy the first factor, plaintiff must demonstrate that defendants explicitly or implicitly made an attorney's advice or conduct the basis of their defense to plaintiff's bad faith claim. More specifically, in relation to depositions, the privilege is not necessarily waived when a deponent answers questions by responding that he acted on advice of counsel if that advice is not itself an element of the claim or defense on a subject matter at issue. To rule otherwise would be to allow a skilled questioner to control the availability of the privilege merely by the manner of peripheral questions posed to the witness. See generally Libbey Glass, Inc. v. Oneida, Ltd., 197 F.R.D. 342, 346-47 (N.D. Ohio 1999) (finding that the fact that the client relied on advice of counsel in a deposition is not sufficient to waive the privilege where none of the substance of that advice was revealed and where it would not be used as a defense) and In re Brand Name Prescription Drugs Antitrust Litig., 1995 WL 531805 at *1-2 (N.D. Ill. Aug. 18, 1995) (finding that the privilege was not waived despite the witness's testimony that counsel was present at the major meetings to give guidance because the statements revealed nothing substantive about attorney-client communications, other than counsel's direction to comply with the law generally).
Defendants did not explicitly raise the affirmative defense of advice of counsel in their answer to plaintiff's amended complaint. Docket 23. Further, defendants did not implicitly raise the affirmative defense of advice of counsel through Wagner's deposition testimony. Wagner's testimony does not specifically relate to the denial of Teri Powell's claim, which is the claim at issue in this case. Rather, Wagner's testimony very broadly addresses the reason as to why defendants apply the time filing provision in some states and not in other states. As such, the court finds that Wagner's testimony does not establish that defendants are asserting that they relied on the advice of counsel when they denied Powell's claim. It follows that defendants did not waive the privilege with respect to application of time filing in other states because that is not at issue in this case.
Moreover, even if plaintiff showed that defendants asserted the affirmative defense of advice of counsel, plaintiff has not satisfied the third factor. Application of the privilege will not deny plaintiff access to information vital to her claim. Plaintiff already knows which states defendants were advised not to deny claims in based on the time filing provision and which states defendants were advised that they could deny claims in based on the time filing provision. Therefore, defendants' privileged documents are not vital to plaintiff to enable her to prove her bad faith claim. Accordingly, defendants' documents in relation to this subject matter are privileged and plaintiff is not entitled to such documents.
2. The Determination of How to Apply the Time Filing Program
Plaintiff contends that defendants have waived the privilege as to the determination of how to apply the time filing program. In support of this contention, plaintiff again cites to an excerpt from the deposition testimony of Wagner. In this deposition testimony, Wagner testified that in 2006, when defendants decided whether to apply the time filing provisions in certain states, they relied on the advice of counsel. Wagner further testified that defendants continue to rely on the advice of counsel with respect to where and how to apply the time filing provision. Docket 304-2 at 8.
Here, again, plaintiff has not satisfied the first factor of the three-factor test. As mentioned above, defendants did not explicitly raise the affirmative defense of advice of counsel in their answer to plaintiff's amended complaint. Docket 23. Further, defendants did not implicitly raise the affirmative defense of advice of counsel through Wagner's deposition testimony. Wagner's testimony does not specifically relate to the denial of Powell's claim, which is the claim at issue in this case. Rather, Wagner's testimony very broadly addresses how defendants determined where and how to apply the time filing provision in 2006 and currently. As such, the court finds that Wagner's testimony does not establish that defendants are asserting that they relied on the advice of counsel when they denied ...