[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
In Riffle v. Excellent Auto Glass LLC, 2025 WL 1519164 (D. Ariz. May 28, 2025), Mr. Riffle filed a putative Telephone Consumer Protection Act class action against Excellent Auto Glass (“EAG”). EAG did not respond, and Mr. Riffle was granted leave to conduct discovery in support of a planned motion for default judgment.
Mr. Riffle then served a subpoena on a law firm “seeking effectively all documents in the firm’s possession regarding EAG.” Id. at *1.
The court wrote: “The subpoena may be facially invalid in that it seeks production to an email address instead of a physical location…. The firm did not seek to quash on this basis, so the court need not resolve the issue.” Id. at n. 1.
In its amended motion to quash the subpoena, the law firm stated that it had a “longstanding relationship” with one owner of EAG and had provided general business advice to that owner. Id. While the subpoenaed law firm did not represent EAG in the pending lawsuit, it had provided EAG and its owner advice related to the lawsuit. With minor exceptions, id. at *1, the law firm asserted privilege. The court stated:
The firm did not provide an affidavit from EAG stating it wished to assert the privilege but it did provide a privilege log. That privilege log lists “emails either between [an attorney at the firm] and Jeff Searles, an agent of [EAG], or are internal emails between employees at the Firm.” [Emphasis added].
Riffle v. Excellent Auto Glass LLC, 2025 WL 1519164 (D. Ariz. May 28, 2025).
The court wrote:
Riffle … argued the lack of an affidavit from EAG stating EAG wishes to assert the privilege dooms the motion because EAG, not the firm, “is the holder of the attorney-client privilege.”
Id.
First, the Riffle court wrote that this broad subpoena to a law firm “raises obvious concerns regarding intrusions into the attorney-client relationship.” Id. It stated that Mr. Riffle did not explain why he thought the law firm had non-privileged documents. And, the court wrote that the law firm “avows” that it had none. Id.
Second, the court rejected Mr. Riffle’s argument that the law firm was not counsel in this lawsuit and therefore had to produce the documents. “[T]he fact that it is not defending EAG in the Washington litigation is immaterial.” Id. at *2.
However, third, the Riffle court addressed the affidavit argument:
Although there is reason to doubt the basis for Riffle’s subpoena, he is entitled to an affidavit from EAG that it has an attorney-client relationship with the firm and wishes to invoke the attorney-client privilege. The firm’s recent production of a privilege log also allows Riffle to review the basis for the privilege assertion. Once EAG produces an affidavit and Riffle has reviewed the privilege log, there will be a sufficient basis to resolve the remaining disputes, if any.
Id. (emphasis added).
The Riffle court ordered that, “[w]ithin thirty days of this order, Excellent Auto Glass LLC shall provide an affidavit to Darrin Riffle stating it has an attorney-client relationship with Denton Peterson Dunn, PLLC, and that it wishes to assert the privilege to prevent disclosure of the documents.” Id.
Although there is reason to doubt the basis for Riffle’s subpoena, he is entitled to an affidavit from EAG that it has an attorney-client relationship with the firm and wishes to invoke the attorney-client privilege.
Riffle v. Excellent Auto Glass LLC, 2025 WL 1519164 (D. Ariz. May 28, 2025) (emphasis added).
I have a few questions.
First, the law firm stated that it represented EAG and one owner, providing advice to both. However, the owner-client was not given permission, or ordered, to provide an affidavit claiming privilege. Perhaps that was due to the privilege log claiming that the individual was an “agent” of EAG.
Second, this was discovery in aid of moving for a default judgment against EAG. Is it realistic to expect that EAG will provide an affidavit supporting privilege?
…this was discovery in aid of moving for a default judgment against EAG. Is it realistic to expect that EAG will provide an affidavit supporting privilege?
Michael Berman, E-Discovery LLC.
Third, while there are many decisions that support the Riffle court’s holding that the client must assert the privilege, there are also decisions that:
“[I]t is universally accepted that the attorney-client privilege may be raised by the attorney.” Fisher v. United States, 425 U.S. 391, 402 n.8, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976). See also Schwimmer v. United States, 232 F.2d 855, 863 (8th Cir. 1956) (“The privilege … exists for the benefit of the client and not the attorney. But the attorney has the duty … to make assertion of the privilege, not merely for the benefit of the client, but also as a matter of professional responsibility.”); In re Impounded Case, 879 F.2d 1211, 1213 (3rd Cir. 1989) (“[T]he attorney-client privilege belongs solely to the client. It may, however, and indeed, generally must be asserted for the client by the attorney unless the client directs otherwise.”); Commodity Futures Trading Com’n v. Weintraub, 471 U.S. 343, 348, 105 S. Ct. 1986, 85 L. Ed. 2d 372 (1985) (“As an inanimate entity, a corporation must act through agents. A corporation cannot speak directly to its lawyers. Similarly, it cannot directly waive the privilege when disclosure is in its best interest. Each of these actions must necessarily be undertaken by individuals empowered to act on behalf of the corporation.”).
VeroBlue Farms USA, Inc. v. Cassels Brock & Blackwell LLP, 2024 WL 4530206, 2024 Bankr. LEXIS 2562, at *6-7 (Bankr. N.D. Iowa Oct. 18, 2024).
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