Peirce can't hide behind privilege, judge rules

By John O'Brien | Jun 5, 2009


WHEELING, W.Va. (Legal Newsline) - U.S. Magistrate Judge James Seibert won't let Pittsburgh attorney Robert Peirce hide from CSX Transportation behind attorney client privilege.

On May 29, Seibert ordered Peirce's firm to produce correspondence with client Earl Baylor, a former CSX worker who sued the railroad in state over asbestos exposure.

"Simply put, a lawyer or law firm may not engage in fraudulent or criminal activity and then hide behind any privilege to protect the firm's or the individual lawyer's interest," Seibert wrote. "The Court believes that this is exactly what Defendant is attempting to do in this case.

"These documents are central to CSX's contention that the defendants in this case have fabricated personal injury claims and evidence."

He relied on a 1988 appellate court decision to hold that "lawyer misconduct may eviscerate both work product production and the attorney client privilege."

He also applied an exception that the West Virginia Supreme Court of Appeals created in 2004 for crime and fraud.

Seibert presides over preparation for trial on CSX's conspiracy claim against Peirce, the firm of Peirce, Raimond & Coulter, and radiologist Ray Harron of Bridgeport.

CSX at first sought to challenge multiple suits that Peirce filed for CSX workers in West Virginia state courts, but Stamp allowed only a claim involving Baylor.

CSX has turned Baylor into a reverse class representative, weaving his case into patterns that involve thousands of suits.

After Seibert ordered Peirce to produce a questionnaire Baylor filled out, CSX lawyers found different handwriting on his symptoms than on the rest of the sheet.

Peirce resisted further production and testified at a May 4 hearing that he intended all his communications with Baylor to be confidential.

Seibert wrote that he didn't doubt the testimony. "However, this is not determinative as to the crime fraud and misconduct exception to the rule," he wrote.

Seibert's order measured the height of the hurdle the railroad cleared.

"The attorney client privilege exists to prevent compelled disclosure of confidential information between an attorney and a client," he wrote.

"This confidential relationship is the backbone of our judiciary," he wrote.

It protects verbal and written communication including electronic mail, he wrote.

He balanced it against "In re Impounded Case," a 1988 opinion by Judge Seitz of the Third Circuit appeals court.

"It is not apparent to us what interest is truly served by permitting an attorney to prevent this type of investigation of his own alleged criminal conduct by asserting an innocent client's privilege with respect to documents tending to show criminal activity by the lawyer," Seitz wrote, "On the contrary, the values implicated, particularly the search for the truth, weigh heavily in favor of denying the privilege in these circumstances."

Seibert followed this excerpt by noting that, "Of course, this case is not in the criminal context."

He wrote, "However, this Court believes the same principles laid out so eloquently by Judge Seitz apply here."

He ordered Peirce to produce all blank preprinted diagnosis forms that the firm sent to Baylor and related correspondence.

He ordered Peirce to produce "all correspondence relating to the non-privileged 'asbestos questionnaire' generated by the Peirce firm and completed by Baylor for the purposes of disclosure and settlement."

He wrote that the documents "are necessary to impeach Peirce's claim that he had a good faith basis to believe Baylor was exposed to asbestosis as a CSX employee."

He ordered Peirce to identify the date when the firm received a negative CT scan of Baylor, finding it necessary to impeach a claim that he wasn't aware of the scan.

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