                                                                                FILED
                                                                           Dec 21 2017, 7:54 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      David A. Guerrettaz                                       Joseph H. Langerak IV
      John M. Luttrull                                          Spencer W. Tanner
      Ziemer Stayman Weitzel & Shoulders,                       Evansville, Indiana
      LLP
      Evansville, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Diyee Boulangger,                                         December 21, 2017
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                82A01-1705-CT-992
              v.                                                Appeal from the Vanderburgh
                                                                Superior Court
      Ohio Valley Eye Institute, P.C.,                          The Honorable Robert J. Tornatta,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                82D06-1503-CT-1047



      Pyle, Judge.


                                        Statement of the Case
[1]   In this interlocutory appeal, Appellant/Defendant, Diyee Boulangger

      (“Boulangger”), appeals the trial court’s denial of her motion to quash

      Appellee/Plaintiff, Ohio Valley Eye Institute, P.C.’s (“OVEI”), non-party

      request for production of documents and subpoena duces tecum of her attorney-fee
      Court of Appeals of Indiana | Opinion 82A01-1705-CT-992 | December 21, 2017                   Page 1 of 11
      payments in a civil conversion, theft, theft by false impression, fraud, and

      forgery action. She argues that the documentation of her attorney fee payments

      might incriminate her and is, therefore, protected by the attorney-client

      privilege and her Fifth Amendment privilege against self-incrimination.

      Because we find that Boulangger’s fee payments are not protected

      communications under either the attorney-client privilege or the Fifth

      Amendment, we conclude that the trial court did not abuse its discretion in

      denying her motion to quash the request for production of documents and

      subpoena duces tecum. We affirm the trial court’s decision.


[2]   We affirm.


                                                      Issue
              Whether the trial court abused its discretion when it denied
              Boulangger’s motion to quash OVEI’s non-party request for
              production of documents and subpoena duces tecum.

                                                      Facts
[3]   On March 2, 2015, OVEI filed a complaint against Boulangger, its former

      employee. In its complaint, OVEI raised civil claims of conversion, theft, theft

      by false impression, fraud, and forgery, alleging that Boulangger had over-

      reported her hours and hourly rate during her three years of employment. The

      State also charged Boulangger criminally, but it dismissed the charges without

      prejudice on February 24, 2016. In answer to OVEI’s complaint, Boulangger

      entered a general denial to OVEI’s claims, stating that she was “under threat of



      Court of Appeals of Indiana | Opinion 82A01-1705-CT-992 | December 21, 2017   Page 2 of 11
      prosecution for the alleged actions,” and invoked her Fifth Amendment

      privilege against self-incrimination. (Appellant’s App. Vol. 2 at 34).


[4]   On June 5, 2015, OVEI filed a motion for summary judgment on its complaint.1

      Boulangger responded to the motion for summary judgment and designated an

      affidavit from her counsel, David A. Guerrettaz (“Counsel Guerrettaz”), as

      evidence. In the affidavit, Counsel Guerrettaz averred that in August of 2016,

      he had become aware that the Evansville Police Department (“Police

      Department”) had continued to investigate Boulangger criminally after the

      State had dismissed its criminal charges. Specifically, he had learned that the

      Police Department had obtained a search warrant for Boulangger’s email and

      chatroom conversations through Boulangger’s email service provider. In light

      of this continuing investigation and the potential for the State to bring new

      charges against Boulangger, Counsel Guerrettaz argued that “[Boulangger

      could not] present by affidavit facts essential to justify her position” in her

      response to the summary judgment motion without violating her Fifth

      Amendment right against self-incrimination. (Appellant’s App. Vol. 2 at 43).


[5]   Subsequently, the trial court entered summary judgment in favor of OVEI and

      awarded OVEI a judgment of $518,817.80 plus costs and post-judgment interest

      against Boulangger. On January 19, 2017, OVEI filed a verified motion for

      proceedings supplemental to execution claiming that Boulangger had




      1
          Neither this motion for summary judgment nor Boulangger’s response is a part of the record on appeal.


      Court of Appeals of Indiana | Opinion 82A01-1705-CT-992 | December 21, 2017                      Page 3 of 11
      undisclosed assets, income, and profits or other non-exempt property that could

      be applied to satisfy OVEI’s judgment. It requested that the trial court order

      Boulangger to appear in court to testify to any non-exempt property that could

      be applied to satisfy the judgment. OVEI also served Counsel Guerrettaz’s law

      firm, Ziemer, Stayman, Weitzel & Shoulders, LLP (“ZSWS”), with a non-party

      request for production of documents (“Request for Production of Documents”)

      and a subpoena duces tecum (“Subpoena”). In its Request for Production of

      Documents and Subpoena, OVEI requested that Counsel Guerrettaz and

      ZSWS produce “[c]opies of any and all check and/or wire transfers received

      from [Boulangger] or from others on behalf of [Boulangger] for legal fees paid

      for her representation.” (Appellant’s App. Vol. 2 at 48, 50). Boulangger filed a

      motion to quash the Request for Production of Documents and Subpoena. 2 In

      her motion to quash, Boulangger argued that the documentation OVEI had

      requested was protected by the attorney-client privilege and by Boulangger’s

      Fifth Amendment right against self-incrimination. OVEI filed an objection to

      the motion to quash, arguing that the information regarding Boulangger’s

      attorney fee payments was not protected by attorney-client privilege and did not

      implicate Boulangger’s Fifth Amendment Privilege.


[6]   After an attorney conference on the pending motions, the trial court ordered

      Counsel Guerrettaz/ZSWS to produce copies of any checks and/or wire

      transfers received from Boulangger to pay for her legal fees. Boulangger timely



      2
          Boulangger filed two motions to quash. The first is not a part of the record.


      Court of Appeals of Indiana | Opinion 82A01-1705-CT-992 | December 21, 2017         Page 4 of 11
      moved the trial court to certify its order for interlocutory appeal, and the trial

      court certified the order. This courted granted permission for Boulangger to

      bring the interlocutory appeal, and Boulangger now appeals.


                                                   Decision
[7]   On appeal, Boulangger argues that the trial court abused its discretion when it

      denied her motion to quash OVEI’s Request for Production of Documents and

      Subpoena. As before the trial court, she argues that the documentation of her

      legal fee payments was protected by the attorney-client privilege and/or her

      Fifth Amendment right against self-incrimination.


[8]   We will review a trial court’s decision to grant or deny a motion to quash a

      subpoena for an abuse of discretion. Hueck v. State, 590 N.E.2d 581, 584 (Ind.

      Ct. App. 1992), reh’g denied, trans. denied. Likewise, we also review a request for

      the production of documents for an abuse of discretion, as the determination of

      whether to grant or deny a discovery request rests within the sound discretion of

      the trial court. Robertson v. Bd. of Zoning Appeals, Town of Chesterton, 699 N.E.2d

      310, 317 (Ind. Ct. App. 1998). We will not find an abuse of discretion unless

      the trial court’s decision was clearly against the logic and effect of the facts and

      circumstances before the court. Id. Furthermore, because of the fact-sensitive

      nature of discovery issues, the trial court’s decisions are clothed with a

      presumption of correctness on appeal. Id.


[9]   First, Boulangger asserts that the trial court abused its discretion by ordering

      OVEI to produce the evidence of her attorney fee payments because those

      Court of Appeals of Indiana | Opinion 82A01-1705-CT-992 | December 21, 2017   Page 5 of 11
       documents are protected by the attorney-client privilege. The attorney-client

       privilege is “a very important provision in our law for the protection of persons

       in need of professional legal help.” Colman v. Heidenreich, 381 N.E.2d 866, 868

       (Ind. 1978). It provides that “‘when an attorney is consulted on business within

       the scope of his profession, the communications on the subject between him

       and his client should be treated as confidential.’” Hueck, 590 N.E.2d at 584

       (quoting Colman, 381 N.E.2d at 869). The privilege applies to all

       communications to an attorney for the purpose of obtaining professional legal

       advice or aid regarding the client’s rights and liabilities. Id. The purpose of the

       privilege is to “make[] provision for a person to give complete and confidential

       information to an attorney, so that the attorney may be fully advised in his

       services to the client.” Colman, 381 N.E.2d at 868. “At the same time, it

       assures the client that these confidences will not be violated.” Id.


[10]   As a general rule, information regarding a client’s attorney fees is not protected

       by the attorney-client privilege because the payment of fees is not considered a

       confidential communication between an attorney and his or her client. Id. at

       585. However, there are exceptions, such as where revealing the payee’s

       identity or the fee arrangement would be tantamount to the disclosure of a

       confidential communication. Id. When determining whether the attorney-

       client privilege prevents disclosure of relevant information, we must construe it

       narrowly as the privilege impedes the quest for truth. Id. at 584. The burden of

       proving the applicability of the privilege is on the one who asserts it. Colman,

       381 N.E.2d at 869.

       Court of Appeals of Indiana | Opinion 82A01-1705-CT-992 | December 21, 2017   Page 6 of 11
[11]   Here, Boulangger argues that there should be an “incrimination” exception to

       our general rule that the attorney-client privilege does not apply to information

       regarding a client’s attorney fees. This exception, according to Boulangger,

       would apply where “the disclosure of a client’s legal fees would result in

       implicating the client in the very criminal activity for which she sought legal

       counsel.” (Boulangger’s Br. 10). She claims that, under this exception, the trial

       court abused its discretion when it ordered ZSWS to produce documents

       regarding her attorney fee payments because:


               [d]ivulging the checks and/or wire transfers received by [ZSWS]
               would necessarily produce substantive information – i.e. bank
               accounts, location of accounts, and dollar amounts,” and the
               “amount of money expended, the dates of payments, and the
               methods of payments could potentially provide the ‘link in the
               chain of evidence’ which may ultimately be the basis for factual
               inferences to bring a criminal indictment.


       (Boulangger’s Br. 12).


[12]   In support of her argument that there should be an “incrimination” exception,

       Boulangger cites to a footnote this Court wrote in Hueck (“Footnote 4”), in

       which we noted that a few federal cases “refer to the exception [to the attorney-

       client privilege] as applying when disclosure would result in implicating the

       client in the very criminal activity for which he sought legal advice.” Hueck,

       590 N.E.2d at 585, n.4.


[13]   In Footnote 4, this Court was referring to a seeming “split” in federal circuit

       court interpretation of the attorney-client privilege regarding whether an

       Court of Appeals of Indiana | Opinion 82A01-1705-CT-992 | December 21, 2017   Page 7 of 11
       incrimination exception to the privilege exists. However, in Matter of Witnesses

       Before the Special March 1980 Grand Jury, 729 F.2d 489 (7th Cir.1984), the

       Seventh Circuit Court of Appeals examined this seeming split, including the

       cases cited in Footnote 4, and declined to create an “incrimination” exception.

       The Seventh Circuit noted that there were certain Fifth and Ninth Circuit cases

       in which the respective courts did not clearly state whether they were basing

       their decisions upon the fact that disclosure of attorney-client information might

       have been incriminating or upon the fact that disclosure might have disclosed

       confidential information. Id. at 492. The Seventh Circuit concluded, despite

       this ambiguity, that “in each of the cases . . . mentioned, the Fifth and Ninth

       Circuits were prepared to recognize the privilege only where disclosure of the

       client’s identity or fees would have revealed a confidential disclosure. . . .” Id.

       at 494. The Seventh Circuit also noted that the Ninth Circuit had clearly

       rejected the incrimination rationale and held that fee information about a

       known client was not privileged in the more recent case of In re Osterhoudt, 722

       F.2d 591 (9th Cir. 1983). Id. Accordingly, the Seventh Circuit implicitly

       concluded that the “split” in the circuits was not actually a “split” because none

       of the circuit courts had expressly found an incrimination exception to the

       general rule that attorney fee payments are not protected by attorney-client

       privilege.


[14]   Moreover, the Seventh Circuit noted that its circuit had historically and

       “consistently focused its analysis on whether the information would disclose

       confidential communications” when deciding whether the attorney-client


       Court of Appeals of Indiana | Opinion 82A01-1705-CT-992 | December 21, 2017   Page 8 of 11
       privilege applied to fee information. The Seventh Circuit also cited the

       Supreme Court case Fisher v. United States, 425 U.S. 391 (1976), in which the

       Supreme Court focused on the issue of whether information sought amounted

       to a confidential communication for purposes of the attorney-client privilege,

       rather than the issue of whether disclosure of the information would have

       incriminated the client. Id. at 491-92. In Fisher, the Supreme Court reasoned

       that the purpose of the privilege is “‘to encourage clients to make full disclosure

       to their attorneys,’” so “it protects only those disclosures—necessary to obtain

       legal advice—which might not have been made absent the privilege.’” Id. at

       491 (quoting Fisher, 425 U.S. at 403).


[15]   In light of these precedents, the Seventh Circuit adhered to the interpretation

       that the attorney-client privilege protects only confidential communications, not

       any fee information that might incriminate a client. Id. at 495. Still, the

       Seventh Circuit reasoned that billing sheets or time tickets indicating the nature

       of the documents prepared, issues researched, or matters discussed could reveal

       the substance of confidential discussions between attorney and client, such as

       discussion regarding a client’s motivation for litigation or possible litigation

       strategy, and would thus remain privileged under the attorney-client privilege

       due to their confidential nature. Id.


[16]   Subsequently, in Hueck, this Court addressed the issue of whether information

       of a third party’s fee payment to an attorney was protected by the attorney-

       client privilege. Hueck, 590 N.E.2d at 584. While not directly on point to the

       instant case factually, we concluded that, because the information sought by the

       Court of Appeals of Indiana | Opinion 82A01-1705-CT-992 | December 21, 2017   Page 9 of 11
       subpoenas in Hueck “was merely the source and the amount of fees paid,” that

       “limited request [for] information [did] not constitute a confidential

       communication” protected by the attorney-client privilege. Id. at 586.


[17]   Here, the Request for Production of Documents and Subpoena, as in Hueck,

       requested only the information regarding the source of and the amount of fees

       Boulangger paid. In light of our conclusion in Hueck and the Seventh Circuit

       and Supreme Court precedent discussed in Matter of Witnesses Before the Special

       March 1980 Grand Jury, we conclude that the fee information OVEI requested

       was not confidential nor protected by the attorney-client privilege. We decline

       to create an “incrimination” exception and instead conclude, like the precedent

       above, that only confidential communications are protected by the attorney-

       client privilege.


[18]   Alternatively, Boulangger argues that information regarding her payment of

       fees was protected by her Fifth Amendment right against self-incrimination.

       We are not persuaded by this argument. The Fifth Amendment to the United

       States Constitution provides that: “No person . . . shall be Compelled in any

       criminal case to be a Witness against himself.” However, in Fisher, the

       Supreme Court noted that, according to previous cases:


               [T]he privilege was never intended to permit (a person) to plead
               the fact that some third person might be incriminated by his
               testimony, even though he were the agent of such person . . . .
               (T)he Amendment is limited to a person who shall be compelled
               in any criminal case to be a witness against [h]imself. . . . It is



       Court of Appeals of Indiana | Opinion 82A01-1705-CT-992 | December 21, 2017   Page 10 of 11
               extortion of information from the accused himself that offends
               our sense of justice.


       Fisher, 425 U.S. at 398 (internal citations and quotations omitted). The Court

       also explained that, “‘A party is privileged from producing evidence but not

       from its production.’” Id. at 399 (quoting Johnson v. United States, 228 U.S. 457,

       458 (1913)). Based on this reasoning, the Supreme Court held that the Fifth

       Amendment did not preclude compelled disclosure of information from a third

       party such as a defendant’s attorney. Id.


[19]   Based on this precedent, we conclude that the Fifth Amendment did not protect

       the fee payment information that OVEI subpoenaed and requested from ZSWS.

       Accordingly, the trial court did not abuse its discretion in denying Boulangger’s

       motion to quash OVEI’s Request for Production of Documents and the

       Subpoena.


[20]   Affirmed.


[21]   Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 82A01-1705-CT-992 | December 21, 2017   Page 11 of 11
