*1 Before the Court are Defendant Texas Christian University's Motion to Compel Discovery Responses and Production of Documents (Def.'s Mot., ECF No. 86), filed September 16, 2022; Plaintiff John Doe's Response (Pl.'s Resp., ECF No. 107), filed October 6, 2022; and TCU's Reply (Reply, ECF No. 116), filed October 20, 2022. For the reasons that follow, the Court GRANTS the motion in part.

I. BACKGROUND

All facts regarding the underlying discovery dispute are taken from TCU's Motion to Compel unless otherwise stated. See Def.'s Mot. 5–10, ECF No. 86. On May 16, 2022, TCU sought in its initial request for production “all Documents and Correspondence between [Doe and his parents or Doe and any other person] relating to Jane Roe, the Title IX investigation and hearing ..., and/or [Doe's] suspension from TCU ... from August 19, 2020 through to the present.” On June 15, 2022, Doe objected to these requests and withheld several text messages between Doe and his parents on grounds that they are privileged under Federal Rule of Evidence 501 (attorney-client privilege) and Supreme Court Standard 503 (privilege for communications between a client and the client's representatives). In subsequent correspondences, the parties disputed whether Doe was claiming a “parent-child privilege” or privilege for communications involving a “client representative” (a component of attorney-client privilege at common law) under Standard 503 and corresponding Texas Rule of Evidence 503. After clarifying that Doe was invoking the latter, the parties disputed the extent to which the privilege applies to communications between Doe and his parents, if at all. The parties could not reach a resolution. TCU now seeks the Court's aid to compel disclosure of the withheld text messages.

II. LEGAL STANDARD

“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, [and relevant] information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” FED. R. CIV. P. 26(b)(1). In non-diversity cases in district court, federal common law governs questions of privilege. Willy v. Admin. Rev. Bd., 423 F.3d 483, 495 (5th Cir. 2005). Federal common law does not recognize a parent-child privilege. In re Grand Jury Proc., 657 F.2d 511, 512–13 (5th Cir. 1981). However, attorney-client privilege at common law covers confidential communications “between the client and a representative of the client” made for purposes of facilitating provision of professional legal services. Sup. Ct. Standard 503(b); see also Apex Mun. Fund v. N-Group Sec., 841 F. Supp. 1423, 1429 n.5 (S.D. Tex. 1993) (discussing Supreme Court Standard 503 and noting although it was “not included in the Federal Rules of Evidence, federal courts have uniformly held that it nevertheless reflects the federal common law of attorney-client privilege”).

Importantly, privileges are “not lightly created nor expansively construed, for they are in derogation of the search for truth” and to stretch them beyond their intended scope contravenes the well-established maxim that the public—including the parties to a dispute—have a right to every man's evidence. In re Kaiser Aluminum and Chemical Co., 214 F.3d 586, 593 (5th Cir. 2000) (quoting United States v. Nixon, 418 U.S. 683, 709 (1974)).

I. ANALYSIS

*2 The parties agree that the information TCU seeks is relevant and that federal common law governs the question of privilege in this case. They dispute whether the “client representative” component of attorney-client privilege at federal common law permits Doe to withhold the subject text messages between him and his parents. To resolve this motion, the Court must decide whether Doe's parents are “representatives of the client” (Doe being the client) such that their communications with him are privileged.

Doe's primary argument is that his parents are his “representatives” for purposes of the attorney-client privilege embodied by Standard 503 because he authorized them to act as his agents in helping secure and facilitate legal services related to the Title IX proceedings and this lawsuit. Pl.'s Resp. 2–5, ECF No. 107. But demonstrating the mere existence of an agency relationship, without establishing the relationship's necessity to or formal professional nature as it relates to the legal services in question, is not enough to invoke the privilege. See Atwood v. Burlington Indus. Equity, Inc., 908 F. Supp. 319, 323 (M.D.N.C. 1995). And Doe has not cited a single decision (binding or persuasive) in which a court recognized that a parent acting on behalf of their competent, adult child in securing or facilitating legal services qualified as a “representative of the client” for purposes of the attorney-client privilege. Indeed, the only decisions in which courts recognized parents as such are those in which the child was either a minor, incapacitated, or incarcerated. See Leone v. Fisher, Civil No. 3:05-CV-521, 2006 WL 2982145, at *3–4 (D. Conn. 2006) (discussing several federal district court decisions in which parental representation of the child occurred out of necessity). Notably, these decisions upheld privilege for communications between the child's parents and the child's attorney, where those communications were necessary to the facilitation of legal services. However, the Court is unaware of any case in which the privilege applied to communications between the purported parent-representative and their child, particularly when occurring outside the context of a specific legal consultation. Doe's reliance on Kevlik v. Goldstein is inapposite for this reason. 724 F.2d 844 (1st Cir. 1984) (upholding communications as privileged when a father was present with his adult son at a legal conference that all parties intended as privileged and confidential).

The Court does not question Doe's genuine reliance on his parents throughout the underlying circumstances that gave rise to this legal dispute or that he did in fact authorize his parents to act on his behalf in obtaining and facilitating legal representation. But that legitimate authorization alone—without Doe's demonstrable need for such representative assistance—is inadequate to invoke the protections of attorney-client privilege as recognized under federal common law. To afford privilege to communications between a party and any person with whom he had established a legitimate “representative” agency relationship, absent a finding of acute necessity for such representation, would eviscerate the attorney-client privilege of its limited purpose of encouraging candid communications between attorneys and their clients. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).

The Court has reviewed Doe's withheld text messages in camera. None occurred within the context of active provision of legal services that might justify protection under the attorney-client privilege as discussed above.

II. CONCLUSION

*3 Accordingly, the Court GRANTS in part Defendant's motion and ORDERS Plaintiff to produce the subject text messages no later than October 31, 2022. Because there is no evidence Plaintiff or Plaintiff's counsel withheld the documents at issue in bad faith or on frivolous legal grounds, the Court FINDS that Plaintiff's objections were substantially justified, and therefore DENIES Defendant's request for reasonable attorney's fees under Rule of Civil Procedure 37(a)(5)(A).

SO ORDERED on this 27th day of October, 2022.