Opinion
No. FA08 402 66 74-S
January 22, 2010
MEMORANDUM OF DECISION
The current action for dissolution was commenced by Writ, Summons and Complaint dated October 24, 2008 and made returnable to this court on November 18, 2008. The defendant currently works as a self-employed attorney practicing in New York. On November 12, 2008, the plaintiff caused to be served on the defendant a Request for Disclosure and Production requesting that the defendant produce all of his Quick Books or other similar business ledgers indicating income received and business expenses, since January 1, 2006. In response to the plaintiff's request for production, the defendant provided the plaintiff with 2007, 2008 and 2009 ledger printouts and bank statement as well as profit and loss statements from the defendant's business.
On September 17, 2009, the plaintiff filed a Motion to Compel requesting that this court order the defendant to produce an electronic copy, on CD, of all the defendant's Quicken or Quick Books business accounts. The burden of proof is on the defendant who contests the production of the records on the ground of attorney-client privilege.
Connecticut Statutory Provisions
"Discovery shall be permitted if the disclosure sought would be of assistance in the prosecution or defense of the action and if it can be provided by the disclosing party or person with substantially greater facility than it could otherwise be obtained by the party seeking disclosure. It shall not be ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Practice Book § 13-2.
"If data has been electronically stored, the judicial authority may for good cause shown order disclosure of the data in an alternative format provided the data is otherwise discoverable. When the judicial authority considers a request for a particular format, the judicial authority may consider the cost of preparing the disclosure in the requested format and may enter an order that one or more parties shall pay the cost of preparing disclosure." Practice Book § 13-9(d).
Privilege Generally
"As a general rule, [c]ommunications between client and attorney are privileged when made in confidence for the purpose of seeking legal advice. . . . [W]here legal advice of any kind is sought from a professional legal adviser in his [or her] capacity as such, the communications relating to that purpose, made in confidence by the client, are at [the client's] instance permanently protected from disclosure by [the client] or by the legal adviser . . ." (Citation omitted; internal quotation marks omitted.) Blumenthal v. Kimber Manufacturing, 265 Conn. 1, 10, 826 A.2d 1088 (2003).
"The privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him [or her] to give sound and informed advice . . . We note, however, that since the privilege has the effect of withholding relevant information from the fact finder, [the privilege] applies only where necessary to achieve its purpose. Accordingly it protects only those disclosures necessary to obtain informed legal advice — which might not have been made absent the privilege." (Citation omitted; emphasis added; internal quotation marks omitted.) Shew v. Freedom of Information Commission, 245 Conn. 149, 157-58, 714 A.2d 664 (1998).
Financial Records and the Attorney-Client Privilege
Connecticut courts and courts in other jurisdictions generally find that financial records, which do not include detailed information about the legal services that the attorney provided, are not protected by the attorney-client privilege.
Rehim v. Kimberly-Clark Corp., Superior Court, judicial district of Danbury, Docket No. 32 34 16 (December 5, 1996, Leheny, J.) [ 18 Conn. L. Rptr. 517], addressed the issue of whether the attorney-client privilege protects financial records. The court explained that "[c]lient bills do not constitute communications . . . made . . . by the client as required by the attorney-client privilege . . . Further, client bills are not confidential communications. [A]bsent special circumstances, client identity and fee information are not privileged. Special circumstances precluding disclosure exist where disclosure of such information would amount to the prejudicial disclosure of a confidential communication." (Citation omitted; internal quotation marks omitted.) Id., quoting In re Two Grand Jury Subpoenae Duces Tecum, 793 F.2d 69, 71-72 (2d Cir. 1986).
Courts in other jurisdictions have similarly found that financial records that do not include detailed information of the legal services provided are not protected by the attorney-client privilege.
The United States District Court, M.D. Pennsylvania cited to cases from several different jurisdictions, and explained "there is a general agreement that attorney billing statements and time records are protected by the attorney-client privilege only to the extent that they reveal litigation strategy and/or the nature of services performed . . . Thus, statements and records that simply reveal the amount of time spent, the amount billed, and the type of fee arrangement between the attorney and the client are fully subject to discovery." (Citations omitted; emphasis in original.) United States v. Keystone Sanitation Co., 885 F.Sup. 672, 675 (M.D.Pa. 1994).
In Clarke v. American Commerce National Bank, 974 F.2d 127, 130 (9th Cir. 1992), the United States Court of Appeals for the Ninth Circuit found that client billing records were not protected under the attorney-client privilege. The court discussed the case as follows: "The statements contain information on the identity of the client, the case name for which payment was made, the amount of the fee, and the general nature of the services performed. Our previous decisions have held that this type of information is not privileged." Id. The court held that "the district court erred in concluding that the attorney-client privilege applies to the attorney billing statements subpoenaed by the OCC." Id. The court explained that "[t]he burden of establishing that the attorney-client privilege applies to the documents in question rests with the party asserting the privilege." Id., 129.
The United States Court of Appeals for the Second Circuit similarly held that records relating to law firm's fee arrangements with, and disbursements on behalf of, their clients were not protected by the attorney-client privilege. The court explained that "[w]e consistently have held that, absent special circumstances, client identity and fee information are not privileged. The goal of enabling attorneys to offer informed professional advice and advocacy cannot be accomplished if courts may compel disclosure of communications between the client and attorney necessary to the provision of such services . . . But where the communication is not confidential and is not necessary to obtain informed legal advice for the client, no privilege exists . . . While consultation with an attorney, and payment of a fee, may be necessary to obtain legal advice, their disclosure does not inhibit the ordinary communication necessary for an attorney to act effectively, justly, and expeditiously." (Citations omitted; internal quotation marks omitted.) In re Grand Jury Subpoena Served Upon Doe, 781 F.2d 238, 247 (2d Cir.) (en banc), cert. denied, 475 U.S. 1108, 106 S.Ct. 1515, 89 L.Ed.2d 914 (1986).
Billing Records that Contain Confidential Information
Defendant makes no serious claim that his billing records contain confidential information, such as detailed information about the legal services provided or notes regarding conversations between the attorney and the client, that are protected by the attorney-client privilege.
In Bruno v. Bruno, Superior Court, judicial district of Danbury, Docket No. CV 05 40049006 (July 10, 2009, Axelrod, J.), the court explained the issue by quoting other jurisdictions as follows: "[i]t is generally accepted, however, that `attorney billing statements and time records are protected by the attorney-client privilege only to the extent that they reveal litigation strategy and/or the nature of services performed.' [ United States v. Keystone Sanitation Co., supra, 885 F.Sup. 675] . . . Our [c]ourt has previously addressed the instant issue in a very similar factual setting . . . It appears that both privileged and non-privileged material may exist side-by-side in many of the documents at issue here. For example, a typical time sheet may contain several different pieces of information, such as the attorney's name, the client's name, the general matter being worked on if the attorney has represented the client on more than one matter, the date and time the services were provided, as well as a description of the actual legal services performed. In this example, only the last item of information would generally be protected under the attorney-client privilege and should be redacted before production. Similarly, in an accounts ledger, one entry may indicate an invoice number and its corresponding remittance check number. In this example, generally no information would be privileged. However, the actual invoice may contain privileged information in the `for X services rendered' column, for example. Likewise, the check may have privileged information on the [m]emo line, i.e., `payment for X legal services,' if X is sufficiently detailed. In that case, the privileged information should be redacted." (Internal quotation marks omitted.) Bruno v. Bruno, Superior Court, judicial district of Danbury, Docket No. CV 05 40049006 (July 10, 2009, Axelrod, J.), quoting Leach v. Quality Health Services, 162 F.R.D. 499 (E.D.Pa. 1995).
Judge's Discretion Regarding Admissibility of Billing Records
"The granting or denial of a discovery request rests in the sound discretion of the court . . . That discretion is limited, however, by the provisions of the rules pertaining to discovery . . ." (Citations omitted.) Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 57-58, 459 A.2d 503 (1983). Courts in Connecticut and other jurisdictions find that in camera reviews may be used by the court when one party asserts the attorney-client privilege with regard to discovery requests from the opposing party and if the defendant makes such a request the Court shall act on same.
In Page v. DiMaggio Plumbing Heating Inc., Superior Court, judicial district of Danbury, Docket No. CV98 0334003 (November 15, 2000, Hiller, J.), the plaintiff's requested a number of documents through discovery, which the defendant claimed were protected by the work-product doctrine and the attorney-client privilege. The court explained that "[c]laims of attorney-client privilege shall be made with a privilege log detailing the nature of the document and the reason it should be protected. Any such claim shall be accompanied by submission of the document to the court for an in camera review. Any item specifically addressing plans for defense, suggestions as to negotiations and/or estimates of the value of the case are not included in this order and need not be produced. Any documents claimed to come within the purview of this exception shall be provided to the court for in camera inspection." Id.
The Ninth Circuit Court of Appeals similarly discussed the appropriateness of an in camera review in the case In re Grand Jury Investigation United States v. The Corporation, 974 F.2d 1068, 1073-75 (9th Cir. 1992). "[T]he balance . . . between the intrusion on the privilege and the likelihood that the privilege may not apply justifies a . . . minimal threshold [showing] for in camera review when a party believes that the materials are not privileged . . . [T]o empower the . . . court to review the disputed materials in camera, the party opposing the privilege need only show a factual basis sufficient to support a reasonable, good faith belief that in camera inspection may reveal evidence that information in the materials is not privileged. If the party makes such a showing, the decision whether to conduct the review rests within the discretion of the . . . court." Id. 1074-75. "In exercising its discretion, the court should consider the amount of material it is asked to review, the relevance of the alleged privileged material to the case, and the likelihood that in camera review will reveal evidence that the privilege does not apply." ShareAmerica, Inc. v. Ernst Young, Superior Court, judicial district of Fairfield, Docket No. 93 30 71 32 (February 20, 1998, Thim, J.).
For the reasons set forth herein the plaintiff's Motion to Compel is granted.