Opinion
No. X02 UWY-CV-07-5007877-S
October 30, 2009
I. BACKGROUND
Plaintiffs Raymond Road Associates, LLC, BBS Development, LLC, and Blue Back Square, LLC (hereinafter referred to as "Plaintiffs") allege that Defendants West Farms Mall, LLC, West Farms Associates, The Taubman Company, LLC and Victor J. Dowling, Jr. (hereinafter referred to as "Defendants") financed and instigated a series of vexatious lawsuits and other wrongful acts in an effort to prevent the development of Blue Back Square, a retail, commercial and residential development in West Hartford Center. It is further alleged that, although these actions were nominally brought by individuals and "grassroots organizations" represented by local law firms, including O'Connell, Flaherty, Attmore, LLC (hereinafter referred to as "OFA"), the lawsuits were directed by Defendants and their attorneys.
Defendants are owners and operators of West Farms Mall, a regional mall located in West Hartford and Farmington. It is alleged that Defendants engaged in a lengthy and multi-million dollar campaign to obstruct construction of Blue Back Square in order to protect the Mall's competitive position. It is further alleged that Defendants initiated, funded, and controlled eleven legal proceedings with the goals of delaying and stopping construction of Blue Back Square and negating the approvals and permits issued to the developers by the Town of West Hartford and other state and local officials and approved by the electorate in two referenda. Further, it is alleged that in all but one of these eleven proceedings, Defendants were not named parties. Rather, Plaintiffs contend that Defendants directed and funded the litigation nominally brought by West Hartford citizens or self-proclaimed "citizens' groups." Each of the eleven lawsuits allegedly promoted by the Defendants was either withdrawn or dismissed.
Plaintiffs submit that it has been established though deposition testimony that Defendants hired Neil Proto of Schnader, Harrison, Segal Lewis, LLP (hereinafter referred to as "Schnader") to direct the "West Farms Defensive Efforts." It is further argued that several Schnader lawyers were deployed to direct the local lawyers who were paid by Defendants to represent the nominal plaintiffs in the underlying lawsuits, including OFA and Susman, Duffy Segaloff (hereinafter referred to as "Sussman"). Stephen Kieras, a Taubman Senior Vice-President charged with line responsibility for Defendants' Blue Back Square efforts, testified that he "believes that he did authorize" the eleven underlying lawsuits and administrative appeals. He also testified that Defendants told Mr. Proto to hire consultants and experts regarding Blue Back Square. In addition Schnader lawyers drafted letters, complaints and other court and administrative filings ultimately signed by counsel for the nominal plaintiffs and appeared in three of the cases themselves. Defendants have indicated that they were motivated by a desire to "level the playing field" and that they "as a long time commercial enterprise in the town, and taxpayer in the town, wanted to be treated fairly and equally." Mr. Robert Taubman has testified that he didn't know if the interests of Defendants were the same as those of the individual plaintiffs in whose names the lawsuits were brought.
Plaintiffs submit that deposition testimony has established that in certain of the underlying lawsuits and the two referenda, OFA was paid by Defendants to represent several local residents and two self-styled citizens' groups, all of whom opposed Blue Back Square. OFA represented Save the Center, a so-called "grassroots" organization, purportedly formed "primarily to address plans relating to the proposed Blue Back Square Development Project." Specifically, Save the Center fronted efforts to "bring a referendum vote to the town of West Hartford" regarding Blue Back Square. Only two West Hartford citizens — Susan Schaffman and Joseph Visconti — ever had any active role in Save the Center. Susan Schaffman claimed to be chairperson of Save the Center in 2004, and Mr. Visconti was its chairperson in 2005. Approximately 50-75 other citizens, including Jasyn Sadler, Ellen Burchill Brassil, and Elizabeth Spinella were Save the Center sympathizers. OFA, however, only had a "formal relationship" with Susan Schaffman and Joseph Visconti. The OFA lawyers representing Save the Center were Michael O'Connell and Erin Arcesi Mutty. Defendants began paying OFA in June of 2004. Their representation included participating in informational meetings and appearing before the Town Council and the Planning and Zoning Commission. On July 14, 2004, the Town Council and Zoning Commission unanimously granted the legal approvals required for the Blue Back Square Project. On October 12, 2004, the Town's citizens supported the project in a public referendum. OFA continued to represent Save the Center in connection with a second referendum which sought to challenge amendments to the Master Agreement. On June 22, 2005, the Town's citizens approved the amendments to the Master Agreement.
OFA also represented certain West Hartford residents who lived near Blue Back Square on Burr Street and/or Raymond Road. These individuals included Jasyn and Emily Sadler, Barbara Scully, Henry Steiner, Brenda Kurz, and Daniel and Lisa Holden (hereinafter referred to as the "Burr Street Residents"). In all, various Burr Street Residents filed four administrative appeals challenging the approvals issued by the Town Council and the Planning and Zoning Commission. Between July 23, 2004, and August 20, 2004, OFA filed four appeals on behalf of the Burr Street Residents (hereinafter referred to as "Sadler I," "Sadler II," "Sadler III," and "Sadler IV." One of the Burr Street Residents, Jasyn Sadler, testified that he became a plaintiff in the zoning appeals because he believed that Blue Back Square would negatively affect his quality of life and the character of his neighborhood. According to Mr. O'Connell, Defendants paid OFA for its work on behalf of the Burr Street Residents. The appeals brought by the Burr Street Residents were eventually consolidated and dismissed in their entirety on April 22, 2005.
OFA also represented a purported "citizens group" called West Hartford Initiative to Save Historic Property (hereinafter referred to as "WHISP") which was formed around the date of the 2004 referendum with the stated goal of "preserving" the Board of Education building, which with certain Town land, was to be transferred to the Blue Back developers under the Master Agreement. Elizabeth Spinella was the first president of WHISP, and her sister Ellen Burchill Brassil assumed the position when Elizabeth Spinella resigned in the summer of 2005. Aside from Elizabeth Spinella and Ellen Burchill Brassil there were no other officers of WHISP. According to an affidavit submitted by Neil Proto, the Schnader law firm represented WHISP since late 2004 and continued throughout 2005 and 2006.
OFA also participated, under the direction of Schnader lawyers, in an effort to have the West Hartford Municipal District to be considered for listing on the National Register of Historic Places. On September 9, 2005, the Town transferred title to the Board of Education building and significant areas of land within the district to the developers of Blue Back Square in accordance with the Master Agreement. On that date, the developers of the Blue Back Square exercised their right as owners of private property to object to the listing of the District on the National Register. Thus, as a result of the objection, the District could never be deemed "under consideration for listing" on the National Register. Nevertheless, on May 12, 2006, WHISP, Ellen Brassil, Jasyn Sadler, and Barbara Scully, represented by Schnader and Susman, filed a lawsuit in federal court, seeking a declaration that the destruction of the Board of Education building would be unlawful and sought an injunction preventing the demolition of the building (hereinafter referred to as "Sadler XI").
Attorney Mutty was the OFA lawyer assigned to the local effort to list the District on the National Register. On April 9, 2009, Plaintiffs noticed Attorney Mutty's deposition and served her with a subpoena duces tecum. The subpoena required Attorney Mutty to appear for a deposition on April 13, 2009, and to produce documents relating to WHISP, the nomination of the District to the National Register and any documents involving OFA's relationship with the Defendants. Attorney Mutty moved to quash the subpoena and for a protective order. In her motion to quash, Attorney Mutty argued that the subpoena violated her ethical obligation to maintain client confidentiality and implicated the attorney-client privilege and work product. The Court, in denying the motion to quash, requested that a privilege log be filed and that the documents be provided for in camera inspection.
At her deposition on June 25, 2009, Attorney Mutty produced two privilege logs. The first log included documents that Attorney Mutty claims are subject to the attorney-client privilege because they consist of "communications between counsel and her client, WHISP." The second log includes documents that Attorney Mutty claims are protected from discovery because they constitute attorney work product. Plaintiffs submit that relatively few documents on Attorney Mutty's work product log involve internal OFA documents or communications. Almost all of the documents on Attorney Mutty's work-product log (107 out of 110) demonstrate the sharing of information between OFA and lawyers from Schnader and Susman, including Attorney Proto, Steven Johnson, Deborah Rouse, Michael Susman, and Thomas Katon. Attorney Mutty claims that the work-product privilege applies to these documents because they allegedly consist of "communications between counsel for parties that had a common interest and the communications were in furtherance of that common goal."
On July 9, 2009, Plaintiffs subpoenaed Attorney O'Connell and OFA to appear for a deposition and produce documents relating to their: (1) representation of Save the Center, the Burr Street Residents, Jasyn Sadler, and WHISP, and (2) communications and agreements with lawyers at Schnader and Susman relating to Blue Back Square. Attorney O'Connell appeared for his deposition in his individual and representative capacity on August 17, 2009. Prior to the deposition OFA produced responsive documents and two logs withholding certain documents which it claims are protected by the attorney-client privilege or the work product doctrine. OFA claims that the documents included on its attorney-client log are protected in their entirety because those documents "consist of communications between counsel and clients." On this log, OFA includes communications regarding Save the Center. Plaintiffs argue, however, that many of these communications are addressed to or from persons who have not been identified by anyone as officers or even as members of Save the Center as well an unspecified number of people who accessed e-mail at the Save the Center web site. OFA also claims the privilege because the documents consist of communications between counsel and a client, although there is no attorney listed as the author or recipient on many withheld documents. Further, OFA's log contains communications that have been disclosed to third parties, including Defendants or Schnader lawyers.
OFA produced a second log of documents withheld on the ground that they are protected by the attorney work product doctrine. As to the internal OFA communications and documents, OFA claims that these documents are protected from discovery because they "contain the mental impression, conclusions, opinions and/or legal theories of attorneys in connection with their representation of a client." Plaintiffs submit that many of the documents do not indicate, however, that the author is an attorney. In addition, Plaintiffs argue, OFA claims the work product protection as to a number of documents relating to Save the Center and the referendum process, as well as WHISP and the process by which it was formed, which do not relate to legal services and were not prepared in anticipation of litigation. Finally, OFA claims that approximately 70 documents drafted by OFA attorneys and shared with lawyers at Schnader and Susman, and another 17 documents drafted by Schnader or Susman attorneys and shared with OFA are protected as attorney-work product because they "consist of communications between counsel for parties that had a common interest and the communications were in furtherance of that common goal."
In addition, Plaintiffs have moved to compel the production of documents and communications to which Christopher Tennyson was a party. Mr. Tennyson, an attorney, was formerly an officer in Defendant Taubman's company. He was hired as a consultant after he left the company, and was consulted regarding several of the underlying lawsuits. At present, the dispute relates to documents sent to Mr. Tennyson by Attorney Proto. Defendants argue that these documents are privileged since Mr. Tennyson was a member of the strategy team and should be treated as a de facto officer of the company. Plaintiffs argue that any advice given by Mr. Tennyson related to non-legal matters, and he should not be considered as an officer of the company. The parties have fully briefed the issues.
All parties appeared before the Court on October 23, 2009, regarding a Motion to Seal certain documents and exhibits attached to the briefs, and to respond to any questions the Court had regarding the briefs. The Court reserved decision at that time. In view of the fact that over 1,000 documents are involved in the decision, the Court will first discuss the general principles of law involved and then make specific rulings with regards to the documents in an attachment to the decision.
II. DISCUSSION A. Attorney-Client Privilege
A party in a civil action may obtain "discovery of information or disclosure, production and inspection of papers, books or documents material to the subject matter involved in the pending action, which are not privileged." Practice Book Section 13-2. A party asserting the attorney-client or work product privilege has the burden of establishing that the information sought is protected from disclosure. Babcock v. Bridgeport Hospital, 251 Conn. 790, 848, 742 A.2d 322 (1999). Similarly, a party relying on the common interest doctrine to shield privileged communications from disclosure has the burden of establishing all of its elements. Allied Ir. Banks, P.L.C. v. Bank of Am., N.A., No. 03 Civ. 3745, 2008 U.S.Dist. LEXIS 45034 at 5 (S.D.N.Y., June 11, 2008).
"As a general rule, communications between client and attorney are privileged when made in confidence for the purpose of seeking legal advice." Olson v. Accessory Controls Equip. Corp., 254 Conn. 145, 157, 757 A.2d 14 (2000). "A communication from attorney to client solely regarding a matter of fact would not ordinarily be privileged, unless it were shown to be inextricably linked to the giving of legal advice." Ullmann v. State, 230 Conn. 698, 713, 647 A.2d 324 (1994). In addition, "statements made in the presence of a third party are usually not privileged because there is then no reasonable expectation of confidentiality." State v. Cascone, 195 Conn. 183, 186, 487 A.2d 186 (1985). Courts strictly construe the privilege because "the exercise of the privilege tends to prevent full disclosure of the truth in court." PSE Consulting, Inc. v. Frank Mercede Sons, Inc., 267 Conn. 279, 330, 838 A.2d 135 (2004).
Plaintiffs argue that all documents should be produced by Attorney Mutty and OFA on the grounds that the documents fall into four general categories: (1) documents in which there is no attorney-client relationship, (2) documents in which there is no showing that the communications were made for the purpose of giving legal advice, (3) documents in which there is disclosure to third parties, thus waiving any privilege, and (4) documents in which there is an inadequate basis to conclude that a privilege existed and thus the Defendants, OFA, and Attorney Mutty have failed to meet their burden of proof.
Defendants argue that, certainly with respect to communications between OFA and Schnader, there was a common interest which renders the communications privileged. Defendants have submitted an affidavit signed by Attorney Neil T. Proto. Attorney Proto attests to the fact that, following a meeting with Schnader Attorneys in 2004, OFA and Schnader had an "agreement to communicate about their respective clients' common and shared interest" and that such communications concerning "legal matters, reasoning and strategy with respect to the Blue Back Square Project were confidential." Further, Mr. Proto states that this agreement "concerning the shared, common and allied interest of each firms' respective clients continued throughout each firm's respective representation of those entities and individuals." Attorney Proto also indicates that Schnader's representation of WHISP commenced in 2004 and continued into 2006, during which time Schnader and OFA's relationship included a "shared, common and allied interest and collaborative legal advice and representation of WHISP."
Plaintiffs argue that Schnader never had an attorney client relationship with Save the Center. Further, they argue that Schnader never had an attorney client relationship with the Burr Street residents in connection with the zoning appeals. Schnader did have an attorney-client relationship with some of the plaintiffs in Sadler I-IV (Sadler, Scully, and Brassil) in connection with some of the subsequent underlying lawsuits (Sadler V, VIII, and IX). It never had an attorney-client relationship with all of the Burr Street Residents for the' entire period from December 2004 to April 2007.
Plaintiffs claim that both OFA and attorney Mutty assert the attorney-client privilege in connection with several documents that do not contain communications between an attorney and a client. Attorney Mutty, for instance, asserts the attorney-client privilege in connection with a communication with Jasyn Sadler despite the fact that Mr. Sadler was not a member of WHISP. OFA claims the privilege in connection with a communication between Attorney O'Connell and a Save the Center sympathizer with whom he had no attorney-client relationship. OFA also asserts the privilege with respect to communications from non-lawyers to Save the Center and communications from Mr. Sadler and members of Save the Center to other non-lawyers. The claimed communication with Mr. Sadler occurred on March 23, 2006, long after the representation of the Sadlers had ceased on September 15, 2005. Mr. Sadler testified that he had never been a member of WHISP.
Plaintiffs claim that OFA and Attorney Mutty provide insufficient information regarding the nature of certain withheld documents to ascertain whether they contain communications made for the purpose of seeking or rendering legal advice. Many of the documents on attorney Mutty's private log — including emails regarding newspaper articles, letters regarding cell phone charges, and communications regarding letters of support received by WHISP — do not appear to contain either requests for legal advice or actual legal advice. Similarly, many of the documents on OFA's privilege log appear to contain exclusively financial, logistical, or scheduling information rather than legal advice. A number of documents do not reflect communications made by OFA in its capacity as legal advisor, rather, they reflect public relations and marketing efforts on behalf of Save the Center and other individuals in connection with town meetings, the public referendum, and other non-legal efforts to oppose Blue Back Square. Attorney-client communications regarding political strategy or marketing are not privileged. In Re Lindsay, 148 F.3d 1100, 1106 (D.C. Cir. 1998).
Plaintiffs further claim that many of the documents on the OFA and attorney Mutty's privilege logs do not contain confidential attorney-client communications. OFA attorneys sent many documents to recipients who were not members of Save the Center. These include e-mails to a generic list server and various unidentified addressees. Susan Schaffman and Joseph Visconti were the only "official" members of Save the Center. Assuming, arguendo, that there were other "formal" members of Save the Center, OFA has not established that communications with them are privileged because there has not been a showing of an attorney-client relationship. Robinson v. Texas Automobile Dealers Ass'n, 214 F.R.D. 432, 451-53 (E.D.Tex. 2003).
B. Work Product
The work product doctrine provides that "a party may obtain discovery of documents and tangible things . . . prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means." Practice Book Section 13-3(A). OFA claims that the work product privilege applies to documents because they:
(1) consist of communications between parties with a common interest; or (2) contain the mental impressions, opinions, or legal theories of attorneys in connection with their representation of a client. The mere fact that a document may contain opinion or legal theories of an attorney is insufficient to cloak it with work product protection. The document must still be prepared by or for an attorney for a client with a view towards pending or anticipated litigation in which that client is a party. Grand Jury Proceedings v. U.S., 156 F.3d 1038, 1042 (10th Cir. 1998).
Plaintiffs contend that OFA cannot assert the work product privilege in connection with material prepared by Taubman's lawyers because such material cannot constitute OFA's work product in the absence of any evidence that the documents were prepared at OFA's direction. Further, Plaintiffs argue that Taubman's lawyers cannot assert the work product privilege in connection with the documents withheld by OFA because they were not representing parties in the underlying litigation. They point to the fact that Taubman's lawyers never represented Save the Center, the Burr Street Residents in Sadler I-IV, or Jasyn Sadler in Sadler VI. Plaintiffs further contend that the work product doctrine does not protect material prepared in a prior terminated litigation from discovery in a subsequent litigation that is not closely related in terms of parties and subject matter. United States v. IBM, 66 F.R.D. 154, 178 (S.D.N.Y. 1974). Plaintiffs argue that the prior litigation in question is not sufficiently related to the instant litigation to warrant extension of the work product privilege. They argue that different parties and attorneys are involved and that OFA is not counsel to any of the parties in this action. Defendants argue that the cases are exactly the same in terms of the background facts. The actions of the defendants, as alleged, in the prior suits, involves the alleged grounds for recovery in the present suit.
Plaintiffs also contend that even, assuming arguendo, that the work product privilege extends to subsequent litigation (which has occurred where a court has found the two cases to be closely related — See United States v. Adlman, 134 F.3d 1194, 1202 (2d. Cir. 1998), OFA has failed to demonstrate that many of the withheld documents were even prepared in anticipation of the prior litigation. "It is not enough to trigger work product protection that the subject matter of a document relates to a subject that might conceivably be litigated . . . [n]or is it enough that the materials were prepared by lawyers or represent legal thinking. Much corporate material prepared in law offices or reviewed by lawyers falls in that vast category. It is only work done in anticipation of or for trial that is protected." Cloutier v. Liberty Mut. Ins. Co., Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. CV 90 0278184S (March 6, 1998, Mottolese, J.) [ 21 Conn. L. Rptr. 472].
C. Common Interest Doctrine
Defendants contend that OFA represented three separate entities during 2005 and 2006: Save the Center, the Burr Street Residents, and WHISP. They contend that the facts demonstrate that starting in late 2004, OFA and Schnader both represented the Burr Street Residents and WHISP. Therefore, they argue, irrespective of their clients' "common interests," the communications between OFA and Schnader relating to their representation of these shared clients are protected from disclosure.
Communications between lawyers for the same clients regarding legal services provided to those clients are not discoverable. Natta v. Zletz, 418 F.2d 633, 637 n. 3 (7th Cir.Ill. 1969). In general, "once a privileged communication has been purposely disclosed to a third party, the attorney-client privilege is waived, unless the disclosed material falls under the common interest rule." United States v. United Techs Corp., 979 F.Sup. 108, 111 (D.Conn. 1997).
The common legal interest rule was intended "to protect the free flow of information from client to attorney . . . whenever multiple clients share a common interest about a legal matter." United States v. Schwimmer, 892 F.2d 237, 243-44 (2d Cir. N.Y. 1989). This rule requires that "the communication in question was given in confidence and that the client reasonably understood it to be so given." Id., 892 F.2d at 244. The parties claiming protection under the rule must share a "common interest about a legal matter," but "it is . . . unnecessary that there be actual litigation in progress." Id., 892 F.2d at 243-44. "Third parties receiving copies of the communication and claiming a community of interest may be distinct legal entities from the client receiving the legal advice and may be a non-party to any anticipated or pending litigation." Duplan Corp. v. Deering Milliken, Inc., 397 F.Sup. 1146, 1172 (D.S.C. 1974).
Defendants claim that the evidence is clear that OFA and Schnader had an express agreement to share legal strategy and communications for the service of their common clients. They further claim that, in the situations where the common interest doctrine is claimed, OFA's and Schnader's clients shared a common legal interest that would protect privileged information or work product shared by the law firms. The legal interests, they contend, between the Burr Street Residents and Defendants during 2004 were virtually identical. Further, they argue that Save the Center had identical interests as the Defendants.
For the purposes of ruling on these motions, the Court makes the following findings:
1. There was an agreement between Attorney Proto and OFA, entered into at their meeting in 2004, to share privileged communications. Intex Rec. Corp. v. Team Worldwide Corp., 471 F.Sup.2d 11, 16 (D.D.C. 2007).
2. Defendants did not have a shared common legal interest with Save the Center.
3. Defendants did not have a shared common legal interest with the Burr Street Residents (Sadler I-IV).
4. Schnader never had an attorney-client relationship with Save the Center.
5. Schnader did not have an attorney-client relationship with the Burr Street residents in connection with the zoning appeals (Sadler I-IV). It did have an attorney-client relationship with some of the plaintiffs (Sadler, Scully, and Brassil) in connection with some of the subsequent underlying lawsuits (Sadler V, VIII, and IX).
6. Schader did have an attorney-client relationship with WHISP from 2004 through 2006.
D. Documents and Communications Regarding Mr. Tennyson
There are presently 35 contested documents involving Mr. Tennyson. Mr. Tennyson worked for The Taubman Company (hereinafter referred to as "TTC"), as the senior vice president of corporate affairs from 1984 to 1998. In that role, he managed communications, public relations and media relations. He also managed some aspects of advertising and investor relations. When Mr. Tennyson left formal employment with TTC in 1998, he continued to provide the very same services to TTC under a written contract. TTC did not fill Mr. Tennyson's position as the senior vice president of corporate affairs. His services were rendered to TTC as a counselor to a client. TTC kept Mr. Tennyson's firm on a monthly retainer for public relations services pursuant to an agreement executed in 2000. This contract included an express provision that "all materials shared (between TTC and Mr. Tennyson) are to be handled confidentially."
Twenty-seven of the disputed communications involve copies of memoranda or e-mails discussing or forwarding these memoranda, drafted by Defendants' counsel, Neil T. Proto, and sent to a core group of TTC's representatives, including William S. Taubman, Stephen J. Kieras, Mr. Tennyson and often one or two other high-level executives.
Privilege is maintained through disclosure to a consultant only if the consultant's services are necessary to providing legal advice or representation. United States v. Kovel, 296 F.2d 918, 921-22 (2d Cir. N.Y. 1961). Defendants argue that, while Mr. Tennyson's services were necessary to providing legal advice or representation, it is not necessary for this court to address the issue. They contend that "the analysis set forth in Kovel and its progeny concerning whether the privilege applies to communications made to third parties for the purpose of facilitation attorney-client communications is inapposite" where the consultant is the "functional equivalent" of an employee of its client. In re Copper Market Antitrust Litigation, (S.D.N.Y. 2001). They argue that Mr. Tennyson was a member of the team responsible for dealing with legal issues and legal strategies regarding Blue Back Square and, as such, he is considered a "necessary party" to privileged communications to and from counsel. Although there have not been any Connecticut cases cited to the Court, the doctrine of "functional equivalency" is appropriate, in this instance, to protect communications intended by the parties to be privileged. There are some potential contradictions between the testimony offered by Mr. Tennyson in his deposition, and the statements made in his affidavit. Whether or not these contradictions may be explained by the fact that his recollection has been sufficiently refreshed since his deposition is of concern to the Court. If the issue related solely to the necessity of Mr. Tennyson's role in providing legal advice as a consultant, the Court may have been persuaded by Plaintiffs' argument that he is only providing marketing strategy. However, it does appear to the Court that he served as the "functional equivalent" of an employee of TTC. Defendants and their counsel specifically included Mr. Tennyson in the core group of Defendants' representatives responsible for deciding issues of legal strategy. His duties did not change dramatically after he left the company. His position was never filled by the company. All of these communications occurred under the express understanding that they would be kept confidential. Plaintiffs' Motion to Compel Production of these documents is, therefore, denied.
E. Substantial Need
Connecticut law allows a party to obtain discovery of ordinary work product upon a showing that the party "has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means." Practice Book Section 13-3(a)(2008). "Substantial need is established if the information contained in the documents is essential to the movant, for example by containing the essential elements of a prima facie case, . . . or by containing facts that demonstrate the opposing party's knowledge." Garcia v. Yale New Haven Hospital, Superior Court, Judicial District of New Haven at New Haven, Docket No. CV 95 0373032 (July 2, 1999, Lager, J.) [ 25 Conn. L. Rptr. 78]. The work product privilege is not absolute even with respect to opinion work product. Sharon Motor Lodge, Inc. v. Tai, Superior Court, Judicial District of Litchfield. Docket No. CV 98 0077828S (March 1, 2006, Bozzuto, J.) [ 40 Conn. L. Rptr. 852]. Plaintiffs claim that even if some or all of OFA documents satisfied the work product doctrine, Plaintiffs have a substantial need for such documents because they are central to their claims of vexatious litigation, abuse of process, and CUTPA in this case. Plaintiffs must demonstrate that the underlying cases were directed and controlled by Taubman's agents, the Schnader and Susman lawyers, and their sub-agents. Plaintiffs further contend that discovery of opinion work product is especially relevant to Plaintiff's claim that Defendants commenced each of the underlying litigations without probable cause. They further contend that they cannot obtain the information from any source other than communications between Taubman's lawyers and counsel for the nominal plaintiffs.
Connecticut courts have already determined that both fact and opinion work product is discoverable in malicious prosecution actions and bad faith insurance claims. In a case of false arrest and malicious prosecution the court held that "to prove these allegations, he [plaintiff] requires materials that pertain to the thought processes of the state's attorneys handling this matter." State v. Weber, 49 Conn.Sup. 530, 537-38, 896 A.2d 153 (2004) [ 38 Conn. L. Rptr. 416]. A similar rationale was used to allow discovery of materials in a few bad faith cases. Cloutier v. Liberty Mut. Ins. Co., Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. CV 90 0278184S (March 6, 1998, Mottolese, J.) [ 21 Conn. L. Rptr. 472]; Robarge v. Patriot General Ins. Co., 42 Conn.Sup. 164, 608 A.2d 722 (1992) [ 6 Conn. L. Rptr. 186]. Plaintiffs claim that similar information is necessary to proving the allegations of Plaintiffs' vexatious litigation and abuse of process claims.
Defendants argue that the Weber case involved the work product of a government attorney, not an attorney for a private party. The Weber court, defendants contend, noted that there is not as great a risk of prejudice or injury to an attorney-client relationship with a state's attorney who doesn't actually have such a relationship. Defendants further contend that both Clouthier and Robarge are inapplicable because they involved bad faith claims.
This Court is persuaded by the rationale of the Weber decision. In view of the requirements of proof in a vexatious litigation case plaintiffs have demonstrated a substantial need for the documents. Any injury to the attorney-client relationship, in this case, is outweighed by the plaintiffs' need to examine these documents to enable them to develop factually the essential elements of their case. Although there have not been any similar cases reported regarding vexatious litigation, the rationale remains the same as a malicious prosecution or bad faith claim. In a vexatious litigation claim the elements of proof require the plaintiff to investigate the defendant's files to see if the defendant lacked sufficient probable cause to commence the prior actions. The Court finds that there are no alternative methods for the Plaintiffs to obtain this information.
F. Matters of First Impression
In addition to the "substantial need" issue in a case involving vexatious litigation and the "functional equivalency" test, there are a few additional matters of first impression presented by the parties.
1. Does the work product privilege extend to subsequent litigation?
Some Federal Courts have held that the work product doctrine never shields material prepared for prior litigation from disclosure in the instant litigation. See United States v. IBM, 66 F.R.D. 154, 178 (S.D.N.Y. 1974). Other courts have held that the doctrine extends to subsequent litigation which is closely related to the prior litigation. See Hercules v. Exxon Corp., 434 F.Sup. 136 (D.Del. 1977). Connecticut courts have not explicitly addressed the issue of whether the work product protection extends to subsequent litigation. One court has cited Midland Inv. Co. v. Van Alstyne, Noel Co., 59 F.R.D. 134, 138 (S.D.N.Y 1973), which held that documents prepared by counsel for a company in an earlier SEC investigation were protected from discovery in a subsequent civil suit concerning some of the same illegal transactions. See Carrier Corp. v. Home Ins. Co., Superior Court, Judicial District of Hartford at New Britain, Docket No. 35 23 83 (June 10, 1992, Schaller, J.) [ 6 Conn. L. Rptr. 478]. In view of this Court's ruling on the substantial need issue, it is unnecessary for the Court to rule definitively on this issue. However, if two cases are so intertwined that the second case may be described as the progeny of the first, it would appear that the rationale for the work product doctrine would apply equally in the second case.
The Court also notes that our Practice Book rule does not limit the term "work product" to any one litigation.
2. Does the Common Interest Doctrine protect Privileged Communications disclosed to non-parties?
Connecticut courts have never directly addressed the issue of whether the common interest doctrine protects privileged communications disclosed to non-parties. The courts that have extended the doctrine to non-parties have done so in cases "limited to those situations involving either the legal duty to defend another entity or the common interest arising from a client transaction between two separate entities which are represented by the same attorney." Weil Ceramics Glass, Inc. v. Work, 110 F.R.D. 500, 503 (E.D.N.Y. 1986). This Court is of the opinion that the doctrine could extend to non-parties under the limited circumstances expressed in the Weil decision. Indeed, the issue of privilege may be as strong for the attorney involved in the representation of the party as it is for the representation of the nonparty. See Matthews v. Lynch, Civ. No. 3:07CV739 (WWE), 2009 WL 2407363 (D.Conn. Aug. 6, 2009).
III. CONCLUSION
Based upon the foregoing reasons, the Court makes the following rulings relating to the privilege logs submitted by both Attorney Mutty and OFA:
CTPage 17548
Due to the extensive nature of the documents, the Court has marked certain areas of each privilege log with a check mark next to box in which the privilege was claimed. The check mark indicates that the Court has not accepted the claim of privilege, work product, common interest doctrine, or the attorneys have failed to sustain their burden of proof with regard to same, and the item must be produced. If there is no check mark by the box indicated, then the item does not have to be produced and the court has accepted the claim of privilege. The Court hereby attaches the logs to this ruling and incorporates said logs in the ruling. The motion to compel the Tennyson documents is denied.