Opinion
No. FSTCV10-6003636S
July 11, 2011
Memorandum of Decision on Plaintiff's Motion for Protective Order (No. 141) and Defendant's Objections to Motion for Protective Order (Nos. 141 146)
PROCEDURAL/FACTUAL BACKROUND
This insurance subrogation action is brought by Amica Mutual Insurance Company as the fire insurance carrier on a home in the Cos Cob section of Greenwich destroyed by fire on August 5, 2008. By this action Amica seeks to recoup payments made to its insured, the owner of the home, from the defendants herein, Fasarella Pro Painting and Design, LLC and Valspar Corporation who allegedly were negligent in causing the fire.
Shortly after the loss Amica engaged Mr. Dallas Dodge, a public adjuster with the firm A.E. Oberhaus, to investigate and adjust that loss. Soon thereafter Amica also engaged the law firm of Skelly Rotner, P.C. (present counsel for Amica as plaintiff in this case) to oversee the investigation and coordinate with Mr. Dodge.
The issue presented by this motion for protective order is whether or not the defendants are entitled to discovery of certain communications by and among Amica, Skelly Rotner or its individual attorneys and the adjuster, Mr. Dodge, which Amica is opposing on grounds of attorney-client privilege and/or attorney work product. The issue of discovery of these or similar documents did come up previously, when the defendants had filed a request for production of documents which sought reports and records of experts and testing which included the reports of A.E. Oberhaus, Inc or Dallas Dodge. Plaintiff filed objections thereto but did disclose one or more "Serious Loss Reports" of A.E. Oberhaus, Inc., from which it redacted certain paragraphs. The defendants then filed a Motion for Order of Disclosure dated November 10, 2010 (No. 121) seeking an order of compliance pursuant to Practice Book § 13-14 with respect to, inter alia, the deletions from the Oberhaus reports. The Motion for Order of Compliance came up on the non-arguable short calendar before Judge Mottolese who granted the motion without opinion on December 6, 2010 (No. 121.86). The unredacted reports have not been disclosed. On January 13, 2011 the plaintiff filed the Motion for Protective Order now before the court in response to defendants' notice of the deposition of Dallas Dodge which was issued in conjunction with a subpoena duces tecum served on Mr. Dodge directing him to bring with him to the deposition:
The plaintiff's privilege log (No. 159) mentions only attorney-client privilege as the ground of objection, but the written motion for protective order mentions both grounds. Counsel also argued both grounds of objection at the March 14, 2011 short calendar.
1) Your complete file in connection with the above matter including all correspondence, reports, summaries, notes, drawings, calculations, and/or communications created by yourself, your colleagues, or your staff in connection with this case; 2) all documents sent to or received from the plaintiff or its attorneys; 3) all photographs, diagrams, and materials generated by you, or reviewed or relied upon in connection with this case; 4) all statements or interviews reviewed or relied upon in this case; 5) a copy of your timesheets and billing records, reflecting the work performed in connection with this case.
The motion for protective order seeks protection on grounds of attorney-client privilege and the work product doctrine from production of twenty emails or chains of emails and two letters; and further seeks protection from production of item number four of the schedule to the subpoena duces tecum seeking Mr. Dodge's timesheets and billing records for work on this case on grounds that it is not seeking reimbursement for the Oberhaus firm's fees and those materials are not calculated to lead to the discovery of relevant evidence.
DISCUSSION A. Previous Ruling
Defendant Valspar argues that the protective order should be denied because the issue of disclosure of Mr. Dodge's reports has already been ruled on by Judge Mottolese in his order of December 6, 2010 when he granted an order of compliance with defendant Fasarella's requests for production of documents dated March 16, 2010, which request was similar — but not identical — to the subpoena duces tecum production items. The court has reviewed the materials attached to that motion for order of disclosure (No. 212) including exchanges of emails between counsel, and it is obvious that the objections then at issue were limited to claims that the requested items were vague, overbroad and burdensome, and/or that the information was not reasonably calculated to lead to the discovery of admissible evidence. There was no issue of privilege or the work product doctrine. The court is therefore not constrained by Judge Mottolese's previous order. The privilege/work product issues have been raised for the first time in connection with this motion for protective order and have been vigorously briefed and argued on the merits. This court therefore would be remiss not to address those very significant issues. To the extent that I may decide that any of the items requested for production by the deposition subpoena duces tecum are privileged or protected from disclosure as attorney work product, that ruling would modify the earlier order to compel disclosure on other grounds to the extent that the previous ruling may have applied to the same requested documents.
B. Attorney-Client Privilege
"The attorney-client privilege protects communications between client and attorney when made in confidence for the purpose of seeking or giving legal advice." Ullman v. State, 23 Conn. 698, 711 (1994). "In Connecticut, the attorney-client privilege protects both the confidential giving of professional advice by an attorney acting in the capacity of a legal advisor to those who can act on it, as well as the giving of information to the lawyer to enable counsel to give sound and informed advice." Metropolitan Life Insurance Co. v. Aetna Casualty and Surety Co., 249 Conn. 36, 52 (1999). "As with all privileges, the [party] claiming the attorney-client privilege has the burden of establishing all essential elements." (Internal quotation marks omitted.) Harp v. King, 266 Conn. 747, 770 (2003). And since the rule tends to prevent a full disclosure of the truth in court, it should be strictly construed. Turner's Appeal, 72 Conn. 305, 317-18 (1899).
It is true, of course, that the privilege accorded communications between attorney and client is not limited to direct communications between the two. It extends to communications made through agents for communication. State v. Hanna, 150 Conn. 457, 465 (1963)."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 (1985). "The presence of certain third parties, however, who are agents or employees of an attorney or client, and who are necessary for consultation, will not destroy the confidential nature of the communications." State v. Gordon, 197 Conn. 413, 424 (1985).
Plaintiff relies on the agency theory in arguing that Mr. Dallas Dodge of A.E. Oberhaus, Inc. was acting as the agent of Amica in connection with reports, letters, and emails that came to the attention of Amica's counsel Skelly Rotner, and was not therefore a third party whose presence or participation would amount to a waiver of the privilege. "Mr. Dodge is Amica's agent. It was necessary for Amica's attorneys to consult with Mr. Dodge regarding the present litigation . . . The communications between Amica's adjuster, Dallas Dodge and the plaintiff's attorneys are protected by the attorney-client privilege because they are communications by Amica through its agent, to its attorneys for the purpose of obtaining legal advice with the intent that its communications would be kept confidential." (Plaintiff's Reply Memorandum, p. 5.)
Plaintiff's agency theory is correct on the law, but fails on the facts. The plaintiff has the burden of proving each essential element of its claim of attorney-client privilege, which in this case would include proving the claim that Dodge was acting as Amica's agent when he was communicating with Amica's counsel by report, letter, or email. Other than counsel's assertion in a legal memorandum that Dodge was acting as Amica's agent, no testimony or affidavit or documentary exhibit or other evidence has been brought forth to prove the agency relationship between the public adjuster, Mr. Dodge, and Amica Insurance Company. Plaintiff cites Shew v. Freedom of Information Commission, 245 Conn. 149, 168 (1998) for the proposition that "[a] person making a privileged communication to a lawyer for an organization must then be acting as agent of the principal-organization." That quote from the official commentary to § 123(2) of the Restatement of the Law Governing Lawyers (Proposed Final draft No. 1, 1996) appears in footnote 12 of the court's opinion in relation to the issue whether or not an agent of a corporation for purpose of privileged communications must at the time of the communication still be an agent of the corporation and not a past agent. (The Supreme Court adopted the rule that the agent must be a current agent. Id., 158-59.) In context, then, the quote from the Restatement commentary is not saying, as plaintiff seems to imply, that the fact that a person is making a communication to a corporation's lawyer means that he must therefore be acting as the corporation's agent, but rather that, in order for the statement to be privileged the person communicating with counsel must "then" — at that time — be an agent of the client corporation. (The word "then" is used in its temporal meaning, not its consequential meaning.) This is clear from a further statement in the same commentary, also quoted in footnote 12 of Shew: "a former agent is a privileged person under subsection 2 [of § 123] if, at the time of communicating, the former agent has a continuing legal obligation to the principal-organization to furnish the information to the organization's lawyer. The scope of such a continuing obligation is determined by the law of agency and the terms of the employment contract . . ." In keeping with this reading of the Restatement, the Supreme Court in Shew remanded the case to the Appellate Court with direction to remand the case to the trial court with direction to remand the case to the Freedom of Information Commission because "[t]he commission . . . made no findings concerning . . . whether the persons interviewed were employees or officials of the town at the time of the interviews . . ." Id., 160-61, 168. Thus, this court's conclusion that a finding of agency is required and that plaintiff has not met its burden of proving that Dodge was an agent of Amica for purposes of speaking with counsel is consistent with the Shew analysis.
Plaintiff also cites Niemitz v. Barkhamsted, Superior Court, Judicial District of Litchfield, Docket No. CV06-5000208S (November 5, 2007, Marano, J.), 2007 Ct.Sup. 20221, which holds that where an insurance adjuster received a communication at the express direction of counsel for the insured, the attorney-client privilege may be available. But, even in Niemitz, the burden of proof deprived the proponent of the privilege of the protection of the privilege, because ". . . Counsel for the defendants vacillated between indicating that the statements were made at her request, stating that the statements were produced with her cooperation, and additionally stating that the statements were produced only with her knowledge and consent . . . Counsel also stated [in argument] that it was, in fact, the adjuster that first contacted her and indicated that he intended to obtain statements." (Emphasis in original.) Id., P. 20222. Judge Morano contrasted the situation before him with the situation facing Judge Corradino in Fenton v. Shillelagh Corp., Superior Court, Judicial District of New Haven, Docket No. CV94-0365519 (December 26, 1995, Corradino, J.), 1995 WL 705814, where the attorney for the insured submitted an affidavit indicating that he directed the claims manager of insured's insurance company to have a representative prepare a statement his client regarding the incident in question, which statement was held to be privileged. But here, as in Niemitz, counsel for Amica has submitted no affidavit or any other evidence that the statements gathered by Dodge were taken at the request of counsel. To the contrary, plaintiff states in its reply memorandum at p. 2 that "Amica retained Dallas Dodge to investigate and adjust the Jervis loss immediately upon receiving notice of the loss. Shortly thereafter, Amica retained present counsel." (Emphasis added.)
The documents in question are not shown to reflect confidential communications because of the presence and involvement of Mr. Dodge, a third party not proved to be an agent of the client Amica, and because of the lack of any evidence that counsel requested that Mr. Dodge conduct an investigation or take the statements in question. Attorney-client privilege therefore does apply.
C. Attorney Work Product
Plaintiff claims alternatively that the subpoenaed documents are protected from discovery by the attorney work product doctrine under Practice Book § 13-3, which provides in part:
(a) Subject to the provisions of Section 13-4, a party may obtain discovery of documents and tangible things otherwise discoverable under section 13-2 and prepared in anticipation of litigation or for trial by or for another party or by or for that party's representative only upon a showing that the party seeking discovery has substantial need of the materials in preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials. In ordering discovery of such materials when the required showing has been made, the judicial authority shall not order disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
Under Connecticut law the lack of involvement of counsel can be dispositive of a claim that reports are work product. "Work product can be defined as the result of an attorney's activities when those activities have been conducted with a view to pending or anticipated litigation. The attorney's work must have been an essential step in the procurement of the data which the opponent seeks, and the attorney must have performed duties normally attended to by attorneys." (Citations and internal quotation marks omitted.) Stanley Works v. New Britain Redevelopment Agency, 155 Conn. 86, 95 (1967). Plaintiff has submitted no affidavit or other evidence as to the role, if any, of attorneys for Amica in procuring or preparing the subpoenaed documents, but from the description of those documents in the attachment to the subpoena, quoted above, it appears that Mr. Dodge or his employer Oberhaus, Inc. was the primary party which procured or generated the requested documents except for the part of request No. 3 which seeks "all documents . . . received from plaintiff or its attorneys." The motion for protective order could probably be denied as to many of the requested documents on the lack of attorney involvement alone, but the parties did not argue or brief that point, instead focusing on the issue of whether or not the requested documents were "prepared in anticipation of litigation or for trial" by Amica or its adjuster, Mr. Dodge. The court will therefore base its decision on that issue.
As in the case of attorney-client privilege, the burden of establishing that the information sought constitutes an attorney work product is on the party asserting such a claim. Geib v. Sheraton Stamford Hotel, Superior Court, Judicial District of Stamford/Norwalk at Stamford, Docket No. X08CV05-5000466S (December 3, 2008, Jennings, J.) ( 2008 Ct.Sup. 19286) Since Rule 26 of the Federal Rules of Civil Procedure addresses work product in like terms Connecticut courts have looked to federal decisional law in order to adjudicate work product issues arising under Practice Book § 13-3. See Garcia v. Yale New Haven Hospital, Superior Court, Judicial District of New Haven, Docket No. CV95-037032 (July 2, 1999, Lager, J.) ( 25 CLR 78). Here both sides have cited federal cases dealing with particular fact pattern of this case, namely statements developed by an independent adjuster working at the request of an insurance company which has been put on notice of a claim covered by a policy issued to the claimant. After reviewing the memoranda and considering the arguments of counsel for all parties, this court will be guided by the principles and standards applied by the District Court in QBE Insurance Corp. v. Interstate Fire and Safety Equipment Company, U.S. D.C., D.Conn., Docket No. 3:07cv1883(SRU) (February 18, 2011, Underhill, U.S. D.J.) 2011 WL 69282 which, like this case, involved a fire loss followed by a subrogation action brought by the insurer against a party alleged to have been responsible for the fire. The defendant Interstate sought to depose the adjuster who had investigated the fire on behalf of the plaintiff insurer, and specifically sought to question the adjuster about claim notes he had prepared. The plaintiff QBE Insurance sought to protect the claim notes as attorney work product. The issue was whether or not those notes had been "prepared in anticipation of litigation or for trial by or for another party or its representative" under Federal Rule 26(b)(3)(A). Citing Weber v. Paduano, U.S. D.C., S.D.N.Y Docket No. 02cv3392 (GEL) (January 22, 2003, Lynch, U.S.D.J.), 2003 WL 161340, The QBE court cautioned against protecting documents from discovery simply because of a "ritualistic incantation" by insurers that documents are prepared in preparation for litigation and drew a "fact specific" distinction between documents prepared in the ordinary course of an insurer's business of investigation of a claim and documents created "because of" anticipated litigation. "Because all insurance investigations are likely performed with an eye toward the prospect of future litigation, it is particularly important that the party opposing production of the documents, on whom the burden of proof as to the privilege rests, demonstrate by specific and competent evidence that the documents were created in anticipation of litigation," QBE at *3 (citing Weber). Both QBE and Weber focus on the date the insurer "settles on pursuing subrogation" as opposed to "only investigating whether it had subrogation rights to enforce" as the distinguishing factor. QBE, at *4; Weber, at *8, although Weber also holds that even documents created after the institution of litigation must be proven to have been created because of the lawsuit. Other "objective benchmarks" relied upon by the federal courts, as cited in CT Page 15263 QBE and/or Weber bearing on the anticipation of litigation issue include the following: (1) whether the investigation is of a third-party claim, the very nature of which is anticipating litigation, or a first-party claim; (2) that insurer-authored documents are more likely than attorney-authored documents to have been prepared in the ordinary course of business; (3) that the work product doctrine most strongly protects the mental processes of the attorney, providing a privileged area in which to analyze and prepare a client's case as opposed to documents which consist of factual materials and analyses of facts; (4) that actions taken by an insurance company immediately after being notified of a potential claim are almost always part of its ordinary business of claim investigation; and (5) and that blanket assertions of work product as to entire files, rather than specific documents are never sufficient to prevent discovery, since the party opposing discovery must establish that each document is work product. By application of these principles, the party opposing discovery of documents as work product in QBE, the plaintiff, was denied its protective order, and the party opposing discovery of documents as work product in Weber, the Paduano defendants, lost their opposition to the plaintiff's motion to compel production with respect to a majority of the documents at issue. In each case the ruling of the court was based on the failure of the party opposing disclosure to meet its factual burden of proof by specific and competent evidence as to the elements of the claim of work product protection.
In this case, plaintiff Amica Mutual has submitted no affidavits or other evidence to satisfy its burden of proof. There is no evidence when Amica made the key decision to pursue litigation and plaintiff has essentially relied upon a "ritualistic incantation" of anticipation of litigation found to be lacking in QBE. The only reason, however, that the court will not rule on the motion for protective order at this time is that plaintiff has offered and requested that the court review the contested documents in camera. Although the Weber court said that ". . . in camera review of documents, while potentially helpful to the determination of privilege, is `not . . . to be routinely undertaken . . . as a substitute for a party's submission of an adequate record for its privilege claims . . .'" this court, after careful reflection and consideration has decided to offer the plaintiff an opportunity to submit some or all of the contested documents for in camera review by the court before making a definitive ruling, as some of the objective benchmarks of work product may be ascertainable from the contents of the many documents listed in the privilege log.
D. Dodge/Oberhaus, Inc. Time Sheets and Billing Records
The time sheets and billing records of Dallas Dodge or A.E. Oberhaus, Inc. fall within the general scope of discovery under Practice Book § 13-2 as "information or disclosure, production, and inspection of papers, books, or documents material to the subject matter involved in the present action . . . which are within the knowledge possession, or power of the party or person to whom the discovery is addressed. 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 the discovery of admissible evidence." Depending on the level of billing detail provided to clients of A.E. Oberhaus, there could well be at least evidence that would reasonably lead to the discovery of admissible evidence, such as persons or sources that were contacted or consulted, the amount of time spent on various phases of the engagement, any input from the client, Amica or its counsel as the project progressed, any deletion or redrafting of reports or documents, etc. If plaintiff feels that any privileged or work product information is contained in those time sheets or billing records, they may be submitted for in camera review in accordance with the following order.
ORDER
If, after consideration of the court's ruling herein rejecting plaintiff's claim of attorney-client privilege and pointing out the factual deficiencies of plaintiff's submission on its claim of work product, the plaintiff feels that an in camera review of documents might result in at least some of them being found to constitute protected work product, the plaintiff may submit documents for in them being found to constitute protected work product, the plaintiff may submit documents for in camera review by the court. That submission must be made not later than August 1, 2011 by lodging the documents to be reviewed with the clerk of this court pursuant to Practice Book § 7-4C and simultaneously moving pursuant to Practice Book §§ 7-4B and 11-20A that the lodged documents be sealed for purposes of in camera review by the court. No affidavit, exhibit, or further briefing shall be filed, although the plaintiff may indicate particular areas of documents for review by underlining or shading or highlighting. If the plaintiff elects not to file for in camera review by August 1, 2011, the court will decide the motion for protective order on the existing record.