Opinion
02 Civ. 6441 (LAK)
October 8, 2002
ORDER
By letter dated September 25, 2002, defendants moved for an order, pursuant to Fed.R.Civ.P. 37, compelling discovery. The parties subsequently have resolved some of the issues, and plaintiffs now have had a full opportunity to brief the issues. The issues are resolved as follows:
1. During the course of depositions of many of the plaintiffs, plaintiffs' counsel instructed their clients not to answer certain questions. Except in instances involving bona fide claims of privilege, this was improper. Plaintiffs' initially sought to block the reopening of the depositions, but now have retreated to a new line of defense, viz. that the plaintiffs' answer the previously unanswered questions in writing. This is unacceptable. Defendants are entitled to oral testimony of the witnesses, not lawyers' answers, and to reasonable opportunities to follow up answers. Each of the plaintiffs who declined to answer questions at previous sessions of their depositions is to appear again for oral examination and answer the questions put to them. See Order, Sept. 6, 2002.
2. Those plaintiffs who have not yet been deposed are to be produced for examination promptly. If the parties cannot agree upon dates within one week from the date of this order, the Court will fix them.
3. Plaintiffs maintain that three letters (one of which is an unsigned form of retainer agreement), some copies of which already are in defendants' hands, are protected by the attorney-client privilege and may not form the basis for questions in the depositions of the plaintiffs.
Defendants exhibited copies with the names of addressees redacted at depositions of certain plaintiffs and sought to question the witnesses about them.
The attorney-client privilege protects (1) communications (2) between attorney and client (3) in confidence (4) for the purpose of seeking, obtaining or providing legal advice to the client.
Plaintiffs themselves describe these documents as "solicitation letters" and go on to say that they were:
"confidential communications sent to clients and prospective clients discussing their right to sue NGS and advising them how to proceed. The letters stated the grounds for the suit against NGS and necessary steps they were advised to take in order to vindicate their rights. . . . The letters were sent to prospective clients in furtherance of the interests of existing clients and to encourage involvement in a Class Action." (Pl. Mem. 14) (emphasis added)
With all due respect, letters to prospective clients to encourage their involvement in a class action and a proposed form of retainer agreement, regardless of whether the sending of them was in furtherance of the interests of existing clients, are not communications between attorney and client and are not confidential. They are, in significant measure, direct mail advertising. Plaintiffs' contention that such communications should be protected to ensure that the public may be advised of the "most fundamental elements of a case necessary for [it] to decide a course of action" (Pl. Mem. 15), if accepted, would take the attorney-client privilege to a galaxy far, far away from its roots and one that it is unnecessary to visit. Indeed, although the Court does not rely upon the point in deciding this motion, it is an everyday experience in New York City to hear radio commercials by at least one law firm advising prospective clients that they may have claims based on asbestos exposure. The fact that plaintiffs' counsel elected direct mail rather than broadcast media is of no moment here.
These documents are to be produced forthwith, and plaintiffs who previously declined to answer questions regarding these documents are to appear for examination and respond to questions concerning whether and in what circumstances they received them, provided, however, that the Court is not now ruling on whether any communications between plaintiffs and their counsel subsequent to the plaintiffs' receipt of these solicitations is privileged.
4. Plaintiffs object on privilege grounds to production of a 20 page summary of the complaint (which is 136 pages long and has so many exhibits that it has been furnished to the Court on CD-ROM) that they used in preparing at least some witnesses to testify at their depositions. In some cases, plaintiffs' counsel directed plaintiffs not to answer questions concerning whether they had reviewed the summary. In others, they did so as to questions concerning whether review of the summary had refreshed their recollections. In at least one instance, the witness testified that he had reviewed the document to prepare for the deposition and that "it's helping me now to answer." (Bertelli Dep. 9)
Fed.R.Evid. 612 provides that writings used to refresh memory for the purpose of testifying, either while testifying or, in the discretion of the court, before testifying shall be produced to facilitate cross-examination. The extent to which the use of an otherwise privileged document to refresh recollection at a deposition (as opposed to trial) waives the privilege is not entirely clear. See Weinstein's Federal Evidence § 612.05[3]. But this much is certain. First, defendants are entitled to a full opportunity to establish the extent to which the document has been reviewed by and has assisted witnesses. Second, assuming that the record shows that a witness has reviewed and arguably has been assisted by the document, the Court should balance a series of competing factors in determining whether to find a waiver. Id. § 612.05[3]e).
In all the circumstances, all of those plaintiffs who were directed not to answer questions concerning whether they reviewed the document, whether it refreshed their recollections, and whether it assisted them in their testimony are to be produced for examination and shall answer all such questions. As at least one witness already has admitted that the document assisted him in responding to deposition questions, the document reviewed by that witness shall be produced to the Court, on or before October 15, 2002, for in camera inspection.
5. One plaintiff was shown a list of questions that plaintiffs' counsel thought might be posed at his deposition. The Court agrees that the list contained opinion work product. In this particular instance, the factors suggesting disclosure, see Fed.R.Evid. 612, are outweighed by the fact that disclosure would permit defense counsel to invade their adversary's tactical assessments without significant benefit in assessing the credibility or accuracy of the testimony of the witness.
6. Plaintiffs have objected to questions concerning plaintiffs' financial resources, arguing that they have the case on a contingency and that the questions are not relevant to the class determination. These objections are overruled. This is not a proper basis for directing witnesses not to answer. See Order, Sept. 6, 2002. In any case, while the ABA Model Code of Professional Responsibility recently has taken a different view, it is a violation of the New York Code of Professional Responsibility for an attorney to advance or guarantee litigation expenses unless "the client remains ultimately liable for such expenses." N.Y. Code Prof. Resp. DR 5-103.B.1. It therefore is appropriate for defendants to inquire into whether the plaintiffs understand their potential personal financial obligations, including class notice costs, their willingness to undertake them, and to a very limited degree consistent with the plaintiffs' legitimate privacy interests their ability to bear such costs. Cf. 1 Newberg on Class Actions § 3.37 (3d ed. 1992). Plaintiffs shall appear for examination and respond to such questions. The Court expects defendants to exercise appropriate restraint with respect to inquiries into the financial circumstances of the individual plaintiffs.
The papers do not reveal whether plaintiffs' counsel has agreed to advance litigation expenses on behalf of plaintiffs or, if so, whether he has agreed to make repayment contingent on the outcome of the case. In any case, the Court expresses no view as to whether any such agreement entered into prior to the transfer of the case to this district reflected inappropriate conduct. Plaintiffs' counsel is a California attorney. Assuming that California law would govern his actions, at least with respect to California clients, while the case was pending in that state, the California Rules of Professional Conduct would permit an attorney to advance litigation expenses, with repayment by the client to be contingent on a successful outcome. Calif. Rules of Prof. Conduct, Rule 4-210(A)(3). Now that the case is in this Court, however, the New York Code of Professional Responsibility applies. See S.D.N.Y. Civ.R. 1.5(b)(5). Whether yet another rule would apply as to clients who were not California residents, but who retained plaintiffs' counsel while the case was pending there, need not now be addressed.
7. The final issued tendered by the parties is defendants' request that plaintiff Menzel disclose the name of the NGS employee who advised allegedly him of the existence of a so-called "black list." Plaintiffs do not dispute the relevancy of the information but object to disclosing the name for fear that NGS would retaliate against the employee. Both sides have expressed a willingness to explore disclosure under a protective order in the event disclosure is ordered.
In view of the lack of any issue as to relevancy, defendants are entitled to the disclosure they seek. Mr. Menzel shall provide defendants with an affidavit, which shall not be disclosed by defendants' counsel to their clients or anyone else absent further order of the Court, identifying by name and position the NGS employee in question.
* * *
Defendants' motion to compel discovery is granted to the extent set forth above and otherwise denied. In view of the delay caused by plaintiffs' intransigence and tendentious positions with respect to discovery, the schedule for the completion of class discovery and the briefing of the certification motion is extended by two weeks.
SO ORDERED.