Opinion
93 Civ. 3848 (MGC) (HBP)
March 21, 2002
OPINION AND ORDER
I. Introduction
This is a civil rights action brought pursuant to 42 U.S.C. § 1983 in which plaintiff, who is proceeding pro se, seeks damages resulting from defendants' placement of plaintiff's minor daughter in foster care without regard for plaintiff's religious beliefs. Specifically, plaintiff alleges that defendants deliberately ignored the fact that plaintiff and her daughter were avowedly Jewish, and placed her daughter in a Catholic foster home. The Honorable Miriam Goldman Cedarbaum, United States District Judge, has fully set forth the allegations in the case in her exhaustive opinion granting in part and denying in part defendants' motion to dismiss the complaint; familiarity with that opinion is assumed. Bruker v. City of New York, 92 F. Supp.2d 257 (S.D.N.Y. 2000)
II. Background
The present dispute arises out of plaintiff's subpoena to non-party Sullivan and Liapakis, P.C. ("SL"), now known as Sullivan, Papain, Block, McGrath Cannavo, P.C., in which she seeks production of numerous documents. SL was formerly counsel for plaintiff's daughter and was also appointed as "Law Guardian" for plaintiff's daughter in a proceeding in New York State Family Court. Although SL has produced some of the documents requested in plaintiff's subpoena, they have withheld others on the ground of privilege. Plaintiff's pending motion seeks to challenge SL's assertion of privilege.
In June 2001, I ordered SL to serve an index of documents that were withheld on the ground of privilege by July 23, 2001. I expressly warned SL that failure to serve an index that complied with both the requirements of the Federal Rules of Civil Procedure and the Local Civil Rules of this Court would operate as waiver of the privilege. Pursuant to that Order, SL timely served its index. After plaintiff expressed her dissatisfaction with SL's index, I issued another Order, on August 15, 2001, directing her to proceed by way of formal motion. Finally, after hearing oral argument concerning plaintiff's motion in December 2001, I directed SL to submit the documents in issue for in camera review. SL submitted the documents in issue on December 6, 2001. In addition to submitting the documents in issue, SL's December 6 submission attempted to amend the index of withheld documents to make additional assertions of privilege, and sought to assert privileges with respect to documents that had not previously been scheduled.
III. Applicable Legal Principles
A. Burden of Proof
"`[T]he burden is on a party claiming the protection of a privilege to establish those facts that are the essential elements of the privileged relationship.'" Von Bulow v. von Bulow, 811 F.2d 136, 144 (2d Cir. 1987), quoting In re Grand Jury Subpoena Dated Jan. 4, 1984, 750 F.2d 223, 224 (2d Cir. 1984) Thus, the party seeking to invoke the privilege must establish all elements of the privilege. Bowne of New York City. Inc. v. AmBase Corp., 150 F.R.D. 465, 470 (S.D.N.Y. 1993) (citing cases).
B. Attorney-Client Privilege
The elements of the attorney-client privilege are well settled:
"The [attorney-client] privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client."Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 160 F.R.D. 437, 441 (S.D.N.Y. 1995), quoting United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950); see United States v. Davis, 131 F.R.D. 391, 398 (S.D.N.Y. 1990). 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 to give sound and informed advice." Upjohn Co. v. United States, 449 U.S. 383, 390 (1981). Therefore, "[i]t is now well established that the privilege attaches not only to communications by the client to the attorney, but also to advice rendered by the attorney to the client, at least to the extent that such advice may reflect confidential information conveyed by the client." Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., supra, 160 F.R.D. at 441-42; see also O'Brien v. Board of Educ., 86 F.R.D. 548, 549 (S.D.N Y 1980); SCM Corp. v. Xerox Corp., 70 F.R.D. 508, 520-22 (D. Conn. 1976).
C. Work-Product Doctrine
The scope of the work-product doctrine is set forth in Fed.R.Civ.P. 26 (b)(3):
[A] party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
In contrast to the attorney-client privilege, which is intended to encourage full disclosure by the client, the work-product doctrine "is intended to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy "with an eye toward litigation,' free from unnecessary intrusion by his adversaries." United States v. Adlman, 134 F.3d 1194, 1196 (2d Cir. 1998); Genentech, Inc. v. United States Int'l Trade Comm'n, 122 F.3d 1409, 1415 (Fed. Cir. 1997) ("`The work product privilege protects the attorney's thought processes and legal recommendations.'"), quoting Zenith Radio Corp. v. United States, 764 F.2d 1577, 1580 (Fed. Cir. 1985). Like the attorney-client privilege, the party asserting the protection of the work-product doctrine bears the burden of proof. In re Grand Jury Subpoena Dated Dec. 19, 1978, 599 F.2d 504, 510 (2d Cir. 1979)
"[T]hree conditions must be met in order to earn work product protection. The material must (1) be a document or a tangible thing, (2) that was prepared in anticipation of litigation, and (3) was prepared by or for a party, or by or for his representative." In re Grand Jury Subpoenas Dated Dec. 18, 1981 Jan. 4, 1982, 561 F. Supp. 1247, 1257 (E.D.N.Y. 1982) (McLaughlin, J.); accord Weinhold v. Witte Heavy Lift, Inc., 90 Civ. 2096 (PKL), 1994 WL 132392 at *2 (S.D.N.Y. Apr. 11, 1994); 2 Michael C. Silberberg, Civil Practice in the Southern District of New York, § 15.04 at 15-11 (2d ed. 1999).
The Second Circuit has explained that the second element of this test does not limit the doctrine to documents prepared primarily or exclusively to assist in litigation:
The text of Rule 26(b)(3) does not limit its protection to materials prepared to assist at trial. To the contrary, the text of the Rule clearly sweeps more broadly. It expressly states that work-product privilege applies not only to documents "prepared . . . for trial" but also to those prepared "in anticipation of litigation." If the drafters of the Rule intended to limit its protection to documents made to assist in preparation for litigation, this would have been adequately conveyed by the phrase "prepared . . . for trial." The fact that documents prepared "in anticipation of litigation" were also included confirms that the drafters considered this to be a different, and broader category. Nothing in the Rule states or suggests that documents prepared "in anticipation of litigation" with the purpose of assisting in the making of a business decision do not fall within its scope.United States v. Adlman, supra, 134 F.3d at 1198-99. Thus, the appropriate inquiry regarding the second element of the test is whether "`in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.'" United States v. Adlman, supra, 134 F.3d at 1202, quoting 8 C. Wright, A. Miller R. Marcus, Federal Practice Procedure § 2024 at 343 (1994)
As to the third element, the language of Rule 26(b)(3) itself grants protection to documents and tangible things prepared "by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent)." As the Supreme Court noted in United States v. Nobles, 422 U.S. 225 (1975):
[T]he [work-product] doctrine is an intensely practical one, grounded in the realities of litigation in our adversary system. One of those realities is that attorneys often must rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial. It is therefore necessary that the doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself.422 U.S. at 238-39.
Finally, where the applicability of the work-product doctrine has been established, factual material may, nevertheless, be ordered produced "upon a showing of substantial need and inability to obtain the equivalent without undue hardship." Upjohn Co. v. United States, supra, 449 U.S. at 400. However, where the material in issue discloses the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of the party, a far greater showing is required to pierce the doctrine's protection, and there is some authority that the protection afforded such opinion work product may be absolute.See generally Upjohn Co. v. United States, supra, 449 U.S. at 400-02;Hickman v. Taylor, 329 U.S. 495, 510-13 (1947); United States v. Adlman, supra, 134 F.3d at 1204.
D. Common Interest "Privilege"
The joint defense privilege or common interest rule is not really a separate privilege. Rather, it is a limited exception to the general rule that the attorney-client privilege is waived when a protected communication is disclosed to a third party outside the attorney-client relationship. See United States v. United Tech. Corp., 979 F. Supp. 108, 111 (D. Conn. 1997). As explained in United States v. Schwimmer, 892 F.2d 237, 243-44 (2d Cir. 1989)
The joint defense privilege, more properly identified as the "common interest rule," . . . has been described as "an extension of the attorney client privilege," Waller v. Financial Corp. of Am., 828 F.2d 579, 583 n. 7 (9th Cir. 1987). It serves to protect the confidentiality of communications passing from one party to the attorney for another party where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel. See United States v. Bay State Ambulance and Hosp. Rental Serv., 874 F.2d 20, 28 (1st Cir. 1989). Only those communications made in the course of an ongoing common enterprise and intended to further the enterprise are protected. Eisenberg v. Gagnon, 766 F.2d 770, 787 (3d Cir.), cert. denied, 474 U.S. 946, 106 S.Ct. 342, 88 L.Ed.2d 290 (1985); Matter of Bevill, Bresler Schulman Asset Management Corp., 805 F.2d 120 (3d Cir. 1986). "The need to protect the free flow of information from client to attorney logically exists whenever multiple clients share a common interest about a legal matter," Capra, 20 Trial Lawyers Quarterly, at 21 (citation omitted), and it is therefore unnecessary that there be actual litigation in progress for the common interest rule of the attorney client privilege to apply, United States v. Zolin, 809 F.2d 1411, 1417 (9th Cir. 1987), vacated in part on other grounds, 842 F.2d 1135 (9th Cir. 1988) (en banc), aff'd in part and vacated in part on other grounds, [ 491 U.S. 554,] 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989) . . . .
The common interest rule may apply where multiple parties are represented by multiple counsel so long as the parties share a common interest in a legal matter. Walsh v. Northrop Grumman Corp., 165 F.R.D. 16, 18 (E.D.N.Y. 1996); Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., supra, 160 F.R.D. at 447 (S.D.N.Y. 1995)
Since the joint defense rule operates to prevent a waiver of the attorney-client privilege, its applicability or inapplicability does not affect the applicability of the workproduct doctrine.
E. The Consequences of A Failure to Provide An index of Withheld Documents in a Timely Manner
Where a party has completely failed to provide an index of documents withheld on the ground of privilege in a timely manner, a finding of waiver is appropriate. Hurst v. F.W. Woolworth Co., 95 Civ. 6584 (CSH), 1997 WL 61051 at *6 (S.D.N Y Feb. 11, 1997); John Labatt Ltd. v. Molson Breweries, 93 Civ. 75004, 94 Civ. 71540 (RPP), 1995 WL 23603 at *1 (S.D.N.Y. Jan. 20, 1995), appeal transferred sub nom., Dorf Stanton Communications, Inc. v. Molson Breweries, 56 F.3d 13 (2d Cir. 1995),aff'd, 100 F.3d 919 (Fed. Cir. 1996); Smith v. Conway Org., Inc., 154 F.R.D. 73, 76 (S.D.N.Y. 1994); Allstate Life Ins. Co. v. First Trust N.A., 92 Civ. 4865 (SWK), 1993 WL 138844 at *3 (S.D.N.Y. Apr. 27, 1993);Bank v. Manufacturers Hanover Trust Co., 89 Civ. 2946 (MJL), 1990 WL 155591 at *2 (S.D.N.Y. Oct. 9, 1990); Carte Blanche (Singapore) PTE., Ltd. v. Diners Club Int'l, Inc., 130 F.R.D. 28, 32 (S.D.N.Y. 1990);Jackson v. Edwards, 99 Civ. 0982 (JSR) (HBP), 2000 WL 782947 at *2 (S.D.N.Y. June 16, 2000); Large v. Our Lady of Mercy Med. Ctr., 94 Civ. 5986 (JGK) (THK), 1998 WL 65995 at *4. (S.D.N.Y. Feb. 17, 1998); PKFinans Int'l Corp. v. IBJ Schroder Leasing Corp., 93 Civ. 5375 (SAS) (HBP), 1996 WL 525862 at *3Z*4 (S.D.N.Y. Sept. 17, 1996).
Althoughthere is authority reaching a contrary result and limiting the remedy to the belated preparation of the index of withheld documents, I do not find those cases persuasive. "Limiting the remedy to the belated preparation of a privilege log effectively tells practitioners they can flout the Court's Rules and incur no sanction other than an Order directing compliance with the rules." PKFinans Int'l Corp. v. IBJ Schroder Leasing Corp., supra, 1996 WL 525862 at *4, See 2 Michael C. Silberberg, Civil Practice in the Southern District of New York § 22.11 at 22-28 (2d ed. 2000) ("[T]he cases imposing waiver appear to express the better view of the appropriate remedy in the event a party fails to timely provide the privilege list.").
IV. Analysis
With the forgoing principles in mind, I have reviewed the documents SL has submitted for in camera review. This task has been made more difficult by the fact that neither side has submitted any factual material concerning the particular assertions of privilege. The bulk of plaintiff's submissions is concerned with what she believes to be the merits of her case and her allegations of overreaching and sharp dealing by SL. SL's papers set forth general principles of law but offer no factual support for the specific assertions of privilege made by SL. Accordingly, my review has been limited to the face of the documents themselves and my knowledge of the facts underlying this action.
SL has asserted work-product protection for a large number of letters between it and various agencies of the City of New York involved in the foster placement of plaintiff's daughter. SL's theory is that SL and the agencies shared a common interest in protecting the daughter against the alleged mistreatment by the mother. Although this theory appears to be valid with respect to a few letters, there are a large number of letters, most of which are dated after SL was appointed Law Guardian for plaintiff's daughter, in which the tone of the letter is clearly adversarial and the subject matter indicates that SL was acting as advocate for plaintiff's daughter against the agency, complaining about various actions taken or contemplated by the City agencies. There is no indication in these letters that they were prepared in contemplation of litigation or that they contain a lawyer's mental impressions concerning strategy or tactics to be employed in a litigation. Accordingly, I order that these documents be produced. The documents in this category are SL19-22, SL23-25, SL26-30, SL34-36, SL41-48, SL49-51, SLG9-70, SL73-74, SL75-78, SL79-80, SL81-82, SL84-86, SL87-89, SL90-92, SL93-95, SL96-98, SL99-101, SL102-04, SL105-06, SL119, SL120, SL121-25, SL126, SL127, SL159-60, SL161-62, SL165-66.
There is a second group of documents as to which SL has asserted the "Common Interest Privilege." As discussed above, there is no such privilege, and I assume that SL was intending to assert the attorney-client privilege with respect to these documents. These documents should be produced because they do not appear to contain client confidences or legal advice that reflects client confidences. In addition, even if I construe the schedule as attempting to assert a work-product privilege with respect to these documents, there is no indication in the documents and no external evidence that they were prepared or obtained because of the prospect of litigation. Thus, I further direct that these documents be produced. The documents in this category are SL1, SL2-4, SLS-7, SL61-64, SL65-68, SL130-31.
SL has also redacted a handwritten notation that is illegible and a telephone number hand-written on a letter. With respect to the former, SL has failed to sustain its burden of proof since the notation is illegible. With respect to the latter, there is no evidence that the telephone number was prepared or obtained because of the prospect of litigation or that it was a client confidence provided so that SL could render legal advice. Thus, these documents should also be produced. The documents in this category are SLIO9A and SL152.
SL has also withheld a document (5L71-72) which is nothing more than a status report provided to SL by an attorney with a municipal agency. This document is not privileged and should be produced. See Burton v. R.J. Reynolds Tobacco, Co., 200 F.R.D. 661, 675-76 (D. Kan. 2001); In re Central Gulf Lines, Nos. Civ. A 97-3829, 99-1888, 2000 WL 1793395 at *2.*4 (E.D. La. Dec. 4, 2000); Athridge v. Aetna Cas. Sur. Co., 184 F.R.D. 181, 188 (D.D.C. 1998)
Two of the documents withheld by SL, and a portion of a third document, do appear to be genuine work-product since they discuss legal strategy, apparently at a time when SL were together in harmony. Accordingly, documents SLl1-12, 5L13-14 may be withheld in their entirety. The second paragraph of SLls-l6 may be redacted; the balance of this document should be produced.
Finally, in December 2001, SL submitted a "supplemental" index of documents withheld on the ground of privilege which not only lists new additional documents, but it purports to assert additional privileges. Since this supplemental index was not provided in accordance with the schedule established in my June 2001 Order, I conclude that the new claims and assertions made therein have been waived. The documents scheduled for the first time in the supplemental index should also be produced. These documents are SL171-73, SL174-79, SL180-90.
All documents the production of which is ordered herein shall be produced no later than April 4, 2002.
SO ORDERED