Opinion
No. 2015-CV-488
03-31-2017
Michael Coutu v. State of New Hampshire, Bureau of Securities Regulation
ORDER
Plaintiff, Michael Coutu ("Coutu"), has filed a Motion to Compel documents which the Defendant, State of New Hampshire, Bureau of Securities Regulation ("BSR"), alleges are privileged. For the reasons stated in this Order, the Motion is DENIED.
I
Coutu has brought an action against the BSR alleging breach of an agreement pursuant to which he would provide services to the State of New Hampshire and the New Hampshire Department of Securities Regulation. The allegations in the case are straightforward, as are the defenses. Coutu was hired by the BSR to assist its implementation of administrative rulings regarding the Local Government Center ("LGC") and its two component members, the Property-Liability Trust ("PLT") and Health Trust (the "HT"). However, the BSR claims that Coutu breached his contract by, among other things, providing assistance to the Department of Labor ("DOL") without its knowledge, and advocating against positions taken by the BSR, without its knowledge.
According to the Motion to Compel, Plaintiff met with the then-Commissioner of the DOL, James Craig ("Craig") and with the DOL's counsel, Martin Jenkins, Esq. ("Jenkins") to explain that, in his opinion, the collateral required to be posted by PLT exceeded the DOL's requirements, and that unless it reduced the posted collateral, there was a risk that PLT would go bankrupt. (Mot. to Compel, p. 3.) While Craig admitted at his deposition that he met with Coutu, Plaintiff alleges that his memory of significant events was poor. (Id.) After Craig's deposition, Plaintiff filed his Third Request for Production of Documents seeking, in substance, communications and all internal memoranda relating to meetings between the DOL and Coutu and memorialization of the DOL's analysis of regulatory issues with the Worker's Compensation line of the PLT. Presumably, the purpose of this request is to obtain information which would tend to show that the BSR was well aware of Plaintiff's meetings with the DOL.
The BSR has produced 84 pages of documents but has withheld 41 documents which it asserts are privileged pursuant to either the work product privilege or the attorney client privilege.
II
Plaintiff first challenges the State's standing to assert an attorney-client privilege. However, the Attorney General is counsel for the State, and unlike the federal system, in New Hampshire the Attorney General provides legal representation to all the State boards and agencies. While the DOL may have its own counsel, the State can at the very least assert privilege with respect to communications among the control group at the DOL.
The State claims that certain documents are protected by the work product privilege. Other documents are protected by the attorney-client privilege. It has not made a blanket claim of privilege, but rather has provided a privilege log.
The essential elements of a privilege log are described in Superior Court Rule 21(c). The Rule provides:
(c) Privilege Log. When a party withholds materials or information otherwise discoverable under this rule by claiming that the same is privileged, the party shall promptly and expressly notify the opposing party of the privilege claim and, without revealing the contents or substance of the materials or information at issue, shall describe its general character with sufficient specificity as to enable other parties to assess the applicability of the privilege claim. Failure to comply with this requirement shall be deemed a waiver of any and all privileges.This rule is virtually identical to Federal Rule of Civil Procedure 26(b)(5).
The law regarding the sufficiency of a privilege log when a claim of attorney-client or work product privilege asserted is well-settled. "The standard for testing the adequacy of the privilege log is whether, as to each document, it sets forth specific facts that, if credited, would suffice to establish each element of the privilege or immunity that is claimed." SEC v. Beacon Hill Asset Mgmt., LLC, 231 F.R.D. 134, 144 (S.D.N.Y. 2004). "The focus is on the specific descriptive portion of the log, and not on the conclusory invocations of the privilege or work-product rule, since the burden of the party withholding documents cannot be discharged by mere conclusory or ipse dixit assertions." Id. (internal quotation omitted); see also In re Copper Mkt. Antitrust Litig., 200 F.R.D. 213, 223 (S.D.N.Y. 2001). To satisfy these requirements, it is often held that the log must include, at a minimum, (1) the type of document, (2) the general subject matter of the document; (3) the date of the document; (4) the author of the document; and (5) the recipient of the document. Ruran v. Beth El Temple of West Hartford Inc., 226 F.R.D. 165, 168-169 (D.Conn. 2005) (referencing local rule 37 (a)); see also Bowne v. AmBase Corp., 150 F.R.D. 465, 474 (S.D.N.Y. 1993).
The log produced by the State is sufficient. It allows the Court to consider the claim of privilege in the context of the litigation and make a reasoned decision about production. Plaintiff does not seriously dispute that the documents withheld pursuant to the claimed work product privilege constitute mental impressions, conclusions opinions or legal theories. State v. Chagnon, 139 N.H. 671, 674 (1995). Rather, he takes the position that "the Department of Labor was never a party to any of the administrative proceedings and there is no evidence of any reasonable basis to assert that there was a real potential litigation." (Mot. to Compel, p. 5.)
II
Plaintiff first challenges the claim of work product taken with respect to Jenkins notes and memoranda. The parties do not dispute that the subject of discussion at the meeting between Coutu and the DOL was the Plaintiff's view that the DOL had required the PLT to retain excess collateral and that if the DOL did not allow more collateral to be released, the PLT could become insolvent. Plaintiff's principal claim is that the context of the meeting does not show that the memoranda withheld were prepared in anticipation of litigation.
In support of its Objection, the State has produced deposition excerpts in which the Plaintiff concedes that at the meeting with Commissioner Craig he tried to convince Craig that the collateral calculation related to the PLT was wrong, and that he urged Craig "to clean this up before somebody wakes up one day, like a change in accounting firms, and realizes that these ownership securities is in question." (Obj. to Mot. to Compel, p. 5.) Jenkins, then counsel to PLT, has provided an affidavit in which he asserts that around the time of this meeting, PLT requested that DOL amend its order allowing PLT to release a portion of its collateral reserve. (Jenkins Aff., Ex. 3 to Pl.'s Mot to Compel, ¶ 3.) During this time there was an ongoing agency-level proceeding involving PLT and the BSR, colloquially known as the "Mitchell proceeding" which involved the regulation of PLT's Worker's Compensation risk pool. (Id. at ¶ 4.) Jenkins states:
5. In this context, departmental staff, including me, was in continual anticipation of litigation, particularly related to PLT's request to resume incurring new contractual obligations and to release a portion of the security deposit guaranty.(Id. at ¶¶ 5-6.)
6. During this time, I engaged in communications with the department staff, including Commissioner Craig, the BSR and PLT regarding, but not limited to the PLT's Worker's Compensation pool and the security deposit guaranty any documents generated, including personal notes in email communications were created with an eye toward the possibility of litigation.
It has long been settled that no litigation need be pending to satisfy the "in anticipation of litigation" requirement. Upjohn Co. v. United States, 449 U.S. 33, 36-87 (1981). The work product doctrine applies to material prepared when litigation is merely a contingency. Burlington Industries v. Exxon Corporation, 65 F.R.D. 26, 42 (D.Md.1974). Courts have begun to take the view that the appropriate criterion is that if the document would have been prepared regardless of whether there was any anticipation of litigation, it should not be deemed protected work product protected. Bridgewater v. Carnival Corporation, 2011 U.S. Dist. LEXIS 106786, *13, n. 5, 14, 22 (S.D. Fla. Sept. 20, 2011); see generally Epstein, The Attorney-Client Privilege and the Work Product Doctrine (5th Ed.) 826 (ABA, Supp. 2012).
It is apparent from this testimony, and from the context of this case, that the memoranda made by Jenkins were in fact, made in anticipation of litigation and are appropriately characterized as work product. According to Plaintiff, as an employee of the BSR he told Commissioner Craig that if the DOL did not relax its capital requirements, it was likely that the PLT would go bankrupt. It is only reasonable for the Commissioner of the DOL and his attorney, listening to such a presentation, to believe that litigation could be in the offing if the capital requirements were not relaxed. Plainly, any careful lawyer with the notes of the meeting. Bridgewater v. Carnival Central (supra) at *13.
Of course, even work product is not beyond the pale if a party can show a "substantial need of the materials in the preparation of this case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means." N.H. Super. Ct. R. 21(e)(1). But such a showing has not been made. Plaintiff's reason for obtaining the memoranda is purportedly to establish that the BSR was aware of Plaintiff's actions and meetings. It is not clear how memoranda prepared by Jenkins would be probative of that issue. Apparently Commissioner Craig has already testified that he believed the BSR was aware of the meetings. Moreover, and more importantly, there is no reason Jenkins could not be deposed on the issue of what was discussed during the meetings with Plaintiff, and about his communications with the BSR. The meeting between Craig, Plaintiff, and Jenkins could not be privileged. Any communication between the BSR and Jenkins could not be privileged because he did not represent the BSR. Even if the communications were made were claimed to be work product, because they were made to an attorney, for example to Attorney Roth, the fact and subject of the communications could not be privileged. And it is the fact of the communication, and not the substance of the communication is what is relevant to Plaintiff's claim.
In short, Plaintiff has not established a compelling need sufficient to overcome work product privilege.
III
Plaintiff's claim that the documents are not privileged stands upon even weaker ground. He claims that based on Craig's testimony "it is apparent that many of Jenkins' relevant activities revolved around the mechanics and economics of the release of the excess capital and did not primarily involve the rendition of legal advice, provided incompetence, it is capacity as an attorney." (Mot. to Compel, p. 6.) But the State points out that Plaintiff conceded in his own deposition that Gray told him that Jenkins did not have the expertise necessary to advise DOL regarding the economics of the release of excess capital. (Obj. to Mot. to Compel, p. 9.) He reasserts the claim that there can be no privilege between DOL and counsel for the Office of the Attorney General, misunderstanding the relationship of that Office and State agencies. Based upon the review of the log, and the circumstances of the case, the Court finds that the State has sustained its burden of establishing it has properly withheld the documents pursuant to attorney-client privilege. McCabe v. Arcidy, 138 N.H. 20, 25 (1993).
It follows that the Motion to Compel must be DENIED.
SO ORDERED
3/31/17
DATE
s/Richard B . McNamara
Richard B. McNamara,
Presiding Justice