Opinion
CV085007839
04-19-2016
Town of Ledyard v. WMS Gaming, Inc
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO COMPEL
Robert C. Leuba, Judge Trial Referee.
The plaintiff has moved the court to compel the defendant to comply with the prior court order which ordered production by the defendant with respect to the Request for Production #4 dated 5/16/14 " which must be answered to the extent that the same seeks non-privileged written communications, authored between 1/1/6 and 1/1/09, between the Mashantucket Pequot Tribe concerning the payment of the 2006 personal property tax assessed and imposed by the Town of Ledyard concerning personal property owned by the defendant and claimed subject to tax by Ledyard." The defendant objects to the motion to compel on the basis of the claimed common interest privilege which is an extension of the attorney-client privilege.
Privilege is an evidentiary concept, invoked when an inquiry intrudes into the communications between lawyer and client. Ullman v. State, 230 Conn. 698, 711 (1994). Privilege matters are decided under the law of evidence. Communications between client and attorney are privileged when made in confidence for the purpose of seeking legal advice, but statements made in the presence of a third party are usually not privileged because there is then no reasonable expectation of confidentiality State v. Burak, 201 Conn. 517, 526 (1986); State v. Cascone, 195 Conn. 183, 186 (1985); State v. Colton, 174 Conn. 135, 138-39 (1977). The presence of certain third parties, however, who are agents or employees of an attorney or client, and who are necessary for consultations, will not destroy the confidential nature of the communications. State v. Gordon, 197 Conn. 413, 424 (1985). The privilege accorded communications between attorney and client extends to communications made through agents for communication. State v. Hanna, 150 Conn. 457, 465, 191 A.2d 124 (1963).
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). The privilege applies to corporate entities as well as to individuals. Communications between officials or employees of a corporate entity and the attorney for that entity are protected provided the following conditions are met: " (1) the attorney must be acting in a professional capacity for the entity; (2) the communications must be made to the attorney by current employees or officials of the entity; (3) the communication must relate to the legal advice sought by the entity from the attorney; and (4) the communications must be made in confidence." Cadlerock Properties v. Commissioner, 253 Conn. 661, 675 n.13 (2000), cert. denied, 531 U.S. 1148, 121 S.Ct. 1089, 148 L.Ed.2d 963 (2001).
A communication from an attorney to a client solely regarding a matter of fact would not ordinarily be privileged, unless it is shown to be inextricably linked to the giving of legal advice. Olson v. Accessory Controls & Equipment Corp., 254 Conn. 145, 157 (2000); Ullman v. State, 230 Conn. 698, 713 (1994).
The party asserting the privilege has the duty of asserting it and the burden of proving all of the essential elements. Harp v. King, 266 Conn. 747, 770 (2003). Since such privileges tend to prevent a full disclosure of the truth in court, they are strictly construed. Turner's Appeal, 72 Conn. 305, 317-18 (1989). The burden of proving each element of the privilege, by a fair preponderance of the evidence, rests with the party seeking to assert the privilege. State v. Hanna, 150 Conn. 457, 466 (1963).
" The joint defense privilege is an extension of the attorney-client privilege and 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. Sony Electrocics, Inc. v. Soundview Technologies, Inc., 217 F.R.D. 104, 108 (D.Conn. 2001) (internal quotations and citations omitted), citing and quoting from United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989); U.S. v. United Technologies Corp., 979 F.Supp. 108, 110-11 (1997). Where multiple clients share a common interest the common defense privilege arises. Id.
In this instance the court is persuaded by the argument of the plaintiff to the effect that there is no common legal interest identified by the defendant. 'The Mashantucket Pequot Tribe was not sued for the collection of taxes.
The burden is on the party claiming a privilege to prove its application to the circumstances of the case. Here the defendant has not sustained the burden of proof with respect to the claimed common interest privilege.
The motion to compel is granted.