Opinion
Nos. X02 UWY-CV-07-5007876S, X02 UWY-CV-07-5007877S
May 21, 2009
I. BACKGROUND
Plaintiffs allege that Defendants commenced or financed litigation and administrative proceedings designed to delay the proposed development of Blue Back Square, a mixed-use retail and residential project in West Hartford, Connecticut. The Amended Complaint asserts claims of (1) common-law vexatious litigation, (2) vexatious litigation under Connecticut General Statutes Section 52-568, (3) abuse of legal process, (4) tortious interference with contractual and business relations, and (5) violation of the Connecticut Unfair Trade Practices Act pursuant to Connecticut General Statutes Section 42-110a et seq.
During a portion of the development period Attorney Erin A. Mutty represented WHISP, a charitable organization formed by West Hartford citizens to preserve historic buildings in the town's center. Attorney Mutty did not represent WHISP in any litigation. WHISP is not a party to the present action.
On April 1, 2009, Plaintiffs served Attorney Mutty with a Subpoena Deuces Tecum and Re-Notice of Deposition commanding her to appear on April 13, 2009, and to produce numerous documents including, but not limited to: (1) engagement letters between Attorney Mutty's firm and various entities related to the Defendants; (2) engagement letters between WHISP and Attorney Mutty's firm; (3) documents relating to any communications between Attorney Mutty or WHISP and any person, including the Defendants, relating to Blue Back Square and (5) disclosure of WHISP membership lists.
Attorney Mutty has moved to Quash the Subpoena Duces Tecum and for a Protective Order precluding the Plaintiffs from (1) deposing Attorney Mutty or any Attorney associated with her firm; (2) seeking discovery concerning Attorney Mutty or her firm's representation of WHISP, WHISP members, or any other non-party to the present action; and (3) seeking discovery concerning the financial and business arrangement between Attorney Mutty's firm and WHISP, its members, or any other non-party to the present action. The Court ordered the deposition postponed, without prejudice, until all parties had an opportunity to brief the matter. The briefs have now been received. In addition, Defendants request the Court to Strike Plaintiffs' citation to certain testimony which the Defendants claim is improper for this type of motion.
II. DISCUSSION
Section 13-2 of the Connecticut Practice Book authorizes "discovery of information or disclosure, production and inspection of papers, books or documents material to the subject matter involved in the pending action, which are not privileged . . . 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 . . . [i]f the information sought appears reasonably calculated to lead to the discovery of admissible evidence."
Section 13-3 of the Connecticut Practice Book provides, in relevant part, that "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." Section 13-5 of the Connecticut Practice Book provides, in relevant part, that "[u]pon motion by a party from whom discovery is sought, and for good cause shown, the judicial authority may make any order which justice requires to protect a party from annoyance embarrassment, oppression or undue burden or expense . . ." It is noteworthy that neither Attorney Mutty nor her former client are parties to this action. While the Court acknowledges Attorney Mutty's right to file a motion to quash the subpoena, the Practice Book would appear to limit the right to move for a protective order to parties, pursuant to Connecticut Practice Book Section 13-5. Therefore, the Court will only consider the Motion to Quash the Subpoena as part of its decision.
The attorney-client privilege recognized at common law is not a general and total bar to discovery of any and all transactions and contacts that involve and attorney and a client. Rather, what is privileged is the communications between client and attorney when made in confidence for the purpose of seeking or giving legal advice. Olson v. Accessory Controls Equipment Corp., 254 Conn. 145, 158, 757 A.2d 14 (2000). A request, for example, that an attorney obtain information, for the benefit of the client, from outside sources is not privileged. Turner's Appeal, 72 Conn. 305, 318, 44 A. 310 (1899). The "burden of proving facts essential to the privilege is on the person asserting it." State v. Hanna, 150 Conn. 457, 466, 191 A.2d 124 (1963).
"This burden includes, of course, the burden of proving the essential element that the communication was confidential." Id.
The Comment to Rule 1.6 of the Rules of Professional Conduct indicates that "the rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from a lawyer through the compulsion of law." This matter, therefore, would be determined by the rules relating to attorney-client privilege and not, as Attorney Mutty suggests, the rule of client-lawyer confidentiality.
The Connecticut Supreme Court has stated that the proper approach in a situation such as the instant case is "to apply the privilege where the communications at issue are inextricably linked to the giving of legal advice." Olson, supra, at 163-64. With regard to documents, the Supreme Court has similarly approved a case-by-case inquiry into the primary purpose of the document. If that purpose "is to solicit legal advice based on the information [supplied], the privilege applies." Olson, supra, at 163. "Where a lawyer mixes legal and business advice the communication is not privileged unless the communication is designed to meet problems which can fairly be characterized as predominantly legal." Id. at 163.
It is not possible for the Court to determine in advance which questions posed of Attorney Mutty may invade the actual province of attorney-client privilege and which will not. Similarly, the Court cannot determine in advance which documents meet the standard for protection. The same reasoning applies to the claim of work product.
Therefore, it will be necessary for the parties to make and present to the Court a record adequate for adjudication of any claim of privilege or work-product, including a transcript of the actual question asked or document identified. The deponent may not withhold any document described in the subpoena on the ground of privilege unless Attorney Mutty submits the document for in camera inspection, with a clear and succinct explanation for the claim of privilege. The parties shall have the opportunity to present their views with respect to all questions and documents. See Massiello v. Roadway Express, Inc., 3:03-CV-02185 (CFD) (TPS) 2005 U.S.Dist. LEXIS 28342 at p. 3 (D.Conn. Nov. 18, 2005); and CT Page 8182 Connecticut National Bank et al. v. Rytman et al., Superior Court, complex litigation docket at Waterbury, Docket No. X01CV87 015 99 41 S (December 10, 2001, Hodgson, J.)
III. CONCLUSION
Attorney Mutty has not sustained her burden, at this time, of showing that the proposed questions and documents requested at the depositions are either privileged or the subject of work product. Therefore, the Motion to Quash the Subpoena is denied. The Motion for Protective Order is denied. Attorney Mutty is directed to submit any document in which the claim of privilege is exercised to the Court for in camera inspection, together with her claim of privilege as to each document. Each party will submit their positions with respect to each document. Further, the parties shall submit those portions of the transcript of deposition which contain claims of privilege or work product for a subsequent ruling by the Court. In making this decision, the Court has not read or relied upon any extrinsic evidence provided by the Plaintiffs. Defendants' Motion to Strike, is, therefore, rendered moot.