Opinion
3:98 CV 225 (PCD).
December 9, 1998.
Peter L. Truebner, John H. Gross, Marjorie Han, Proskauer Rose attorneys for ELEUTHERTOS GEORGE VELIOTIS, plaintiff.
Peter L. Truebner, John H. Gross, Marjorie Han, attorneys for PAULETTE-MARIE VELIOTIS, plaintiff.
Eric D. Daniels, Bradford S. Babbitt, Jeffrey Clyde Kestenband, Deirdre A. Devaney, Robinson Cole, attorneys for WILLIAM J. NAWROCKI, defendant.
RULING ON DEFENDANT'S MOTION FOR PROTECTIVE ORDER AND MOTION TO QUASH SUBPOENA DUCES TECUM
On February 4, 1998, plaintiffs Eleutherios George Veliotis and his mother, Paulette-Marie Veliotis, filed a one-count complaint against defendant William J. Nawrocki, Jr., alleging intentional interference with contractual, business and beneficial relations. (Dkt. #1). In their complaint, plaintiffs, who are engaged in the shipping business, state that they had entered into a loan agreement with the Royal Bank of Scotland plc ["Royal Bank"] in 1997 to refinance existing indebtedness of $1.2 million and to finance the purchase of a ship for $5.8 million. (Dkt. #1, ¶¶ 7-8). Plaintiffs had also entered into an agreement with Royal Bank for $20 million in additional financing to purchase two container vessels, subject to final approval from Royal Bank's headquarters in London. (Id. ¶ 9).
In January 1998, plaintiffs allege that they were informed that Royal Bank had received an anonymous package containing a cover letter and numerous articles about Panagiotis Takis Veliotis, who is the father and the husband, respectively, of each plaintiff. (Id. ¶ 10). According to plaintiffs, the cover letter alleges, inter alia, that Panagiotis Takis Veliotis "is negotiating . . . to purchase arms, purportedly for the Greek Government . . . [and that] [h]ere in America, he is not welcomed by the government." (Id. ¶ 13). Plaintiffs allege that these statements are false. (Id.). Plaintiffs allege that Royal Bank withdrew its lending commitment because of the information contained in the anonymous package. (Id. ¶ 15).
Plaintiffs subsequently identified defendant as the anonymous sender through the post mark on the package and from information obtained from the Unionville, Connecticut Post Office. (Id. ¶ 16). Plaintiffs believe that defendant is a friend of plaintiffs' former business partner, Athanassios Voutiras, and that defendant acted on Voutiras' behalf. (Id. ¶¶ 17-19). As a result of defendant's actions, plaintiffs allege that they have suffered financial harm and harm to their reputations. (Id. ¶¶ 20-21). In his answer filed on May 6, 1998, defendant denies that he sent the documents to the Royal Bank of Scotland plc and that he is a friend of Mr. Voutiras. (Dkt. #12, ¶¶ 16-17).
Pending before the Court is defendant's Motion for Protective Order and to Quash Subpoena Duces Tecum, to prevent plaintiffs from deposing and acquiring discovery from defense counsel, with brief in support filed on August 7, 1998. (Dkts. ##17-18). On August 28, 1998, plaintiffs filed a brief and affidavit in opposition (Dkts. ##21-22), to which defendant filed a reply brief on September 17, 1998. (Dkt. #23).
Three exhibits were attached to the brief (Dkt. #18): copy of subpoena, dated July 24, 1998, to defense counsel (Exh. A); affidavit of counsel (Exh. B); and copy of a decision (Exh. C).
Attached to plaintiffs' brief (Dkt. #21) as Exh. I was a copy of the complaint here, with subexhibit A, consisting of a copy of the envelope to Royal Bank and the documents inside. Two exhibits were attached to Attorney Gross' affidavit (Dkt. #22): excerpts from the deposition of defendant, taken on May 15, 1998 (Exh. 1) and excerpts from his father's deposition, taken that same day (Exh. 2).
On April 30, 1997, U.S. District Judge Alvin W. Thompson transferred the case to Senior U.S. Judge Peter C. Dorsey, who then referred the pending motion to this Magistrate Judge on October 26, 1998. (Dkts. ##10, 13 24).
I. FACTUAL BACKGROUND
Defendant's pending Motion for Protective Order and to Quash Subpoena Duces Tecum, to prevent plaintiffs from deposing and acquiring discovery from defense counsel, arises from the following facts. On May 15, 1998, plaintiffs' attorney, John H. Gross, deposed defendant and his father, William J. Nawrocki, Sr. (Dkt. #22, ¶ 4 Exhs. 1-2). At his deposition, defendant testified that he is the owner of a printing company called Majestic Press. (Dkt. #22, Exh. 1 at 9). He testified that he had received a packet of documents with a sheet of mailing labels, instructing him to make copies and then to send out the envelopes. (Id. at 22-23). Defendant did not recall if the mailing labels were addresses in Greece. (Id. at 38). Defendant claimed that the instructions were signed by "a friend of your father's" and did not recall from where the envelope came. (Id. at 21-23). Defendant then testified that he made the copies, had his father mail the packages from the post office on December 31, 1997, and that he "guessed" his father paid for the postage. (Id. at 31-32 63). He stated that he did not question his father about who this "friend" was and that he never read the contents of the package. (Id. at 31-33).
Midway through defendant's deposition, Attorney Gross requested a break in order to confer with defense counsel, Bradford S. Babbitt. (Id. at 35-36). Attorney Gross was concerned about the veracity of defendant's testimony. (Dkt. #21, at 7; Dkt. #22, ¶ 7). During the break, Attorney Gross stated that "Attorney Babbitt told me that defendant's father, third-party witness Nawrocki, Sr. told him in words or substance before the deposition that he knew a package would be coming from Greece." (Dkt. #21, at 7; Dkt. #22, ¶ 7). After the break, Attorney Gross continued his deposition of defendant, who maintained that he did not know who sent him the package and that his father did not inform him to expect one. (Dkt. #22, Exh. 1 at 36, 39, 50-51, 54).
Attorney Gross next deposed defendant's father, William J. Nawrocki, Sr., and "repeatedly asked Nawrocki, Sr. whether he had any conversations with Attorney Babbitt about the facts involved in the case, and whether Nawrocki, Sr. ever told Attorney Babbitt that he knew that a package would be coming from Greece." (Dkt. #22, ¶ 9). Nawrocki, Sr. testified that he did not speak to Attorney Babbitt about the facts of the case. (Dkt. #22, Exh. 2 at 13-17). During the deposition, Attorney Babbitt held an off the record discussion with Nawrocki, Sr. (Id. at 17).
After the break, Nawrocki, Sr. testified that he had discussed some of the facts of the case with Attorney Babbitt. (Dkt. #22, Exh. 2 at 18-19). However, Nawrocki, Sr. denied that he told Attorney Babbitt that he knew a package was coming from Greece. (Id. at 19, 21, 24, 26, 34, 35). Another recess was then taken. (Id. at 37). Attorney Babbitt then stated that "[t]his break has been occasioned by my being informed by counsel in the hallway that I either am or may now be a witness in this matter. My understanding of the federal rule is that to the extent that I am or may be a witness, I would be precluded from further representation in this matter, although the Robinson Cole law firm for which I work would not be. To that extent, . . . it would be inappropriate for me to continue in the deposition this afternoon . . . (Id. at 37-38).
On July 24, 1998, plaintiffs served Attorney Babbitt with a subpoena in order to depose him concerning "all conversations, meetings and interviews between the deponent and nonparty witness William J. Nawrocki, Sr. and all conversations, meetings and interviews between deponent and defendant William J. Nawrocki, Jr. where non-party witness William J. Nawrocki, Sr. was present." (Dkt. #18, Exh. A). The subpoena also directed Attorney Babbitt to produce documents. (Id.). In response, defendant filed the pending Motion for Protective Order and to Quash Subpoena Duces Tecum. (Dkts. ##17-18).
See also Dkt. ##14-15.
II. DISCUSSION
Defendant argues that the work product doctrine prevents disclosure of Attorney Babbitt's notes and mental impressions. (Dkt. #18 at 2). Plaintiffs counter that the work product doctrine does not attach because there is no attorney client privilege since Nawrocki Sr. is a non-party witness, not a client. (Dkt. #21 at 11-12). They also argue that neither the attorney client privilege nor the work product doctrine will shield disclosure of any statement made by defendant in the presence of a third party and that defendant has failed to meet his burden establishing the work product privilege. (Id. at 12-13). Additionally, plaintiffs contend that they seek discovery of facts, not the attorney's mental impressions. (Id. at 14-16). Plaintiffs also argue that if any of the responsive documents constitute work product, Attorney Babbitt waived the privilege by voluntary disclosure of facts to plaintiffs' counsel. (Id. at 16-17). Finally, plaintiffs claim that they have substantial need for the requested production and the materials are not otherwise available. (Id. at 17-20).
The work product rule is codified in Rule 26(b)(3) of the Federal Rules of Civil Procedure, which provides in relevant part:
[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 the 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.
The work product doctrine was first established by the court inHickman v. Taylor, 329 U.S. 495, 510-11 (1947) and protects discovery of memoranda, correspondence, briefs, mental impressions and personal beliefs prepared in anticipation of litigation. The purpose of the privilege is "to prevent a party from taking advantage of his adversary's efforts to gather material for litigation, and to foster the adversary system by providing a safe harbor within which an attorney can analyze and prepare his client's case." U.S. v. Weissman, No. S1 94 CR 769 (CSH), 1995 WL 244522, at * 5 (S.D.N Y April 26, 1995) (multiple citations omitted). The doctrine also protects discovery of oral statements from witnesses. In re Grand Jury Proceedings, 473 F.2d 840, 848 (8th Cir. 1973). Some courts have afforded witness statements absolute protection. However, "[t]hose courts declining to adopt an absolute rule have nonetheless recognized that such material is entitled to special protection."Upjohn Co. v. United States, 449 U.S. 383, 401 (1981). "Nonetheless, the rule does not protect from disclosure the underlying facts known to the party or his counsel, even if acquired in anticipation of litigation." Bowne of New York City, Inc. v. AmBase Corp., 150 F.R.D. 465, 471 (S.D.N.Y. 1993).
The "burden of showing that a document is entitled to work product protection is on the party asserting it, and unless that party presents competent proof of circumstances showing the privilege should attach, protection must be denied. . . . This burden cannot be 'discharged by mere conclusory or ipse dixit assertions.'" Redvanly v. Nynex Corp., 152 F.R.D. 460, 465 (S.D.N.Y. 1993) (multiple citations omitted). "[W]here a privilege is asserted and then challenged, the burden rests upon the party so claiming to establish that the material is, in fact, not discoverable." In Re Perrier Bottled Water Litigation, 138 F.R.D. 348, 351 (D. Conn. 1991). "The party asserting the privilege has the burden of proving its basis . . . and generally does so through a combination of affidavits and privilege logs . . . Once the proponent satisfies its burden, the party seeking discovery must come forward and demonstrate a ground for piercing the privilege." In re The Circle K Corp, 199 B.R. 92, 98 (Bankr. Ct. S.D.N.Y. 1996) (multiple citations omitted), aff'd, No. 96 CIV 5801 (JFK), 1997 WL 31197 (S.D.N.Y. Jan. 28, 1997).
Here plaintiffs seek to depose defense counsel about facts discussed in conversations with defendant's father, witness Nawrocki, Sr. and in conversations with defendant while the father was present and any documents relating to such facts. Plaintiffs assert that they do not seek "Attorney Babbitt's mental impressions, conclusions, opinions or legal theories, nor any related testimony." (Dkt. #21 at 10). Nor do they object to an in camera review of responsive documents. (Id.).
In support of his motion, defendant maintains that "conversations with defendant's father and any conversations with the defendant in the father's presence . . . took place . . . in the course of litigation. Attorney Babbitt never spoke with the Nawrockies before institution of this action, and his sole purpose in speaking with them was to become familiar with the facts and to develop a defense strategy." (Dkt. #18 at 5). This is consistent with Nawrocki, Sr.'s recollection that Attorney Babbitt first met with the Nawrockies a few days before the May 15, 1998 deposition, several months after the complaint in this matter was filed. (Dkt. #22, Exh. 2 at 24-25). However, defendant has not supplied any affidavits or privilege logs to support his claim of privilege. (Dkt. #23 at 2-3). Nor has defendant denied Attorney Gross' assertion that during a break in defendant's deposition that "Attorney Babbitt told me that defendant's father, third-party witness Nawrocki, Sr. told him in words or substance before the deposition that he knew a package would be coming from Greece." (Dkt. #21, at 7; Dkt. #22, ¶ 7). Accordingly, the Court concludes, based upon the present record, that defendant has failed to meet his burden that the requested material is entitled to work product protection and, therefore, the Court need not reach the issues of waiver or hardship.
III. CONCLUSION
Accordingly, for the reasons stated above, defendant's Motion for Protective Order and to Quash Subpoena Duces Tecum (Dkt. #17), to prevent plaintiffs from deposing and acquiring discovery from defense counsel, is denied without prejudice to renewal. See 28 U.S.C. § 636 (b) (written objections to ruling must be filed within ten days after service of same); FED. R. CIV. P. 6(a), 6(e) 72; Rule 2 of the Local Rules for United States Magistrate Judges, United States District Court for the District of Connecticut; Small v. Secretary, HHS, 892 F.2d 15, 16 (2d Cir. 1989) (failure to file timely objection to Magistrate Judge's recommended ruling may preclude further appeal to Second Circuit).
Such renewed motion shall be filed on or before December 28. 1998 .
If either party believes that a settlement conference before this Magistrate Judge would be productive, counsel shall contact Chambers accordingly.
Dated at New Haven, Connecticut, this 9th day of December, 1998.