43 F. Supp. 3d 109
D. Conn.2014Background
- Mafcote, Inc. moves under Rule 26(c) for a protective order over Bernstein's alleged unauthorized possession of attorney-client privileged materials.
- Bernstein opposes, arguing the documents were not stolen and, even if privileged, may not be shielded from discovery.
- Bernstein, former VP of Finance, was diagnosed with lung cancer; after disclosure, Mafcote's CEO Schulman and HR manager Calderon consulted an attorney.
- Defendant sought to prevent disclosure, require return/destroy of documents, strike pleading paragraphs, and seek fees and Connecticut statutory remedies.
- Court held a telephone conference, ordered in camera review of the documents, and evaluated both plaintiff- and defendant-produced materials.
- Ruling: protective-order motion denied; some narrowly circumscribed privileged entries identified; broader relief denied or deferred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are the disputed documents privileged | Bernstein contends documents are not privileged or are nonprivileged material. | Mafcote asserts the documents contain confidential communications for legal advice and are privileged. | Most documents not privileged; two billing entries are privileged and redacted. |
| Does the crime-fraud exception apply to overcome privilege | Plaintiff asserts crime-fraud exception applies due to discriminatory conduct and timing. | Defendant contends no probable cause to show crime or fraud; communications not in furtherance. | Crime-fraud exception not established; privilege not overcome on current record. |
| Appropriate relief if privilege not established or partially established | Plaintiff seeks to prevent use and require return; argues protective order warranted. | Defendant seeks broad protections, return/destroy, and preclusion of use; wants costs. | Relief denied or deferred; some redaction/order limited to billing entries; other relief denied without prejudice. |
| Impact and scope of in camera review | Plaintiff contends in camera review should favor Mafcote's privilege claims. | Defendant relies on in camera analysis to vindicate privilege. | In camera review conducted; majority of documents not privileged; two entries partially privileged; defers broader review. |
Key Cases Cited
- In re Grand Jury Subpoena Served Upon Doe, 781 F.2d 238 (2d Cir.1986) (client identity and fee information not privileged; limits on billing disclosures)
- In re Grand Jury Proceedings, 219 F.3d 175 (2d Cir.2000) (burden to establish privilege; three-pronged standard)
- United States v. Int’l Bd. of Teamsters, Chauffeurs, Warehousemen and Helpers of Am., AFL-CIO, 119 F.3d 210 (2d Cir.1997) (three-pronged test for attorney-client privilege applicability)
- Fisher v. United States, 425 U.S. 391 (1976) (need for confidentiality to protect privilege; limits on disclosure)
- Sony Elec., Inc. v. Soundview Tech., Inc., 217 F.R.D. 104 (D.Conn.2002) (crime-fraud exception requires probable cause)