Sergio A. DeCurtis v. Visconti, Boren & Campbell, Ltd.
152 A.3d 413
| R.I. | 2017Background
- DeCurtis hired Attorney Boren to draft a prenuptial agreement (2000) and a postnuptial agreement (2005); DeCurtis later alleged malpractice for drafting that allegedly failed to protect his premarital assets.
- Family Court in 2011 interpreted the agreements as not excluding income/appreciation earned during marriage, prompting DeCurtis to settle the divorce and later sue his attorneys for malpractice in Superior Court (2012).
- DeCurtis requested production of any prenuptial/postnuptial agreements drafted by Boren (1999–present), later narrowed by the trial justice to agreements from 2005–2009 and 2013, with redaction and a protective order.
- Defendants objected asserting overbreadth, attorney-client privilege, marital privilege, and work-product protection; Superior Court ordered production of six redacted agreements and defendants petitioned for certiorari.
- Supreme Court framed the narrow question whether a malpractice plaintiff may compel an attorney’s documents prepared for other clients to show subsequent remedial measures and reviewed discoverability and privilege claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Discoverability under Rule 26 / Rule 407 (subsequent remedial measures) | Agreements are relevant to show whether Boren later changed drafting language as remedial measures after the liability-causing conduct | Agreements before 2011 are not subsequent remedial measures and thus irrelevant | Court: “Event” is the liability-causing conduct (the 2005 postnuptial drafting); measures after 2005 may be subsequent remedial measures and agreements are discoverable under Rule 26(b)(1) |
| Attorney-client privilege | N/A (seeking production) | Privilege protects agreements drafted for other clients and defendants may assert it | Court: Defendants lack standing to assert clients’ privileges; whole agreements are not privileged end products; redaction preserves confidentiality; privilege does not bar production |
| Marital privilege | N/A | Executed antenuptial/postnuptial agreements reflect spousal communications and are protected | Court: Marital privilege inapplicable — agreements are non-testimonial documents, antenuptial agreements predate marriage, and redaction addresses confidentiality |
| Work-product doctrine | N/A | Final agreements are work product prepared in anticipation of litigation (divorce) and thus protected | Court: Final executed agreements are not work product; at most factual work product, but plaintiff showed substantial need and inability to obtain equivalents, so doctrine does not bar production |
Key Cases Cited
- Marsocci v. Marsocci, 911 A.2d 690 (R.I. 2006) (discusses premarital agreement representation and voluntariness)
- Henderson v. Newport County Regional YMCA, 966 A.2d 1242 (R.I. 2009) (describing liberal discovery scope)
- von Bulow v. State, 475 A.2d 995 (R.I. 1984) (elements and narrow construction of attorney-client privilege)
- Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (privilege protects communications but not underlying facts)
- Hickman v. Taylor, 329 U.S. 495 (U.S. 1947) (origin of the work-product doctrine)
- Cabral v. Arruda, 556 A.2d 47 (R.I. 1989) (discovery policy favors disclosure absent privilege)
- Raymond v. Raymond Corp., 938 F.2d 1518 (1st Cir. 1991) (defining “event” under Rule 407 as the injury-causing occurrence)
- Fireman’s Fund Ins. Co. v. McAlpine, 391 A.2d 84 (R.I. 1978) (work product may attach when litigation is a contingency)