RULING ON DEFENDANT’S MOTION FOR PROTECTIVE ORDER [DOC. #71]
Defendant Mafcote, Inc. moves pursuant to Federal Rule of Civil Procedure 26(c) for the entry of a protective order in connection with plaintiff William Bernstein’s alleged unauthorized possession of attorney-client privileged communications. [Doc. # 71]. Plaintiff opposes defendant’s motion and contends that the subject documents were not stolen and, further, are not subject to any privilege. [Doc. # 86]. For the reasons articulated below, the Court DENIES defendant’s motion for protective order [Doc. # 71].
I. BACKGROUND
Plaintiff brings this action against his former employer Mafcote, Inc., claiming disability discrimination and retaliation under the Americans with Disabilities Act, 42 U.S.C. § 12112(a), and the Connecticut Fair Employment Practices Act, Connecticut General Statutes § 46a-60(a)(l). [Am. Compl., Doc. # 55]. Plaintiff also alleges breach of the implied covenant of good faith and fair dealing. [Id.]
The following facts are derived from the allegations in the amended complaint. Plaintiff was working for defendant as Vice President of Finance when he was diagnosed with lung cancer. Plaintiff alleges that shortly after disclosing this diagnosis to defendant’s CEO, Steven Schulman, Mr. Schulman began a campaign to harass plaintiff and end his employment. Plaintiff underwent surgery on January 7, 2011 to remove the cancerous growth. Plaintiff alleges that “[d]ays before” this operation, Mr. Schulman, and his human resources manager, Jennifer Calderon, began to consult an attorney regarding plaintiffs employment. Defendant ultimately terminated plaintiffs employment on the allegedly pretextual grounds that he was overpaid.
The present dispute arises from plaintiffs alleged unauthorized possession of documents defendant claims are confidential communications with its attorney(s). Defendant claims plaintiff obtained these
On April 10, 2014, the Court held a telephone conference regarding the motion for protective order. After hearing argument of counsel, the Court ordered that the parties submit both the subject documents and the documents referenced on defendant’s privilege log for an in camera review.
II. LEGAL STANDARD
a. Protective Orders, Generally
Rule 26(c) of the Federal Rules of Civil Procedure reads, in pertinent part, that the “court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden.” Fed.R.Civ.P. 26(c)(1). The burden of showing good cause for the issuance of a protective order falls on the party seeking the order. Brown v. Astoria Fed. Sav. & Loan Ass’n,
b. Attorney-Client Privilege
The attorney-client privilege protects, confidential communications between client and counsel made for the purpose of obtaining or providing legal assistance. United States v. Constr. Prods. Research, Inc.,
III. DISCUSSION
a. Documents Submitted by Plaintiff for In Camera Review
In light of the fact that many of defendant’s arguments turn on the privileged nature of the documents, the Court will first address the in camera review. The documents submitted by plaintiff can be divided into three general categories: (1) billing statements from defendant’s attorney; (2) email threads; and (3) emails attaching defendant’s internal documents. The Court will address each in turn.
1. Billing Statements
Plaintiff argues that the billing statements in his possession are not protected by the attorney-client privilege because they do not reveal any motive, strategy, intricate service descriptions, or specific research services. Defendant responds that the invoices reveal defendant’s motive in seeking representation and the specific nature of the services provided, and therefore are protected by the attorney-client privilege.
The Second Circuit has “consistently held that, absent special circumstances, client identity and fee information are not privileged [...] While consultation with an attorney, and payment of a fee, may be necessary to obtain legal advice, their disclosure does not inhibit the ordinary communication necessary for an attorney to act effectively, justly, and expeditiously.” In re Grand Jury Subpoena Served Upon Doe,
By contrast, the Court finds that the third billing entry on Bates No. 25 and the second billing entry on Bates No. 26 are protected by the attorney-client privilege as they reveal the specific nature of the services provided and/or reveal the motive of defendant in seeking representation. Therefore, plaintiff shall return these documents to defendant, who will in turn reproduce these documents to plaintiff with the protected billing entries redacted.
2. Email Threads
The next group of documents consists of email threads forwarded by Mr. Schulman to Attorney Duhl. Defendant submits that, “[i]t is axiomatic that the correspondence by Mr. Schulman to undersigned counsel for Mafcote (Glenn Duhl) (Plaintiffs Bates 47-49 and 50) was communicated for the purpose of giving information to the undersigned to enable counsel to give sound advice, and so is privileged. [Doc. # 71-1, 10-11 (citation omitted) ]. Defendant’s privilege log for these documents further indicate that both are a Communication to attorney re employment issue.” [Doc. # 90-1, Ex. K, p. 2].
“Attorneys frequently give to their clients business or other advice 'which, at least insofar as it can be separated from their essentially professional legal services, gives rise to no privilege whatever.” Koumoulis v. Indep. Fin. Mktg. Group,
The Court finds that defendant has not met its burden of showing that these documents are protected by the attorney-client privilege. Although these documents reflect Mr. Schulman forwarding chain emails to Attorney Duhl
3. Emails Attaching Defendant’s Internal Documents
Bates Nos. 27 and 30 are duplicate copies of the same emails dated February 1 and 2. Attached to the February 2 emails at Bates No. 31 is a job posting for a CFO position, and at Bates Nos. 32-34, a resumé for Karen L. Kelley. The email dated February 1 is from Mr. Schulman to Ms. Calderon and Attorney Duhl, although the body of the email is only addressed to Ms. Calderon. The email requests Ms. Calderon to respond to several inquiries, which she does by inserting her answers into the February 1 email by a response email dated February 2. The February 2 email is only sent to Mr. Schulman. The Court finds that these emails are not protected by the attorney-client privilege. Although Attorney Duhl received the February 1 email, there is no implicit request for legal advice apparent from its contents, nor does it appear to have been sent for the purpose of providing factual information for the purposes of future legal advice. Moreover, the email appears solely directed to Ms. Calderon. Just because Attorney Duhl received the February 1 email does not make it privileged. Indeed, what defendant neglects to consider is that the attorney-client privilege does not necessarily attach to all communications between a client and his or her attorney. See Koumoulis,
Two emails comprise Bates Nos. 36 and 37. One is from Mr. Schulman to Ms. Calderon and the other reflects Ms. Calderon’s response to Mr. Schulman. Neither of these emails is subject to the attorney-client privilege. First, the emails are not to or from an attorney. Second, the
Bates No. 38 is an Outlook calendar entry noting a cancelled conference call with Attorney Duhl “to discuss FedEx package.” The Court finds that this document is not protected by the attorney-client privilege because it does not reveal confidential legal advice, the specific nature of the services provided, or the motive of defendant in seeking representation. See also Koumoulis,
b. Documents submitted by Defendant for In Camera Review
After a conference call with the Court on the pending motion for protective order, defendant submitted several hundred pages of documents withheld on the basis of attorney-client privilege, along with a copy of its privilege log. Plaintiff has urged the Court that the motion for protective order hinges only on the specific documents referenced therein.
The Court suggested this particular in camera review to assuage any concerns plaintiff may have with respect to defendant withholding any non-privileged documents. However, in light of plaintiffs statements, the Court will defer reviewing the withheld documents at this time. Instead, the Court urges defendants to reconsider whether the production of any withheld documents is warranted in light of the analysis in this Ruling as to the documents reviewed in camera.
c. Crime-Fraud Exception to Attorney-Client Privilege
Plaintiff argues that even if the subject documents are privileged, the crime-fraud exception applies to overcome the privilege. Defendant argues that plaintiff has failed to meet his burden of overcoming the privilege.
“It is well-established that communications that otherwise would be protected by the attorney-client privilege [...] are not protected if they relate to client communications in furtherance of contemplated or ongoing criminal or fraudulent conduct.” Sony Elec., Inc. v. Soundview Tech., Inc.,
Plaintiff points to the following facts in support of applying the crime-fraud exception: (1) the timing of the communications; (2) the affidavit and testimony of Denise Cooper; (3) the assessment of the CHRO; and (4) that there was reason to believe discrimination occurred. [Doc. # 86, 13]. Defendant contests each factual basis relied upon by plaintiff. [Doc. # 90, 5-6]. The Court credits defen
d. Relief Requested in Protective Order
Defendant requests a myriad of relief in the motion for protective order. However, in light of the Court’s findings that subject documents (with the exception of two minor billing entries, only one of which contains de minimis information relevant to the pending action) are not privileged, the Court rules as follows.
1. Request for order precluding plaintiff from disclosing communications
Defendant requests an order precluding plaintiff from disclosing the subject communications. Since the motion for protective order was filed, plaintiff has responded to defendant’s discovery requests detailing to whom plaintiff has disclosed these specific communications. Plaintiff identified by interrogatory that he has only “made available” the same to his legal counsel and his wife. He has also “discussed many of these documents” with Denise Cooper. In lieu of an outright preclusion of plaintiff from disclosing the communications, defendant may designate these documents “confidential” pursuant to the parties’ stipulated protective order. Therefore, this request is denied.
2. Request for order requiring plaintiff to return or destroy all documents and communications between defendant and its counsel
The Court denies this request in light of its findings after the in camera review. The Court has already ordered that plaintiff return the subject billing statements reflecting privileged material. See Section III(a)(2) supra.
3. Request for order precluding plaintiff from offering or otherwise using such documents and communications
Defendant next seeks an order, Precluding Plaintiff from introducing into evidence or otherwise using in any manner, in this case: (a) the Communications; (b) the contents thereof; or (c) the fact of existence of the Communications, because the Communications are protected from disclosure pursuant to the attorney-client privilege and Plaintiffs receipt, possession and knowledge thereof was and is unauthorized and was accomplished by illegal means without Mafcote Inc.’s knowledge or consent[.]
On the current record, the Court DENIES without prejudice to re-filing the relief requested. First, the Court notes that this relief is better reserved for a future motion in limine and/or motion to strike. Second, the majority of the communications are not protected by the attorney-privilege and accordingly would have been produced in discovery regardless of the allegedly “illegal” or “unauthorized” possession of the documents at issue. To the extent that plaintiffs knowledge of two billing entries in some way prejudices defendants, then in the future defendant may seek appropriate relief.
4. Request for order striking paragraph 15 of the Amended Complaint
Plaintiff next seeks an order striking paragraph 15 of the Amended Complaint, because it is derivative of and based upon Plaintiffs unlawful and unauthorized possession and/or knowledge of the
5. Request for order precluding plaintiffs claim that defendant began to consult an attorney after learning plaintiff had cancer
The Court denies this request for the reasons articulated above with respect to defendant’s fourth request. The denial of this request does not foreclose defendant from filing a motion in limine or seeking a limiting instruction at trial.
6. Request for attorneys’ fees and leave to initiate separate action
In light of the findings made above, the Court declines to award defendant attorney’s fees incurred in bringing this motion.
On the current record, the Court further declines without prejudice to authorize the defendants to “initiate separate action(s) to enforce Mafcote’s rights against the person(s) who stole, accessed and/or misused its computer system information in violation of Connecticut General Statutes § 53a-251 and barring any claim against Mafcote, for retaliation or otherwise, associated therewith!/]” The Court further notes that a motion for protective order is not the proper vehicle by which to request such relief.
IV. CONCLUSION
For the reasons stated, defendant’s motion for protective order [Doc. # 71] is DENIED.
This is not a Recommended Ruling. This is a discovery ruling or order which is reviewable pursuant to the “clearly erroneous” statutory standard of review. 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); and D. Conn. L. Civ. R. 72.2. As such, it is an order of the Court unless reversed or modified by the district judge upon motion timely made.
Notes
. On August 14, 2014, Judge Eginton granted defendant's motion to dismiss plaintiff's claim for breach of the implied covenant of good faith and fair dealing. [Doc. # 133].
. On the current record, the Court declines to make any findings with respect to whether plaintiff "stole” the documents at issue. Since defendant filed this motion, plaintiff has provided answers to interrogatories which detail how he came into possession of the documents.
. Bates Nos. 24-26.
. As further discussed, infra, the Court does not find on the current record that the crime fraud exception to the attorney-client privilege applies.
. Bates Nos. 47-50.
.The first email to Attorney Duhl states, "I would like to call you tonight about my reply or not.” The second similarly states, "I would like to call you tonight about this.”
. Bates Nos. 27, 30-34, 36-38. Bates Nos. 27 and 30 are identical.
. Defendant may also wish to consider the Court’s analysis in the July 21, 2014 ruling on Plaintiff’s motion to compel with respect to the withheld calendar entries. [Doc. # 122].