United States District Court, D. Connecticut
ORDER RE DISCOVERY DISPUTE
JEFFREY ALKER MEYER UNITED STATES DISTRICT JUDGE.
discovery dispute principally concerns the scope of the
attorney-client privilege in the context of two clients who
have filed separate lawsuits against the same employer but
who otherwise have a common interest and are represented by a
single attorney. For the reasons set forth below, I will
sustain in part and overrule in part plaintiffs'
objections to defendants' invocation of the privilege.
are a company (Supreme Forest Products, Inc.) and two of its
employees (Martin Paganini and Mark Bellino) who filed suit
in January 2016 against two former company employees (Michael
Kennedy and Ferrell Welch), alleging that Kennedy and Welch
conspired to secretly and unlawfully tape-record certain
conversations that Kennedy had with Paganini and Bellino. The
conversations with Paganini and Bellino occurred in March and
April 2014, and the tape-recordings were ostensibly made for
purposes of generating evidence to be used by Kennedy and
Welch to make a claim against the company for its alleged
violation of federal workplace safety laws. Indeed, Kennedy
and Welch filed separate federal lawsuits in 2014 against the
company, alleging that it wrongfully discharged them because
they refused to drive the company's trucks in violation
of federal transport safety regulations. See Kennedy v.
Supreme Forest Products, Inc., 3:14cv1851 (JAM) (D.
Conn.); Welch v. Supreme Forest Products, Inc.,
3:14cv1852 (JAM) (D. Conn.).
tape-recordings now at issue in this lawsuit came to light
after they were disclosed during the course of pre-trial
discovery in the prior lawsuits by Kennedy and Welch against
the company. This disclosure prompted the company and
Paganini and Bellino to file the instant lawsuit. Kennedy and
Welch are represented as defendants in this current lawsuit
by the same attorney, Michael Reilly, who brought the initial
lawsuits on their behalf.
before me is a dispute about the scope of the attorney-client
privilege for Kennedy and Welch. Faced with extensive
document requests, interrogatories, and requests for
production, Kennedy and Welch have invoked the
attorney-client privilege in relation to certain meetings or
communications that they jointly participated in with
Attorney Reilly during the course of the prior litigation.
According to their submissions, Kennedy and Welch both
consulted with Attorney Reilly in early May 2014, and they
then signed retainer agreements on May 5 and May 9, 2014. The
principal issue is whether the attorney-client privilege
should apply to the joint communications that occurred
between Kennedy, Welch, and Attorney Reilly before the filing
in 2016 of the current lawsuit against Kennedy and Welch.
parties do not dispute the basic elements of the
attorney-client privilege: “A party invoking the
attorney-client privilege must show (1) a communication
between client and counsel that (2) was intended to be and
was in fact kept confidential, and (3) was made for the
purpose of obtaining or providing legal advice.” In
re County of Erie, 473 F.3d 413, 419 (2d Cir. 2007);
see also Blumenthal v. Kimber Mfg., Inc., 265 Conn.
1, 9-10 (2003) (discussing purpose and scope of
attorney-client privilege); Restatement (Third) of Law
Governing Lawyers § 68 (elements of attorney-client
the attorney-client privilege may properly extend to
communications that occur between an attorney in the presence
of two or more clients that the attorney jointly represents.
“If two or more persons are jointly represented by the
same lawyer in a matter, a communication of either co-client
that otherwise qualifies as privileged . . . and relates to
matters of common interest is privileged as against third
persons, and any co-client may invoke the privilege, unless
it has been waived by the client who made the
communication.” Restatement (Third) of Law Governing
Lawyers § 75. As the commentary instructs, “the
rule recognizes that it may be desirable to have multiple
clients represented by the same lawyer, ” and
“the scope of the co-client relationship is determined
by the extent of the legal matter of common interest.”
Id., cmts. (b) & (c); see also Pagano v.
Ippoliti, 245 Conn. 640, 649-50 (1998) (“When two
or more people consult an attorney together on a matter of
joint interest . . . their communications [are] privileged as
to the outside world.”); In re Teleglobe
Commc'ns Corp., 493 F.3d 345, 362- 63 (3d Cir. 2007)
(discussing co-client privilege).
it is clear to me that Kennedy and Welch share a common
interest based on their highly similar employment claims
brought against the same employer. They are for all practical
purposes jointly represented by one attorney, and the fact
that their attorney filed separate lawsuits rather than
joining his two clients together in a single lawsuit does not
dispel the application of the co-client privilege. If the
clients share a common interest, the co-client rule requires
joint representation, not necessarily joint litigation. As
Judge Newman has observed, “whether the legal advice
was focused on pending litigation or on developing a
[non-litigation] patent program that would afford maximum
protection, the [co-client] privilege should not be denied
when the common interest is clear.” SCM Corp. v.
Xerox Corp., 70 F.R.D. 508, 514 (D. Conn. 1976).
the teleconference on this matter, plaintiffs argued that
Kennedy and Welch could not assert this privilege because
their legal interests must be identical, not merely similar.
Courts have described multiple “version[s] of the
‘common interest' doctrine.” Strougo v.
BEA Assocs., 199 F.R.D. 515, 520 (S.D.N.Y. 2001). This
doctrine “subsumes a number of principles that are
sometimes characterized as separate rules and at other times
conflated into a single axiom.” North River Ins.
Co. v. Columbia Cas. Co., 1995 WL 5792, at *2 (S.D.N.Y.
1995). Plaintiffs appear to be referring to one version of
the doctrine, sometimes called the “community of
interest” doctrine, in which parties who are
represented by separate counsel may claim the
privilege when they are “engage[d] in a common legal
enterprise.” Id. at *3. In that circumstance,
some courts have held that the parties' shared interest
must “be identical, not similar, ”
ibid., although others have held that the
parties' interests “need not be entirely
congruent.” In re Velo Holdings Inc., 473 B.R.
509, 514 (Bankr. S.D.N.Y. 2012) (quoting Restatement (Third)
of Law Governing Lawyers § 75, cmt. (e)).
“community of interest” privilege, however,
differs from the co-client privilege. See In re
Teleglobe, 493 F.3d at 363-64. For the co-client
privilege, it suffices for the clients to have a common
interest, not necessarily interests that are identical in all
respects. So long as their interests are common, co-clients
who consult the same lawyer would reasonably expect that
their communications with the lawyer to which they are
mutually privy would be protected from disclosure to third
parties by the attorney-client privilege. The legitimate
expectation of privilege is unmistakably higher in the
co-client context than the broader community-of-interest
context involving parties who are not represented by the same
event, Kennedy and Welch had nearly identical legal
interests. They both sought legal representation to pursue
what was essentially the same major claim-that Supreme Forest
Products had violated federal law by retaliating against them
when they resisted driving overweight vehicles. There were,
of course, minor factual differences between their claims,
but the gravamen of their complaint-Supreme Forest's
alleged insistence on driving illegally loaded vehicles, and
its alleged willingness to retaliate against drivers who
didn't toe the line- was the same. Although Welch had an
additional claim related to his post-termination health
benefits, the fact that Welch had an additional interest in
his suit does not vitiate his common interest with Kennedy. I
therefore find that defendants' interests were
sufficiently common for them to properly invoke the co-client
further contend that there is no evidence that Kennedy and
Welch had a joint representation agreement with their counsel
prior to when they were sued by plaintiffs in January 2016.
But this argument ignores the course of dealing between
defendants prior to January 2016 when they had both retained
counsel within days of each other in May 2014 to represent
them for purposes of the claims they eventually filed against
Supreme Forest Products, Inc. Even if prior to January 2016
Kennedy and Welch did not have a formal written agreement of
joint representation, it is clear to me that they would have
justifiably expected their co-client communications with
counsel to be protected by the privilege. As the commentary
to the Restatement makes clear, the focus is on whether the
respective co-clients “have expressly or
impliedly agreed to common representation in which
confidential information will be shared.” Restatement
§ 75, cmt. (c); see also In re Teleglobe, 493
F.3d at 363 (“While written agreements limiting the
scope of a joint representation might ...