United States District Court, D. Connecticut
RULING ON PLAINTIFF'S MOTION TO COMPEL DOCUMENTS
WITHHELD BY DEFENDANT ON CLAIMS OF ATTORNEY-CLIENT PRIVILEGE
AND WORK-PRODUCT PROTECTION (DKT #98)
GLAZER MARGOLIS, UNITED STATES MAGISTRATE JUDGE
with this litigation, and with this Magistrate Judge's
previous discovery rulings, is presumed. (See, e.g., Dkts.
##56, 69). On January 9, 2017, plaintiff filed the pending
Motion to Compel Production of Documents Withheld by
Defendant on Claims of Attorney-Client Privilege and
Work-Product Protection (Dkt. #98),  which was referred to this
Magistrate Judge three days later. (Dkt. #101). On January
17, 2017, this Magistrate Judge held a telephonic discovery
conference regarding the pending motion (Dkt. #104), during
which defendant Indian Mountain School [“IMS”]
and non-party Shipman & Goodwin, the law firm engaged to
investigate the underlying claims of abuse, were ordered to
file their briefs in opposition by January 24, 2017, and to
produce the disputed documents for this Court's in
camera review, if such review is necessary after
briefing is complete. Consistent with this Court's order,
on January 24, 2017, defendant filed its brief in opposition,
with exhibits in support (Dkt. #124),  and Shipman &
Goodwin filed its brief in opposition, with exhibits in
support. (Dkt. #127). Both parties also provided Chambers with
copies of the withheld documents. Currently, the trial is
scheduled to commence on February 13, 2017 and proceed
through February 24, 2017. (Dkt. #103).
reasons stated below, plaintiff's Motion to Compel (Dkt.
#98) is denied.
in 1993, defendant was sued by former students who alleged
that they were sexually abused while attending the school.
(Dkt. #124, at 2). Attorney Altermatt has represented
defendant in these lawsuits, and represented defendant in
this case until July 26, 2016. (Id.; see
Dkt. #60). During the course of his representation of
defendant, Attorney Altermatt conducted discovery, including
depositions of plaintiffs and former employees and Trustees;
each of the earlier cases settled prior to trial.
(Id.). In addition to hiring Attorney Altermatt to
defend the school, in 2014 the school retained attorneys
Morgan Ruekert and James Bergenn of Shipman & Goodwin to
“conduct a complete investigation and to report back to
the Board regarding what happened, and how best to respect
and support any alumni who may have been harmed.” (Dkt.
#98, at 4 & Exh. C; see also Dkt. #127, Exh. A).
Defendant “invite[d] any alumni or other past or
present members of the community with any relevant
information to contact the Head of School . . . . or Shipman
& Goodwin . . . .” (Dkt. #98, Exh. C; Dkt. #127, Exh.
January 5, 2017, plaintiff's counsel mailed a letter to
“all IMS alumni who attended the school during the
period of 1973-1987 to request that anyone with information
about sexual abuse occurring at the school during that time
to contact [him].” (Dkt. #124, Exh. A). Four days
later, plaintiff filed this Motion to Compel, seeking the
notes and correspondence that memorialized the resulting
communications between Shipman & Goodwin and IMS'
litigation counsel. According to plaintiff, defendant has
improperly withheld two categories of documents: (1) written
statements by IMS alumni solicited in the course of an
“investigation” conducted by Shipman & Goodwin,
the school's “independent counsel”, and (2)
non-privileged facts contained in communications and notes
authored by the defendant and its counsel. (Dkt. #98, at
& Goodwin contends that information that plaintiff seeks
falls within three categories: (1) privileged attorney-client
email communications from defendant IMS' Head of School
to counsel, attaching emails and/or notes, and further
commenting to counsel; (2) attorney work product notes by the
Head of School and/or counsel of conversations/interviews
with Alumni; and (3) work product email communications
between Alumni and the Head of School and/or counsel in
response to the general communication to Alumni. (Dkt. #127,
at 3). Similarly, defendant contends that the documents
plaintiff seeks consist of protected work product, and fall
into seven categories: (1) notes of conversations with
individuals who were deposed (and whose depositions are
already in plaintiff's possession); (2) notes of
conversations with individuals who could have been deposed by
plaintiff; (3) investigation containing publically available
information; (4) handwritten notes containing case strategy
information; (5) documents “where it is not even clear
who the witness is”; (6) notes of preparation for a
deposition; and (7) miscellaneous notes, including notes on
legal research, a draft timeline, a draft chronology, and a
summary of Trustee Minutes (which are all in plaintiff's
possession). (Dkt. #124, at 3).
MOTION TO COMPEL STANDARD, ATTORNEY-CLIENT PRIVILEGE AND
WORK PRODUCT PRIVILEGE
attorney-client privilege protects communications (1) between
a client and his or her attorney (2) that are intended to be,
and in fact were, kept confidential (3) for the purpose of
obtaining or providing legal assistance.'” Brennan
Ctr. for Justice at N.Y. Univ. Sch. of Law v. U.S.
Dep't of Justice, 697 F.3d 184, 207 (2d Cir. 2012),
quoting U.S. v. Mejia, 655 F.3d 126, 132 (2d Cir.),
cert. denied sub nom. Rodriguez v. U.S., ___ U.S.
___, 132 S.Ct. 533 (2011). The work product doctrine
protects the discovery of memoranda, correspondence, briefs,
mental impressions and personal beliefs prepared in
anticipation of litigation. Hickman v. Taylor, 329
U.S. 495, 510-11 (1947). Under Rule 26(b)(3)(A) of the
Federal Rules of Civil Procedure,
Ordinarily, a party may not discover documents and tangible
things that are prepared in anticipation of litigation or for
trial by or for another party or its representative
(including the other party's attorney. . .). But, subject
to Rule 26(b)(4), those materials may be discovered if:
(1) they are otherwise discoverable under Rule
(2) the party shows that it has substantial need for the
materials to prepare its case and cannot, without undue
hardship, obtain their substantial equivalent by other means.
pursuant to Rule 26(b)(3)(B), “[i]f the court orders
discovery of those materials, it must protect against
disclosure of mental impressions, conclusions, opinions, or
legal theories of a party's attorney or other
representatives concerning the litigation.” The party
invoking a privilege “bears the burden of establishing
its applicability to the case at hand.” In re Grand
Jury Subpoenas Dated March 19, 2002 & August 2, 2001 v.
United States, 318 F.3d 379, 384 (2d Cir. 2003)(multiple
Magistrate Judge has discussed: “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.'” Hildebrand v. Wal-Mart
Stores, Inc., 194 F.R.D. 432, 434 (D. Conn. 2000),
quoting U.S. v. Weissman, No. S1 CR 760(CSH), 1995
WL 244522, at *5 (S.D.N.Y. Apr. 26, 1995)(citations omitted).
“For ‘fact' work product, that is
work-product that does not contain legal opinions or
conclusions, the party seeking discovery must meet the
‘substantial burden' and ‘undue hardship'
tests outlined in Rule 26.” FDIC v. Wachovia Ins.
Svs., Inc., 241 F.R.D. 104, 106 (D. Conn. 2007)(citation
omitted). “Opinion work-product is given stronger
protection and is discoverable only in rare circumstances
where the party seeking discovery can show extraordinary
justification.” Id. (citations omitted).
the foregoing principles in mind, this Magistrate Judge will
first address the seven categories of documents withheld by
defendant, followed by the documents withheld by Shipman &
DOCUMENTS SOUGHT FROM ...