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Buck v. Indian Mountain School

United States District Court, D. Connecticut

January 31, 2017




         Familiarity 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), [1] 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), [2] and Shipman & Goodwin filed its brief in opposition, with exhibits in support. (Dkt. #127).[3] 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).

         For the reasons stated below, plaintiff's Motion to Compel (Dkt. #98) is denied.

         I. DISCUSSION

         A. BACKGROUND

         Beginning 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. A).

         On 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 2).[4]

         Shipman & 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).


         “‘The 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 26(b)(1)[5]; and
(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.

         Additionally, 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 citations omitted).

         As this 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).

         With 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 & Goodwin.


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