United States District Court, D. Connecticut
HAILEE R. DESOUZA, Plaintiff,
PARK WEST APARTMENTS, INC. et al. Defendant.
RULING ON MOTION TO STRIKE
MICHAEL P. SHEA, U.S.D.J.
R. DeSouza (“DeSouza”) brings this suit against
his landlord, Park West Apartments, Inc. (“Park
West”), and Community Builders, Inc.,  the nonprofit
corporation that controls it. DeSouza claims chiefly that
Park West discriminated and retaliated against him by
attempting to evict him and by failing to renew his lease. At
issue here is Park West's motion to strike an exhibit
submitted by DeSouza as an attachment to his memorandum
opposing Park West's motion to consolidate. Park West
asserts that the exhibit is protected by the attorney-client
privilege and was provided to DeSouza inadvertently.
(See ECF No. 89). The exhibit in question (ECF No.
88-2 at 2-3) constitutes an email from Park West's former
supervisor, Kim Doughtie, to an attorney. For the reasons
that follow, Park West's motion to strike is hereby
filed his opposition to the defendants' motion to
consolidate (ECF No. 88), along with the exhibit at issue
(ECF No. 88-2 at 2-3), on April 12, 2017. The exhibit at
issue consists of an email exchange between Kim Doughtie and
Neil Paul, an outside attorney for defendants. According to
DeSouza, he obtained the document on March 24, 2017, while
reviewing his “HUD Resident Tenant file.” (ECF
No. 92 at 1).
email exchange begins with an email from Ms. Doughtie stating
This letter was hand delivered about 15 minutes ago by
Desouza himself. I am hoping you can get this man evicted. I
consider his words a hate crime which is against the law. It
is also untrue slander. I have never had an accident let
alone a hit and run. Being a lawyer please tell me how to
stop this person????
(ECF No. 88-2 at 3). The “letter” referred to in
the email has not been made available to the Court. Neil Paul
eventually sent a response noting various items that Doughtie
was to bring to a future meeting. (Id. at 2). He
also noted that he had “received the same stack of
tissues that [Doughtie] just received, ” that he would
“start [his] fire on Friday evening with them, ”
and that he had “the same issue with suing a Park West
tenant as [he] did last time.” (Id.).
defendants filed their motion to strike (see ECF No.
89-1) the email exchange in question over a month after
DeSouza filed it-on May 17, 2017. In their motion to strike,
the defendants conceded that they produced the privileged
document to the plaintiff along with the rest of his tenant
file. (Id. at 2). According to the defendants, DeSouza
went to the office at Park West and demanded to see his
tenant file. (Id. at 3). Roman Castro, Community
Manager of Park West Apartments, had directed office staff to
have DeSouza tab any documents he wanted copied so that Mr.
Castro could review them prior to their release.
(Id. at 4). Mr. Castro stated in his affidavit that
he was not in the office on the day DeSouza arrived to review
his tenant file. (ECF No. 89-2 at 1). The defendants aver
that the Park West staff was so overcome by DeSouza's
aggressive behavior, however, that they provided him with his
entire file without tabbing the documents for Mr.
Castro's review. (ECF No. 89 at 4). Had Mr. Castro
reviewed the file, according to the defendants, he would have
removed the email exchange. (Id.).
November of 2017, I issued an order addressing various
disputes between the parties, including the dispute over the
exhibit in question. (See ECF No. 120). In that
order, I provided DeSouza with seven days to file any
policies promulgated by the Department of Housing and Urban
Development (“HUD”) “that require the
landlords of HUD-subsidized housing to make tenants'
files available to tenants” and to “make any
arguments with respect to whether any attorney-client
privilege that might apply to ECF No. [88-2] has been waived.
. . .” (Id. at 2). I granted the defendants
seven days following any such filing to file a response.
(Id.). DeSouza filed a timely response on the docket
listing various HUD regulations that he averred granted him,
as a tenant, the right to access his tenant file.
(See ECF No. 124). In response, the defendants filed
a notice stating only that the defendants “refer this
Court to Docket Entry Nos. 89 and 89-1, which address the
waiver of privilege issue currently before this court.”
(ECF No. 127).
defendants argue that the Court should strike the exhibit
produced to DeSouza because it is protected by the
attorney-client privilege and was disclosed to DeSouza
inadvertently. (See ECF No. 89-1 at 2). Given that
the exhibit was located in a tenant file accessible to
DeSouza prior to its disclosure,  there is some doubt about
whether it was protected by the attorney-client privilege in
the first place. See In re County of Erie, 473 F.3d
413, 419 (2d Cir. 2007) (“[a] party invoking the
attorney-client privilege must show a communication between
client and counsel that was intended to be and was in fact
kept confidential” (numerations omitted)). Even
assuming that the exhibit was protected by the privilege,
however, I find that the defendants have waived such
Fed.R.Evid. 502(b), the disclosure of a privileged document
“does not operate as a waiver, ” if “(1)
the disclosure is inadvertent; (2) the holder of the
privilege or protection took reasonable steps to prevent
disclosure; and (3) the holder promptly took reasonable steps
to rectify the error, including (if applicable) following
Federal Rule of Civil Procedure 26(b)(5)(B).” See
also In re Natural Gas Commodity Litigation, 229 F.R.D.
82, 86 (S.D.N.Y. 2005) (“To determine whether an
inadvertent disclosure waived the privilege, courts in this
Circuit balance four factors: ‘ the reasonableness
of the precautions to prevent inadvertent disclosure,  the
time taken to rectify the error,  the scope of the
discovery and the extent of the disclosure . . . [and 4]
overreaching [sic] issues of fairness.'” (quoting
Lois Sportswear, U.S.A., Inc. v. Levi Strauss &
Co., 104 F.R.D. 103, 105 (S.D.N.Y. 1985)). While the
defendants have a strong case that the disclosure here was
inadvertent, they have failed to demonstrate that they took
reasonable steps to prevent disclosure or prompt steps to
rectify the erroneous disclosure to DeSouza.
will generally consider precautions against inadvertent
disclosure to be reasonable “if the procedure followed
in maintaining the confidentiality of the document [is] not .
. . so lax, careless, inadequate or indifferent to
consequences as to constitute a waiver.” In re Nat.
Gas Commodity Litig., 229 F.R.D. 82, 86 (S.D.N.Y. 2005)
(quoting Prescient Partners, L.P. v. Fieldcrest Cannon,
Inc., 96 Civ. 7590, 1997 WL 736726 at *5 (S.D.N.Y.
Nov.26, 1997) (quotations omitted)); see also United
States v. Rigas, 281 F.Supp.2d 733, 739 (S.D.N.Y.2003)
(“[T]he reasonableness of a party's actions to
protect privileged information should be measured in light of
the risks foreseeable to that party at the time the
precautions were taken. The mere fact of an accidental
disclosure does not automatically render the precautionary
measures unreasonable at the time they were performed.”
(emphasis omitted)). The defendant's precautions against
disclosure do not meet this standard. While a lower level
employee's erroneous disclosure is not necessarily
evidence of an unreasonable precaution against disclosure,
see Prescient Partners, L.P. v. Fieldcrest Cannon,
Inc., No. 96CIV.7590(DAB)(JCF), 1997 WL 736726, at *5
(S.D.N.Y. Nov. 26, 1997) (inadvertent disclosure caused by
paralegal's mistake despite supervising counsel's
clear instruction did not result from inadequate precaution),
the defendants here did not merely let slip an
attorney-client communication during the discovery process.
Rather, apparently before the litigation began, they placed
the communication in a public file to which DeSouza had a
right of access. See United States v. Gangi, 1
F.Supp.2d 256, 265 (S.D.N.Y. 1998) (government waived
attorney-client privilege by filing document as part ...