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DeSouza v. Park West Apartments, Inc.

United States District Court, D. Connecticut

January 30, 2018

HAILEE R. DESOUZA, Plaintiff,
v.
PARK WEST APARTMENTS, INC. et al. Defendant.

          RULING ON MOTION TO STRIKE

          MICHAEL P. SHEA, U.S.D.J.

         I. Introduction

         Hailee R. DeSouza (“DeSouza”) brings this suit against his landlord, Park West Apartments, Inc. (“Park West”), and Community Builders, Inc., [1] 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 DENIED.

         II. Background

         DeSouza 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).

         The email exchange begins with an email from Ms. Doughtie stating as follows:

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.).

         The 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).[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.).

         In 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).

         III. Discussion

         The 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, [3] 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 protection.

         Under 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: ‘[1] the reasonableness of the precautions to prevent inadvertent disclosure, [2] the time taken to rectify the error, [3] 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)).[4] 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.

         A court 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 ...


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