United States District Court, D. Connecticut
RULING ON PLAINTIFF'S MOTION TO COMPEL AND
REQUEST FOR IN CAMERA INSPECTION [DOC. 190]
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE
Samantha Jansson, M.D., an anesthesiologist, commenced this
civil rights action against a number of defendants, including
Stamford Health, Inc. d/b/a Stamford Hospital ("Stamford
Hospital") and Stamford Anesthesiology Services, P.C.
("SAS"). The litigation was generated by a notice
of termination of employment SAS gave to Jansson in October
2014. The Court has had occasion to file a number of prior
rulings in the case. Familiarity with them is assumed.
case is now before the Court on a dispute involving pretrial
discovery. Plaintiff has filed a motion [Doc. 190] to compel
Stamford Hospital to produce a number of documents. Stamford
Hospital resists production on the ground that these
documents are protected by a privilege, of one kind or
another. In compliance with the local rules of practice,
Stamford Hospital filed a privilege log purporting to explain
and justify those claims of privilege. Plaintiff contends
that the documents in question are not privileged as a matter
of law, or their privileged status has not been
satisfactorily demonstrated by Stamford Hospital, whose
burden it is to do so.
Ruling resolves the motion.
are two institutional Defendants in this action: Stamford
Hospital (sometimes referred to as "Stamford
Health"), and Stamford Anestheliology Services, P.C.
("SAS"). These Defendants resist discovery of
certain documents requested by Plaintiff Dr. Jansson.
Defendants contend they are immunized from production by the
attorney-client privilege, or by the attorney work product
designation of the second principle has evolved over time.
Fed.R.Civ.P. 26(b)(3) is captioned "Trial Preparation:
Materials" and provides: "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 . . . ." Rule 26(b)(5)(A), which was added in the
1993 Amendments to the Rule, mandates certain procedural
steps whenever a party withholds information from discovery
"by claiming that the information is privileged or
subject to protection as trial-preparation material, "
thereby seeming to distinguish between "privileged"
and "protected" information.
Advisory Committee's Notes to the 1993 Amendments echo
that distinction: "A party must notify other parties if
it is withholding materials otherwise subject to disclosure
under the rule or pursuant to a discovery request because it
is asserting a claim of privilege or work product
protection." The Notes substitute the synonymous phrase
"work product" for the Rule's phrase
"trial-preparation." Moore's text discusses the
"attorney-client privilege" as a creation of
federal common law, and then turns to the "work product
doctrine." 6 Moore's Federal Practice
§§ 26.49, 26.70 (Matthew Bender 3d ed. 2009).
these differences in phrasing, the Second Circuit has taken
to referring to the "trial material" or "work
product" concept as "the work product
privilege." See, e.g., United States v. Constr.
Prod. Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996)
(In addition to the attorney-client privilege,
"Respondents also assert a work-product
privilege."); A. Michael's Piano, Inc. v.
F.T.C., 18 F.3d 138, 146 (2d Cir. 1994) ("The
attorney work product privilege protects" certain
files). In the discussion that follows, I will adopt the
Second Circuit's parlance and characterize each concept,
attorney-client and work product, as a privilege.
principles which guide the application of these privileges
are well settled. The leading treatise says:
Discovery is not permitted as to privileged matters. The
reference in the discovery rules to privilege is to
evidentiary privilege. . . . Privilege, unlike relevance, is
narrowly construed. The burden of establishing that a
privilege exists is on the party claiming the privilege.
6 Moore, § 26.47[a].
who claims an evidentiary privilege is in effect saying to
the world: "I possess evidence about what is true in
this case and who is right; but this privilege gives me an
exemption from having to testify about it." The law
allows certain privileges of that nature, but does not favor
them: hence the narrow construction noted by Professor Moore.
In United States v. Bryan, 339 U.S. 323 (1950),
Chief Justice Vinson cited iconic authority for that
Certain exemptions from attending or, having attended, giving
testimony are recognized by all courts. But every such
exemption is grounded in a substantial individual interest
which has been found, through centuries of experience, to
outweigh the public interest in the search for truth. Dean
Wigmore stated the proposition thus: "For more than
three centuries it has now been recognized as a fundamental
maxim that the public (in the words sanctioned by Lord
Hardwicke) has a right to every man's evidence. When we
come to examine the various claims of exemption, we start
with the primary assumption that there is a general duty to
give what testimony one is capable of giving, and that any
exemptions which may exist are distinctly exceptional, being
so many derogations from a positive general rule."
339 U.S. at 331 (quoting Wigmore, Evidence §
Branzburg v. Hayes, 408 U.S. 665 (1972), where the
Court refused to create a First Amendment testimonial
privilege for newsmen subpoenaed before grand juries, a
footnote in Justice White's majority opinion quotes the
same passage from Wigmore:
The creation of new testimonial privileges has been met with
disfavor by commentators since such privileges obstruct the
search for truth. Wigmore condemns such privileges as
"so many derogations from a positive general rule (that
everyone is obligated to testify when properly
summoned)" and as "obstacle(s) to the
administration of justice." 8 J. Wigmore,
Evidence § 2192 (McNaughton rev. 1961). His
criticism that "all privileges of exemption from this
duty are exceptional, and are therefore to be
discountenanced, " id., at § 2192, p. 73
(emphasis in original) has been frequently echoed.
408 U.S. at 690 n.29 (citing treatises and cases).
McMann v. Securities and Exchange Commission, 87
F.2d 377 (2d Cir. 1937), which rejected an investor's
effort to protect as privileged his broker's records
subpoenaed by the SEC, Judge Learned Hand also cited Wigmore:
[T]he duty to disclose in a court all pertinent information
within one's control, testimonially or by the production
of documents, is usually paramount over any private interest
which may be affected. Wigmore, Secs. 2192, 2193. There are
of course the traditional privileges touching communications
made in certain confidential relations; but a broker's
customer is not a client, a penitent, a patient or a spouse.
Therefore, although we assume, as we do, that the conduct of
investigations under these statutes is subject to the same
testimonial privileges as judicial proceedings, it will not
serve McMann; he must erect a new privilege ad hoc. The
suppression of truth is a grievous necessity at best, more
especially when as here the inquiry concerns the public
interest; it can be justified at all only when the opposed
private interest is supreme.
87 F.2d at 378.
Friendly's opinion in United States v. Kovel,
296 F.2d 918 (2d Cir. 1961), which involved a grand jury
subpoena upon an accountant employed by attorneys, referred
to the Wigmore proposition as one of two opposing principles,
whose proper resolution in a given case requires careful
factual analysis. Judge Friendly said:
Decision under what circumstances, if any, the
attorney-client privilege may include a communication to a
nonlawyer by the lawyer's client is the resultant of two
conflicting forces. One is the general teaching that
"The investigation of truth and the enforcement of
testimonial duty demand the restriction, not the expansion,
of these privileges, " 8 Wigmore, Evidence
(McNaughton Rev. 1961), § 2192, p. 73. The other is the
more particular lesson "That as, by reason of the
complexity and difficulty of our law, litigation can only be
properly conducted by professional men, it is absolutely
necessary that a man should have recourse to the assistance
of professional lawyers, and it is equally necessary that he
should be able to place unrestricted and unbounded confidence
in the professional agent, and that the communications he so
makes to him should be kept secret." Jessel, M.R. in
Anderson v. Bank, 2 Ch.D. 644, 649 (1876).
296 F.2d at 920-21 (ellipsis omitted).
Kovel, the Second Circuit remanded the case to the
district court for an evidentiary hearing to ascertain the
particular circumstances resulting in the communications in
question. Judge Friendly's instruction in that respect
may be regarded as stating the law of the Circuit: "What
is vital to the privilege is that the communication be made
in confidence for the purpose of obtaining legal advice from
the lawyer." Id. at 922.
requisite elements of the two privileges Defendants invoke in
the case at bar are summarized in United States v.
Construction Products Research, Inc., 73 F.3d 464
To invoke the attorney-client privilege, a party must
demonstrate that there was: (1) a communication between
client and counsel, which (2) was intended to be and was in
fact kept confidential, and (3) made for the purpose of
obtaining or providing legal advice.
Respondents also assert a work-product privilege. To invoke
this privilege, a party generally must show that the
documents were prepared principally or exclusively to assist
in anticipated or ongoing litigation.
Id. at 473 (citations omitted).
Circuit cases place upon Defendants, who invoke these
privileges, the burden, which is demanding, of showing they
are entitled to do so. See, e.g., von Bulow by Auersperg
v. von Bulow, 811 F.2d 136 (2d Cir. 1987):
The law is clear in this circuit that a person claiming the
attorney-client privilege has the burden of establishing all
the essential elements thereof. That burden is not, of
course, discharged by mere conclusory or ipse dixit
assertions, for any such rule would foreclose meaningful
inquiry into the existence of the relationship, and any
spurious claims could never be exposed.
Id. at 146 (citations and internal quotation marks
instructions exist with respect to the manner in which a
claimant must establish the right to invoke one of these
evidentiary privileges. The sources of those instructions are
Fed.R.Civ.P. 26(b), Local Civil Rule 26(e) of this Court, and
Second Circuit opinions dealing with one or another aspect of
Civ. P. 26(b)(5) prescribes the procedure for "claiming
privilege or protecting trial-preparation materials"
(or, in Second Circuit parlance, claiming either or both
"privileges"). With respect to "Information
Withheld, " which is the subject matter of the present
motions, Rule 26(b)(5) provides that when a party withholds
discoverable information by claiming it is privileged or
protected, "the party must: (i) expressly make the
claim; and (ii) describe the nature of the documents,
communications, or tangible things not produced or disclosed
- and do so in a manner that, without revealing information
itself privileged or protected, will enable other parties to
assess the claim." Thus the Rule states in mandatory
terms a party's obligation to give prompt, specific and
detailed notice of a claim of privilege.
Advisory Committee's Notes to the 1993 Amendment identify
paragraph (5) of Rule 26(b) as "a new provision, "
and go on to say that the ...