United States District Court, D. Connecticut
ANTECH DIAGNOSTICS, INC.
VETERINARY ONCOLOGY AND HEMATOLOGY CENTER, LLC, and GERALD POST VETERINARY ONCOLOGY AND HEMATOLOGY CENTER, LLC, and GERALD POST
VCA, INC., VCA ANIMAL HOSPITALS, INC., and MANHATTAN VETERINARY GROUP, P.C.
RULING ON MOTION TO COMPEL [Doc. #171]
SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE.
Antech Diagnostics, Inc. (“Antech”), and third
party defendants VCA, Inc. (“VCA”), VCA Animal
Hospitals, Inc. (“VCAAH”), and Manhattan
Veterinary Group, P.C. (“MVG”) (Antech, VCA,
VCAAH, and MVH are hereinafter sometimes collectively
referred to as the “VCA parties”) have filed a
Motion to Compel Documents Contained on Defendants'
Privilege Log [Doc. #171]. On February 14, 2018, Judge Alvin
W. Thompson referred the motion to compel to the undersigned.
[Doc. #173]. Defendants and third party plaintiffs Veterinary
Oncology and Hematology Center, LLC d/b/a The Veterinary
Cancer Center (“VCC”) and Dr. Gerald Post
(“Dr. Post”) (VCC and Dr. Post are hereinafter
sometimes collectively referred to as the “VCC
parties”) have filed a response in opposition to the
VCA parties' motion to compel. [Doc. #174]. As will be
discussed below, the parties submitted additional
cross-briefing on two issues relating to the VCC parties'
claims of privilege. See Docs. #195, #196, #202,
#203. After considering the parties' written submissions,
as well as conducting an in camera review of certain
emails withheld on the grounds of the attorney-client
privilege, the Court GRANTS plaintiff's
Motion to Compel Documents Contained on Defendants'
Privilege Log [Doc. #171], as limited by the
parties' cross briefing [Docs. #195, #196, #202, #203].
Court presumes familiarity with the general procedural and
factual background of this matter, and outlines the
procedural history only as relevant to the current dispute.
February 12, 2018, the VCA parties filed a motion to compel
the production of all documents identified on the VCC
parties' privilege log. [Doc. #171]. In that motion, the
VCA parties sought to compel production of each document
listed in the VCC parties' privilege log because that log
allegedly did not comply with the Federal or Local Rules of
Civil Procedure. See generally Id. at 1-2. The VCA
parties also contended that many of the documents claimed as
privileged are not, and that the VCC parties had failed to
meet their burden of establishing privilege. See generally
Id. at 2, 16-21. On March 5, 2018, the VCC parties
filed a memorandum in opposition to the motion to compel.
[Doc. #174]. In addition to responding to the substance of
the motion, the VCC parties contended that the VCA parties
had failed to complete the meet and confer process as
required by Local Rule 37. See Id. at 4-7.
review of the VCC parties' response, the Court entered an
Order on March 6, 2018, requiring counsel to meet and confer,
in person, on or before March 16, 2018. See Doc. #175. The
Court further ordered that on or before the close of business
on March 21, 2018, counsel file a joint status report
identifying any issues remaining for Court intervention.
March 21, 2018, the parties filed the joint status report as
directed, along with a request to submit additional briefing.
[Doc. #184]. The parties reported that they had successfully
resolved many of the issues raised in the motion to compel
and that the VCC parties had submitted a revised privilege
log. See Id. at 2. The parties further represented
that only two issues remained for the Court's
consideration: (1) “whether inclusion of registered
investment advisors ... on [certain] documents and
communications vitiates and/or otherwise results in a waiver
of the attorney-client privilege[;]” and (2)
“whether the marital communications privilege applies
to ... [certain] documents ... [which] were authored before
Mr. Duchemin and Dr. Post were married.” Id.
In light of the narrowed issues presented, and the
“importance” of those issues, the parties
requested permission to submit additional briefing, and
proposed a briefing schedule. Id.
March 22, 2018, the Court granted the parties' request to
submit additional briefing on the two issues identified in
the parties' joint status report. See Doc. #185. The
Court adopted the parties' proposed briefing schedule,
and ordered that opening cross briefs be filed on or before
April 13, 2018, and that cross response briefs be filed on or
before April 27, 2018. See Id. As directed, the
parties filed their cross opening briefs on April 13, 2018,
[Docs. #195, #196], and cross responses on April 27, 2018
[Docs. #202, #203].
April 26, 2018, the Court ordered that the VCC parties submit
for the Court's in camera review the thirteen emails
listed on pages 4 and 5 of the VCA parties' opening
brief. See Doc. #201. The Court received those documents by
email on April 27, 2018.
turning to the instant dispute, the Court first considers the
law applicable to the claims of privilege.
LAW OF FORUM TO BE APPLIED
brings this breach of contract action in federal court based
on diversity jurisdiction. See generally Doc. #1. “[I]n
a diversity case, the issue of privilege is to be governed by
the substantive law of the forum state[.]” Dixon v.
80 Pine St. Corp., 516 F.2d 1278, 1280 (2d Cir. 1975);
accord Application of Am. Tobacco Co., 880 F.2d
1520, 1527 (2d Cir. 1989); see also Safeco Ins. Co. of
Am. v. Vecsey, 259 F.R.D. 23, 27-28 (D. Conn. 2009)
(“Where, as here, a federal court's subject-matter
jurisdiction is premised on diversity of citizenship, the
court must apply state law to privilege issues.”
(footnote, citation, and internal quotation marks omitted)).
parties do not appear to dispute that Connecticut law applies
to the issues of privilege now before the Court. See Doc.
#195at 5-6, n.2; Doc. #196 at 4-5. Nevertheless, the Court
notes that the VCC parties have filed an amended counterclaim
and third-party complaint against the VCA parties. See Doc.
#138. That pleading alleges subject matter jurisdiction
arising from both diversity of citizenship and the existence
of a federal question. See Id. at 6. Of the fourteen
counts brought, one alleges a federal claim - specifically, a
violation of the Sherman Act. See Id. at 29-31. Each
of the other thirteen counts alleges a state law claim. See
generally Doc. #138. “A counterclaim that raises a
federal question will ... bring a case within the purview of
federal privilege law.” Baker's Aid, a Div. of M.
Raubvogel Co. v. Hussmann Foodservice Co., No.
87CV0937(JMM), 1988 WL 138254, at *3 (E.D.N.Y. Dec. 19,
1988). However, “to determine whether federal common
law or the Connecticut state statute applies to the privilege
asserted ... a district court in a federal proceeding must
examine the claims for which the discovery is sought and the
basis for the Court's jurisdiction.” Tavares v.
Lawrence & Mem'l Hosp., No. 3:11CV770(CSH), 2012
WL 4321961, at *5 (D. Conn. Sept. 20, 2012).
it does not appear that the discovery in dispute relates to
the Sherman Act claim. That claim alleges that “VCA has
a dominant and near or actual monopolistic position in the
relevant geographic and services market[, ]” and has
“unlawfully directed the hospitals it owned or
controlled in Connecticut refused to deal with VCC.”
Doc. #138 at 30 (sic). The parties do not connect their
arguments as to the privilege issues to this claim in any
and in light of the parties' apparent consensus that
Connecticut law applies to the present dispute, the Court
will apply Connecticut law to the claims of privilege
asserted by the VCC parties. See also Fed.R.Evid. 501
(“[I]n a civil case, state law governs privilege
regarding a claim or defense for which state law supplies the
rule of decision.”).
parties ask the Court to compel the production of
communications between two categories of persons: First,
between the VCC parties, their attorneys, and their financial
advisors; and second, between Dr. Post and his now husband,
David Duchemin. See generally Docs. #171, #195, #203. The VCC
parties vigorously oppose the motion to compel, and maintain
that valid privileges protect the communications from
disclosure. See generally Docs. #174, #196, #202.
Inclusion of Third Parties on Attorney-Client
turning to the parties' substantive arguments, the Court
first reviews the general principles applicable to claims of
the attorney-client privilege in Connecticut.
Attorney-Client Privilege, Generally
a general rule, communications between client and attorney
are privileged when made in confidence for the purpose of
seeking legal advice.” Blumenthal v. Kimber Mfg.,
Inc., 826 A.2d 1088, 1095 (Conn. 2003) (citation
omitted). “In Connecticut, the attorney-client
privilege protects both the confidential giving of
professional advice by an attorney acting in the capacity of
a legal advisor to those who can act on it, as well as the
giving of information to the lawyer to enable counsel to give
sound and informed advice.” Olson v. Accessory
Controls & Equip. Corp., 757 A.2d 14, 22 (Conn.
2000) (citation omitted). “To invoke the
attorney-client privilege, a communication must satisfy four
criteria: (1) the attorney participating in the communication
must be acting in a professional capacity as an attorney; (2)
the communication must be between the attorney and the
client; (3) the communication must be for the purpose of
providing legal advice; and (4) the communication must be
made in confidence.” Kent Literary Club v. Wesleyan
Univ., No. CV-15-6013185, 2016 WL 2602274, at *2 (Conn.
Super. Ct. Apr. 12, 2016).
the privilege has the effect of withholding relevant
information from the factfinder, it applies only where
necessary to achieve its purpose.” Shew v. Freedom
of Info. Comm'n, 714 A.2d 664, 670 (Conn. 1998).
“[T]he privilege is strictly construed.” PSE
Consulting, Inc. v. Frank Mercede and Sons, Inc., 838
A.2d 135, 167 (Conn. 2004).
burden of proving each element of the privilege, by a fair
preponderance of the evidence, rests with the [party] seeking
to assert it.” Blumenthal, 826 A.2d at 1096; see also
State v. Hanna, 191 A.2d 124, 130 (Conn. 1963)
(“The burden of proving the facts essential to the
privilege is on the person asserting it.”). “That
burden is discharged by the presentation of evidence in the
form of testimony or affidavit concerning the document's
content and use.” Babcock v. Bridgeport Hosp.,
742 A.2d 322, 355 (Conn. 1999).
Inclusion of Third Parties on Attorney-Client
the Connecticut Supreme Court has “acknowledged that
statements made in the presence of a third party are usually
not privileged because there is then no reasonable
expectation of confidentiality[, it] ha[s] recognized that
the presence of certain third parties who are agents or
employees of an attorney or client, and who are necessary to
the consultation, will not destroy the confidential nature of
the communications.” Olson, 757 A.2d at 22
(emphasis added) (internal citations and quotation marks
omitted); accord Leone v. Fisher, No.
3:05CV521(CFD)(TPS), 2006 WL 2982145, at *5 (D. Conn. Oct.
18, 2006) (“Connecticut courts also require necessity,
noting that, the presence of certain third parties ... who
are agents or employees of an attorney or client, and who are
necessary to the consultation, will not destroy the
confidential nature of the communications.” (citation
omitted)). Said another way, “[t]he presence of third
parties generally destroys the confidentiality of a
communication, precluding a claim of privilege. This rule
does not apply, however, when the presence of the third
parties is required to achieve the purpose of the
communication.” State v. Mark R., 17 A.3d 1, 7
Summary of Arguments
parties contend that the Court should compel the VCC parties
to produce any alleged attorney-client communication that has
been disclosed to third parties. See Doc. #171-1 at 20-21.
Specifically, the VCA parties assert that several
attorney-client communications were also sent to the VCC
parties' financial advisors, thereby vitiating any
attorney-client privilege. See Id. at 21. The VCC
parties respond: “The very nature of the relationship
between an individual and their financial advisor warrants
the inference that the parties intended for the
communications to remain confidential, just as they intended