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Polk v. Sherwin-Williams, Co.

United States District Court, D. Connecticut

June 4, 2018

JOHN POLK, Plaintiff,


          Donna F. Martinez United States Magistrate Judge

         Plaintiff, John Polk (“Polk”), filed this lawsuit against his former employer, the Sherwin-Williams Company (“Sherwin-Williams”), claiming racial discrimination and retaliation in violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e, et seq., and the Connecticut Fair Employment Practices Act, Conn. Gen. Stat. 46a-60, et seq. (Doc. #1.) Pending before the court is Sherwin-Williams' motion to compel. (Doc. #45.)[1] For the following reasons, defendant's motion to compel is GRANTED IN PART AND DENIED IN PART.

         I. Background

         Sherwin-Williams terminated Polk's employment on February 24, 2015. (Doc. #27 at 4.) On April 17, 2015, Attorney Robert M. Fortgang of Robert Fortgang Associates, LLC (“Fortgang”), then counsel for Polk, wrote a letter to Sherwin-Williams. Attorney Fortgang said that Polk had been wrongfully terminated and requested “negotiation, the ultimate objective of which would be the execution of a Severance Agreement and Release of All Claims.” (Id.) The parties apparently engaged in settlement negotiations for several months. At some point, Polk decided to retain new counsel, Attorney John Williams, and on September 1, 2016, Polk filed this lawsuit. (Id. at 4-6.)

         On October 18, 2016, Sherwin-Williams filed a “motion to enforce” an un-executed settlement agreement allegedly entered into by the parties before the lawsuit was filed. (Doc. #20.) The court, treating the motion as a motion for summary judgment based on a defense of release, denied the motion, holding that a reasonable juror could find that the parties did not intend to be bound by the settlement agreement until it was signed. (Doc. #27 at 1.) The court ordered defendant to answer the complaint, and the parties thereafter engaged in discovery.

         In its Amended Answer and Affirmative Defenses, defendant asserted as its fourteenth affirmative defense the following:

Plaintiff has already fully settled his claims with Defendant, and released all claims against Defendant, including, but not limited to, its officers, affiliates, employees, and subsidiaries, relating to his employment with Defendant and separation therefrom.

(Doc. #32 at 5.) On August 1, 2017, defendant served a subpoena duces tecum (doc. #45-2) on plaintiff's former counsel, Fortgang, seeking:

documents and communications that may show, among other things, that Plaintiff actually signed the agreement, that he intended to be bound by the terms of the agreement (with or without an executed copy), or that he agreed to all of the terms of the written agreement provided by Defendant to Fortgang Associates.

(Doc. #45-1 at 6.) The same day, plaintiff filed an “emergency” motion for protective order, which the court denied on August 2, 2017, without prejudice for failure to comply with discovery dispute procedures. (Doc. #38.) Thereafter, Fortgang served objections to the subpoena, objecting on grounds of attorney-client and attorney work product privileges, and provided a privilege log. (Doc. #45-8 and ##45-3.) Plaintiff adopted the privilege log submitted by his former counsel, with certain revisions. (Doc. #46 at 7-15.) The parties submitted correspondence to the court in accordance with its discovery dispute procedures, and after the parties were unable to arrive at an informal solution during a telephone conference with the court, the defendant filed a motion to compel (doc. #45), to which plaintiff objected (doc. #46).

         Upon review of the parties' papers, the court ordered plaintiff to produce the documents in question for in camera review. (Doc. #44, #47, #50 - #53.) On February 24, 2018, plaintiff submitted for review 105 hand-numbered documents.[2]

         II. Legal Standard

         “Where, as here, there is federal question jurisdiction, the court must apply federal common law with respect to attorney-client privilege. Fed. R.Evid. 501.” Leone v. Fisher, No. 3:05CV521 (CFD)(TPS), 2006 WL 2982145, at *3 (D. Conn. Oct. 18, 2006). “The privilege protects not only the advice of the attorney to the client, but also the information communicated by the client that provides a basis for giving advice.” Chen-Oster v. Goldman, Sachs & Co., 293 F.R.D. 547, 554 (S.D.N.Y. 2013). “[I]n order 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.” Rapkin v. Rocque, 87 F.Supp.2d 140, 143 (D. Conn. 2000) (internal quotation marks omitted). “It is axiomatic that the burden is on a party claiming the protection of a privilege to establish those facts that are the essential elements of the privileged relationship . . . a burden not discharged by mere conclusory or ipse dixit assertions.” In re Grand Jury Subpoena Dated Jan. 4, 1984, 750 F.2d 223, 224-25 (2d Cir. 1984). “Any ambiguities as to whether the essential elements have been met are construed against the party asserting the privilege.” Koumoulis v. Indep. Fin. Mktg. Group, Inc., 295 F.R.D. 28, 38 (E.D.N.Y. 2013), aff'd, 29 F.Supp.3d 142 (E.D.N.Y. 2014).

         “The work product doctrine is distinct from and broader than the attorney-client privilege.” United States v. Nobles, 422 U.S. 225, 238 n. 11 (1975) (citing Hickman v. Taylor, 329 U.S. 495, 508 (1947)). The work product doctrine shields from disclosure documents and other materials prepared in anticipation of litigation or trial by a party or a party's representative, absent a showing of substantial need and the inability to obtain the substantial equivalent without undue hardship. Fed.R.Civ.P. 26(b)(3)(A); see also In re Grand Jury Subpoenas Dated Oct. 22, 1991 and Nov. 1, 1991, 959 F.2d 1158, 1166 (2d Cir. 1992). “Where a document was created because of anticipated litigation, and ...

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