United States District Court, D. Connecticut
RULING ON DEFENDANT'S MOTION TO COMPEL
F. Martinez United States Magistrate Judge
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.) For the following reasons, defendant's
motion to compel is GRANTED IN PART AND DENIED IN PART.
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.)
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.
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
(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).
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
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).
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 ...