United States District Court, D. Connecticut
ORDER ON DISCOVERY DISPUTE
A. BOLDEN UNITED STATES DISTRICT JUDGE.
Doe (“Plaintiff”) has sued The Hotchkiss School
(“Defendant” or “Hotchkiss”) for,
among other things, negligence and fraudulent concealment of
severe sexual abuse.
seeks a supplemental privilege log from Hotchkiss that sets
out specific information for each item currently withheld
from production on the basis of privilege, e.g., its
author, recipient, creation date or receipt date, among
various other characteristics.
reasons that follow, the Court ORDERS that
Hotchkiss provide to the Court the disputed documents for
in camera review.
sued Hotchkiss in February 2015. ECF No. 1. The parties have
since been engaged in a lengthy and fraught course of
discovery, which has yet to conclude.
one year after Mr. Doe sued Hotchkiss, Hotchkiss's
outside counsel, Wiggin & Dana LLP, retained Carlton
Fields to conduct an investigation of reports of sexual
misconduct by members of the Hotchkiss faculty and staff.
February 7, 2018, Mr. Doe served a subpoena on Carlton Fields
seeking “[a]ll communications, statements, or
information received in connection with the
‘independent investigation' concerning reports of
sexual misconduct and/or inappropriate ‘hazing'
behavior towards any Hotchkiss student or employee that
occurred prior to April 8, 1987.” Hotchkiss moved for a
protective order or to quash the subpoena Mr. Doe served on
Carlton Fields. See Hotchkiss School v.
Doe, 3:18-mc-00037 (VAB), ECF No. 15.
considering oral and written submissions from the parties, on
May 9, 2018, the Court issued an Order directing the parties
submit jointly a stipulation providing for the production of:
(a) documents related to and prepared during the relevant
time period for Mr. Doe's lawsuit and in the possession
of the law firm of Carlton Field as a result of its pending
investigation of sexual misconduct at Hotchkiss prompted by
this litigation; and (b) a privilege log accounting for and
describing any other material or information sought by Mr.
Doe but claimed by Hotchkiss to be protected by the
attorney-client privilege, the work product doctrine, or any
other relevant privilege, including, but not limited to, the
names, dates, or any other identifying information of
witnesses probative of Mr. Doe's case, consistent with
Federal Rule of Civil Procedure 26(b)(5).
22, 2018, the parties jointly moved for a discovery
conference to address a lingering dispute between the parties
over (1) the sufficiency of Hotchkiss's privilege log
produced under the Court's May 23, 2018, Scheduling
Order; and (2) the completeness of Hotchkiss's production
of documents produced under that same Scheduling Order. ECF
parties were provided with an opportunity to file written
submissions with the Court, and on July 24, 2018, the Court
heard oral argument. ECF Nos. 200, 201, 205, 206, 208, 209,
may obtain discovery regarding any nonprivileged matter that
is relevant to any party's claim or defense and
proportional to the needs of the case . . . .”
Fed.R.Civ.P. 26(b)(1). Even after the 2015 amendments to the
Federal Rules of Civil Procedure, “[r]elevance is still
to be construed broadly to encompass any matter that bears
on, or that reasonably could lead to other matter that could
bear on any party's claim or defense.” Bagley
v. Yale Univ., No. 3:13-cv-1890 (CSH), 2015 WL 8750901,
at *7 (D. Conn. Dec. 14, 2015) (citing State Farm Mut.
Automobile Ins. Co. v. Fayda, No. 14-cv-9792, 2015 WL
7871037, at *2 (S.D.N.Y. Dec. 12, 2015)). This Court has
“wide latitude to determine the scope of
discovery.” In Re Agent Orange Product Liability
Litig., 517 F.3d 76, 103 (2d Cir. 2008); see also
Mirra v. Jordan, No. 13-cv-5519, 2016 WL 889683, at *2
(S.D.N.Y. Feb. 23, 2016) (“Motions to compel are left
to the court's sound discretion.”).
Second Circuit precedent, 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.” Musco Propane, LLP v. Town of
Wolcott, No. 3:10-CV-1400 JCH, 2011 WL 6300235, at *1
(D. Conn. Dec. 15, 2011) (internal quotation marks omitted)
(quoting In re County of Erie, 473 F.3d 413, 419 (2d
Cir. 2007)). “The work product doctrine protects the
discovery of memoranda, correspondence, briefs, mental
impressions and personal beliefs prepared in anticipation of
litigation. Buck v. Indian Mountain Sch., No. 15 CV
123 (JBA), 2017 WL 421648, at *2 (D. Conn. Jan. 31, 2017)
(citing Hickman v. Taylor, 329 U.S. 495, ...