United States District Court, D. Connecticut
TIMOTHY G. MARTIN Plaintiff,
v.
TOWN OF SIMSBURY, ET AL. Defendants
ORDER ON MOTION FOR SUBJECT MATTER WAIVER OF
PRIVILEGE SANCTIONS AND COSTS
Kari
A. Dooley United States District Judge
Before
the Court is the Plaintiff, Timothy Martin's (the
“Plaintiff”) Motion for Subject Matter Waiver of
Privilege, Sanctions and Costs (ECF No. 97). He seeks an
order from the Court that all documents previously withheld
by the Defendants on the basis of attorney client privilege
be disclosed to him because the Defendants have intentionally
disclosed other privileged communications to him and have
therefore waived subject matter attorney-client privilege.
The Defendants object to any such order.
For
purposes of this motion, the Court accepts as accurate the
following averments by the parties. The Plaintiff went to the
Simsbury Town Hall and asked to see the file regarding the
real property that is the subject of this litigation. While
reviewing the file, he located an email exchange between the
town attorney and several of the defendants. The email was
not produced in discovery and, in fact, was withheld on the
basis of privilege. The Defendants were not aware that the
email exchange had been placed in the property file and when
the Plaintiff disclosed that he was in possession of the
emails, the Defendants requested that the document be
returned. The Plaintiff denied that request.
A
client may by his actions impliedly waive the attorney client
privilege, and “an attorney may, in appropriate
circumstances, possess an implied authority to waive the
privilege on behalf of his client. In re von Bulow,
828 F.2d 94, 101 (2d Cir. 1987) (quoting Drimmer v
Appleton, 628 F.Supp. 1249, 1251 (S.D.N.Y. 1986)).
Courts decide whether to find such an implied waiver based
upon fairness considerations. See In re Cty. of
Erie, 546 F.3d 222, 229 (2d Cir. 2008). The
so-called “fairness doctrine” aims “to
prevent prejudice to a party and distortion of the judicial
process that may be caused by the privilege-holder's
selective disclosure during litigation of otherwise
privileged information. Von Bulow, 828 F.2d at
101. “In other words, a party cannot partially
disclose privileged communications or affirmatively rely on
privileged communications to support its claim or defense and
then shield the underlying communications from scrutiny by
the opposing party.” In re Grand Jury
Proceedings, 219 F.3d 175, 182 (2d Cir. 2000).
“Whether fairness requires disclosure has been decided
by the courts on a case by case basis and depends primarily
on the specific context in which the privilege is
asserted.” Id. at 183.
But the
rule, designed to protect the party, the fact finder and the
judicial process “from selectively disclosed and
potentially misleading evidence does not come into
play” when the disclosures are extrajudicial and are
not placed at issue during litigation. John Doe Co. v.
United States, 350 F.3d 299, 306 (2d Cir. 2003); see
Von Bulow, 828 F.2d at 103 (“But where, as here,
disclosures of privileged information are made
extrajudicially and without prejudice to the opposing party,
there exists no reason in logic or equity to broaden the
waiver beyond those matters actually revealed.”)
Here,
unbeknownst to the Defendants, and by means unknown, the
privileged email exchange was placed in the public file where
it was discovered by the Plaintiff. The Defendants do not and
have not asserted or relied upon the document to advance
their claims in this litigation.[1] Indeed, they sought to
“claw back” the document when they learned of the
disclosure. This is a quintessential example of an
extrajudicial disclosure.
Accordingly,
the circumstances presented here do not implicate an implied
waiver of the Defendants attorney client privilege on the
subject matter of the Plaintiff's property or this
litigation. The motion for a finding of waiver and order of
production is therefore DENIED.
The
Plaintiff's motion for sanctions and costs is also
DENIED. The Plaintiff attaches a singular, very sinister,
meaning to the email exchange and asks this Court to
summarily sanction the Defendants. The Plaintiff's
interpretation of the emails is by no means the only
interpretation, and they do not, as asserted, constitute
conclusive evidence that the Defendants have litigated in bad
faith or committed fraud upon the courts as suggested.
SO
ORDERED
---------
Notes:
[1] To the contrary, the Plaintiff places
high evidentiary value on the document to support his
...