United States District Court, D. Connecticut
ORDER ON DISCOVERY DISPUTE
Robert
M. Spector United States Magistrate Judge
The
plaintiff, Vernon Horn, and defendants Leroy Dease, Petisia
Adger, and Daryle Breland (collectively, “Detective
Defendants”), have sought the Court's assistance in
resolving a discovery dispute. On June 18, 2019, the Court
ordered the parties to submit letter briefs explaining the
nature of their dispute (Doc. No. 83) and, on July 1, 2019,
the parties submitted their letter briefs (Doc. Nos. 85 &
86).[1]
This dispute revolves around documents that the plaintiff has
withheld from the Detective Defendants on the basis of the
attorney-client privilege and the work-product doctrine.
(See Doc. No. 85 at 1; Doc. No. 86 at 1).
The
Court held a telephonic discovery dispute conference on July
11, 2019, and directed the parties to meet and confer in an
attempt to narrow the number of documents at issue. (Doc.
Nos. 88 & 89). On July 23, 2019, counsel for the
Detective Defendants sent the Court a letter, which explained
that the parties' meet and confer session left at issue
“any documents that contain certain communications and
work product related to Plaintiff's investigation that
occurred prior to and during his criminal trial (if such
documents exist), as well as the subsequent investigation
while Plaintiff was incarcerated, which moreover, includes
investigative steps, notes, and statements secured by
Plaintiff's investigators.” (Doc. No. 91).
The
Court then held a second telephonic discovery dispute
conference on July 23, 2019. (Doc. No. 92). During this
conference, the plaintiff's counsel reiterated that, as
counsel agreed during the meet and confer sessions, the
plaintiff would produce the first two documents on the
plaintiff's privilege log. Also during the call, counsel
for the Detective Defendants confirmed that the defendants
would forgo their request for work product documents that
contained mental impressions and/or legal conclusions.
(See also Doc. No. 91). Counsel agreed that the
documents remaining in dispute were those that contained
factual information rather than mental impressions and legal
conclusions.
DISCUSSION
The
resolution of this dispute rests on whether the plaintiff has
impliedly waived the protections of the attorney-client
privilege and work product doctrine. The Detective Defendants
maintain that the “[p]laintiff has impliedly waived his
claimed privileges by asserting causes of action that put his
attorney-client communications and investigations at
issue.” (Doc. No. 85 at 4). The Detective Defendants
focus on the plaintiff's claim pursuant to Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963), arguing specifically that the plaintiff has put
“at issue what he knew or should have known through his
investigation and communications with witnesses about the
allegedly exculpatory evidence.” (Doc. No. 85 at 5).
The plaintiff responds that he has not put the privileged
documents at issue, as his “claims in this case do not
rely on the attorney work product doctrine as a sword[,
]” nor is he “selectively disclosing privileged
material or invoking his counsel's advice or
investigative efforts to prove his case.” (Doc. No. 86
at 4).
The
plaintiff adds, “Were the Court to find that Mr.
Horn's Brady claim impliedly waived the work
product privilege, the scope of that waiver would be limited
to the very narrow question [of] whether Mr. Horn and his
counsel had prior knowledge of the exculpatory evidence that
forms the basis of that claim.” (Doc. No. 86 at 4).
“Both
attorney-client privilege and work-product immunity
‘may implicitly be waived when [a party] asserts a
claim that in fairness requires examination of protected
communications.'” DeAngels v. Corzine, No.
11 Civ. 7866 (VM)(JCF), 2015 WL 585628, at *6 (S.D.N.Y. Feb.
9, 2015) (quoting United States v. Blizerian, 926
F.2d 1285, 1292 (2d Cir. 1991)); see also John Doe Co. v.
United States, 350 F.3d 299, 302 (2d Cir. 2003)
(“It is well established doctrine that in certain
circumstances, a party's assertion of factual claims can,
out of considerations of fairness to the party's
adversary, result in the involuntary forfeiture of privileges
for matters pertinent to the claims asserted.” (citing
United States v. Nobles, 422 U.S. 225, 95 S.Ct.
2160, 45 L.Ed.2d 141 (1975)). In other words, the
attorney-client privilege and work-product protection
“cannot at once be used as a shield and a sword.”
Blizerian, 926 F.3d at 1292; see also
DeAngels, 2015 WL 585628 at *6 (noting that “[t]he
‘fairness doctrine' analysis applies to waiver of
work-product protection just as it does to waiver of
attorney-client privilege.”). “Generally,
‘[c]ourts have found waiver by implication when a
client testifies concerning portions of the attorney-client
communication, . . . when a client places the attorney-client
relationship directly at issue, . . . and when a client
asserts reliance on an attorney's advice as an element of
a claim or defense. . . .'” In re Cty. of
Erie, 546 F.3d 222, 228 (2d Cir. 2008). “The key
to a finding of implied waiver in the third instance is some
showing by the party arguing for a waiver that the opposing
party relies on the privileged communication as a
claim or defense or as an element of a claim or
defense.” Id. (emphasis original). “The
assertion of an ‘advice-of-counsel' defense has
been properly described as a “quintessential
example” of an implied waiver of the privilege.”
Id.
“The
unfairness courts have found which justified imposing
involuntary forfeiture generally resulted from a party's
advancing a claim . . . while relying on its privilege to
withhold from a litigation adversary materials that the
adversary might need to effectively contest or impeach the
claim.” John Doe Co., 350 F.3d at 303. The
Second Circuit has “made it clear that ‘[w]hether
fairness requires disclosure has been decided . . . on a
case-by-case basis, and depends primarily on the specific
context in which the privilege is asserted.'”
In re Cty. of Erie, 546 F.3d 222, 229 (2d Cir. 2008)
(quoting In re Grand Jury Proceedings, 219 F.3d 175,
183 (2d Cir. 2000)).
Here,
the plaintiff impliedly waived the work-product protection
with respect to the claimed Brady material; namely,
the 137 pages of phone records that were discovered in
Detective Adger's basement. To prove his Brady
claim, the plaintiff will have to establish, inter
alia, that he and his criminal trial counsel did not
know or have reason to know of the allegedly exculpatory
phone records at the time of his criminal trial. If there
exists evidence establishing the plaintiff's or his
criminal trial counsel's knowledge of the phone records
at the time of the criminal trial, the defendants would
likely seek to use that information to defend against the
Brady claim. Therefore, to the extent that the
plaintiff has withheld any work-product materials that
concern his or his trial counsel's knowledge of the
allegedly exculpatory phone records, such materials shall be
disclosed to the Detective Defendants.
Outside
of the narrow category of materials described in the
preceding paragraph, the undersigned concludes that the
plaintiff has not impliedly waived the protections of the
attorney-client privilege or the work-product doctrine. The
other claims that the plaintiff is asserting- specifically,
fabrication of evidence-do not put at issue his or his
counsel's knowledge of the fabrication and, therefore,
“[a]ssertions of fabrication do not give rise to waiver
of the attorney-client privilege or work-product protection .
. . .” Truman v. City of Orem, 362 F.Supp.3d
1121, 1128 (D. Utah 2019). Although the plaintiff's
counsel may have learned relevant information through his
investigator's conversations with witnesses, that is not
sufficient to put the protected materials “at
issue.” Moreover, there is nothing preventing the
Detective Defendants from deposing the witnesses with whom
the plaintiff's counsel and investigators spoke regarding
the allegedly withheld and/or fabricated evidence.
Accordingly, the plaintiff's claims of fabrication of
evidence do not put any work-product materials at issue.
CONCLUSION
For the
reasons stated above, the plaintiff shall produce to the
Detective Defendants any withheld documents that contain
information regarding the plaintiff's or the
plaintiff's criminal trial counsel's knowledge of the
allegedly exculpatory phone records, as the plaintiff
impliedly waived the work-product protection with respect to
these documents. The plaintiff shall produce these documents
to the Detective Defendants on or before September 13,
2019. If none of the withheld documents contain
information regarding the plaintiff's or the
plaintiff's criminal trial counsel's knowledge of the
allegedly exculpatory phone records, then, on or before
September 13, 2019, the plaintiff's counsel
shall file a notice certifying that the withheld documents do
not contain the information subject to the waiver. The
plaintiff need not produce any other documents contained on
the privilege log.
This is
not a Recommended Ruling. This is an order regarding
discovery which is reviewable pursuant to the “clearly
erroneous” statutory standard of review. See
28 U.S.C. ยง 636(b)(1)(A); Fed.R.Civ.P. 72(a); and D.
Conn. L. Civ. R. 72.2. As such, it is an order of the ...