A & R Body Specialty et al v. Progressive Ins Group Co et al

Filing 418

DISCOVERY RULING re: in camera review of challenged documents that have been redacted and/or withheld by plaintiffs based on claims of attorney-client privilege. Signed by Judge Holly B. Fitzsimmons on 2/19/2014.(Katz, Samantha)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
A&R BODY SPECIALTY AND
COLLISION WORKS, INC.,
FAMILY GARAGE, INC. and
THE AUTO BODY ASSOCIATION
OF CONNECTICUT on Behalf
of Themselves and all
Others Similarly Situated,
v.
PROGRESSIVE CASUALTY
INSURANCE COMPANY and
PROGRESSIVE DIRECT INSURANCE
COMPANY.

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CIV. NO. 3:07CV929 (WWE)

DISCOVERY RULING
Plaintiffs A&R Body Specialty and Collision Works, Inc.,
Family Garage, Inc. and the Auto Body Association of Connecticut
(“ABAC”), on behalf of themselves and all others similarly
situated (“plaintiffs”), have submitted for an in camera review
seventeen (17) documents that have been redacted and/or withheld
based on claims of the attorney-client privilege.

The Court has

conducted an in camera review of the documents at issue, and for
the reasons that follow, the Court overrules in part and
sustains in part the assertions of the attorney-client
privilege.
I.

LEGAL STANDARD
A. Attorney-Client Privilege
The attorney-client privilege protects confidential

communications between client and counsel made for the purpose
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of obtaining or providing legal assistance. United States v.
Constr. Prods. Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996).
The Court construes the privilege narrowly because it renders
relevant information undiscoverable; we apply it “only where
necessary to achieve its purpose.” Fisher v. United States, 425
U.S. 391, 403 (1976); see In re Grand Jury Investigation, 399
F.3d 527, 531 (2d Cir. 2005). The burden of establishing the
applicability of the privilege rests with the party invoking it.
In re Grand Jury Proceedings, 219 F.3d 175, 182 (2d Cir. 2000);
United States v. Int'l Bd. of Teamsters, Chauffeurs,
Warehousemen and Helpers of Am., AFL-CIO, 119 F.3d 210, 214 (2d
Cir. 1997).
The Court uses a three-pronged standard for determining the
legitimacy of an attorney-client privilege claim.

A party

invoking the attorney-client privilege must show (1) a
communication between client and counsel that (2) was intended
to be and was in fact kept confidential, and (3) was made for
the purpose of obtaining or providing legal advice. In re County
of Erie, 473 F.3d 413, 419 (2d Cir. 2007); Constr. Prods.
Research, Inc., 73 F.3d at 473.
B. Attorneys Acting as Lobbyists
“The fact that a lawyer occasionally acts as a lobbyist
does not preclude the lawyer from acting as a lobbyist and
having privileged communications with a client who is seeking
legal advice.”

In re Grand Jury Subpoenas, 179 F. Supp. 2d 270,

285 (S.D.N.Y. 2001).

However, “if a lawyer happens to act as a
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lobbyist, matters conveyed to the attorney for the purpose of
having the attorney fulfill the lobbyist role do not become
privileged by virtue of the fact that the lobbyist has a law
degree or may under other circumstances give legal advice on
matters that may also be the subject of the lobbying efforts.”
Id. (quoting Edna Selan Epstein, The Attorney-Client Privilege &
the Work Product Doctrine 239 (2001)); see also U.S. Postal
Serv. v. Phelps Dodge Refining Corp., 852 F. Supp. 156, 164
(E.D.N.Y. 1994) (“Lobbying conducted by attorneys does not
necessarily constitute legal services for purposes of the
attorney-client privilege.”).

Moreover, “Summaries of

legislative meetings, progress reports, and general updates on
lobbying activities do not constitute legal advice and,
therefore, are not protected by the work-product immunity.”

P.

& B. Marina, Ltd. P’ship v. Logrande, 136 F.R.D. 50, 59
(E.D.N.Y. 1991).

“If a lawyer who is also a lobbyist gives

advice that requires legal analysis of legislation, such as
interpretation or application of the legislation to fact
scenarios, that is certainly the type of communication that the
privilege is meant to protect.”

Robinson v. Texas Auto. Dealers

Ass’n, 214 F.R.D. 432, 446 (E.D. Tex. 2003), vacated in other
part, No.03-10860, 2003 WL 21911333, at *1 (5th Cir. July 25,
2003); see also Weissman v. Fruchtman, No. 83 Civ. 8958 (PKL),
1986 WL 15669, at *15 (S.D.N.Y. Oct. 31, 1986) (finding
attorney-client privilege properly invoked where client sought
legal advice on pending legislation).
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II.

DISCUSSION
A. Challenged Documents from Plaintiffs’ Privilege Log
1. Documents 1 and 2
The Court finds that document 1 (AUTOBODY-05461-05462) is

protected by the attorney-client privilege because it provides
confidential legal advice to the Auto Body Association of
Connecticut’s members.
Document 2 (WFP002) is not protected by the attorney-client
privilege because it contemplates disclosure of its contents to
a third party.

In fact, the correspondence from Attorney

Neigher provides talking points for use by the ABAC spokesman.
See In Re Bulow, 828 F.2d 94, 102 (2d Cir. 1987) (noting a
Second Circuit decision that held a conversation “was not
privileged because it was not intended to be confidential, but
was meant to be passed on to third parties.”).

Therefore,

plaintiffs shall produce a copy of document 2.
2. Documents 3 through 6
Documents 3 (WFP0005), 4 (WFP0006), 5 (WFP0007), and
6(WFP0008) reflect draft documents prepared by plaintiff’s
attorney-lobbyists and sent to ABAC for review. “[T]he fact the
document is sent to a third party ordinarily removes the cloak
of confidentiality necessary for protection under the attorneyclient privilege.”

U.S. Postal Serv., 852 F. Supp. at 162

(citing P. & B. Marina, 136 F.R.D. at 56).

Drafts of documents

“may be considered privileged if they were prepared with the
assistance of an attorney for the purpose of obtaining legal
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advice and/or contain information a client considered but
decided not to include in the final version.”

U.S. Postal

Serv., 852 F. Supp. at 163 (citation omitted); United States v.
New York Metro. Transp. Auth., No. CV-2004-4237(SLT)(MDG), 2006
WL 3833120, at *1 (E.D.N.Y. Dec. 29, 2006) (“Draft documents
ultimately sent to third parties retain their privilege if they
were prepared for the purpose of obtaining legal advice and/or
contain information a client considered but decided not to
include in the final version.”) (citation and internal
quotations omitted).
Document 3 (WFP0005) is a draft letter to Senator Joseph J.
Cisco, Jr., which pursuant to plaintiffs’ privilege log was
prepared by Attorney Parese for review by his client.

There is

no transmittal email from Attorney Parese attaching the draft
letter in plaintiffs’ submissions.

Documents 4 (WFP0006) and 6

(WFP0008)1 are drafts of testimony to be given by Attorney
Neigher to the Insurance and Real Estate Committee, which
pursuant to plaintiffs’ privilege log was provided to Attorney
Neigher’s client for review. These drafts do not contain
sufficient information to make a determination whether
confidential communications were eliminated from the final
document. Plaintiffs have the burden on the issue and have made

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Document 6 is a letter from Alan Neigher to Ken Przbysz, attaching a draft
of Attorney Neigher’s proposed testimony. Mike London, Tom Bivona, Bill
Denya, Attorney Ronald Aranoff, and Attorney David Slossberg are also copied
on the email. There is no legal advice requested, explicitly or implicitly,
in the cover letter. Indeed, “the mere fact that a communication is made
directly to an attorney, or an attorney is copied on a memorandum, does not
mean that the communication is necessarily privileged.” U.S. Postal Serv.,
852 F. Supp. at 160 (compiling cases).

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no such showing. Moreover, there is no indication that these
drafts were prepared for the purpose of obtaining legal advice.
Since plaintiffs have not met their burden of establishing the
privilege for these drafts, documents 3, 4 and 6 must be
produced.

See ECDC Envtl. v. New York Gen. Ins. Co., No.

96CIV.6033(BSJ)(HBP) 1998 WL 614478, at *10-11 (S.D.N.Y. June 4,
1998) (overruling assertion of attorney-client privilege for
draft documents where “no client confidences are apparent from
the documents themselves, and plaintiff has submitted no
evidentiary material suggesting the presence of confidential
client information that was ultimately maintained in
confidence.”); cf. Valente v. Lincoln Nat. Corp., No. 3:09cv693
(MRK), 2010 WL 3522495, at *4 (D. Conn. Sept. 2, 2010) (finding
draft of document privileged where it “was sent to counsel with
an implicit request to provide feedback and comments about the
draft.”).
Document 5 (WFP0007) is a facsimile transmittal from
Attorney Parese to ABAC, care of Tom Bivona, attaching Attorney
Parese’s proposed revisions to pending legislation.

The Court

finds that this draft, unlike those referenced above, is
protected by the attorney-client privilege because it reflects
not only proposed revisions, but also Attorney Parese’s
confidential legal analysis of, and advice regarding, the
pending legislation.

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B.

Challenged Documents from Third Party Gara & Markowski,
LLC’s Privilege Log
1.

Documents 7, 8 and 16

Documents 7 (G&M-000101-102), 8 (G&M-00175-176) and 16
(G&MWFP-6) are emails from lobbyist-attorney John Parese to ABAC
members.

The Court finds that these documents are not protected

by the attorney-client privilege as they do not provide analysis
or interpretation of legislation, and are more in the nature of
general lobbying activity updates. Plaintiffs shall provide
defendants with un-redacted copies of documents 7 and 8, and a
copy of document 16.
2.

Documents 9, 12, 14

The redactions on document 9 (G&M-0186-190) are protected
by the attorney-client privilege because they reflect analysis
and interpretation of pending legislation by Attorney Parese
(G&M-0186), and also discussion of such analysis by Attorney
Markowski (G&M-0188).

The redactions on document 12 (G&M0357-

389), and the entirety of document 14 (G&MWFP-4) are likewise
protected because they reflect confidential requests for legal
advice, and/or the attorney-lobbyist providing confidential
legal advice, including the interpretation or analysis of
legislation.
3.

Documents 10, 11, 13, 15, and 17

Documents 10 (G&M-0311-315) and 11 (G&M-0317-21) redact a
draft letter to Commissioner Tom B. Leonardi of the Connecticut
Department of Insurance. Pursuant to plaintiffs’ privilege log,

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the draft letter reflects revisions made by Attorney Parese for
review by the client. “A draft is not privileged simply because
it is prepared by an attorney.”
*10 (citation omitted).

ECDC Envtl., 1998 WL 614478, at

Here, again, no client confidences are

apparent from the redacted documents, and plaintiffs have
submitted no evidentiary material suggesting the presence of
confidential client information that was ultimately maintained
in confidence.

Moreover, there is no indication that these

drafts were prepared for the purpose of obtaining legal advice.
Since plaintiffs have not met their burden of establishing the
privilege for these drafts, un-redacted versions of documents 10
and 11 must be produced.
Document 13 (G&MWFP-3) is an email from Attorney Parese to
ABAC members, attaching draft letters to Senator Joseph J.
Crisco, and State Representatives Anthony J. D’Amelio and Steve
Fontana.

Document 15 (G&MWFP-5) is an email from Attorney

Parese to his client, attaching a draft letter to Commissioner
Thomas R. Sullivan of the Connecticut Department of Insurance.
Document 17 (G&MWFP-7) is also an email from Attorney Parese to
ABAC members, attaching a draft letter to Governor M. Jody Rell.
The Court disagrees that the transmittal emails contain legal
advice.

Moreover, like many of the other drafts at issue,

plaintiffs have failed to make a showing that these documents
were either prepared for the purpose of obtaining legal advice
and/or contain information a client considered but decided not
to include in the final version.

Accordingly, plaintiffs have
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failed to demonstrate that documents 13, 15, and 17 are
protected by the attorney-client privilege, and copies of these
documents must be produced to defendants.
III. Conclusion
Based on the foregoing, the Court overrules in part and
sustains in part the assertions of the attorney-client
privilege.

Plaintiffs shall produce copies of the unprotected

documents within fourteen (14) days of this order.
This is not a Recommended Ruling. This is a discovery
ruling or order which is reviewable pursuant to the “clearly
erroneous” statutory standard of review. 28 U.S.C. §
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 Court unless reversed or
modified by the district judge upon motion timely made.
SO ORDERED at Bridgeport this 19th day of February, 2014.

________/s/________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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