Vidal et al v. Metro-North Commuter Railroad Company
Filing
105
ORDER: For the reasons set forth in the attached Ruling, the Court upholds in part and overrules in part Defendant's objections 102 to the production of the 47 documents listed in its privilege log. The documents shall be produced in accordance with this Ruling no later than 14 days from the date of this Order. The Court denies 104 Plaintiffs' Motion for Attorney Fees. Signed by Judge William I. Garfinkel on 2/4/2014. (Smith, M.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ROBERT VIDAL and
HOLGER OCANA,
:
:
Plaintiffs,
:
vs.
No. 3:12cv0248(MPS)(WIG)
:
METRO-NORTH COMMUTER RAILWAY
COMPANY,
:
Defendant.
:
---------------------------------------------------------------X
RULING ON DEFENDANT’S OBJECTIONS
TO PLAINTIFFS’ REQUEST FOR PRODUCTION
Plaintiffs, Robert Vidal and Holger Ocana, have bought this employment discrimination
suit against their employer, Metro-North Commuter Railway Company, alleging that Defendant
discriminated against them on the basis of their national origin, ethnicity, and color, in violation
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., in denying their
applications to Defendant’s Foreman In Training (“FIT”) Program. Now pending before the
Court are Plaintiffs’ challenges to 47 of the 52 designations of privilege by Defendant on its
privilege log, produced in response to Request No. 8 in Plaintiffs’ Third Request for the
Production of Documents.
Background
In Request No. 8, Plaintiffs requested Defendant to produce: “All documents, whether in
writing or electronic form, including but not limited to correspondence, internal memoranda,
equal opportunity policies, workforce diversity policies, affirmative action programs, drafts and
1
training programs, concerning any consulting services provided to defendant by all outside
consultants from 2003 to 2006.” Initially, Defendant objected to this request on the ground that
it was overbroad, unduly burdensome, vague, and not reasonably calculated to lead to the
discovery of admissible evidence. Defendant further objected on the ground that it sought
documents protected from disclosure by the attorney-client privilege and/or work-product
doctrine. In a supplemental response, Defendant reiterated its objections but produced certain
documents pertaining to the retention of a consultant in connection with the non-monetary
portion of Defendant’s settlement of a prior Class Action lawsuit, as well as a copy of his report.
Pursuant to an earlier Court order, Defendant also produced a privilege log setting forth 52
documents which it claimed were protected from disclosure by the attorney-client privilege or the
work-product doctrine. Plaintiffs have challenged 47 of the 52 privilege claims.
Some factual background is necessary to an understanding of the issues presented.
Following resolution of the Class Action,1 as required by the settlement agreement, Metro-North
retained Samuel Estreicher, Esq., in April 2003 as a consultant to provide advice concerning
Metro-North’s human resources policies. The Settlement Agreement and Request for Proposal
provided that the consultant would review Metro-North’s policies and make written
1
The Class Action arose out of two lawsuits, Robinson et al. v. Metro-North Commuter
Railroad Co., and Norris, et al. v. Metro-North Commuter Railroad Co., filed in 1994 and 1995,
respectively, in the U.S. District Court for the Southern District of New York. According to Mr.
Estreicher’s report, discussed infra, they alleged, inter alia, claims of race discrimination in
promotions and discipline. “In sum, they contended that African-American employees were
significantly less likely than Caucasian employees to be promoted, and African-American
employees were disciplined significantly more often than Caucasian employees.” (Estreicher
Report at 3). The cases were consolidated and a class certified consisting of African
American/Black employees actively employed by Metro-North at any time during the period
from January 1, 1985, to June 30, 2002. (Id. at 4).
2
recommendations with respect to the following: recruitment, hiring, training programs, job
posting, discipline, and EEO policy statement. The work consisted of three phases: information
and data gathering, submission of the written report, and, if required, providing assistance in
implementation. Additionally, as part of the settlement of these two lawsuits, Metro-North was
required to establish a Human Resources Review Committee (“HRRC”) to review Metro-North’s
hiring and promotion processes and its disciplinary processes.
Between 2003 and 2005, Estreicher provided Metro-North with various drafts of his
report, to which Metro-North’s Deputy General Counsel, Carol Sue Barnett, issued comments
and a response, and solicited comments from the General Counsel, the head of Human
Resources, and various members of the HRRC. Defendant has asserted an attorney-client
privilege and/or claim of work-product as to all of the drafts of Estreicher’s Report, as well as the
comments and responses.
Additionally, during this time period the HRRC was meeting on a regular basis to review
the hiring, promotion, and disciplinary practices of Metro-North. The HRRC consisted of the
Vice President of Human Resources and Diversity, the Director of Workplace Diversity, the
Director of Labor Relations, the Director of Human Resources, and management employees from
three major operations of transportation service departments. Generally, Barnett and Estreicher,
and occasionally another attorney from Estreicher’s law firm, were in attendance. Defendant has
refused to produce the actual minutes of these meetings and the draft minutes of these meetings
again based upon attorney-client privilege and/or the work-product doctrine.
In October 2005, Estreicher issued his report, which set forth an initial set of
recommendations concerning Metro-North’s employment practices, “[b]ased on a careful review
3
of relevant pleadings and other materials presented in the consolidated Class Action, the
Company’s written employment policies, interviews with senior management officials at MetroNorth, regular attendance at meetings of the Committee [the HRRC], consultation with Class
Counsel and his expert at a specially scheduled meeting, review of arbitration awards rendered
pursuant to the Stipulation and ongoing discussions with the Committee, and without any
suggestion that these steps are legally required.” (Id. at 5-6) (emphasis added). As noted above,
this report has been produced to Plaintiffs’ counsel in this litigation and also to Class Counsel in
the Class Action.
Discussion
The 47 documents that have been submitted to the Court for its in camera review have
been categorized by Defendant as follows:
(1) 10 documents that are communications between Estreicher and Barnett;
(2) 14 documents that are internal correspondence between Barnett and MetroNorth’s legal or human resources personnel pertaining to Estreicher’s consultancy
and the execution of the terms of the Stipulation of Settlement;
(3) 18 documents that are draft minutes or minutes of the HRRC; and
(4) 5 documents that are are draft responses, comments or notes regarding
Estreicher’s report and Metro-North’s response created by Barnett.
I. Relevance
Initially, Defendant objects to production of these documents on the ground that they are
not relevant to the instant lawsuit. The Federal Rules establish a broad scope of permissible
discovery. See Marchello v. Chase Manhattan Auto Fin. Corp., 219 F.R.D. 217, 218 (D. Conn.
4
2004). Rule 26(b)(1), Fed. R. Civ. P., provides in relevant part that “[p]arties may obtain
discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense. . . .
Relevant information need not be admissible at the trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence.”
In this case, Plaintiffs have asserted disparate impact claims based upon Defendant’s
failure to promote them into the FIT Program in 2006. The Class Action also involved claims of
discrimination in promotions. Moreover, Defendant has asserted as an affirmative defense, inter
alia, that Plaintiffs’ complaint is barred because Defendant maintained a policy prohibiting
discrimination, a procedure for the resolution of discrimination complaints, and Defendant
exercised reasonable care to prevent and correct any discriminatory conduct. By raising this
affirmative defense concerning its internal policies to prevent and resolve claims of
discrimination, Defendant has placed its policies concerning discrimination at issue. Estreicher’s
final report was issued in late 2005. Plaintiffs allege a failure to promote in 2006. The Court
finds that, in general, the documents withheld are relevant, as that term is defined by Rule
26(b)(1), Fed. R. Civ. P., to the claims asserted in this case2 and overrules Defendant’s
objection.3
The Court, however, has ordered the redaction of certain sections of the documents where
the information is totally irrelevant to this case. These redactions primarily concern sensitive and
personal information about other Metro-North employees that has absolutely no bearing on this
2
In fact, several of the documents (Docs. 15, 16) discusses the FIT Program.
3
The Court appreciates Plaintiffs’ arguments concerning Defendant’s boilerplate
objections. However, having found that the documents are relevant, the Court need not address
this argument except to the extent it pertains to Plaintiffs’ request for attorney’s fees.
5
case.
II. The “Consulting Expert” Rule
Defendant next invokes what is commonly referred to as the “consulting expert” rule
described in Rule 26(b)(4)(D), Fed. R. Civ. P., pertaining to “experts employed only for trial
preparation,” i.e., an expert “who has been retained or specially employed by another party in
anticipation of litigation or to prepare for trial and who is not expected to be called as a witness
at trial.” Estreicher was retained after the Class Action was settled and judgment entered. He
was not retained in anticipation of this litigation or to prepare for the trial of this action.
Additionally, Defendant has already produced his report, which generally waives the protections
afforded a non-testifying expert by Rule 26(b)(4)(D), Fed. R. Civ. P. See Agron v. Trustees of
Columbia Univ., 176 F.R.D. 445, 449 (S.D.N.Y. 1997). Thus, the Court overrules Defendant’s
objection based upon the “consulting expert” rule.
III. The Attorney-Client Privilege/Work-Product Doctrine
Defendant also claims that most of the documents listed in its privilege log are protected
from disclosure based upon the attorney-client privilege and under the work-product doctrine.
The burden is on Defendant, as the party invoking these privileges, to demonstrate their
applicability. Smith v. Conway Org., Inc., 154 F.R.D. 73, 77 (S.D.N.Y. 1994). Where the
district court’s subject matter jurisdiction is based on a federal question, privilege issues are
governed by federal common law. Fed. R. Evid. 501; Asuncion v. Metropolitan Life Ins. Co.,
493 F. Supp. 2d 716, 720 (S.D.N.Y. 2007).
A. Work-Product Doctrine
To invoke the protection of the work-product doctrine, the party must show that the
6
documents were prepared principally or exclusively to assist in anticipated or ongoing litigation.
See Rule 26(b)(3)(A), Fed. R. Civ. P. (“Ordinarily, a party may not discover documents and
tangible things that are prepared in anticipation of litigation or for trial by or for another party or
its representative (including the other party’s attorney, consultant . . .).”); United States v. Constr.
Prods. Research, Inc., 73 F.3d 464, 473 (2d Cir.), cert. denied, 519 U.S. 927 (1996). If the party
asserting a work-product privilege meets its burden, then the burden shifts to the requesting party
to show that the party cannot, without undue hardship, obtain the substantial equivalent of the
documents requested. Rule 26(b)(3)(A), Fed. R. Civ. P. The difficulty the Court has with
Defendant’s invocation of the work-product doctrine is that none of the documents at issue was
prepared in anticipation of litigation or to assist in ongoing litigation. See Resnick v. American
Dental Ass’n. 95 F.R.D. 372, 375 (N.D. Ill. 1982). Judgment had entered, and these were actions
taken to fulfill the non-monetary aspects of the settlement. Defendant has failed to cite any case
in which post-judgment documents were protected from disclosure under the work-product
doctrine. Thus, the Court holds that the work-product doctrine does not apply.
B. Attorney-Client Privilege
To invoke the attorney-client privilege, a party must show that a confidential
communication between client and counsel was made for the purpose of obtaining or providing
legal advice. Constr. Prods. Research, 73 F.3d at 473. The Second Circuit, in applying this rule,
has held that a party invoking the privilege must show: (1) a communication between client and
counsel, (2) that was intended to be kept confidential and was in fact kept confidential, and (3)
that was made for the purpose of obtaining or providing legal advice. In re County of Erie, 473
F.3d 413, 419 (2d Cir. 2007). Moreover, the privilege is construed narrowly because it renders
7
otherwise relevant information undiscoverable. Fisher v. United States, 425 U.S. 391, 403
(1976).
Documents that have been produced for the Court’s in camera review make it very clear
that Estreicher, although a lawyer, was not hired to provide legal advice. In the original draft of
his report, Estreicher described himself as a “legal advisor.” Barnett responded on several
occasions that this characterization was incorrect, and she clarified that Estreicher was serving as
a consultant to the HRRC to review employment policies. She further noted that Metro-North
had not limited the pool of candidates for this assignment to lawyers. (Doc. 37). On another
document, Barnett wrote, “[t]he function of the Consultant was to provide assistance to the
Committee [HRRC] in evaluating specific issues, and more specifically to provide the
Committee the benefit of expertise and experience in the best practices of the industry with
respect to its policies regarding recruitment, hiring, training programs, job posting, discipline,
and EEO policy statement.” (Doc. 30). She noted on another document that they were looking
for professional expertise on human resources matters, no legal expertise. (Doc. 10).4
Accordingly, no attorney-client privilege is afforded by virtue of Estreicher’s status as an
attorney. See North Am. Mortg. Investors v. First Wisc. Nat’l Bank of Milwaukee, 69 F.R.D. 9,
11 (E.D. Wis. 1975) (holding that possession of a law degree and admission to the bar is not
enough to establish the person as an attorney for purposes of determining whether the attorneyclient privilege applies in a discovery setting. The lawyer must not only be functioning as an
4
Indeed, Barnett wrote, “Mr. Estreicher evidently believes that an attorney-client
privilege attaches to his work, yet the Stipulation does not require Metro-North to engage an
attorney as its consultant, and it does not contemplate that privileges will attach to the
consultant’s work.” (Doc. 30). She further noted that Metro-North was required to provide the
consultant’s written recommendations to Class Counsel. (Doc. 30).
8
advisor, but the advice given must be predominantly legal, as opposed to business, in nature);
United States v. Int’l Bus. Mach. Corp., 66 F.R.D. 206, 212 (S.D.N.Y. 1974) (holding that one of
the essential elements of the attorney-client privilege is that the attorney is acting as an attorney).
Additionally, the attorney-client privilege does not foreclose inquiry into the general
nature of the lawyer’s activities on behalf of a client, conditions of the lawyer’s employment or
any other external trappings of the relationship. The privilege is concerned only with
confidential communications, not with the structural framework within which they are uttered.
Cohen v. Uniroyal, Inc., 80 F.R.D. 480, 483 (E.D. Pa. 1978).
However, the attorney-client privilege may attach to communications to and from Barnett
in her role as in-house counsel to Metro-North. With respect to in-house counsel
communications, in-house counsel often fulfill dual roles of legal consultant and business
advisor. Communications that principally involve the performance of non-legal functions by inhouse counsel are not protected. Gomez v. Metropolitan District, No. 3:11cv1934, 2013 WL
2489138, at *3 (D. Conn. June 10, 2013 ) (Margolis, M.J.). Therefore, to determine whether the
communications are privileged, the Court must determine whether the in-house counsel’s
performance depended principally on his or her knowledge of and application of legal
requirements and principles, rather than his or her expertise in business or commercial matters.
Id. Factors that were considered in Gomez were whether the in-house counsel alluded to legal
principles or engaged in a legal analysis, or whether the communication was a collection of facts
to determine the course of action to be taken. Even if a business decision can be viewed as
containing both business and legal evaluations, the business aspects of the decision are not
protected simply because legal considerations were also involved. Complex Sys., Inc. v. ABN
9
AMRO Bank N.V., 279 F.R.D. 140, 150 (S.D.N.Y. 2011); see also Ovesen v. Mitsubishi Heavy
Inds., of Am. Inc., No. 04 Civ. 2849, 2009 WL 195853, at **2-4 (S.D.N.Y. Jan. 23 2009) (same,
where VP/general counsel drafted memo to safety review committee to reduce accident rate, and
only one paragraph contained legal advice and could be redacted).
A document also is not privileged merely because it was sent to or received by an attorney
and the client. The document must contain confidential communications regarding legal advice.
Buxbaum v. St. Vincent’s Health Servs., Inc., No. 3:12cv117, 2013 WL 74733, at *5 (D. Conn.
Jan. 7, 2013) (Fitzsimmons, M.J.). Further, “[a] document will not become privileged simply
because an attorney recommended its preparation if it contain merely business-related or
technical communications between corporate employees.” In Re Rivastigmine Patent Litig., 237
F.R.D. 69, 80 (S.D.N.Y. 2006). Documents made at the request of in-house counsel that contain
merely business communications are not privileged. AIU Ins. Co. v. TIG Ins. Co., No. 07 Civ.
7052, 2008 WL 4067437, at *11 (S.D.N.Y. Aug. 28, 2008), modified on reconsideration by 2009
WL 1953039 (S.D.N.Y. July 8, 2009).
Additionally, the fact that a document was reviewed by legal counsel does not convert it
into a privileged document. In Hurst v. F.W. Woolworth Co., No. 95 Civ. 6584, 1997 WL
104965, at *2 (S.D.N.Y. Mar. 7, 1997) (Haight, D.J.), for example, a document prepared by the
Vice President of Human Resources in connection with a reduction-in-force, which was to be
later to be reviewed by counsel, was not privileged. It was prepared for business reasons. The
later review by counsel did not convert a business document into a privileged communication.
Similarly, in Suboh v. Bellsouth Bus. Sys., Inc., No. 1:03CV996, 2004 WL 5550100, at *9 (N.D.
Ga. Nov. 17, 2004), the Human Resources Director’s analysis of the age and gender of
10
individuals discharged in a reduction-in-force, which was at issue in the litigation, was not
subject to the attorney-client privilege, even though it was prepared at the behest of counsel. The
court noted that the privilege extends to communications with counsel, but not to the underlying
facts. Thus, the Human Resources Director was required to testify to the underlying data before
and after the RIF, but she did not have to answer questions about communications with in-house
counsel, or what specific information she was requested to compile, how the information was to
be organized, or anything that might reveal counsel’s thought processes.
Other cases have considered whether draft documents in an attorney’s file are protected
by the attorney-client privilege. The initial consideration is whether the document contains
largely factual information or whether it provides or seeks legal advice of a confidential nature.
Assuming the latter, draft documents have been held to retain their privilege it they contain
information a client considered but decided not to include in the final version. Women’s InterArt
Ctr., Inc. v. N.Y.C. Econ. Dev., 223 F.R.D. 156, 161 (S.D.N.Y. 2004). However, if the changes
reflected on the draft documents appear to be stylistic and structural changes only, and do not
provide or request legal advice, the documents are not privileged. AIU Ins. Co., 2008 WL
4067437, at *10.
Where the client is a corporation or organization, the prevailing rule is that the attorneyclient privilege extends to communications between attorneys and all agents or employees of the
organization who are authorized to act or speak for the corporation in relation to the subject
matter of the communication. Falcone v. Internal Revenue Service, 479 F. Supp. 985, 989 (E.D.
Mich. 1979).
Moreover, minutes of meetings attended by an attorney or directed by an attorney are not
11
automatically privileged as a result of the attorney’s presence. The question is whether the
document in question reveals the substance of a confidential attorney-client communication or
whether the document is essentially a business communication. See Scanlon v. Bricklayers and
Allied Craftworkers, Local No. 3, 242 F.R.D. 238, 245 (W.D.N.Y. 2007). Likewise, drafts of
minutes of meetings of a corporation’s board of directors were held not protected from discovery
by the attorney-client privilege, where the corporation failed to establish that the document
pertained to any request for legal advice from the corporation’s attorneys. See Guy v. United
Healthcare Corp., 154 F.R.D. 172, 178 (S.D. Ohio 1993).
With these principles in mind, the Court has carefully reviewed the 47 documents
produced by Defendant. Despite the fact that most of the documents are labeled as
“ATTORNEY-CLIENT AND WORK PRODUCT - PRIVILEGED COMMUNICATION,” the
Court finds that few of the documents are privileged.
(1) Communications between Estreicher and Barnett (Docs. 1, 2, 5, 10, 33, 34, 37,
38, 42, and 43)
Document 1 is Morgan Lewis’s (Estreicher’s law firm at the time) proposal for Human
Resources Consulting Services Project. This document was not prepared for the purpose of
providing legal advice, and therefore is not privileged. Additionally, the Retainer Agreement
with Morgan Lewis has already been produced, which would have waived any privilege that
might have attached. It must be produced.
Documents 2 and 5 are correspondence from Estreicher to Barnett setting forth a list of
documents he wants to review. These documents were sought for the purpose of providing
advice on human resources issues, not legal advice. The letters must be produced.
12
Document 10 is a letter dated April 27, 2004, from Estreicher to Barnett enclosing a copy
of his first preliminary report. No legal advice is provided in the letter and the letter itself must
be produced. The document also contains hand-written commentary from Barnett, most of
which is factual and not legal advice. However, there is one notation that should be redacted starting with the “?” after “rr” down to “compl” just before “formal.” As for the draft report, as
the discussion above makes clear, it was a human resources document and not a legal analysis.
Most of Barnett’s notations on the report are grammatical or factual and need not be redacted.
However, her hand-written notations on pages 25 and 28 of the draft report are of a legal nature
and should be redacted.
Document 33 is a cover letter from Barnett to Estreicher enclosing their draft responses,
including those of Mr. Bernard, Vice President and General Counsel, but noting that Mr.
Bradley, head of Human Resources, has not yet reviewed it. The letter should be produced.
Additionally, the response to Estreicher’s report should be produced as it does not contain legal
advice or a legal evaluation but, instead, sets forth facts and reflects in-house counsel and other
responders’ knowledge and expertise in personnel matters.
Document 34 is Estreicher’s draft report addressing the suggested changes. It should be
produced. Again, Estreicher was not providing legal advice.
Document 37 is a cover memorandum from Barnett to Estreicher attaching Metro-North’s
response to his recommendations. Both the cover memorandum and responses to his report
should be produced for the same reasons as with Document 35. The last page of handwritten
notes from Barnett should be redacted.
Document 38 is a cover letter from Estreicher to Barnett with his final draft of the
13
recommendations. Estreicher’s cover letter should be produced with Barnett’s hand-written
notes redacted. Additionally the red-lined report should be produced with the following
redactions of Barnett’s hand-written notes: page 3, redact note about “A.S.”; page 5, redact note
about “A.S.”; page 6, redact note at bottom right-hand corner; page 15, redact note in bottom
right-hand corner; and page 17, redact all hand-written notes except “a further appeal to Bd” at
the top of the page.
Document 42 is a facsimile cover letter from Estreicher to Barnett with the next set of
revisions to his report. This contains no legal advice and no comments from Barnett or any
other in-house counsel and should be produced in full.
Document 44 is a cover letter from Jones Day with the final report, which has already
been produced, and a final red-lined copy. This should be produced in full.
(2) Internal Correspondence Between Barnett and Metro-North’s Legal or Human
Resources Personnel Re. Estreicher’s Consultancy and Execution of the
Stipulation of Settlement (Bates No. 1399, 1400; Docs. 18, 19, 22, 30, 35, 36, 39,
40, 41, 45, 46, and 48)
Bates Nos. 1399 and 1400 are emails from Barnett to Marya Gromley-O’Connor
regarding the Workplace Diversity’s 2006 Annual Policy Statements and her response. It is not
clear whether Gromley-O’Connor is in the Legal Department at Metro-North, but even assuming
that she is, these transmittal emails with nothing attached and containing no legal advice or
request for legal advice is not privileged and should be produced.
Document 18 is a memorandum from Barnett to the HRRC attaching Estreicher’s
Preliminary Report. For the reasons discussed above regarding Document 10, his report and the
cover memorandum are not privileged and should be produced. The hand-written annotations,
14
which appear to have been made by General Counsel Bradley, do not contain any legal advice
and need not be redacted.
Document 19 is the HRRC Preliminary Report Exceptions submitted by Tom Valentine,
with some hand-written notes of Barnett attached. The document is largely factual in nature.
The only redactions that need to be made are the first two sentences in paragraph 4 on the first
page (from “The Railway” to “bargaining.”) and on page 6, containing Barnett’s notes, the last 4
lines on that page (from “Loose” to “absences.”).
Document 22 is the HRRC’s Response to the Consultant’s Draft Report, which was
distributed by Barnett to 13 Metro-North employees (presumably most of which were on the
HRRC or in the Legal Department). This document should be produced with the following
redaction: on the first page of the Errata Sheet (page 3 of the document), the last sentence under
“I. Scope of the Project” should be redacted (from “The likelihood” to “below.”); the sentence in
bold on page 3 of the Errata Sheet (page 5 of the document) (from “We will need” to
“discrimination.”).
Document 31 is the HRRC’s Response to the Consultant’s Draft Report. As with
Document 22, this response should be produced with the following redactions: page 1 of the
Analysis, paragraph 2, two sentences from “We did not expect” to “future.” should be redacted.
Document 35 is a copy of Estreicher’s July 2005 Report and Response. These
documents need to be produced with the following redactions: page 15, the last two sentences of
the first full paragraph under Response to Recommendation B-4 (from “No reasonably” to “little
weight.”); Response to Recommendation B-5 on page 16.
Document 36 is another draft response to Estreicher’s Draft Report. It is not clear whose
15
notations are on the report in addition to those of Barnett. However, none reflect the giving of
legal advice. This document should be produced.
Document 39 is a memorandum from Barnett to Bernard and Bradley concerning
Estreicher’s August 10, 2005 report. This should be produced with the following redactions:
page 1, paragraph 3, the third sentence from “I think” to “recommendations” should be redacted.
Document 40 is a memorandum from Barnett to Bernard and Bradley after a meeting with
Attorney Schindel. This report primarily presents legal advice and a plan of action based on that
advice and is covered by the attorney-client privilege and need not be produced.
Document 41 is a memorandum from Barnett to Bernard and Bradley concerning her
meeting with Estreicher and includes a draft of a letter containing strictly legal analysis. This
document is protected by the attorney-client privilege and need not be produced.
Document 45 is a “To Do” List, apparently prepared by Barnett in response to
Estreicher’s Report. This document outlines a plan of action to address the report and should be
produced with the following redactions: the third sentence on page 1, from “This is” to “lawsuit.”
Document 46 is a summary of the responses to Estreicher’s Report. This does not contain
any legal analysis and should be produced. It is largely a summary of documents discussed
above.
Document 48 is a one page memorandum from Barnett to Bradley regarding HRRC Consultant’s Recommendations. This memorandum does not contain legal advice and should be
produced.
(3) Draft Minutes and Minutes of the HRRC (Docs. 3, 4, 6, 7, 8, 9, 11, 13, 15, 16,
17, 20, 24, 25, 31, 47, 49, and 50)
16
Documents 3, 4, 6, 15, 16 , 20, 24, 31, 47 are Minutes or Draft Minutes of the HRRC
meetings. None of these documents contain legal advice or analysis and should be produced in
full.
Document 7 is the Draft of the Minutes of the September 15, 2003 HRRC Meeting. This
document should be produced with the second paragraph under section 6 on the last page
redacted.
Documents 8 and 9 are Minutes of the January 20, 2004 HRRC Meeting. It contains
several sections involving legal advice that should be redacted. On page 1, the paragraph under
section III. should be redacted. On page 2, the last sentence should be redacted.
Document 11 is Draft Minutes dated April 27, 2004. This document should be produced
with the following redactions: page 2, paragraphs 5 and 6 should be redacted.
Document 13 is the Minutes of the May 25, 2004 HRRC Meeting. The document should
be produced with the first paragraph under section 4 and section 5 redacted.
Document 17 is Draft Minutes of the August 13, 2004 Meeting. This should be produced
with the second paragraph on page 2 under section 5 redacted.
Document 25 is Draft Minutes of the March 2, 2005 HRRC Meeting. This should be
produced with section 4 redacted.
Document 49 is Minutes of the May 8, 2005 HRRC Meeting. This document should be
produced with the sections 3 and 5 redacted.
Document 50 is the Draft Minutes of the October 3, 2006 HRRC Meeting. This
document should be produced with sections 3, 4, and 5 redacted.
(4) Draft Responses, Comments or Notes by Barnett about Estreicher’s Report
17
(Docs. 12, 14, 21, 29, and 32)
Document 12 is a response to Estreicher’s initial set of recommendations with handwritten notes, which include no legal analysis or advice. The document should be produced.
Document 14 is a memo to the file from Barnett concerning her major comments to
Estreicher’s Report. Overall, while this memo contains her personal opinions and observations,
most of the memo does not contain any legal analysis. However, the following portions should
be redacted: page 1, first full paragraph, redact the text after (4) and (5); page 4, the paragraphs
following p.24, n.33, and p.27 should be redacted; page 7, under p. 33-34, ¶ 5 (1), redact the
second, third, and fourth sentences, from “Mr. Bradley” to the end of the parenthetical; page 9,
under p. 38, ¶ 1, in section (1), redact everything after the work “appropriate,” and in section (2),
redact the last full sentence from “As” to “proportions?”; page 10, under p. 39, ¶ 4, redact the
parenthetical in section (1), and the last sentences in sections (2), (3) and (4); pages 10-11, redact
all of the discussion under p. 39-40, ¶ 5 except for the first two sentences (redact from “I’m” to
the end of that section); page 11, redact all of the discussion under p. 40, ¶ 7 except the first
sentence (redact from “I” to the end).
Document 21 is a red-lined version of the Committee’s Response to the initial Estreicher
Report. There is no legal analysis or thought processes and this should be produced.
Document 29 is the HRRC analysis and response to the Estreicher report. It does not
contain any legal analysis or advice and should be produced.
Document 30 is the HRRC analysis and response to the Estreicher report. It does not
contain any legal analysis or advice and should be produced.
Plaintiffs’ Request for an Award of Attorney’s Fees
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In Plaintiffs’ response to Defendant’s objection to disclosure of the documents discussed
above, Plaintiffs request an award of attorney’s fees under Rule 37, Fed. R. Civ. P., for “having
to respond to a position that is not warranted on the procedural posture of this case or the law
concerning waiver.” (Pls.’ Mem. 4). Rule 37(a)(A), Fed. R. Civ. P., provides that “[i]f the
motion is granted - or if the disclosure or requested discovery is provided after the motion was
filed - the court must, after giving an opportunity to be heard, require the party . . . whose
conduct necessitated the motion, the party or attorney advising the conduct, or both to pay the
movant’s reasonable expenses incurred in making th motion, including attorney’s fees.” The
Rule further provides that the court must not order this payment if the opposing party’s
nondisclosure or objection was substantially justified. Rule 37(a)(5)(A)(ii), Fed. R. Civ. P.
The Court appreciates Plaintiffs’ counsel’s frustration with Defendant’s boilerplate
objections, which this Court has repeatedly found do not meet the responding party’s burden of
showing why discovery should be denied. See, e.g., Fracasse v. People’s United Bank, No.
3:12cv670, 2013 WL 6017332, at *2 (D. Conn. Nov. 13, 2013). Indeed, even in this very case,
Magistrate Judge Fitzsimmons referred to them as a “paradigm of discovery abuse.” Vidal, 2013
WL 1310504, at *2 (quoting Jacoby v. Hartford Life & Accident Ins. Co., 254 F.R.D. 477, 478
*S.D.N.Y. 2009)). Nevertheless, the Court has two difficulties with awarding attorney’s fees in
connection with Plaintiffs’ response to Defendant’s objection. This ruling is not entered on a
Rule 37 motion. More importantly, however, the Court sustained Defendant’s objections to the
production of some of the documents and required numerous redactions of others. Therefore, the
Court declines to award fees to Plaintiffs for having to file a response to Defendant’s objections
to their discovery request. The Court cautions, however, that it will seriously consider the
19
imposition of sanctions if there are further discovery abuses.
Conclusion
Accordingly, as set forth above, the Court upholds in part and overrules in part
Defendant’s objections [Doc. # 102] to the production of the 47 documents discussed above.
The documents shall be produced within 14 days of the date of this Order. The Court denies
Plaintiffs’ request for attorney’s fees [Doc. # 104] .
This is not a recommended ruling. This is a discovery ruling and order which is
reviewable pursuant to the “clearly erroneous” standard set forth in rule 72(a), Fed. R. Civ. P.
As such, it is an order of the Court unless reversed or modified by the District Judge upon motion
timely made.
SO ORDERED, this
4th
day of February, 2014, at Bridgeport, Connecticut.
/s/ William I. Garfinkel
WILLIAM I. GARFINKEL
United States Magistrate Judge
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