Bernstein v. Mafcote, Inc.

Filing 83

ORDER denying 59 MOTION to Compel by William R. Bernstein. Signed by Judge Warren W. Eginton on 3/10/14. (Ladd-Smith, I.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
WILLIAM R. BERNSTEIN

v.
MAFCOTE, INC.

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CIV. NO. 3:12CV311 (WWE)

RULING ON PLAINTIFF’S MOTION TO COMPEL
RESPONSE TO PRODUCTION REQUEST [DOC. #59]
Plaintiff William Bernstein moves to compel defendant Mafcote, Inc. to produce a
document requested in plaintiff’s second set of discovery requests, specifically a memorandum
authored by defendant’s president. [Doc. #59]. Defendant opposes plaintiff’s motion and argues
that the subject document is protected by the attorney-client privilege. [Doc. #66]. For the
following reasons, the Court will sustain the assertion of the attorney-client privilege.
Background
Plaintiff brings this action against his former employer Mafcote, Inc. alleging claims of
disability discrimination and retaliation under the Americans with Disabilities Act, 42 U.S.C.
§12112(a), and the Connecticut Fair Employment Practices Act, Connecticut General Statutes
§46a-60(a)(1). [Am. Compl., Doc. #55]. Plaintiff also alleges a cause of action for breach of the
implied covenant of good faith and fair dealing. [Id.].
On October 4, 2013, plaintiff served his second request for production of documents,
consisting of one request, namely, a copy of a “memo” referenced in an email dated January 10,
2011 between defendant’s president, Steven Schulman and defendant’s human resources
manager, Jennifer Calderon. [Doc. #59-3, Ex. 1]. Defendant objected to the request on the basis
of the attorney-client and/or work-product doctrine, and further noted that “the document(s)

responsive to this request are identified on Defendant’s Privilege Log dated September 23, 2013,
as Bates No. 001119-1147.” [Id. at Ex. 3]. Plaintiff challenges defendant’s claim of attorneyclient privilege. Defendant’s privilege log entry for the challenged document indicates that it is a
“[c]ommunication to attorney re 2010 budget, salaries, employment terminations.” [Doc. #66-1,
Ex. A]. On February 20, 2014, Magistrate Judge Fitzsimmons ordered defendant to provide a
copy of the challenged document for in camera review. [Doc. #80].
Attorney-Client Privilege
The attorney-client privilege protects confidential communications between client and
counsel made for the purpose 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 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. 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).

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Discussion
The challenged document1 is an email memorandum authored by Mr. Schulman and sent
to Glenn Duhl, defendant’s attorney in this litigation.2 Handwritten on the email are “1-10-11”,
“cc: J. Calderon,” and “VIA: FEDEX”. Attached to the email memorandum are two
spreadsheets regarding defendant’s 2010 budgets. The email memorandum itself is less than two
pages.
The Court has carefully reviewed the challenged document and finds that they are
protected by the attorney-client privilege. The subject memorandum and its accompanying
attachments are a confidential communication between client and counsel. Mr. Schulman’s
interest in keeping the document confidential is demonstrated by the January 10, 2011 email,
which states he did not want the memorandum exposed on defendant’s servers. [Doc. #59-3, Ex.
2]. Although the memorandum primarily conveys factual background information, it is clear that
such information was provided to Attorney Duhl with an implicit request for future legal advice.
Attorney Duhl moreover represents that the memorandum and its attachments “w[ere]
communicated for the purpose of giving information to the undersigned to enable counsel to give
sound and informed advice.” [Doc. #66, at 8]. Therefore, the Court finds that the memorandum
and its attachments are protected from disclosure. See Chen-Oster v. Goldman Sachs & Co., 293
F.R.D. 547, 554 (S.D.N.Y. 2013) (compiling cases)(“The privilege protects not only the advice
of the attorney to the client, but also the information communicated by the client that provides a
basis for giving advice.”); see also In re Buspirone Antitrust Litig., 211 F.R.D. 249, 254
(S.D.N.Y. 2002) (citation omitted) (finding documents protected by the attorney-client privilege
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The challenged document bears bate stamp numbers 1119-1147.

The Court’s review of the email memorandum indicates that it was not sent electronically, as it does not
reflect a “Sent” date and time. The email memorandum reflects that it was addressed “To” Attorney
Duhl, and the email’s greeting is also directed to Attorney Duhl.
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where they consisted of “information sent to corporate counsel in order to keep them apprised on
ongoing business developments, with the expectation that the attorney will respond in the event
that the matter raises important legal issues.”); Urban Box Network, Inc. v. Interfase Managers,
L.P., No. 01 Civ. 8854(LTS)(THK), 2006 WL 1004472, at *4 (S.D.N.Y. April 17, 2006)
(citations omitted) (“When information is conveyed to an attorney, the communication need not
specifically ask for legal advice in order to maintain the documents privileged status, so long as
the information is sent to counsel in order for counsel to provide legal advice.”).
On the current record, the Court declines to award defendant its reasonable costs and fees
in opposing the motion to compel.
Conclusion
For the reasons stated, the Court sustains defendant’s assertion of the attorney-client
privilege for the document bearing bate stamp numbers 1119-1147, and therefore DENIES
plaintiff’s motion to compel [Doc. #59].
SO ORDERED at Bridgeport this 10th day of March 2014.

________/s/______________________
WARREN W. EGINTON
SENIOR U.S. DISTRICT JUDGE

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