Polk v. Sherwin-Williams Co

Filing 55

ORDER: Defendant's 45 Motion to Compel is GRANTED IN PART AND DENIED IN PART. See attached ruling. All dispositive motions shall be filed no later than 7/19/2018.Signed by Judge Donna F. Martinez on 6/4/2018. (Greenspoon, L.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JOHN POLK,
Plaintiff,
v.
SHERWIN-WILLIAMS, CO.,
Defendant.

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CASE NO.

3:16cv1491(MPS)

RULING ON DEFENDANT’S MOTION TO COMPEL
Plaintiff, John Polk (“Polk”), filed this lawsuit against his
former

employer,

the

Sherwin-Williams

Company

(“Sherwin-

Williams”), claiming racial discrimination and retaliation in
violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e,
et seq., and the Connecticut Fair Employment Practices Act, Conn.
Gen. Stat. 46a-60, et seq. (Doc. #1.)

Pending before the court is

Sherwin-Williams’ motion to compel. (Doc. #45.)1 For the following
reasons, defendant’s motion to compel is GRANTED IN PART AND DENIED
IN PART.
I.

Background
Sherwin-Williams terminated Polk’s employment on February 24,

2015. (Doc. #27 at 4.) On April 17, 2015, Attorney Robert M.
Fortgang of Robert Fortgang Associates, LLC (“Fortgang”), then
counsel for Polk, wrote a letter to Sherwin-Williams. Attorney

1

U.S. District Judge Michael P. Shea referred the motion to the
undersigned. (See doc. #39 and #40.)

Fortgang

said

that

Polk

had

been

wrongfully

terminated

and

requested “negotiation, the ultimate objective of which would be
the execution of a Severance Agreement and Release of All Claims.”
(Id.)

The parties apparently engaged in settlement negotiations

for several months. At some point, Polk decided to retain new
counsel, Attorney John Williams, and on September 1, 2016, Polk
filed this lawsuit.

(Id. at 4-6.)

On October 18, 2016, Sherwin-Williams filed a “motion to
enforce” an un-executed settlement agreement allegedly entered
into by the parties before the lawsuit was filed. (Doc. #20.)

The

court, treating the motion as a motion for summary judgment based
on

a

defense

of

release,

denied

the

motion,

holding

that

a

reasonable juror could find that the parties did not intend to be
bound by the settlement agreement until it was signed.
at 1.)

(Doc. #27

The court ordered defendant to answer the complaint, and

the parties thereafter engaged in discovery.
In its Amended Answer and Affirmative Defenses, defendant
asserted as its fourteenth affirmative defense the following:
Plaintiff has already fully settled his claims with
Defendant, and released all claims against Defendant,
including, but not limited to, its officers, affiliates,
employees, and subsidiaries, relating to his employment with
Defendant and separation therefrom.

2

(Doc. #32 at 5.)

On August 1, 2017, defendant served a subpoena

duces tecum (doc. #45-2) on plaintiff’s former counsel, Fortgang,
seeking:
documents and communications  that may show, among other
things, that Plaintiff actually signed the agreement, that he
intended to be bound by the terms of the agreement (with or
without an executed copy), or that he agreed to all of the
terms of the written agreement provided by Defendant to
Fortgang Associates.

(Doc. #45-1 at 6.) The same day, plaintiff filed an “emergency”
motion for protective order, which the court denied on August 2,
2017, without prejudice for failure to comply with discovery
dispute

procedures.

(Doc.

#38.)

Thereafter,

Fortgang

served

objections to the subpoena, objecting on grounds of attorneyclient

and

attorney

privilege log.
privilege
revisions.

log

(Doc.

work

privileges,

and

provided

a

#45-8 and ##45-3.) Plaintiff adopted the

submitted
(Doc.

product

#46

by

his

at

former

7-15.)

counsel,
The

with

parties

certain

submitted

correspondence to the court in accordance with its discovery
dispute procedures, and after the parties were unable to arrive at
an informal solution during a telephone conference with the court,
the defendant filed a motion to compel (doc. #45), to which
plaintiff objected (doc. #46).
Upon

review

of

the

parties’

papers,

the

court

ordered

plaintiff to produce the documents in question for in camera

3

review.

(Doc. #44, #47, #50 - #53.)

On February 24, 2018,

plaintiff submitted for review 105 hand-numbered documents.2
II.

Legal Standard
“Where, as here, there is federal question jurisdiction, the

court must apply federal common law with respect to attorneyclient privilege. Fed.R.Evid. 501.” Leone v. Fisher, No. 3:05CV521
(CFD)(TPS), 2006 WL 2982145, at *3 (D. Conn. Oct. 18, 2006).

“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.”

Chen-Oster v. Goldman, Sachs

& Co., 293 F.R.D. 547, 554 (S.D.N.Y. 2013). “[I]n order to invoke
the attorney-client privilege, a party must demonstrate that there
was: (1) a communication between client and counsel, which (2) was
intended to be and was in fact kept confidential, and (3) made for
the purpose of obtaining or providing legal advice.”

Rapkin v.

Rocque, 87 F. Supp. 2d 140, 143 (D. Conn. 2000) (internal quotation
marks omitted).

“It is axiomatic that the burden is on a party

claiming the protection of a privilege to establish those facts

2

The original documents were assembled haphazardly and without
Bates numbers. The court ordered plaintiff to arrange them
chronologically and re-submit only those documents that had been
withheld from production, in chronological order and numbered
sequentially. (Doc. # 50, 51, 52 and 53.) Plaintiff eventually
submitted 105 hand-numbered documents in chronological order.
(Doc. #54.) The numbered documents produced for inspection do
not correspond to the privilege log and revised log, which list
documents without numbers. (Doc. #45-3 and #46 at 7-15.)
4

that are the essential elements of the privileged relationship .
. . a burden not discharged by mere conclusory or ipse dixit
assertions.”

In re Grand Jury Subpoena Dated Jan. 4, 1984, 750

F.2d 223, 224–25 (2d Cir. 1984).

“Any ambiguities as to whether

the essential elements have been met are construed against the
party asserting the privilege.” Koumoulis v. Indep. Fin. Mktg.
Group, Inc., 295 F.R.D. 28, 38 (E.D.N.Y. 2013), aff'd, 29 F. Supp.
3d 142 (E.D.N.Y. 2014).
“The work product doctrine is distinct from and broader than
the attorney-client privilege.”

United States v. Nobles, 422 U.S.

225, 238 n. 11 (1975) (citing Hickman v. Taylor, 329 U.S. 495, 508
(1947)).

The

work

documents

and

product

other

doctrine

materials

shields

prepared

in

from

disclosure

anticipation

of

litigation or trial by a party or a party’s representative, absent
a showing of substantial need and the inability to obtain the
substantial

equivalent

without

undue

hardship.

Fed.R.Civ.P.

26(b)(3)(A); see also In re Grand Jury Subpoenas Dated Oct. 22,
1991 and Nov. 1, 1991, 959 F.2d 1158, 1166 (2d Cir. 1992).

“Where

a document was created because of anticipated litigation, and would
not have been prepared in substantially similar form but for the
prospect of that litigation, it falls within Rule 26(b)(3).”
United States v. Adlman, 134 F.3d 1194 (2d Cir. 1998).
“[T]he

work-product

doctrine

[also]

shelters

the

mental

processes of the attorney, providing a privileged area within which
5

he can analyze and prepare his client’s case.”
at

238.

“An

attorney’s

protected

thought

Nobles, 422 U.S.
processes

include

preparing legal theories, planning litigation strategies and trial
tactics, and sifting through information.”

Salomon Bros. Treasury

Litig. v. Steinhardt Partners, L.P., 9 F.3d 230 (2d Cir. 1993).
The doctrine extends to notes, memoranda, correspondence, witness
interviews, and other materials, whether they are created by an
attorney or by an agent for the attorney.

See Nobles, 422 U.S. at

238–39; Carter v. Cornell Univ., 173 F.R.D. 92, 95 (S.D.N.Y. 1997).
These privileges, however, cannot be used both as a shield
and as a sword.

Here, plaintiff maintains that he did not agree

to settle his claims with Sherwin-Williams (doc. #21 at 2), yet he
refuses to produce communications with the attorneys whom he
retained to negotiate a settlement with Sherwin-Williams.

By

asserting that Fortgang did not have authority to settle with
defendant

on

his

behalf,

he

has

waived

his

attorney-client

privilege with respect to communications about settlement.

See

Bagley v. Searles, No. 3:06cv480 (PCD), 2007 WL 184720, at *2
(D.Conn. Jan. 19, 2007) (holding that where plaintiff claimed he
entered into a settlement agreement under duress, “[p]laintiff has
therefore

waived

his

attorney-client

privilege

insofar

as

conversations with [his attorney] are germane to Plaintiff's claim
regarding the enforceability of the Settlement Agreement.”) See
also, e.g., Rubel v. Lowe's Home Centers, Inc., 580 F. Supp. 2d
6

626, 629 (N.D. Ohio 2008) (holding that “[c]onveyance of settlement
authority

from

client

to

counsel

is

never

intended

to

be

confidential.”).
Further, to the extent the communications were intended to be
communicated to a third-party, they are not privileged.

See

United States v. Tellier, 255 F.2d 441, 447 (2d Cir. 1958)(holding
that

“it is well established that communications between an

attorney and his client, though made privately, are not privileged
if it was understood that the information communicated in the
conversation was to be conveyed to others.”); Robbins & Myers,
Inc. v. J.M. Huber Corp., 274 F.R.D. 63, 83 (W.D.N.Y. 2011)(holding
that

communications

between

client

and

attorney

intended

for

publication or communication to third-parties, are not intended to
be confidential when made in order to obtain legal assistance,”
citing Tellier, 255 F. 2d at 447); Ceglia v. Zuckerberg, No. 10CV-00569A F (LGF), 2012 WL 1392965, at *2, (W.D.N.Y. Apr. 19, 2012) 
(same, citing Robbins), aff'd, No. 10-CV-00569 (RJA), 2012 WL
3527935 (W.D.N.Y. Aug. 15, 2012).
III.

Discussion
In accordance with the principles discussed above, the court

rules as follows:

7

A. Communications between Fortgang
defendant’s in-house counsel

and

Stacy

A.

Hinners,

Communications between counsel for the plaintiff and counsel
for the defendant are not privileged.

It is unclear why plaintiff

withheld them, and presumably defendant already has copies of those
communications.

The objections are overruled.

Documents Bates

numbered 39, 48, 49, 51, 52 - 54, 73 - 75, 76, 81, 85 - 88, 91,
93, 95 - 98 should be produced.

In some instances, lawyers at

Fortgang forwarded these documents to one another and commented
upon them (documents Bates numbered 40, 50, 72, 80 and 82).

Their

comments are protected and may be redacted.3
B. The retainer agreement between Fortgang and John Polk
Plaintiff objects to producing his retainer agreement on
grounds of attorney-client privilege and attorney work product,
and produced a redacted copy of the letter containing only the
letterhead, address, greeting and signature lines.

(Doc. #46 at

7, 13, 17-18.)
[A] long and unbroken line of cases in this
Circuit have established that “in the
absence of special circumstances, fee
arrangements do not fall within the

3

The portions of the emails containing lawyers’ comments which
may be redacted are as follows:
Doc. Bates numbered 40, top portion, email from R. Fortgang to
K. Roy; Doc. Bates numbered 50, top portion containing emails
between R. Fortgang and K. Roy; Doc. Bates numbered 72, top
portion, email from K. Roy to R. Fortgang; Doc. Bates numbered
80, top portion containing emails between R. Fortgang and K.
Roy; and Doc. Bates numbered 82, top portion, email from K. Roy
to R. Fortgang.
8

attorney-client privilege because they are
not the kinds of disclosures that would not
have been made absent the privilege and
their disclosure does not incapacitate the
attorney from rendering legal advice.”

Torres v. Toback, Bernstein & Resiss LLP, 278 F.R.D. 321, 322
(E.D.N.Y. 2012)(quoting Vingelli v. United States, 992 F.2d 449,
452 (2d Cir. 1993) and holding that retainer agreement between a
debt collection firm and its client was not subject to attorneyclient privilege, where identity of firm’s client was not secret,
nothing of confidential nature would be revealed by production of
agreement, and firm had failed to identify any other special
circumstances warranting application of privilege).
Williams

v.

Rushmore

Loan

Mgmt.

Servs.

See also
LLC,

No.

3:15cv673(RNC)(DFM), 2016 WL 4083598, at *2-3 (D. Conn. Feb. 16,
2016)(requiring

production

of

a

redacted

version

of

retainer

agreement, along with in camera inspection of the portion claimed
to contain privileged information regarding discussions between
attorney and client regarding legal strategy); Musante v. USI
Servs., LLC., No. 3:16CV799 (RNC)(DFM), 2017 WL 3189028, at *2 (D.
Conn. July 27, 2017) (holding that
privileged

and

there

is

no

the “retainer agreement is not

basis

upon

which

to

defer

its

production.”).
The objection is overruled.

Plaintiff shall produce a copy

of the retainer agreement (doc. Bates numbered 29-32).

9

C. Written communications between plaintiff and
attorneys, and related discussions between
attorneys

Fortgang
Fortgang

Plaintiff withheld numerous communications between him and
his counsel at Fortgang and between attorneys at Fortgang on
grounds

of

attorney-client

and/or

attorney

work

product

privileges. The objections are overruled with respect to documents
containing

information

regarding

plaintiff’s

discussion

of

settlement terms and authorization to his counsel to settle his
claims

against

terminate

his

Sherwin-Williams,
representation

with

as

well

as

Fortgang.

his

decision

Documents

to

Bates

numbered 77-79, 83, 84, 89, 90, 92, 94, 99, 100, 102, and 104 shall
be produced.

Doc. 101 shall be produced other than the third and

fourth sentences of the first paragraph beginning with “when”
through the end of the first paragraph, as those two sentences
contain discussions between plaintiff and Attorney Fortgang about
evidence.

The objections are sustained with respect to documents

Bates numbered 9-28, 33-38, 41-47, 55-69, and 70-71, as these
documents

contain

privileged

communications

involving

case

strategy, fact gathering and the like, which do not involve
settlement terms and settlement authorization.
D. Handwritten notes by attorneys at Fortgang
Plaintiff withheld eight pages of undated notes prepared by
Attorney Katie Roy of Fortgang regarding damage calculations,
plaintiff’s commissions, and the contents of his personnel file
10

(documents Bates numbered 1-8). These documents do not appear to
relate to discussions regarding settlement or settlement
authority.

Rather, they appear to be a summary of information

obtained from plaintiff in order to formulate a case strategy,
as well as Attorney Roy’s thoughts. See Section II above. As
such, the documents Bates numbered 1-8 are protected by the
attorney-client and/or attorney work product privileges, and the
objection to their production is sustained. See cases cited
above.
E. Written communications between Fortgang and plaintiff’s
current counsel, Attorney John Williams.
Plaintiff withheld two documents, (Bates numbered 103 and
105), which, other than a corrected email address, appear to be
duplicates of each other, containing an August 20, 2015 email
communication from Fortgang to Attorney John Williams,
plaintiff’s current counsel.
emails to be privileged.

The court finds nothing in these

In the emails, Attorney Fortgang

conveys information regarding a statement Sherwin-Williams’
counsel made to him regarding her view that an enforceable
settlement agreement exists.

Additionally, he discusses payment

arrangements, attaching a copy of his retainer agreement with
plaintiff.

The objections to production of these documents are

overruled, and plaintiff shall produce documents Bates numbered
103 and 105.

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IV.

Conclusion
The defendant Sherwin-William’s Motion to Compel [45] is

GRANTED IN PART AND DENIED IN PART as set forth above.
not a recommended ruling.

This is

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 Rule 72.2 of the Local Rules for
Magistrate Judges.

As such, it is an order of the court unless

reversed or modified by the district judge upon motion timely
made.
SO ORDERED at Hartford, Connecticut this 4th day of June,
2018.
___________/s/________________
Donna F. Martinez
United States Magistrate Judge

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