Breslow v. American Security Insurance Company
Filing
110
ORDER on Plaintiff's Work Product Claim. Signed by Magistrate Judge Jonathan Goodman on 2/19/2016. (tr00)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE No. 14‐62834‐CIV‐GOODMAN
[CONSENT CASE]
JULIAN MARIE BRESLOW,
Plaintiff,
vs.
AMERICAN SECURITY INSURANCE
COMPANY,
Defendant,
vs.
BROWARD DOCK AND SEAWALL,
INC., et al.,
Third‐Party Defendants.
__________________________________/
ORDER ON PLAINTIFF’S WORK PRODUCT CLAIM
This discovery dispute is about supposed secrets.
More particularly, the parties are tussling over two emails which Plaintiff
contends need not be disclosed because she says they are protected as work product
material. Defendants, however, argue that the documents were never work product
protected in the first place, but that any protection was waived, in any event.
For the Undersigned, the analysis used to resolve this dispute summons up lyrics
from two songs.
In the order of how the issues are evaluated, the first song lyrics are from a
Cyndi Lauper song: “Oh, it’s fascination, with the anticipation.”1 And the second song
lyrics are from The Beatles: “Listen, do you want to know a secret/ Do you promise not to tell,
whoa oh, oh.”2
Combining the themes from these two songs helps inform the two legal issues
underlying this discovery dispute: (1) whether an insured anticipated litigation when
her counsel was trying to obtain payment on a claim submitted to the insurance carrier,
and (2) whether the insured homeowner waived any work product production, if it
existed in the first place, because her attorney wrote emails to a property management
company who provided services to all subdivision homeowners, including the insured’s
next‐door neighbor ‐‐ who allegedly caused some or all of the damage at issue.
Similar to the attitude displayed by Cyndi Lauper in her song, Plaintiff here
seems to have a fondness for invoking the anticipation principle when determining
whether documents deserve work product protection. The anticipation of litigation
urged by Plaintiff here, however, is premature.
But even if the work product claim arose as early as Plaintiff contends (and it did
not), the work product claim asserted by Plaintiff cannot prevail. The musical words of
1
From the song, “Grab a Hold”, from the Bring Ya to the Brink album (Epic 2008).
2
From the song, “Do You Want to Know a Secret,” released on the Please Please
Me album (1963 EMI Studios/Parlophone).
2
The Beatles underscore that the fundamental notion of secrecy is to not tell others about
undisclosed and confidential information. That’s what makes it secret. A similar rule
applies to work product material, where disclosing the purportedly protected
information to a potential adversary (i.e., revealing to them the so‐called private
information) is inconsistent with the basic point of keeping a secret (and therefore
usually generates a waiver of the work product protection).
In this lawsuit over alleged damage to residential property insured by Defendant
American Security Insurance Company (“ASIC”), Plaintiff’s counsel communicated by
email to a property management company about the facts at issue in this lawsuit. The
parties are now wrangling over the emails. Plaintiff Julian Marie Breslow contends that
the emails need not be disclosed to ASIC in response to discovery requests because they
are protected work product material. ASIC disagrees, saying the emails are not work
product in the first place because litigation was not anticipated when they were sent,
but, even if litigation was anticipated at that comparatively early point, Breslow waived
the protection when her attorney sent information to a third party who also provides
services to a potential adversary.
The Undersigned has reviewed the filed‐under‐seal emails in camera and has also
reviewed memoranda submitted by Breslow and ASIC [ECF Nos. 107; 108].
The Undersigned finds that ASIC is correct on both points, and directs Breslow
to produce the emails to ASIC within five days of this Order. In addition, because
3
Plaintiff is the losing party in this discovery dispute and because Federal Rule of Civil
Procedure 37(a)(5) requires a fee‐shifting award to the prevailing party in the absence of
limited exceptions inapplicable here, Plaintiff’s counsel are being required to pay ASIC
$1,000.
The facts and legal analysis are outlined below:
Factual Background
According to Breslow’s First Amended Complaint [ECF No. 37], ASIC issued a
property insurance policy which insured against certain losses to her Fort Lauderdale
waterfront property. She alleges that her property was damaged on March 27, 2014 as a
result of a construction/remodeling/renovation project being done on the adjacent
property. Breslow also alleges that ASIC issued a payment to her on June 26, 2014 for an
amount she deems insufficient. She alleges breach of the insurance policy contract.
In its answer [ECF No. 47], ASIC contends, as an affirmative defense, that it
satisfied its obligations under the insurance policy by making the June 26, 2014
payment of $6,628. It raises several other affirmative defenses, including the argument
that the alleged losses occurred on property not covered by the policy (such as an
outdoor swimming pool, piers, wharves, docks, retaining walls and piling below the
water mark), that Breslow failed to mitigate her damages and that Breslow’s neighbors
(the “Nelsons”) retained Broward Dock and Seawall (“Broward Dock”) to perform
construction work which caused the damages on Breslow’s property.
4
Based on this affirmative defense, ASIC filed a third party complaint [ECF No.
42] against Broward Dock and the Nelsons. It explained that Broward Dock was
performing the following work at the Nelsons’ home, which is next door to Breslow’s
property: repairing the seawall, replacing the dock and raising the pool deck and steps.
The third party complaint noted that Breslow is seeking more than $600,000 in damages
in connection with the damage allegedly caused by Broward Dock’s work for the
Nelsons. It also alleged that Breslow notified ASIC of its claim on March 27, 2014.
During discovery, Breslow served a notice of intent to serve a duces tecum
subpoena on Vordermeir Management Company (“VMC”), the property management
company which manages the planned unit development where both Breslow and the
Nelsons have their property. Breslow asserted a work product claim over two emails
dated May 20, 2014 from Breslow’s counsel to VMC, and the parties battled over this
during a discovery hearing. During the hearing, in response to a question, Breslow’s
counsel admitted that VMC is not one of her agents.
During that discovery hearing, the Undersigned required Breslow to file the two
emails under seal, directed her to file a memorandum of law and permitted ASIC,
Broward Dock and the Nelsons to file an optional response memorandum. The
Undersigned later memorialized this ruling in a post‐hearing administrative order [ECF
No. 102]. The Order required Breslow’s memorandum to address the issues of “whether
5
the documents are, in fact, work product, and, if so, whether there was a waiver of the
work product privilege.”
Breslow’s privilege log describes the two May 20, 2014 emails to VMC as work
product. One is described as “E‐mail re: construction activity at 71 Compass Lane [i.e.,
the Nelsons’ property] in anticipation of litigation,” and the other is described as “E‐
mail re: Request for Association documents, in anticipation of litigation.”
Neither email contains any type of actual warning or a description consistent
with the current privilege claim, such as “work product” or “sensitive and confidential”
or “do not disclose” or “common interest material” or “in anticipation of litigation.”
In a December 17, 2015 email [ECF No. 108‐2] leading up to the discovery
hearing, Breslow’s counsel asserted work product protection to the two emails because
“our client and/or her attorneys were investigating certain issues related to the
problems that our client was experiencing as a result of the neighbor’s construction
activities, et cetera, which included, but were not limited to, requesting information in
anticipation of litigation.”
Because timing of events is often critical when determining when litigation was
reasonably anticipated for purposes of pinpointing the start of work product materials,
the Undersigned notes that ASIC’s April 22, 2014 letter to Breslow provides a status
report of her claim. It noted that its investigation was “pending review of engineer’s
report relative to his inspection of your residence as we requested.” [ECF No. 108‐3, p.
6
6]. It also explained that the claim “remains open pending receipt of this information.”
And ASIC also said “we hope to conclude this matter within 30 days.”
Likewise, in another April 22, 2014 letter, ASIC advised Breslow that a tile
inspection report and repair estimate for the second floor balcony was requested and
that the inspection would be scheduled through Breslow’s counsel. [ECF No. 108‐3, p.
14].
On April 28, 2014, Breslow’s counsel wrote to ASIC, attaching a letter of
representation and a request for documents concerning the claim. [ECF No. 108‐3, p. 7‐
9]. The letter instructs ASIC to no longer directly contact Breslow and directed ASIC to
make all payments to the law firm. The letter asked ASIC for documents in several
categories (including reports and estimates from experts, engineers, and adjustors) and
asked that any items being withheld on privilege grounds be identified, along with an
explanation of which privilege was being asserted. The letter ended with this sentence:
“I look forward to discussing at your earliest convenience our respective evaluations of
this matter and all of the facts and circumstances surrounding this claim.” (emphasis
added).
In a May 2, 2014 response [ECF No. 108‐3, pp. 11‐12] to the letter from Breslow’s
counsel, ASIC (in a letter from a field staff adjuster) urged counsel to “be assured” that
it “is interested in resolving this claim as quickly and fairly as possible.” Nevertheless, it
reminded counsel that Breslow still had obligations under the insurance policy contract,
7
notwithstanding the involvement of counsel. ASIC further advised that it did not object
if counsel were to attend inspections of the property. It also explained that it would
consider any estimates that counsel submitted. It likewise advised that it did not object
to Breslow hiring an adjuster, contractor or construction specialist, at her expense. The
letter urged counsel to contact him by phone or mail if he had questions about the
claim, did not understand how the claim has been settled or had additional information
for review by ASIC.
ASIC gave notice of its position in a June 26, 2014 letter [ECF No. 108‐3, pp. 15‐
17]. The letter provided an explanation for the $6,682 net amount of the claim.
After that, the next written communication provided to the Court is a July 9, 2014
email from Breslow’s counsel to the ASIC field adjuster [ECF No. 108‐3, pp. 21‐23]. This
letter notes significant disagreement with ASIC’s final adjustment and it advances
several arguments. It asks the adjuster to clarify ASIC’s position, notes that Breslow was
in the process of obtaining an independent evaluation of the damages and asks ASIC to
“reconsider its coverage determination.” (emphasis supplied).
More than two months later, in a September 19, 2014 email, Breslow’s counsel
wrote again to ASIC’s adjuster and noted his disagreement over the carrier’s assessment
of both the scope and amount of loss. He attached an independently prepared estimate
of damages of almost $400,000. It said: “If ASIC desires to discuss a potential resolution
of this matter without the necessity of litigation, then this rather large claim merits
8
further consideration, and, to that end, I ask that you contact me once you’ve had an
opportunity to review the attached, so that we may discuss ASIC’s reconsideration of
its adjustment of the damages to covered property sustained in connection with the
construction vibrations and plumbing break that are the subject of this claim.” [ECF No.
108‐3, p. 20] (emphasis added).
This is the first document submitted to the Court in which litigation is
mentioned.
In an October 10, 2014 letter to Breslow’s counsel [ECF No. 108‐3, pp. 18‐19],
ASIC’s adjuster explained in detail the basis for the coverage decision and how the
claim was adjusted. The letter referenced “several phone conversations” in which ASIC
advised that an appraisal could be requested “if we are in agreement with scope of
repairs.” It ended with a request that counsel advise “as to the direction you are taking
relative to this claim.”
Breslow filed her lawsuit against ASIC in state court. The Complaint is dated
October 23, 2014, but service was not perfected until November 14, 2014. [ECF No. 1].
ASIC removed the case to this Court on December 12, 2014.
The Parties’ Positions
Breslow’s Position
Breslow’s memorandum contends that the first email (sent at 5:55 p.m.) is
protected under the opinion type of work product immunity because it was prepared by
9
counsel in anticipation of litigation and reflects his mental impressions, conclusions,
opinions or legal theories “concerning the (anticipated) litigation.” It also contends that
this email was prepared “in response to the non‐adversarial Property Manager’s
request to speak with him concerning an inspection of the Plaintiff’s damaged seawall
as a result of the construction activities conducted by the Plaintiff’s neighbor/Third‐
party Defendants, the Nelsons.” (emphasis in original memorandum).
Breslow further argues that the second email (sent at 6:26 p.m.) is protected
under the fact type of work product immunity because it, too, was prepared by counsel
in “anticipation of litigation as part of his compilation of materials in preparation of his
client’s case.” She also takes the position that Defendant/Third Party Defendants cannot
make the requisite showing that they have a substantial need for the information
because they can obtain the substantial equivalent through other discovery methods.
Breslow contends that the disclosures in the emails cannot waive work product
protection because the recipient (VCM) is a non‐party to the lawsuit and there is no
adversarial relationship between Plaintiff and VCM. Breslow argues that this non‐
adversarial relationship demonstrates that her counsel did not know that the emails
would substantially increase the likelihood that an opposing party would obtain the
purportedly protected information.
Finally, Breslow contends that the emails are protected under the common
interest exception to waiver because she “shares a common legal interest with the Bay
10
Colony Homeowners’ Association (vis‐a‐vis the Property Manager) in that both parties
have an interest in the condition of the Bay Colony community.” Recognizing that the
Nelsons are also members of this Association, Breslow argues that the Nelsons are
adversaries to her common interest ‐‐ and are also adverse to the common interests of
all other Bay Colony homeowners.
ASIC and the Nelsons’ Position3
Initially, ASIC and the Nelsons contend that Breslow has not met her burden of
establishing the applicability of the work product doctrine to the two emails. They note
that the two emails were sent only two months after the loss was reported and more
than one month before ASIC issued its coverage decision. Therefore, they say Breslow
has not demonstrated that the primary motivating purpose of the emails was the
anticipation of litigation.
In connection with this argument, they note that nothing other than counsel’s
rhetoric supports the notion that the two emails were prepared in response to VMC’s
request for information.
Moreover, they raise a related point: even if the primary purpose was to respond
to VMC’s request for information, this does not demonstrate an anticipation of
litigation. Instead, it merely shows the primary purpose was to gather information in
response to a request.
3
ASIC and the Nelsons jointly filed a response memorandum. Broward Dock did
not join them in the opposition brief.
11
ASIC and the Nelsons next note that VMC is not Breslow’s agent (or the agent of
her attorney) and then argue that the work product protection does not protect
communications with independent third parties.
They then contend that any work product protection was waived because VMC
was under no duty to maintain the confidentiality of the documents or information in
them and therefore could have disclosed the emails to anyone at any time ‐‐ including
to the Nelsons, who are potential adversaries. They stress that Breslow did not provide
any evidence to suggest that she or her counsel had a reasonable expectation of secrecy
with VMC.
Finally, ASIC and the Nelsons challenge Breslow’s common interest argument,
noting that such a theory is “completely speculative” and emphasizing her failure to
provide any evidence from VMC to confirm the existence of a common interest.
Applicable Legal Principles and Analysis
Work Product
Before evaluating whether the two emails are immune from discovery under the
work product doctrine, the Undersigned will outline the relevant legal guidelines:
Florida law governs the attorney‐client privilege in a federal diversity of
citizenship case while federal law governs work product assertions in diversity actions.
Bradt v. Smith, 634 F.2d 796, 800 (5th Cir. 1981); Milinazzo v. State Farm Ins. Co., 247
F.R.D. 691, 698‐701 (S.D. Fla. 2007); 1550 Brickell Assocs. v. Q.B.E. Ins. Co., 253 F.R.D. 697
12
(S.D. Fla. 2008); Atrium on the Ocean v. QBE Ins. Corp., Case No. 06‐14326, 2007 WL
2972937 (S.D. Fla. Oct. 9, 2007). See also Frontier Refining, Inc. v. Gorman‐Rupp Co., 136
F.3d 695, 702 n. 10 (10th Cir. 1998) (“[u]nlike the attorney client privilege, the work
product privilege is governed, even in diversity cases, by a uniform federal standard
embodied in Fed. R. Civ. Pr. 26(b)(3)”); Commercial Long Trading Corp. v. Scottsdale Ins.
Co., No. 12‐22787, 2012 WL 6850675 (S.D. Fla. Dec. 26, 2012). See generally E. Epstein, The
Attorney‐Client Privilege and the Work‐Product Doctrine, at 122 (4th Ed. Supp.), (“[b]ecause
work‐product protections are predicated on Federal Rule of Civil Procedure 26(b)(3),
federal law applies even in diversity cases, even though the law of the state in which the
forum sits is applied to attorney‐client privilege issues”).
Second, the party claiming work product immunity has the burden to establish
the claimed protection. S. Bell Te. & Tel. Co. v. Deason, 632 So. 2d 1377 (Fla. 1994)
(attorney‐client); Milinazzo, 247 F.R.D. at 698 (work product).
Third, a party must anticipate litigation at the time the documents were created
for the protection to apply. Milinazzo, 247 F.R.D. at 698.
Fourth, the Court must determine when the document was created and why it
was created. Id.
Fifth, applying work product in the context of insurance claim files in a direct
breach of contract action is somewhat “complex” because “it is in the ordinary course of
business for an insurance company to investigate a claim with an eye toward litigation.”
13
Id. at 701. Recognizing this practical reality, many courts, including several in the
Southern District of Florida, establish a rebuttable presumption that documents or
things prepared before an insurer’s final decision on a claim are not work product but
that documents and things produced after a claim’s denial are work product. See id.;
1550 Brickell Assocs., 253 F.R.D. at 698‐699. See also Harper v. Auto‐Owners Ins. Co., 138
F.R.D. 655, 662 (S.D. Ind. 1991); Royal Bahamian Ass’n, Inc. v. QBE Ins. Corp., 268 F.R.D.
695, 698 (S.D. Fla. 2010). See also Sun Capital Partners, Inc. v. Twin City Fire Ins. Co., No.
12‐81397, 2015 WL 1860826 (S.D. Fla. Apr. 22, 2015).
Sixth, a party involved in a dispute with an insurance carrier may rebut the
presumption that documents prepared before the carrier’s final decision are not work
product by “specific evidentiary proof of objecting facts.” Milinazzo, 247 F.R.D. at 701;
Sun Capital Partners, 2015 WL 1860826, at *4; Essex Builders Grp., Inc. v. Amerisure Ins. Co.,
Case No. 6:04‐cv‐1838, 2006 WL 1733857 (M.D. Fla. June 20, 2006).
Seventh, in determining whether the presumption has been rebutted, the Court
may consider the length of time between the alleged date of anticipated litigation and
the date suit was actually filed, whether the parties were working towards a resolution
and whether there was a clear intention to sue made by one of the parties. Sun Capital
Partners, 2015 WL 1860826 at *4; 1550 Brickell Assocs., 253 F.R.D. at 699‐70.
Eighth, the burden to demonstrate that a privilege applies is “not, of course,
discharged by mere conclusory or ipse dixit assertions, for any such rule would foreclose
14
meaningful inquiry into the existence of the relationship, and any spurious claims could
never be exposed.” Bridgewater v. Carnival Corp., Case No. 10‐CV‐22241, 2011 WL
4383312 (S.D. Fla. Sept. 20, 2011) (internal citation omitted).
Ninth, an improperly asserted claim of privilege is no claim of privilege at all.
Bridgewater, 2011 WL 4383312, at *1.
Tenth, the party claiming a privilege must provide the court with underlying
facts demonstrating the existence of the privilege, which may be accomplished by
affidavit. Bridgewater, 2011 WL 4383312, at *1.
The two emails in question were written on May 20, 2014, when Breslow’s
counsel was trying to negotiate a resolution of the damages claim with the carrier. The
carrier gave notice of its coverage decision on June 26, 2014, more than a month later.
Based on the communications provided to the Court, there was never any mention of
litigation before May 20, 2014. In fact, Breslow’s counsel continued to negotiate with the
carrier after its June 26, 2014 coverage decision by repeatedly asking it to reconsider its
decision for several months.
The September 19, 2014 letter is the first one in which Breslow mentions
litigation. Even then, the letter did not actually and overtly threaten litigation; it merely
noted that the carrier should contact counsel if it wanted to explore further discussions
and reconsideration without litigation.
15
The primary purpose of the two emails is to summarize the status of Breslow’s
claim, to discuss the facts with the property management company and to request help
in connection with problems arising at the Nelsons’ construction site. Not only is
litigation not mentioned, but the emails mention that Breslow’s counsel was helping
Breslow in her efforts to obtain payment from ASIC so that she could start the major
repairs. In other words, the underlying theme was of resolution, not litigation. See 1550
Brickell Assocs., 253 F.R.D. at 699 (describing Milinazzo as case involving “an ongoing
discussion”).
To be sure, an earlier April 28, 2014 letter from Breslow’s counsel advised the
carrier to communicate directly with him (and not to his client), but this is hardly a
basis upon which to conclude that litigation would be forthcoming. In fact, district
courts in Florida have rejected work product claims based on events significantly more
hostile than a directive to communicate directly with counsel. See e.g., Milinazzo, 247
F.R.D. 691 (letter from insured’s counsel requesting liability coverage information and
expressly threatening a lawsuit if not contacted within thirty days did not create an
anticipation of litigation); Royal Bahamian, 268 F.R.D. 695 (adjuster’s report noting that at
least one member of a litigation committee recommended suing was insufficient to
establish a reasonable anticipation of litigation).
So nothing occurred by late May 2014 to support Breslow’s contention that she
anticipated litigation with ASIC when the emails were sent.
16
But Breslow argues (albeit cryptically and without explanation or detail) that she
also anticipated litigation against the “Third Party Defendants” ‐‐ the Nelsons and
Broward Dock. But she has come nowhere close to establishing anticipation of litigation
with these parties as of May 2014.
First, Breslow has never filed a claim against either Broward Dock or the
Nelsons; the only claim here was filed by ASIC. Second, ASIC’s Third Party claims
against Broward Dock and the Nelsons were filed in July 2015, long after the two emails
were sent in May 2014. Third, although the first email describes problems with the
Nelson’s contractor and its employees, it does not threaten litigation against them.
Fourth, the first email mentions that counsel will be “addressing these issues” with the
Nelsons after receipt of estimates and proposals ‐‐ a planned strategy to pursue
negotiation and compromise, not litigation. See Guar. Ins. Co. v. Herrernan Ins. Brokers,
Inc., No. 13‐23881, 2014 U.S. Dist. LEXIS 146843, at *9‐10 (S.D. Fla. Oct. 15, 2014)
(overruling work product claim over emails whose primary motivating purpose was
the review of information, the response to inquiries and the investigation of factual
issues).
Breslow has not established that she anticipated litigation with ASIC, Broward
Dock or the Nelsons as of May 20, 2014.
Disclosure to Third Parties
17
Assuming for the sake of discussion that Breslow and her counsel anticipated
litigation on May 20, 2014 (which they did not), the next issue is whether the
hypothetically assumed work product protection was waived because her counsel
disclosed information to the property management company, a third party who was not
Plaintiff’s agent. Breslow argues that no waiver occurred because the property
management company is not an adversary.
Although the rules governing waiver of attorney‐client privileged information
are different than those applicable to the work product doctrine, these differences are
inadequate to avoid a waiver.
In the context of work product, the question is not, as in the case of the attorney‐
client privilege, whether confidential communications are disclosed, but to whom the
disclosure is made ‐‐ because the protection is designed to protect an attorney’s mental
processes from discovery by adverse parties. See generally Jordan v. U.S. Dep’t of Justice,
591 F.2d 753, 775 (D.C. Cir. 1978).
Work‐product protection is waived when protected materials are disclosed in a
way that “substantially increases the opportunity for potential adversaries to obtain the
information.” Niagara Mohawk Power Corp. v. Stone & Webster Eng. Corp., 125 F.R.D. 578,
587 (N.D.N.Y. 1989) (emphasis added) (quoting In re Grand Jury Subpoenas Dated Dec. 18,
1981 and Jan. 4, 1982, 561 F. Supp. 1247, 1257 (E.D.N.Y. 1982)); 8 Charles Alan Wright,
18
Arthur R. Miller and Richard L. Marcus, Federal Practice and Procedure, § 2024 at 209–10
(1970).
As noted in United States v. Gulf Oil Corp., 760 F.2d 292, 295 (Temp. Emer. Ct.
App. 1985),4 “[t]he purpose of the work product doctrine is to protect information
against opposing parties, rather than against all others outside a particular confidential
relationship, in order to encourage effective trial preparation[.] A disclosure made in the
pursuit of such trial preparation, and not inconsistent with maintaining secrecy against
opponents, should be allowed without waiver of the privilege.” 760 F.2d 292, 295
(citations omitted) (emphasis added).
Thus, not every situation in which work‐product materials are disclosed warrants
a finding of waiver. Rather, the “circumstances surrounding the disclosure are key to
determining whether an actual waiver of the work‐product protection has occurred.”
Stern, 253 F.R.D. at 681 (emphasis added).
Generally speaking, as noted above, work‐product protection is waived when
protected materials are “disclosed in a manner which is either inconsistent with
maintaining secrecy against opponents or substantially increases the opportunity for a
potential adversary to obtain the protected information.” Niagara, 125 F.R.D. at 590
(citing Gulf Oil, 760 F.2d at 295 and other cases) (emphasis supplied); Kallas v. Carnival
Corp., No. 06‐20115‐CIV, 2008 WL 2222152, at *4 (S.D. Fla. May 27, 2008) (a party waives
4
Citing United States v. American Tel. & Tel. Co., 642 F.2d 1285 (D.C. Cir. 1980).
19
otherwise‐protected work‐product materials “when the covered materials are used in a
manner that is inconsistent with the protection”) (internal quotations omitted); see also
Bank Brussels Lambert v. Chase Manhattan Bank, N.A., No. 93 CIV. 5298 LMM RLE, 1996
WL 944011, at *3 (S.D.N.Y. Dec. 19, 1996) (“Work product immunity is waived only if
the party has voluntarily disclosed the work product in such a manner that it is likely to
be revealed to his adversary.”) (emphasis supplied); Falise v. Am. Tobacco Co., 193 F.R.D.
73, 79 (E.D.N.Y. 2000) (waiver of work‐product protection found only if disclosure
substantially increases the opportunity for potential adversaries to obtain the
information) (emphasis added); Stern v. O’Quinn, 253 F.R.D. 663, 676 (S.D. Fla. 2008)
(work‐product waiver when disclosure occurs in a way which “substantially increases
the opportunities for potential adversaries to obtain the information”).
Thus, the first factor to focus on is whether Breslow had any rational reason to
believe that the property management company would not disclose the information to
the Nelsons, who are also homeowners in the same association which retained the
property manager. There is nothing in the emails or the arguments asserted in
Breslow’s memorandum which convinces me that Breslow’s counsel had an expectation
that his emails would not be shown to the Nelsons or discussed with them. There is
nothing submitted to suggest that VMC’s relationship with Breslow was somehow
better than its relationship with any other homeowner, such as the Nelsons.
20
In addition, the second factor ‐‐ the purpose of the disclosure (i.e., to help
Breslow herself or to assist the community association or the property management
company it retained) ‐‐ militates against Breslow’s position. There is nothing to establish
that Breslow’s counsel was seeking to assist the association, rather than his own client.
In fact, his second email includes a request that the management company forward
material to him.
Common Interest Privilege
In a final effort to avoid the production of these two emails, Breslow argues that
she has a “common interest” with VMC, the property manager. But this is merely
attorney rhetoric. There is no affidavit from Breslow’s counsel, nor is there any
supporting affidavit or other supporting information from VMC itself.
Under the “common interest” exception to waiver, a party may share its
work product with another party without waiving the right to assert the privilege when
the parties have a shared interest in actual or potential litigation against a common
adversary, and the nature of their common interest is legal, and not solely commercial.
See Net2Phone, Inc. v. eBay, Inc., No. 06‐2469, 2008 U.S. Dist. LEXIS 50451, at *23 (D.N.J.
June 25, 2008) (citing Thompson v. Glenmede Trust Co., Civ. No. 92‐5233, 1995 U.S. Dist.
LEXIS 18780, at *15 (E.D. Pa. Dec. 18, 1995); Duplan Corp. v. Deering Milliken, Inc., 397 F.
Supp. 1146, 1172 (D.S.C. 1974)); see also Weber v. FujiFilm Med. Sys. U.S.A., No. 3:10cv401,
2011 U.S. Dist. LEXIS 6199, at *5 (D. Conn. Jan. 21, 2011); Gulf Islands Leasing, Inc. v.
21
Bombardier Capital, Inc., 215 F.R.D. 466, 474 (S.D.N.Y. 2003); Medinol v. Boston Sci. Corp.,
214 F.R.D. 113, 115 (S.D.N.Y. 2002). Courts differ on the degree of commonality required
to satisfy the common interest exception. Compare Hoffmann La Roche, Inc. v. Roxane
Labs., Inc., No. 09‐6335, 2011 U.S. Dist. LEXIS 50404, at *15 (D.N.J. May 11, 2011)
(substantially similar legal interests sufficient) with Duplan, 397 F. Supp. at 1172 (identical
interests required).
Breslow contends that she shares a common legal interest with the homeowner’s
association because they both “have an interest in the condition of the Bay Colony
community.” But this interest, vague as it may be, is a commercial/business purpose,
not a legal common interest. Breslow also argues that she and the association share a
common interest because the Nelsons are a “common adversary.” Although the
Undersigned appreciates the creativity in crafting this theory, I am not convinced in its
legal soundness. The theory was never raised before the memorandum was submitted.
Moreover, any shared purpose in May 2014 was commercial, not legal.
In addition, Breslow has not submitted any evidence to demonstrate that VMC
was even aware of this purported common interest when it received these two emails,
and the Undersigned was not presented with any information to support the notion
that VMC was siding with one homeowner against another and therefore had a
common interest against a so‐called adversary homeowner.
22
To be sure, there may well be instances where a homeowner’s association is
indeed in an adversarial relationship with a specific homeowner, such as when a
homeowner fails to pay fees and the association imposes a lien on the homeowner’s
property. But that scenario is not present here. And although VMC may now (in
February 2016) be adversarial with the Nelsons (and this is pure speculation, as the
parties have not submitted any evidence on this), the record does not reveal that they
were in fact adversarial in May 2014.
But even if Breslow was in an adversarial relationship with the Nelsons in May
2014, that does not automatically mean that the common interest doctrine applies to
communications between her and a property management company retained by all
homeowners. Breslow did not establish that VMC was even aware of this claimed
common interest scenario and it is not illogical to view the claim as an after‐the‐fact
justification which was never established, let alone even discussed, at the time.
Thus, Breslow has not established that she had a common interest privilege with
VMC in May 2014 so that her attorney could safely send work product information to it
without generating a work product waiver.
Attorney’s Fees
As the party losing this discovery dispute, Breslow (and/or her counsel) is
responsible for attorney’s fees under Federal Rule of Civil Procedure 37, unless one or
more of a limited list of exceptions apply. Rule 37 establishes a “loser pays” scenario,
23
and requires the Court to enter a costs award, including attorney’s fees, unless an
exception applies. No exception applies here.
Federal Rule 37(a)(5)(A) provides that the Court “must” require the losing party
or attorney or both to pay the costs/fees award, in the absence of an exception.
Moreover, the Discovery Procedures Order [ECF No. 87, pp. 11] specifically cautions
parties about the rule and its requirement that fees be awarded unless an exception
applies.
The Undersigned does not believe that Plaintiff, herself, should pay the award, as
it appears it was her counsel who persisted in urging the unsuccessful work product
claim. In fact, Breslow may not have even be aware that a discovery dispute over the
emails was unfolding, as she voluntarily surrendered to the federal Bureau of Prisons
on September 26, 2015 to begin serving a 30‐month sentence after pleading guilty to
making false statements to the federal government and aiding and abetting. United
States v. Breslow, Case No. 14‐cr‐00008‐d‐1, ECF Nos. 48; 76,5 (E.D.N.C.). Therefore, it is
Plaintiff’s counsel6 who will pay the fees award ‐‐ of $1,000.00 ‐‐ within 10 days of this
Order.7
5
The underlying criminal judgment and return, showing that Breslow
surrendered. She is currently serving her sentence at FPC Alderson in Alderson, West
Virginia.
6
The Undersigned does not consider a Rule 37(a)(5)(A) expense‐shifting award to
be a sanction, or the imposition of discipline, or an indication that anyone acted in bad
faith. Rather, it is merely a consequence of taking certain unjustified positions in
24
If any party (or counsel of record) objects to either the fees award or the amount
of the award, then the Court will hold a hearing if an objection is filed within seven
days of this Order. If the challenge is to the amount, then counsel for both sides will be
required to submit their billing records for the time in question.8
discovery. Thus, this Order would not require Plaintiff’s counsel to answer “yes” if ever
asked (e.g., by a prospective employer, by an insurance carrier, by a judicial nominating
commission, by a client, or by a prospective client) if he or she had ever been sanctioned
or disciplined.
7
Plaintiff’s counsel shall submit an affidavit or declaration, confirming that the
payment was made, to the Undersigned’s efile inbox (not on CM/ECF) within three
days of making the payment. Plaintiff’s counsel shall not, directly or indirectly, pass on
to the client this fees award as a costs item or deductible expense. The declaration shall
also explain which attorney is being held responsible for the payment, and the amount
of the responsibility.
8
The Undersigned may use his own experience in assessing the reasonableness of
attorney’s fees and may form an independent judgment either with or without
witnesses. Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994); see also Crescenzo v.
Healthcare Revenue Recovery Grp., LLC, No. 11‐60384‐CIV, 2012 WL 291431, at *2 (S.D. Fla.
Jan. 31, 2012).
A court is “itself an expert on the question [of determining reasonable hourly
rates] and may consider its own knowledge and experience concerning reasonable and
proper fees and may form an independent judgment either with or without the aid of
witnesses as to value.” Norman v. Housing Auth., 836 F.2d 1292, 1303 (11th Cir. 1988).
The Court’s $1,000 fees award is based on my 33 years of practice in the South
Florida legal community, my involvement in issuing rulings on attorney’s fees motions
since July 2010 and my familiarity with the issues and attorneys involved in this case.
As noted, either side may obtain a hearing on the amount of the award, which is based
on a $300‐per‐hour rate.
25
Conclusion
Breslow has not established her work product claim for the two emails in
questions and must therefore produce them to ASIC within 5 days and her counsel
must pay the $1,000 fees award within 10 days.9
DONE and ORDERED, in Chambers, in Miami, Florida, February 19, 2016.
Copies furnished to:
All counsel of record
9
Breslow (i.e., her counsel) would not have obtained a different outcome even if
they followed the musical advice offered by the Yardbirds in their song “I’m Not
Talking”, released in 1965 on the For Your Love album (Epic): “I’m not talking / Well
that’s all I got to say.” That’s because the emails were not prepared in anticipation of
litigation, a threshold issue which renders the later discussion about disclosure
unnecessary (unless the ruling on when the work product privilege begins in this case is
deemed incorrect).
26
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