Congregation ARIEL Russian Community Synagogue, Inc. et al v. Board of Appeals of Baltimore County et al

Filing 219

MEMORANDUM AND ORDER. Signed by Judge Stephanie A. Gallagher on 5/3/2021. (bas, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
STEPHANIE A. GALLAGHER
UNITED STATES DISTRICT JUDGE
[e-mail]

101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
[phone]

May 3, 2021

LETTER ORDER
RE:

Congregation ARIEL Russian Community Synagogue, Inc. v. Board of Appeals
Civil Case No. SAG-17-00910

Dear Counsel:
This case arises out of a land use dispute between a religious community, Congregation
ARIEL Russian Community Synagogue, Inc. (“Congregation Ariel”) and its leader, Rabbi
Belinsky (collectively “Plaintiffs”), and Baltimore County and the Baltimore County Board of
Appeals (collectively “Defendants”). Several of the parties’ discovery disputes have been
adjudicated by United States Magistrate Judge A. David Copperthite. Regarding one such dispute,
Judge Copperthite issued a written ruling on January 28, 2021 and further clarified his decision in
a subsequent order on February 5, 2021, requiring Plaintiffs to disclose various communications
between Rabbi Belinsky and the professionals who assisted him in the underlying administrative
proceedings with Baltimore County. ECF 202; ECF 208. Judge Copperthite found that Plaintiffs
had waived any privilege attached to these communications. In accordance with Federal Rule of
Civil Procedure 72(a), Plaintiffs filed objections to Judge Copperthite’s ruling, ECF 209, and
Defendants filed an opposition to Plaintiffs’ objection, ECF 212. The Court has considered these
filings, counsels’ arguments at the telephonic hearing, and the supplemental briefings submitted
by both parties, ECF 216 and 217. For the reasons explained below, this Court will vacate and
modify Judge Copperthite’s Order as follows: Plaintiffs will be required to disclose
communications that are (1) between Rabbi Belinsky and Timothy Kotroco or between Rabbi
Belinsky and David Thaler, including those with other individuals courtesy copied, (2) prior to the
October, 2016 closing date, and (3) relevant to Plaintiffs’ reasonable expectations. Plaintiffs will
not be required to disclose communications between Rabbi Belinsky and Herbert Burgunder,
unless they also meet the above conditions.
Preliminarily, Plaintiffs argue that the requested communications are not relevant for two
reasons: (1) because Plaintiffs’ reasonable expectations should be judged based on the time they
contracted to purchase the property, not the closing date; and (2) because Plaintiffs’ claim turns on
objectively reasonable expectations, not Rabbi Belinsky’s subjective expectations. ECF 209 at 48, 11-12; ECF 217 at 4 n.1. For the reasons explained at the telephonic hearing, this Court
maintains that communications which helped form Rabbi Belinsky’s subjective expectations that
the County would approve his zoning permitting requests prior to and until he closed on the
property in October, 2016 are relevant to Plaintiffs’ substantial burden claim. Under the
circumstances of this case, the “purchase” of the property did not occur until closing. Having
found the withheld communications are relevant, the Court turns to Plaintiffs’ assertion that they

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Civil Case No. SAG-17-00910
May 3, 2021
Page 2

are otherwise not discoverable because they are privileged.
The withheld documents consist of communications between Rabbi Belinsky and four
professionals: Herbert Burgunder (“Burgunder”), Plaintiffs’ counsel during the administrative
proceedings; Timothy Kotroco (“Kotroco”), an attorney who testified as an expert witness during
the administrative proceedings; David Thaler (“Thaler”), an engineer who testified as an expert
witness during the administrative proceedings; and Stacey MacArthur (“MacArthur”), an engineer
who works with Thaler. The withheld documents can be grouped into four relevant categories:
▪

The largest number of withheld documents are communications between Rabbi
Belinsky and Burgunder. There is no dispute that Rabbi Belinsky and Burgunder
had an attorney-client relationship and these communications were protected by the
attorney-client privilege.

▪

The second-largest category of withheld documents are communications between
Rabbi Belinsky and Kotroco, Thaler, and/or MacArthur, where Burgunder was also
courtesy copied on the message. Although Defendants appear to argue that not all
of these documents are privileged, after an in camera review, Judge Copperthite
deemed these communications privileged. This Court will not reevaluate that
ruling. See ECF 124.

▪

Third, a small number of withheld communications are those between Rabbi
Belinsky and Kotroco. Plaintiffs assert that they are not related to Rabbi Belinsky’s
“reasonable expectations” or are protected by the attorney-client and work product
privileges. ECF 217 at 1–2.

▪

Fourth, a number of communications have also been withheld between Rabbi
Belinsky and Thaler and MacArthur. Plaintiffs assert that these communications
are protected by the work product privilege. See ECF 216-1.

Although these communications may be relevant to Plaintiffs’ claim, not all relevant
evidence is discoverable. The attorney-client privilege and work product privilege shields certain
relevant communications from the opposing party. See, e.g., United States v. Jicarilla Apache
Nation, 564 U.S. 162, 165 (2011); Hickman v. Taylor, 329 U.S. 495, 509–14 (1947). These
privileges, of course, are not absolute, and may be waived by the person asserting the privilege.
Sky Angel U.S., LLC v. Discovery Commc’ns, LLC, 885 F.3d 271, 276 (4th Cir. 2018). If a party
discloses “a communication or information covered by the attorney-client privilege or workproduct protection,” he waives any privilege to that communication and to “undisclosed
communications or information concern[ing] the same subject matter” that “ought in fairness” also
be considered. Id. (interpreting Fed. R. Evid. 502(a)).
Additionally, in some circumstances, waiver may occur “where no disclosure has been
made.” Fed. R. Evid. 502 advisory committee’s note to 2011 Amendments (citing Nguyen v. Excel

Congregation ARIEL Russian Community Synagogue, Inc. v. Board of Appeals
Civil Case No. SAG-17-00910
May 3, 2021
Page 3
Corp., 197 F.3d 200 (5th Cir. 1999) and explaining changes to Rule 502 are “not intended to
displace or modify” other common-law waiver doctrines). When a party “injects into the case an
issue that in fairness requires an examination of otherwise protected communications” the
privilege is waived. Cox v. Adm’r U.S. Steel & Carnegie, 17 F.3d 1386, 1418–19 (11th Cir. 1994).
This is because “[t]he law prohibits a party from using information as a sword to prove its case
while shielding the information from disclosure” by asserting a privilege. Carroll Co. v. SherwinWilliams Co., No. WMN-11-1700, 2012 WL 4846167, at *2 (D. Md. Oct. 10, 2012); see also
Conkling v. Turner, 883 F.2d 431, 434 (5th Cir. 1989) (holding plaintiff waived attorney-client
and work product privilege as to any information given to plaintiff by his attorneys where
plaintiff’s knowledge was at issue and he asserted his knowledge was based on communications
with his attorney); United States v. White, 944 F. Supp. 2d 454, 459–60 (S.D.S.C. 2013) (holding
party implicitly waived the attorney-client privilege by blaming his attorney for not understanding
a material fact that would impact his standing and other relevant issues); cf. United States v.
Mierzwicki, 500 F. Supp. 1331, 1335 (D. Md. 1980) (“It is well established that when confidential
communications are made a material issue in a judicial proceeding, fairness demands treating the
defense as a waiver of the privilege.”). This doctrine acknowledges and guards against the
possibility that “[s]elective use of privileged information by one side” could “‘garble’ the truth.”
Small v. Hunt, 152 F.R.D. 509, 512 (E.D.N.C. 1994) (holding plaintiffs waived privilege protecting
previous negotiations by asserting the present circumstances were unforeseeable during those
negotiations).
Defendants contend that Plaintiffs have waived any privilege to all of the communications
described above by asserting that they relied on communications with Burgunder, Kotroco, Thaler,
and MacArthur to form their expectations about whether their permits would be approved by the
county. Specifically, Defendants base this argument on testimony from Rabbi Belinsky’s and
Thaler’s depositions. The Court addresses Rabbi Belinsky’s communications with each of the
individuals in turn.
Rabbi Belinsky’s Communications with Burgunder
During Rabbi Belinsky’s deposition, Plaintiffs’ counsel repeatedly advised him not to
answer questions that could potentially reveal privileged attorney-client communications he had
with Burgunder. See, e.g., ECF 212-12 at 371:4–10, 372:6–10, 373:17–19. Rabbi Belinsky
testified that he relied on communications with Burgunder to form his expectations before
purchasing the property, but he did not reveal the contents of such communications. Id. at 371:11–
373:2, 460:14–421:18. Additionally, at Rabbi Belinsky’s deposition, Plaintiffs’ counsel
represented that Plaintiffs would not rely on any communications, oral or written, between Rabbi
Belinsky and Burgunder to establish Plaintiffs’ reasonable expectations. Id. at 387:19–388:10.
This Court therefore finds no basis for waiver of the attorney-client privilege for communications
between Rabbi Belinsky and Burgunder. Plaintiffs neither selectively revealed privileged
communications nor placed the communications at issue. Although Rabbi Belinsky admitted at
deposition in response to defense counsel’s questions that his expectations about the property were
formed in part by Burgunder’s advice, Plaintiffs do not intend to rely on Burgunder’s

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representations or omissions to prove their claim. There is no unfairness to Defendants because
Plaintiffs have not and do not intend to use communications between Rabbi Belinsky and
Burgunder to “obtain a tactical advantage” or “unfairly influence a decisionmaker.” Cf.
McCullough v. Hanley, No. 17 CV 50116, 2019 WL 3776962, at * (N.D. Ill. Aug. 12, 2019)
(declining to apply subject matter waiver to privileged communications where plaintiff made a
partial disclosure at deposition but had not and would not otherwise place such testimony before
the court because there was no harm or unfairness to defendants).
Defendants argue that because Plaintiffs intend to rely on the advice of other professionals
to demonstrate their reasonable expectations and because Rabbi Belinsky has admitted he also
relied on Burgunder’s advice, Plaintiffs should be required to disclose Rabbi Belinsky’s
communications with Burgunder. Defendants maintain that to hold otherwise would result in
fundamental unfairness, because Plaintiffs could present advice from individuals that would be
favorable to their position, while withholding another’s advice that was more problematic to their
claim. The Court is not persuaded that under these circumstances such a sweeping implicit waiver
is appropriate. Such a broadly defined waiver would essentially eliminate the attorney-client
privilege for any plaintiff bringing a RLUIPA substantial burden claim, because advice received
from one’s attorney would nearly always play into one’s expectation. Although the nature of a
substantial burden claim makes a claimant’s subjective expectations relevant, it does not follow
that he has automatically placed everything known to him “at issue” simply by filing suit. In this
case, Plaintiff will not present evidence about Burgunder’s opinions or advice to show that Rabbi
Belinsky’s expectation that he could build a synagogue on the property was reasonable. Therefore,
Defendants do not need to be able to refute such claims, and shielding these protected
communications does not create a manifestly unfair situation that would prevent them from
preparing a defense. Therefore, the Court will modify Judge Copperthite’s order to the extent that
it requires Plaintiffs to disclose all communications between Rabbi Belinsky and Burgunder.
Rabbi Belinsky’s Communications with Kotroco
Rabbi Belinsky also testified that he relied on communications with Kotroco to form his
expectations. ECF 212-12 at 370:12–373:2, 460:14–421:18. Unlike his communications with
Burgunder, Rabbi Belinsky was permitted to testify about the content of certain advice he received
from Kotroco. Id. at 377, 462:11–463:15.
MR. FELDMAN: What did Mr. Kotroco tell you about your chances of
success on the FDP issue?
MR. STORZER: You can answer.
RABBI BELINSKY: He believed that we – he very strongly believed that we
should not be subject to the FDP amendment. And he
also believed that even if we have to go through this

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process, we are consistent with spirit and intent.
MR. FELDMAN: And was Mr. Kotroco’s belief based on the argument that
the small lot table applied?
RABBI BELINSKY: Yes.
Id. Additionally, unlike the Burgunder communications, Plaintiffs’ counsel have affirmatively
stated that Plaintiffs will rely on communications between Kotroco and Rabbi Belinsky to prove
their case.
MR. FELDMAN: At trial will plaintiffs be relying on anything communicated
by Mr. Kotroco to Ariel or the Rabbi on the issue of the
Rabbi and Ariel’s expectations before purchasing the
property?
MR. STORZER: Yes.
Id. at 388:11–15. Plaintiffs have claimed an attorney-client relationship formed between Rabbi
Belinsky and Kotroco at some point prior to closing on the property. Although it is unclear whether
the communications disclosed by Belinsky at his deposition were those Plaintiffs consider
privileged or unprivileged based on whether or not Kotroco had assumed his role as counsel, this
determination is not dispositive. Regardless of whether Plaintiffs disclosed privileged
communications during the time Kotroco served as counsel, they have put such communications
at issue by using what Rabbi Belinsky was told by Kotroco to establish his expectations about the
property. It would be unfair to Defendants to allow Plaintiffs to strategically select certain
statements from Kotroco without revealing other communications which could potentially
contradict or temper his original advice. Therefore, the Court finds Plaintiffs have implicitly
waived any attorney-client and work product privileges for communications between Rabbi
Belinsky and Kotroco concerning the property prior to the closing date, including communications
where Burgunder is also copied on the email.
Rabbi Belinsky’s Communications with Thaler and MacArthur
Similarly, Rabbi Belinsky also testified at his deposition that he relied on advice and
information from Thaler and MacArthur to form his expectations about the property. ECF 212-12
at 204:3–205:15, 370:12–371:21, 457:2–11, 460:14–461:4. Plaintiffs also allowed Thaler to be
deposed. At his deposition, Thaler testified about some of the advice he gave Rabbi Belinsky.
Specifically, he stated, “I’m sure I told him, you know, don’t close until – I probably told him,

Congregation ARIEL Russian Community Synagogue, Inc. v. Board of Appeals
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don’t close until you get permits.”1 ECF 216-3 at 289:7–19. Thaler also testified that he told
Rabbi Belinsky that it was “highly probable” they would get approved based on their filing with
the Board of Appeals regarding at least one issue. Id. at 292:16–293:1. As with Kotroco,
Plaintiffs’ counsel represented that Plaintiffs would present evidence regarding Thaler’s advice
and Plaintiffs’ reliance on his advice to prove their case. ECF 212-12 at 392:8–11. Therefore, the
Court reaches the same conclusion as it has regarding communications with Kotroco.
Notwithstanding Plaintiffs’ assertion that no privileged communications between Rabbi Belinsky
and Thaler were disclosed, Plaintiffs have put Thaler’s advice at issue by relying on his
communications to establish, in part, Rabbi Belinsky’s expectations before closing on the property.
The Court therefore finds Plaintiffs have implicitly waived any attorney-client and work product
privileges for communications between Rabbi Belinsky and Thaler concerning the property prior
to the closing, including communications where Burgunder is also copied on the email.2
Despite the informal nature of this letter, it should be flagged as an opinion and order. The
parties are ordered to confer on a joint proposed schedule for further proceedings in this case, and
to provide the proposal to the Court on or before May 13, 2021. While this Court understands that
Defendants did not consent to Plaintiffs’ proposed bifurcation of the summary judgment briefing
to address the prior restraint claim initially before the remaining claims, this Court agrees with
Plaintiffs that such bifurcation would serve the best interests of this case. The parties should
therefore incorporate bifurcated briefing into their proposed schedule.
Sincerely yours,
/s/
Stephanie A. Gallagher
United States District Judge

1

An email exchange between Rabbi Belinsky and Thaler disclosed by Plaintiffs echoes this advice.
See ECF 216-5 (“As there is always risk of not being successful, I think it prudent to put off the
purchase if you can, at least until there is an approved Development Plan (permits is even better
but takes longer).”)
2

At the telephonic hearing, the parties represented that there are no disputed communications
between only MacArthur and Rabbi Belinsky, but some communications between Thaler and
Rabbi Belinsky also include MacArthur. The Court’s ruling requires Plaintiffs to disclose all
relevant communications between Rabbi Belinsky and Thaler, including those which include
MacArthur.