Davison et al v. Town of Sandwich et al

Filing 70

Magistrate Judge Donald L. Cabell: ORDER entered. MEMORANDUM AND ORDER on non-party union's Motion to Quash subpoena for the production of documents; denying 58 Motion to Quash. (Russo, Noreen)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

ANDREW DAVISON and CAPE COD
BIOFUELS, INC.,
Plaintiffs,
Civil Action No. 15-cv-11889-FDS
v.
TOWN OF SANDWICH, JASON VIVEIROS,
THOMAS
CORRIVEAU,
GEORGE
RUSSELL, and GEORGE H. DUNHAM,
Defendants.

MEMORANDUM AND ORDER ON NON-PARTY UNION’S MOTION TO QUASH
SUBPOENA FOR THE PRODUCTION OF DOCUMENTS
(Dkt. No. 58)

CABELL, U.S.M.J.
Plaintiff Andrew Davison (Davison or the plaintiff) was terminated from his position as a
Sandwich, MA firefighter and brought suit against several entities, including Jason Viveiros
(Viveiros), who was then a fellow firefighter and president of the Sandwich Professional Fire
Fighters Association, IAFF Local 2196 (the Union).

As part of discovery, Viveiros has

subpoenaed the Union, a non-party, to produce documents reflecting communications between
Viveiros and the Union’s lawyer concerning the plaintiff. The Union moved to quash the subpoena
on the ground that the documents are protected by the attorney-client privilege. (Dkt. No. 58).
Viveiros opposed the motion and moved to have the Court review the documents in camera.
Viveiros alternatively requested through his opposition that the Court exclude at trial any evidence
concerning his acts or omissions as union president. (Dkt. Nos. 62 and 63). The Court allowed
the motion for an in camera review and thereafter held a hearing including the plaintiff, the

defendants and the Union. After consideration of the court filings, the submitted documents, and
the arguments advanced at the hearing, the Court concludes that the communications are not
protected by the attorney-client privilege. The Union’s motion to quash is therefore denied and
Viveiros’ alternative request to exclude evidence, premature in any event, is moot and need not be
considered.
I.

RELEVANT BACKGROUND

Davison was at all relevant times a Sandwich firefighter and part owner of a company
called Cape Cod BioFuels, Inc. (CC BioFuels). When Davison sustained an injury while working
as a firefighter, he took a medical leave of absence from the firefighter position but continued to
work at CC BioFuels, performing light tasks. Around the same time, the town was considering a
proposal to build a public safety complex which would house police, fire, and other town
operations. The proposal enjoyed the support of some within the fire department but Davison
opposed it, and he showed it by among other things erecting a large sign in his yard condemning
it.
The plaintiff alleges that supervisors within the fire department took issue with his conduct
and pressured him to remove the sign, by telling him that he was violating state law by working at
CC BioFuels while out on medical leave. When the plaintiff refused, his superiors ordered him in
writing to stop working. The plaintiff alleges that it was common for firefighters to work
elsewhere while out on leave and he met with department officials to discuss the matter further.
Shortly thereafter, however, the plaintiff’s medical leave ended and he returned to work as a
firefighter. Upon his return, and where there was no longer a basis to order him to stop working
at CC BioFuels, the plaintiff was issued a written reprimand. According to the complaint, and
relevant to the motion to quash, the plaintiff alleges that:

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Defendant Viveiros advised Mr. Davison that he could not appeal or
grieve such reprimand because there was no adverse action being
taken against him. Defendant Viveiros falsely stated that he had
checked with the Union’s lawyer on this. That was not true; he never
checked with the Union’s lawyer but rather he simply did not want
Mr. Davison to have the union appeal or grieve this reprimand.
Compl., at ¶ 35. To rebut this allegation, Viveiros seeks to obtain documents from the Union
which would show that he in fact did consult with the Union’s lawyer. Notably, no one appears
to dispute that there are indeed documents bearing on the purported consultation, or that Viveiros
simultaneously shared his written inquiry to counsel with the plaintiff. In fact, Viveiros is already
in possession of the documents he seeks to obtain from the Union, including an e-mail dated
August 17, 2012 from Viveiros to Union Counsel, Howard Lenow, and a copy of a bill dated
September 3, 2012 for services rendered by Mr. Lenow to the Union. Viveiros nonetheless sought
the Union’s permission to formally use the documents in this case because he was acting in his
capacity as president of the Union when he consulted counsel, and assumes that the documents
thus reflect attorney-client communications which are protected by the attorney-client privilege.
The Union appears to share this view as well and has declined to waive the privilege.
II.

DISCUSSION

As the entity asserting the privilege, the Union bears the burden of showing that “(1) the
communications were received from a client during the course of the client’s search for legal
advice from the attorney in his or her capacity as such; (2) the communications were made in
confidence; and (3) the privilege as to these communications has not been waived.” Comm’r of
Revenue v. Comcast Corp., 453 Mass. 293, 304 (2009). In order for a communication to be made
in confidence, it must be made “with the expectation that the communication will not be divulged.”
Id. at 305.
With respect to the email, there are no markings or notations on it to evince that it was
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being sent in confidence. On the contrary, there is no dispute that Viveiros blind copied the
plaintiff when he emailed the communication to the Union’s counsel, and there is no evidence that
Viveiros ever instructed the plaintiff that the e-mail must be kept confidential as a privileged
communication. Cf. Upjohn Co. v. United States, 449 U.S. 383, 395 (1981) (communications
between employees and in house counsel deemed privileged where the chairman of the board gave
explicit instructions that the communications at issue were highly confidential). Consequently,
Viveiros, as president of the Union, knew when he communicated with counsel, and shared the
same communications with Davison, that Davison could have, had he so wished, shared the
communication with anyone else, without restriction. As such, there is no basis to conclude that
Viveiros communicated with counsel with an expectation that the communication would remain
confidential. Accordingly, the Union has not met its burden of demonstrating that Viveiros sent
this e-mail with the expectation that it not be divulged. It follows that the email is not a privileged
communication and therefore is not protected from disclosure by the attorney-client privilege. For
that reason, it is not necessary to reach the issue of whether the privilege was waived.
The Court also concludes that counsel’s bill is not protected from disclosure by the
attorney-client privilege. “As a general proposition, billing records are just … records of amounts
being billed to a particular client for services rendered and, presumably, a description of those
services, the identity of those who rendered them and the time they each spent in doing so, and the
actual costs incurred.” McCarthy v. Slade Associates, Inc., 463 Mass. 181, 197-98 (2012). To the
extent a particular description of services “might contain substantive references to privileged
attorney-client communications” these entries may be redacted as privileged. Id. at 98. However,
where a description of services merely notes “the general nature of the services performed … this

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type of information is not privileged.” Clarke v. Am. Commerce Nat. Bank, 974 F.2d 127, 130
(9th Cir. 1992).
The Court is satisfied here that the bill at issue does not contain any substantive references
to communications between counsel and Viveiros or other Union representatives. Rather, the
description of services rendered generally references the nature of the work performed and nothing
in it reveals or hints at what counsel and Viveiros may have discussed or what advice or opinion
may have been rendered. Moreover, one entry on the bill suggests that whatever communications
did take place between counsel and Viveiros were also shared with Davison. For that reason, and
because all other parts of the bill involving the time spent and amount billed are “stuff of fact, not
opinion” the Court is satisfied that the document is not privileged. McCarthy, 463 Mass. at 198.
III.

ORDER

For the foregoing reasons the Union’s motion to quash the subpoena is DENIED (Dkt. No.
58).

/s/ Donald L. Cabell
DONALD L. CABELL, U.S.M.J.
DATED: April 8, 2016

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