Wade et al v. Clayton et al
Filing
42
Magistrate Judge Judith G. Dein: ORDER entered. MEMORANDUM OF DECISION AND ORDER granting 24 Plaintiffs' Motion for a Protective Order. (Dambrosio, Jolyne)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
GREGG WADE and
KARIN WADE,
Plaintiffs,
v.
TOUCHDOWN REALTY GROUP,
LLC and TOM CLAYTON,
Defendants.
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CIVIL ACTION
NO. 17-10400-PBS
MEMORANDUM OF DECISION AND ORDER
ON PLAINTIFFS’ MOTION FOR PROTECTIVE ORDER
January 26, 2018
DEIN, U.S.M.J.
I. INTRODUCTION
This matter is before the court on “Plaintiffs’ Motion for a Protective Order Pursuant to
F.R.C.P. 26(b)(5) and F.R.C.P. 26(c)(1)(A).” Docket No. 24. Therein, plaintiffs contend that
documents in the possession of their witness, Dennis Schadler, are protected from discovery by
either the attorney-client privilege or the work product doctrine. After careful consideration of
the record and oral arguments of counsel, the motion is ALLOWED on the grounds that the
material is protected by the work product doctrine.
II. STATEMENT OF FACTS
The plaintiffs, Gregg and Karin Wade (the “Wades”), purchased a home in Foxboro,
Massachusetts from the defendant, Touchdown Realty Group, LLC (“Touchdown”). The
defendant, Tom Clayton (“Mr. Clayton”), is allegedly the “real party in interest” of Touchdown.
Am. Compl. (Docket No. 37) ¶ 3. The plaintiffs allege that Touchdown and Mr. Clayton made
material misrepresentations and otherwise defrauded them in connection with the sale. In
particular, but without limitation, the Wades contend that misrepresentations were made to
them to the effect that the house could be used as a three-bedroom home, and that a
downstairs room with an adjoining bathroom could be used by the Wades’ disabled daughter
as a bedroom. They also contend that the house had serious construction defects which were
not disclosed.
Before they learned of the alleged defects, the Wades had hired D & D Home Improvements, Inc., and its principal, Dennis Schadler (“Mr. Schadler”), to undertake a bathroom and
bedroom renovation. Schadler Depo. at 17. They obtained his name through RCAP Solutions, a
state-funded agency that assists homeowners in paying for renovations needed for persons
with special needs. Id. During the course of his work at the Wades’ home, Mr. Schadler determined that, in his opinion, construction work done by Touchdown prior to the sale was
defective. He was also of the opinion that the electrical and plumbing work, and the use of
insulation and fire retardant materials, were not up to the then current Massachusetts State
Building Code.
The Wades brought suit against Touchdown and Mr. Clayton based on Mr. Schadler’s
findings.1 Mr. Schadler remained in close contact with the Wades and advised them concerning
the issues in dispute in the litigation. Mrs. Wade served as a conduit of information between
plaintiffs’ counsel, Robert Meltzer, and Mr. Schadler. Mr. Schadler was never retained by
1
The defendants strongly dispute Mr. Schadler’s findings and deny any liability.
[2]
Attorney Meltzer. In her affidavit in support of the motion for a protective order, Mrs. Wade
described the relationship as follows:
4. Dennis Schadler has two roles. First, he is a contractor who has been
working on repairing the defects in our house. These defects are the subject
of this case. He is also serving as a code consultant for my husband and I
with regards to the issues with the town of Foxboro. He will be testifying at
trial not only about what he saw, but what the codes says about what he
saw, and why it is important.
5. Dennis Schadler is part of our litigation team. Our lawyer represents
construction companies, and he speaks the same language as Dennis
Schadler, who is a contractor. When our lawyer has been asking us questions
relating to framing issues for the litigation, which he has been doing in email,
I had been sending those questions and comments directly to Dennis
Schadler.
6. By doing that, I certainly wasn’t “waiving” an attorney/client privilege.
What I was doing was taking myself out as the middle person between two
people who understood a language and a process that is new to me. I am
from New Jersey and Michigan, and my primary occupation consists of caring
for a disabled child. I do not understand Massachusetts building code or
what it means. Thus, Dennis was translating for me what my lawyer was
asking, and he was translating for my lawyer what I was saying and seeing.
7. All of the emails in question were written after I hired a lawyer for the
purpose of sorting out what our legal rights were, and they reflect what our
lawyer was thinking, not the facts of the case that existed before we hired a
lawyer.
Karin Wade Aff. (Docket No. 24-2) ¶¶ 4-7.
The defendants took the deposition of Mr. Schadler as a fact witness and as the keeper
of the records of D & D Home Improvements, Inc. Mr. Schadler arrived at the deposition with
documents that had never been seen by plaintiffs’ counsel. Counsel reviewed the documents
and identified those for which the plaintiffs claimed a privilege. They were segregated and put
in a sealed envelope. They have been provided to the court for an in camera review, and these
are the documents that are at issue in this pending motion.
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Types of Documents Withheld from Production
There are multiple copies of all of the emails in the group of withheld documents. Given
the way the materials were produced, and withheld, no privilege log was made. Therefore, the
court will describe the types of emails withheld in a fashion similar to that required in a privilege log, i.e., “in a manner that, without revealing information itself privileged or protected, will
enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A)(ii). Thus, the documents
can be broken down into the following categories:
1.
An email chain between Attorney Meltzer and Mrs. Wade relating to an
inspection report and contents of interrogatory answers. The chain was forwarded by Mrs.
Wade to Mr. Schadler, with whom she communicated about the report. These emails were
sent during the period July 2, 2017 through July 3, 2017.
2.
An email dated March 28, 2017 from Attorney Meltzer to Mrs. Wade regarding
litigation strategy.
3.
Emails between Attorney Meltzer and Mrs. Wade, which she forwarded to Mr.
Schadler, relating to the 93A demand letter and litigation strategy, and emails between Mr.
Schadler and Mrs. Wade commenting on same. These were during the period January 30, 2017
through February 3, 2017.
4.
Email from Lisa Paulette to Mrs. Wade dated February 1, 2017 forwarding
correspondence relating to the septic system, and email from Mrs. Wade to Attorney Meltzer
dated February 1, 2017, forwarding and commenting on same.2
2
Included in these materials are emails between the defendant Tom Clayton and Lisa Paulette dated
July 21, 2016, which the court assumes have been produced.
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5.
Emails between Mrs. Wade and Attorney Meltzer concerning events leading up
to litigation. They were during the period January 6 - 26, 2017.
II. ANALYSIS
The Derivative Attorney-Client Privilege
“Generally, disclosing attorney-client communications to a third party undermines the
privilege.” Cavallaro v. United States, 284 F.3d 236, 246-47 (1st Cir. 2002), and authorities
cited.3 There is an exception to this rule, recognized by the Second Circuit in United States v.
Kovel, 296 F.2d 918 (2d Cir. 1961), “for third parties employed to assist a lawyer in rendering
legal advice.” Cavallaro, 284 F.3d at 247. This exception, which is also known as the “derivative
attorney-client privilege,” is relied on by the Wades to withhold the communications between
Mrs. Wade and her attorney, and Mrs. Wade and Mr. Schadler. See Comm’r of Revenue v.
Comcast Corp., 453 Mass. 293, 306, 901 N.E.2d 1185, 1196-97 (2009) (“Now known as the
Kovel doctrine or the derivative attorney-client privilege[,]” “the privilege can shield communications of a third party employed to facilitate communication between the attorney and client
and thereby assist the attorney in rendering legal advice to the client.”), and cases cited.
However, this exception “is sharply limited in scope.” DaRosa v. City of New Bedford, 471
Mass. 446, 463, 30 N.E.3d 790, 804 (2015). For the reasons detailed herein, it has no application in the instant case.
3
The defendants argue that Massachusetts state law of privilege applies to this diversity action. Defs.
Opp. (Docket No. 26) at 6. However, both parties cite to federal and state cases, and there does not
appear to be any significant difference with respect to the scope of the attorney-client privilege or work
product doctrine as applicable to the issues in this dispute.
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In order for the exception to apply, the third-party communication must be “necessary,
or at least highly useful, for the effective consultation between the client and the lawyer which
the privilege is designed to permit.” Cavallaro, 284 F.3d at 247-48 (quoting Kovel, 296 F.2d at
922). The “necessary” requirement is a high bar, and “means more than just useful and
convenient. The involvement of the third party must be nearly indispensable or serve some
specialized purpose in facilitating the attorney-client communications. Mere convenience is not
sufficient.” Id. at 249 (quotation and citation omitted). Similarly, the exception “does not apply
to instances where an attorney’s ability to represent a client is merely improved by the
assistance of the third party.” Dahl v. Bain Capital Partners, LLC, 714 F. Supp. 2d 225, 227-28 (D.
Mass. 2010), and cases cited. In addition, “the exception applies only to communications in
which the third party plays an interpretive role. In other words, the third party’s communication must serve to translate information between the client and the attorney.” Id. at 228, and
cases cited. Finally, “the third party’s communication must be made for the purpose of
rendering legal advice, rather than business advice.” Id.
In the instant case, there is no evidence that Mr. Schadler was needed to help translate
any communications between the Wades and their attorney, and he clearly was not hired for
such a purpose. This is sufficient to defeat the claim of privilege. See Cavallaro, 284 F.3d at
247-48 (record does not show that anyone hired accountant for the purpose of assisting
attorneys in providing legal advice, therefore communications between client and accountant
were not privileged). Even more significantly, there is nothing in the emails cited above in
which Mr. Schadler was called upon to provide interpretative services in connection with the
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communications between the Wades and their counsel. The derivative attorney/client privilege
does not shield the production of these documents.
Work Product Doctrine
The plaintiffs are also seeking to preclude the production of these documents on the
basis of the work product doctrine. After a careful review of the documents, this court
concludes that the documents are protected by the work product doctrine.
The purpose of the work product doctrine is “to enhance the vitality of an adversary
system of litigation by insulating counsel’s work from intrusions, inferences, or borrowings by
other parties.” Comm’r of Revenue, 453 Mass. at 311, 901 N.E.2d at 1200 (quotation and
citations omitted). “The purpose of the doctrine is to establish a zone of privacy for strategic
litigation planning to prevent one party from piggybacking on the adversary’s preparation.
While the attorney-client privilege shields communications between attorney and client (and in
some circumstances third parties), the work product doctrine protects an attorney’s written
materials and ‘mental impressions.’” Id., 453 Mass. at 311-12, 901 N.E.2d at 1200 (internal
punctuation, quotations and citations omitted). Significantly, however, the doctrine is not
limited to attorneys, but also applies to “documents and tangible things that are prepared in
anticipation of litigation or for trial by or for another party or its representative (including the
other party’s attorney, consultant, surety, indemnitor, insurer, or agent).” Fed. R. Civ. P.
26(b)(3); Mass. R. Civ. P. 26(b)(3); see also Lobel v. Woodland Golf Club of Auburndale, No. 1513803-FDS, 2016 WL 7410776, at *1 (D. Mass. Dec. 22, 2016) (work product doctrine extends
“to documents and things prepared for litigation or trial by or for the adverse party itself or its
agent.” (quotation and citation omitted)).
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“[T]he protection [for work product] is qualified, and can be overcome if the party
seeking discovery demonstrates ‘substantial need of the materials’ and that it is ‘unable
without undue hardship to obtain the substantial equivalent of the materials by other means.’”
DaRosa, 471 Mass. at 458-59, 30 N.E.3d at 801 (internal quotations omitted). “Opinion work
product, which is described in rule 26(b)(3) as ‘the mental impressions, conclusions, opinions,
or legal theories of an attorney or other representative of a party concerning the litigation,’ is
afforded greater protection than ‘fact’ work product.” Id. (internal quotations and citations
omitted). Thus, “‘a highly persuasive showing’ is needed to justify the disclosure of opinion
work product.” Id. (internal quotation omitted).
Significantly, “[t]he waiver of the attorney-client privilege for a communication does not
automatically waive whatever work-product immunity documents may also enjoy, as the two
are independent and grounded on different policies. Waiver of the privilege should always be
analyzed distinctly from waiver of work product, since the privilege is that of the client and the
work product essentially protects the attorney’s work and mental impressions from adversaries
and third parties even when communicated to the client.” 2 Edna Selan Epstein, The AttorneyClient Privilege and the Work-Product Doctrine at 1280 (6th ed. ABA 2017). Consequently, even
if a communication is not protected by the derivative attorney-client privilege, it may nevertheless be protected by the work product doctrine. See Comm’r of Revenue, 453 Mass. at 311,
317-19, 901 N.E.2d at 1200, 1204-06. That is the situation here.
In the instant case, the documents relate to the soon-to-be initiated or ongoing
litigation, and discuss facts relevant to the litigation in some cases, and litigation strategy in
others. They were prepared “because of existing litigation” and, thus, qualify as work-product.
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See Comm’r of Revenue, 453 Mass. at 316, 317, 901 N.E.2d at 1203, 1204 (“a document is
within the scope of the rule if, in light of the nature of the document and the factual situation in
the particular case, the document can be fairly said to have been prepared because of the . . .
litigation.” (internal quotation omitted)). To the extent that there was a disclosure of
information to Mr. Schadler, it was to an individual aligned with the plaintiffs, and did not
constitute a waiver of the protection afforded by the work product doctrine. “The essential
question with respect to waiver of the work-product doctrine by disclosure is whether the
material has been kept away from adversaries. Thus, the protection is retained when there has
been disclosure to persons with a common interest, to persons in the course of a business
relationship, and to the government. In all cases, the focus of the inquiry is on the extent to
which the relationship is an adversarial one and the efforts made to keep adversaries from
obtaining the material.” 2 Epstein, supra, at 1291. Finally, the defendants have not established
a substantial need for the documents. The deposition of Mr. Schadler establishes that he
answered the factual inquiries put to him about the condition of the property, his findings, and
his qualifications to make these findings. For these reasons, the documents are protected by
the work product doctrine.
III. CONCLUSION
For all the reasons detailed herein, “Plaintiffs’ Motion for a Protective Order Pursuant to
F.R.C.P. 26(b)(5) and F.R.C.P. 26(c)(1)(A)” (Docket No. 24) is ALLOWED.
/ s / Judith Gail Dein
Judith Gail Dein
United States Magistrate Judge
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