Kraft v. Mayer et al

Filing 21

ORDER denying 17 Motion to Compel. So Ordered by Magistrate Judge Landya B. McCafferty. (gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Barbara Kraft
v.

Case No. 10-cv-164-PB

Larry A. Mayer and
University of New Hampshire

O R D E R
By all accounts, the parties have worked diligently and
responsibly to resolve their differences during the course of
discovery.

Consequently, only a small area of dispute remains.

Barbara Kraft seeks, and defendants seek to protect, a total of
seven e-mails to or from University of New Hampshire (“UNH”)
employee Tracy Birmingham, who is an attorney.

Defendants seek

to protect the e-mails at issue by means of the attorney-client
privilege and/or the work-product privilege.

Kraft moves to

compel the production of the subject e-mails, and defendants
object.

For the following reasons, Kraft’s motion to compel is

denied.
Defendants have provided the subject e-mails under seal,
for in camera review.
1.

Those e-mails include:

UNH Interim Vice President for Research Taylor
Eighmy’s July 18, 2008, e-mail to General Counsel
Ron Rodgers and Special Counsel Birmingham
(copied to Dean Joseph Klewicki);

2.

Birmingham’s August 14 response to Klewicki;

3.

Birmingham’s February 20, 2009, e-mail to Larry
Mayer (copied to Dean Klewicki);

4.

Dean Klewicki’s February 10 response to
Birmingham;

5.

Birmingham’s February 11 response to Dean
Klewicki;

6.

Birmingham’s May 29, 2009, e-mail to Mayer; and

7.

Dean Klewicki’s August 18, 2009, e-mail to
Birmingham and Rogers.

All seven e-mails are protected by the attorney-client
privilege.
A party claiming the attorney-client privilege bears the
burden “to establish that the privilege exists and covers the
statements at issue.”

United States v. Bisanti, 414 F.3d 169,

170 (1st Cir. 2005) (citing XYZ Corp. v. United States (In re
Keeper of the Records (Grand Jury Subpoena Addressed to XYZ
Corp.), 348 F.3d 16, 22 (1st Cir. 2003)).
privilege applies in two circumstances.

The attorney-client
First:

(1) Where legal advice of any kind is sought (2) from
a professional legal adviser in his capacity as such,
(3) the communications relating to that purpose, (4)
made in confidence (5) by the client, (6) are at his
instance permanently protected (7) from disclosure by
himself or by the legal adviser, (8) except the
protection be waived.

2

Bisanti, 414 F.3d at 171 (quoting Cavallaro v. United States,
284 F.3d 236, 245 (1st Cir. 2002)).

Second:

The privilege also protects from disclosure documents
provided by an attorney if the party asserting the
privilege shows:
(1) that he was or sought to be a client of
[the attorney]; (2) that [the attorney] in
connection with the [document] acted as a
lawyer; (3) that the [document] relates to
facts communicated for the purpose of securing
a legal opinion, legal services or assistance
in legal proceedings; and (4) that the
privilege has not been waived.
Maine v. U.S. Dep’t of the Interior, 298 F.3d 60, 71 (1st Cir.
2002) (quoting United States v. Bay State Ambulance & Hosp.
Rental Serv., Inc., 874 F.2d 20, 27–28 (1st Cir. 1989)).
With respect to communications flowing either way, that is
to or from an attorney, “the privilege is not limitless, and
courts must take care to apply it only to the extent necessary
to achieve its underlying goals.”

In re Keeper of the Records,

348 F.3d at 22 (citing In re Grand Jury Subpoena (Custodian of
Records, Newparent, Inc.), 274 F.3d 563, 571 (1st Cir. 2001)).
“In other words, the attorney-client privilege must be narrowly
construed because it comes with substantial costs and stands as
an obstacle of sorts to the search for truth.”

In re Keeper of

the Records, 348 F.3d at 22 (citing United States v. Nixon, 418
U.S. 683, 709-10 (1974)).

3

Here, defendants claim the privilege for communications
both from and to its attorneys.

The court considers each type

of communication separately.
Communications to Attorneys Rodgers and/or Birmingham.

In

e-mail 1, Eighmy sought legal advice from two UNH attorneys
concerning Dr. Kraft’s re-appointment, in light of her
“Misconduct in Scholarly Activity” (“MISA”) complaint against
Mayer and Luciano Fonseca.

In e-mail 4, which was a response to

e-mail 3, Dean Klewicki sought legal advice from a UNH attorney
concerning any risks UNH might face arising out of the terms and
conditions of Kraft’s employment as they related to the
resolution of her MISA complaint.

Finally, in e-mail 7, Dean

Klewicki sought legal advice from two UNH attorneys concerning
the proper way to communicate with Kraft about the decision not
to reappoint her.

With respect to each of those three e-mails,

all eight elements set out in Bisanti are met and, as a
consequence, all three e-mails are protected by the attorneyclient privilege.
Communications from Attorney Birmingham.

In e-mail 2, a

UNH attorney responded to e-mail 1, providing legal advice on
the topic raised in e-mail 1.

In e-mail 3, a UNH attorney

provided legal advice regarding how to handle the employment

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relationship of a faculty member.

In e-mail 5, a UNH attorney

responded to e-mail 4, and provided further advice on how to
handle the employment relationship of a faculty member.

In e-

mail 6, a UNH attorney responded to an e-mail defendants have
not withheld, and provided additional advice on how to handle
the employment relationship of a faculty member.
With regard to the four elements necessary for a client to
assert attorney-client privilege over communications from his or
her attorney, it is indisputable that defendants were
Birmingham’s clients, that Birmingham was acting as a lawyer,
and that the privilege has not been waived.
71.

Maine, 298 F.3d at

Moreover, with regard to the remaining element, the court

has examined the subject e-mails, and finds that all four
“relate[ ] to facts communicated for the purpose of securing a
legal opinion.”

Id.

Such a finding is all that is necessary

for the privilege to be properly invoked and applied.

See id.

(citing Town of Norfolk v. U.S. Army Corps of Eng’rs, 968 F.2d
1438, 1458 (1st Cir. 1992)).

Finally, while it is not necessary

to address any other privilege issues, it seems likely that emails 2, 3, 5, and 6 would also be protected by the work-product
privilege as established in Rule 26(b)(3) of the Federal Rules

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of Civil Procedure and described in United States v. Textron
Inc., 577 F.3d 21, 29 (1st Cir. 2009).

Conclusion
For the reasons given, plaintiff’s motion to compel, doc.
no. 17, is denied.
SO ORDERED.

__________________________
Landya McCafferty
United States Magistrate Judge

Dated:
cc:

May 18, 2011

Paul McEachern, Esq.
Martha Van Oot, Esq.

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