ROBINSON v. HORNELL BREWING CO. et al

Filing 45

MEMORANDUM OPINION AND ORDER: ORDERED that Defts' request to re-examine pltf re. his HCFS conversations w/ Santoli on 4/11/2011, & their request to depose Santoli on the same subject matter, is DENIED. Pltf's request to quash the entirety o f Santolis deposition subpoena is DENIED w/out prejudice. Parties shall promptly advise the Court if there are any remaining discovery disputes re. the re-examination of pltf & the deposition of Santoli. Signed by Magistrate Judge Joel Schneider on 1/10/2012. (drw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

STEVEN ROBINSON,
Plaintiff,
Civil No. 11-2183 (NLH/JS)
v.
HORNELL BREWING CO., et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on defendants’ application “to
compel Plaintiff to be reexamined by Defendants to answer questions
regarding his communications with Joseph Santoli [“Santoli”] on
April 7, 2011.”

November 17, 2011 Letter Brief at 1, Doc. No. 34.

The Court received plaintiff’s opposition which included a request
to quash defendants’ deposition subpoena served on Santoli [Doc No.
37], and defendants’ reply [Doc. No. 38].

The Court exercises its

discretion to decide these issues without oral argument. See L. R.
Civ. P. 37.1(b)(3).1
Plaintiff’s class action complaint alleges, inter alia, that

1

Plaintiff was deposed on November 10, 2011. During the
deposition plaintiff’s counsel instructed plaintiff not to answer
several questions on the ground that they asked for information
protected by the attorney-client privilege. Although the Court
was contacted by phone during the deposition, it did not rule at
that time on plaintiff’s privilege claim because it did not have
the benefit of the parties’ briefs and the deposition transcript
to review. (N.T. 64:13 to 73:2).

defendants are liable for mislabeling their ice tea beverage as
“natural” even though it contained high fructose corn syrup.
(“HFCS”).

Plaintiff’s complaint was filed a few days after oral

argument was held on plaintiff’s motion for class certification in
Coyle v. Hornell Brewing Co., et al., C.A. No. 08-2797 (JBS/JS).
The Coyle and Robinson complaints are substantially similar.
Defendants’

inquiry

is

mainly

directed

conversations with Santoli on April 7, 2011.

at

plaintiff’s

Santoli was the

lawyer who told plaintiff about the subject HCFS issue and who
introduced

plaintiff

to

his

counsel-the

Wilentz

law

firm.

Plaintiff and Santoli were social acquaintances who both were
present in a cigar lounge on April 6, 2011.
briefly spoke about the HCFS issue in dispute.

On that day they
They also were both

present in the same lounge on April 7, 2011, when they had a
further

conversation

about

HCFS.

Santoli

signed

a

retainer

agreement with Wilentz on April 8, 2011. Plaintiff’s complaint was
filed on April 13, 2011.
Plaintiff claims he and Santoli were in an attorney-client
relationship as of April 7, 2011 and, therefore, their discussions
about HCFS and a potential lawsuit that day are privileged.
Defendants

dispute

the

privilege

claim.

Defendants

cite

to

plaintiff’s deposition wherein plaintiff testified Santoli was
never his lawyer (N.T. 15:17-22), he never asked Santoli for legal
advice

(N.T.

18:22-23),

and

he

never

considered

Santoli

attorney in connection with this lawsuit (N.T. 51:3-7).
2

his

Plaintiff

counters by citing to his testimony that on April 7, 2011, he
thought Santoli

“was

providing

services

to

[him]

of

a

legal

nature,” (N.T. 87:20-24), and on that day he thought Santoli was
acting as his attorney and provided him advice. (N.T. 88:15-24;
100:24 to 101:10). Plaintiff also relies on Santoli’s affidavit
wherein Santoli avers that on April 7, 2011, he thought plaintiff
was looking to him for legal advice which he provided.
¶¶6-7).

(Affidavit

In addition, Santoli avers he attended a meeting on April

8, 2011, with plaintiff and Wilentz. (Id. ¶9).
A court sitting in a diversity action applies state law with
regard

to

the

attorney-client

privilege.

The

burden

of

establishing that a communication or document is privileged is on
the party asserting the privilege.
Supp. 1201, 1208 (D.N.J. 1996).

Torres v. Kuzniasz, 936 F.
The attorney-client privilege

protects communications when: (1) the asserted holder of the
privilege is or sought to become a client, (2) the person to whom
the communication was made (a) is a member of the bar of a court,
or his subordinate and (b) in connection with this communication is
acting as a lawyer, (3) the communication relates to a fact of
which the attorney was informed (a) by his client (b) without the
presence of strangers (c) for the purpose of securing primarily
either (i) an opinion on law or (ii) legal services or (iii)
assistance in some legal proceeding, and (d) not for the purpose of
committing a crime or tort, and (4) the privilege has been (a)
claimed and (b) not waived by the client. Rhone-Poulenc Rorer Inc.
3

v. Home Indem. Co., 32 F. 3d 851, 862 (3d Cir. 1994).

The

attorney-client privilege does not apply merely because a statement
was made by or to an attorney.
because

it

conveys

advice

Nor does the privilege apply simply
that

is

legal

in

nature.

HPD

Laboratories, Inc. v. Clorox Co., 202 F.R.D. 410, 414 (D.N.J.
2001).

Instead, the privilege “protects only those disclosures -

necessary to obtain informed legal advice - which might not have
been made absent the privilege.”

Westinghouse Elec. Corp. v.

Republic of the Philippines, 951 F.2d 1414, 1423-24 (3d Cir.
1991)(emphasis in original)(citation omitted).
The key issue before the Court is whether plaintiff and
Santoli were in an attorney-client relationship on April 7, 2011.
Under

New

Jersey

law

the

attorney-client

relationship

is

“inherently an aware, consensual relationship, one which is founded
upon

the

lawyer

affirmatively

accepting

a

professional

responsibility.” Matter of Palmieri, 76 N.J. 51, 58 (1978)(internal
quotations omitted).

As noted in Delso v. Trustees for Retirement

Plan for Hourly Employees of Merck & Co., Inc., C.A. No. 04-3009
(AET), 2007 WL 766349, at *7 (D.N.J. March 6, 2007), “the attorneyclient relationship begins with a non-lawyer’s reliance on the
professional skills of an attorney, who, in turn, knows of this
reliance and accepts responsibility for it.”

Further, “[t]he

relationship must be a mutually aware, consensual relationship....
The

client

must

demonstrate

from

an

identifiable

action

or

manifestation, reliance on an attorney in his professional [legal]
4

capacity....

To complete the relationship, the attorney must

accept professional responsibility for the undertaking”.

Id.

(Citations omitted). See also Dixon-Ticonderoga Co. v. Estate of
O’Connor, 248 F.3d 151, 169 (3d Cir. 2001).

Importantly, the

attorney-client relationship can be created in the absence of an
express agreement and may be inferred from the conduct of the
attorney and client or by surrounding circumstances.

Matter of

Palmieri, 76 N.J. at 58-60. All that is necessary is that the
parties relate to each other generally as attorney and client.
Matter of Silverman, 113 N.J. 193, 214 (1988).

See also Petit-

Clair v. Nelson, 344 N.J. Super. 538, 543 (App. Div. 2001).

A

leading authority has stated, “the common thread in cases in which
a lawyer-client relationship is said to have arisen by implication
is reliance of the ‘client’ on the professional skills of the
attorney coupled with the attorney’s awareness of that reliance and
tacit acceptance of it.” Michel, New Jersey Attorney Ethics (Gann,
2011), §13:4-1 p. 250.
Based on the present record the Court finds that there was an
implied attorney-client relationship between plaintiff and Santoli
(the “parties”) on April 7, 2011.

The Court also finds that the

subject matter of the parties’ HCFS conversations concerned legal
services and/or assistance with regard to a legal proceeding.
Therefore, the Court finds that the parties’ April 7 conversations
regarding HCFS were privileged.

The parties’ discussions on April

6 were introductory and preliminary.
5

However, by April 7 the

discussions progressed beyond the preliminary stage to a point
where plaintiff was relying on Santoli’s professional skills.
Plaintiff testified to this effect when he said he thought Santoli
was providing him legal services and that Santoli was acting as his
attorney.

At the same time Santoli thought plaintiff was looking

to him for legal advice which he provided.

This evidences that as

to the HCFS discussions on April 7 the parties related to each
other generally as attorney and client.
Defendants’

argument

hinges

on

plaintiff’s

seemingly

inconsistent deposition testimony. However, when viewed in context
the Court credits plaintiff’s statement that on April 7 he related
to Santoli as an attorney rather than as an acquaintance.

When

plaintiff testified Santoli was not his attorney he may have been
thinking that his lawyer was the individual taking the most active
role in the litigation or the lawyer with whom he signed a retainer
agreement,

e.g.,

the

Wilentz

firm.

In

any

clarified his testimony later in his deposition.

event,

plaintiff

(See N.T. 87:20-

24; 88:15-24; 100:24 to 101:10).
The Court also discounts defendants’ argument that Santoli did
not provide facts to support the statements in his affidavit.

The

Court has already noted that the attorney-client relationship may
be

inferred

from

circumstances.

the

parties’

conduct

and

the

surrounding

Matter of Palmieri, 76 N.J. at 58-60.

To the

extent defendants argue or imply that plaintiff’s later testimony
was “coached” and, therefore, should be discredited, the Court
6

rejects the argument.

Defense counsel questioned plaintiff about

“coaching” and received negative responses.

Further, when viewed

in context, the Court does not find that the deposition testimony
defendants rely upon is completely inconsistent with plaintiff’s
later testimony.2
As to Santoli’s deposition, and for the reasons explained
above, defendants are not permitted to question him about his HCFS
conversations with plaintiff on April 7, 2011.

Nonetheless,

Santoli may have had non-privileged conversations with plaintiff
(such as their discussion on April 6, 2011) that defendants want to
question him about.

It is possible, but the Court does not know

for sure, that Santoli may also possess relevant non-privileged
documents. Thus, at this time the Court denies plaintiff’s request
to quash Santoli’s deposition subpona.3
In sum, the Court finds that the HCFS conversations between
plaintiff and Santoli on April 7, 2011 are protected by the
attorney-client privilege. In view of this holding, the Court does
not

know

if

defendants

are

still

interested

in

re-examining

2

The Court fortunately read plaintiff’s entire deposition
transcript and not just the pages cited in the parties’ briefs.
3

Santoli’s deposition is not necessarily barred because he
is an attorney. Johnston Development Group, Inc. V. Carpenters
Local Union No. 1578, 130 F.R.D. 348, 352 (1990). However,
caution is necessary where the testimony may be intertwined with
privileged information. Id. Thus, this Order is entered without
prejudice to plaintiff’s right to move to quash the entirety of
Santoli’s deposition and document production after the parties
discuss the issue in light of this Order.
7

plaintiff and deposing Santoli.

The parties should discuss this

issue and advise the Court pursuant to L. Civ. R. 37.1(b)(1) if
there are any disputes.
Accordingly, for all the foregoing reasons, it is hereby
ORDERED this 10th day of January, 2012, that defendants’ request to
re-examine plaintiff regarding his HCFS conversations with Santoli
on April 7, 2011, and their request to depose Santoli on the same
subject matter, is DENIED; and
IT IS FURTHER ORDERED that plaintiff’s request to quash the
entirety

of

Santoli’s

deposition

subpoena

is

DENIED

without

prejudice; and
IT IS FURTHER ORDERED that pursuant to L. Civ. R. 37.1(b)(1),
the parties shall promptly advise the Court if there are any
remaining

discovery

disputes

regarding

the

re-examination

of

plaintiff and the deposition of Santoli.4

s/Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge

4

For the sake of completeness, the Court notes that under
New Jersey law attorney-client privileged information may be
discoverable. In re Kovlov, 79 N.J. 232, 243-446 (1979).
However, the Court finds that the information defendants seek is
not relevant to the underlying merits of the case. (Albeit, it
is arguably relevant to class certification issues.) The Court
also finds that the information defendants are seeking is largely
cumulative of what has already been discovered.
8