Norton v. Town of Islip et al

Filing 221

ORDER granting 210 Motion for Discovery. For the reasons set forth in the attached order, Plaintiff's motion to compel is granted, and the Memos shall be produced on or before 9/25/15. Ordered by Magistrate Judge Steven I. Locke on 9/18/2015. (Disbrow, Sandra)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------X
HOWARD NORTON,
Plaintiff,

ORDER
CV 04-3079 (PKC) (SIL)

-againstTOWN OF ISLIP, et al.,
Defendants.
--------------------------------------------------------------X
LOCKE, Magistrate Judge:
This case is one in a series of civil rights actions commenced by Plaintiff Howard Norton
(“Norton”) against the Town of Islip (the “Town”) and various Town officials (collectively
“Defendants”) for alleged violations assessed by the Town Building Department against a property
owned by Norton within the Town. Currently before the Court is Plaintiff’s motion to compel
Defendants to produce certain allegedly privileged documents. See Docket Entry (“DE”) [210].
Plaintiff argues that to the extent the documents are privileged, any such privilege has been waived.
Defendants oppose the motion. See DE [211]. Oral argument was heard on May 18, 2015, and
the parties were granted permission to submit additional materials.

Defendants submitted

declarations from Town Building Director Kenneth Weeks (“Weeks Decl.”), DE [219], and
Defendant Ronald P. Stabile, Jr. (“Stabile Decl.”), DE [219-1], and Plaintiff submitted a letter in
reply. DE [218]. For the reasons set forth below, Plaintiff’s motion is granted.
I. Attorney-Client and Work Product Privileges
The documents, which have been provided for in camera review, are all one-page
Memoranda (collectively the “Memos”) from the Office of the Town Attorney, and the author for
each is Assistant Town Attorney Hertha Trotto. Specifically, they are: (1) a Memorandum with
handwritten notes to Assistant Town Attorney C. John DeSalvo dated March 27, 1990; (2) a
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Memorandum to Rim Giedraitis, Commissioner, Building & Engineering dated June 13, 1990 (the
“6/13/90 Memo”); and (3) a Memorandum with handwritten notes to Assistant Town Attorney
(and former Defendant) Richard Hoffman dated August 21, 1990. These Memos were copied to
individuals within the Town’s Building, Zoning, and Housing Divisions, and the 6/13/90 Memo
was also sent to Fire Prevention.
The Memos were the subject of a previous privilege ruling from Magistrate Judge Boyle
in an earlier matter, Norton v. Town of Islip, CV 98-6745 (“Norton I”). In that case, Judge Boyle
sustained the Town’s invocation of attorney-client and/or work product privilege. Norton I, Order
of 8/22/2000. Plaintiff moved for reargument and reconsideration, arguing that the work product
privilege could be defeated upon a demonstration of the discovering party’s substantial need for
the documents. Judge Boyle rejected that argument, finding that Norton failed “to set forth facts
that satisfy the statutory requirements for the release of work product material.” Norton I, Order
of 10/3/2000.1 Plaintiff has offered no compelling reason to revisit that determination and this
Court declines to do so.
Nevertheless, and for the sake of a complete record, the Court conducted its own review of
the Memos and concludes that they are protected by both the attorney-client privilege and attorney
work product doctrine. “The attorney-client privilege protects communications (1) between a
client and his or her attorney (2) that are intended to be, and in fact were, kept confidential (3) for
the purpose of obtaining or providing legal assistance.” Brennan Ctr. for Justice at New York Univ.
Sch. of Law v. U.S. Dep’t of Justice, 697 F.3d 184, 207 (2d Cir. 2012) (citing United States v.

Defendants note that Judge Garaufis affirmed Judge Boyle’s rulings by Order dated June 6, 2001, but have
not been able to locate a copy of that order to include with their opposition papers. The text of the Docket
Entry indicates that an order of the magistrate was affirmed, see Norton I, DE [67], and Plaintiff has not
challenged Defendants’ assertion that this Order affirmed Judge Boyle’s rulings on the Memos currently at
issue here.
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Mejia, 655 F.3d 126, 132 (2d Cir.2011)). The Memos, which are either addressed to or copied to
Department Heads, discuss legal strategies and fall within the attorney-client privilege.
The work product doctrine provides that generally, parties are not entitled to obtain
discovery of “documents and tangible things that are prepared in anticipation of litigation or for
trial by or for another party or its representative.” FED. R. CIV. P. 26(b)(3)(A). “The party invoking
the work product privilege must also demonstrate that the document was prepared ‘principally or
exclusively to assist in anticipated or ongoing litigation.’” McNamee v. Clemens, No. 09 CV 1647,
2014 WL 6606661, at *3 (E.D.N.Y. Nov. 19, 2014), (quoting Martin v. Valley Nat’l Bank of
Arizona, 140 F.R.D. 291, 304 (S.D.N.Y.1991)). The Memos clearly meet these criteria as they
deal with ongoing litigation regarding Plaintiff’s property.
Thus, the remaining issue is whether Defendants have since waived the privileges.
II. Waiver
Plaintiff makes two related waiver arguments: (1) that attorney-client privilege was waived
because the Memos were accessible to more individuals than those who needed to know their
contents; and (2) that the Memos were publicly available in any event.

Specifically, the

discoverability of the Memos is currently at issue because they appeared in a folder provided to
Plaintiff’s counsel for document inspection on August 30, 2013 at the Town Building
Department’s Records Division. According to Plaintiff’s counsel, the folder was retrieved “from
a file folder in an unlocked filing cabinet.” Pl’s Ltr. at 2, DE [210]. Additionally, Plaintiff notes
that a copy of the 6/13/90 Memo also was kept in the files of the Town Tax Assessor’s Office. As
a result, the Memos have been accessible to a variety of Town employees and have been distributed
to Town departments that did not need to know the privileged contents of these documents. Norton

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further claims that members of the public have also had access to the Memos in the same manner
as his counsel. Accordingly, Plaintiff argues, the Memos are discoverable. The Court agrees.
“It is well-settled that ‘[v]oluntary disclosure of privileged communications to a third party
results in waiver of the attorney-client privilege.’” Curto v. Med. World Commc'ns, Inc., 783
F. Supp. 2d 373, 378 (E.D.N.Y. 2011) (quoting Local 851 of the Int’l Bhd. of Teamsters v. Kuehne
& Nagel Air Freight, Inc., 36 F. Supp. 2d 127, 129 (E.D.N.Y. 1998)); see also In re von Bulow,
828 F.2d 94, 103 (2d Cir.1987) (“[m]atters actually disclosed in public lose their privileged status
because they obviously are no longer confidential. The cat is let out of the bag, so to speak.”); Nat'l
Day Laborer Org. Network v. U.S. Immigration & Customs Enf’t Agency, 811 F. Supp. 2d 713,
744 (S.D.N.Y. 2011) (“the attorney[-]client privilege can be waived if the document is published,
or disclosed to private individuals” (internal quotation and citation omitted)), amended on
reconsideration (S.D.N.Y. Aug. 8, 2011). “Under federal and New York State law, a party waives
attorney-client privilege where ‘he voluntarily undertakes actions that will predictably lead to the
disclosure of the document.’” Falise v. Am. Tobacco Co., 193 F.R.D. 73, 79 (E.D.N.Y. 2000)
(quoting Bowne of New York City, Inc. v. AmBase Corp., 150 F.R.D. 465, 479 (S.D.N.Y.1993)).
As to work product, the test for whether waiver has occurred “is whether the disclosure at issue
has ‘substantially increased the opportunities for potential adversaries to obtain the information.’”
In re Vitamin C Antitrust Litig., No. MD 06-1738, 2011 WL 197583, at *2 (E.D.N.Y. Jan. 20,
2011) (quoting In re Visa Check/MasterMoney Antitrust Litig., 190 F.R.D. 309, 314
(E.D.N.Y.2000) (internal quotation and citation omitted)).
Just as the party asserting privilege has the burden of establishing it, that party “also bears
the burden of demonstrating that it has not been waived.” HSH Nordbank AG New York Branch
v. Swerdlow, 259 F.R.D. 64, 70 (S.D.N.Y. 2009); see also Curto, 783 F. Supp. 2d at 380 (“[t]he

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party asserting the protection afforded by the work product doctrine has the burden of showing
both that the protection exists and that it has not been waived” (internal quotation and citation
omitted)). Accordingly, Defendants have the burden of proving that they have not waived the
privileges attached to the Memos.
A. Need to Know
Plaintiff primarily argues that Defendants waived attorney-client privilege by making the
Memos accessible to employees within the Town who did not need access to the privileged
information contained within the documents. Disclosure of attorney advice from one employee to
another within the same corporation does not necessarily defeat the privilege, however. See, e.g.,
Strougo v. BEA Assocs., 199 F.R.D. 515, 519-20 (S.D.N.Y. 2001) (“although dissemination of
privileged information to third parties generally waives attorney-client privilege, the distribution
within a corporation of legal advice received from its counsel does not, by itself, vitiate the
privilege”). Whether the privilege is waived depends on whether the recipient had a “need to know
the content of the [privileged] communication in order to perform her job effectively or to make
informed decisions concerning, or affected by, the subject matter of the [privileged]
communication.” Scholtisek v. Eldre Corp., 441 F. Supp. 2d 459, 464 (W.D.N.Y. 2006). The
recipient’s “need to know” is analyzed from two perspectives: “(1) the role in the corporation of
the employee or agent who receives the communication; and (2) the nature of the communication,
that is, whether it necessarily incorporates legal advice.” Verschoth v. Time Warner, Inc., No.
00CIV1339, 2001 WL 286763, at *2 (S.D.N.Y. Mar. 22, 2001). The Verschoth court offered the
following example:
[i]f an automobile manufacturer is attempting to remedy a design defect that
has created legal liability, then the vice president for design is surely among
those to whom confidential legal communications can be made. So, too, is
the engineer who will actually redesign the defective part: he or she will
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necessarily have a dialogue with counsel so that the lawyers can understand
the practical constraints and the engineer can comprehend the legal ones.
By contrast, the autoworker on the assembly line has no need to be advised
of the legal basis for a cha[n]ge in production even though it affects the
worker’s routine and thus is within his or her general area of responsibility.
The worker, of course, must be told what new production procedure to
implement, but has no need to know the legal background.
Id.
One of the underlying issues here pertains to changes made to the certificate of occupancy
(“C/O”) for the property. Norton argues that the privilege was waived because the Memos were
made accessible to Town employees who did not need to know the privileged contents regarding
those changes, i.e., the autoworker in the Verschoth example.

Defendants argue without

elaboration that “Building Department or other property-related officials” have a need to know
and thus may view privileged communications between the Town Attorney’s Office and the
Building Department without waiving the privilege, i.e, the engineer in the Verschoth example.
See Defs’ Ltr. at 3, DE [211].
Applying the standards above, Defendants have failed to carry their burden of establishing
that the privileges have not been waived. All of the Memos were contained in the Building
Department file and were apparently accessible by all Town employees within that department.
See Weeks Decl. ¶ 5 (if non-Building Division Town personnel wish to review a document,
unspecified “Building Division staff retrieve the document and provide a copy”). Defendants have
presented no reason, however, why all or even most Building Department personnel have a need
to know confidential legal communications in order to perform their jobs. As Defendants have
failed to carry their burden, the Court finds that they have waived attorney-client privilege as to
the Memos.

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Moreover, Defendants have not addressed Plaintiff’s observation that at least one of the
Memos, the 6/13/1990 Memo, has appeared in the Tax Assessor’s files despite this department not
having been copied on the memo. At oral argument, defense counsel suggested that the Tax
Assessor’s office had an interest in “looking at the rights of the property.” Tr. of 5/18/15, DE
[217], at 28. It is unclear what, if any, interest the Tax Assessor would have in the decisions
leading to how the C/O was issued, and no explanation has been offered. Not unlike the assembly
line worker in Verschoth, the Tax Assessor does not need to know how the C/O was created in
order to properly assess the property’s tax liability. Thus, the presence of the 6/13/1990 Memo in
the Tax Assessor’s files further supports a finding of waiver.2
B. Public Access
Norton further argues that any privilege was waived because the Memos were maintained
in publicly accessible files. In response, the Town has provides the Weeks Declaration, which sets
forth the procedures by which a member of the public may gain access to the Building
Department’s microfiched files, and states that privileged documents are not microfiched. Weeks
Decl. ¶¶ 3,6. This declaration, however, raises more questions than it answers.
As Plaintiff notes, Weeks provides no temporal parameters in his declaration and thus there
is no indication how long the procedures he addresses have been in place. While the procedures
relate to the department’s current use of microfiche for its files, Weeks fails to state when the paper
files were converted to microfiche, which is critical given that this case was commenced in 2004
and covers a time period before that. Further, his statement that members of the public are

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The parties dispute whether Defendant Stabile viewed the Memos and the level of access Stabile had to
the Building Department files. In light of the Court’s findings regarding the general accessibility of the
Memos by Town employees, the Court need not determine the issue of whether Stabile specifically had
either access to the Memos or a need to know the privileged contents contained therein.
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permitted to view files maintained on microfiche leads to the inference that members of the public
were permitted access to the paper files in days past. The Memos were found in the paper files
and Defendants have provided no evidence to counter the plain suggestion that the Memos resided
in the paper files for some indeterminate time period for anyone in the public to see, if they asked
for the file. Further and conspicuously absent from Defendants’ submissions is any argument, let
alone supporting evidence such as log books, that the paper files at issue were never checked out
by a member of the public. Absent this type of evidence, Defendants have failed to meet their
burden of establishing a lack of public access and the Court concludes that they have waived both
work product and attorney-client privileges. See, e.g., Nat’l Day Laborer Org. Network, 811
F. Supp. 2d at 744 (party asserting attorney-client privilege must represent that confidentiality has
been maintained as to each document and if it is unable to do so, “that document must be
released”).
There is no evidence that Defendants took any affirmative steps to maintain the
confidentiality of the Memos. In fact, the only evidence is that the Memos were commingled with
other documents in a publicly accessible file, were made accessible to Town employees who did
not need to know the privileged contents to perform their jobs, and were distributed to at least one
other department within the Town without explanation. As Defendants have failed to carry their
burden, the Court finds that they have waived any privilege as to the Memos. Plaintiff’s motion
to compel is therefore granted, and the Memos shall be produced on or before September 25, 2015.

Dated: Central Islip, New York
September 18, 2015

SO ORDERED:

s/ Steven I. Locke
STEVEN I. LOCKE
United States Magistrate Judge
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