Torres v. Toback, Bernstein & Reiss LLP et al

Filing 48

OPINION AND ORDER -- The plaintiff has moved to compel the defendants to produce the retainer agreement between the defendant Toback, Bernstein & Reiss LLP (Toback Bernstein) and its client, Columbia University, pursuant to which the defendant perfor med the debt collection services at issue in this litigation. In addition, the court has been asked to address whether the attorney-client privilege has been properly asserted by the defendants with respect to a number of documents that have been submitted for in camera review. The plaintiff's motion to compel production of the retainer agreement is granted. See annexed order for details. Ordered by Magistrate Judge Viktor V. Pohorelsky on 1/24/12. (Newton, Joan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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LEILANI TORRES, on behalf of herself and
others similarly situated,
Plaintiff,
OPINION AND ORDER
-vCV-11 1368 (NGG)(VVP)
TOBACK, BERNSTEIN & REISS LLP, et al.,
Defendants.
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The parties have raised two issues with the court implicating the scope of the
attorney-client privilege. The plaintiff has moved to compel the defendants to produce the
retainer agreement between the defendant Toback, Bernstein & Reiss LLP (“Toback
Bernstein”) and its client, Columbia University, pursuant to which the defendant performed
the debt collection services at issue in this litigation. In addition, the court has been asked to
address whether the attorney-client privilege has been properly asserted by the defendants
with respect to a number of documents that have been submitted for in camera review.
Decisions on those matters follow below.
As to the retainer agreement, a long and unbroken line of cases in this Circuit have
established that “in the absence of special circumstances client identity and fee arrangements
do not fall within the attorney-client privilege because they are not the kinds of disclosures
that would not have been made absent the privilege and their disclosure does not incapacitate
the attorney from rendering legal advice.” Vingelli v. United States, 992 F.2d 449, 452 (2d Cir.
1993), citing In re Grand Jury Subpoena Served Upon Doe, 781 F.2d 238, 247 (2d Cir.) (en banc),
cert. denied, 475 U.S. 1108 (1986); In re Shargel, 742 F.2d 61, 62 (2d Cir. 1984); Colton v. United

States, 306 F.2d 633, 637-38 (2d Cir. 1962), cert. denied, 371 U.S. 951 (1963); United States v.
Pape, 144 F.2d 778, 782-83 (2d Cir.), cert. denied, 323 U.S. 752 (1944).1 The defendants have
identified no special circumstances here. The identity of their client is not a secret. Nor have
they cited anything of a confidential nature that might be revealed by production of the
retainer agreement.
The defendants also make the somewhat stronger argument that the retainer
agreement is irrelevant. The plaintiffs, however, point out that the retainer agreement will
likely disclose the terms of the financial arrangements between Toback Bernstein and
Columbia concerning the debt collection activities Toback Bernstein was conducting. They
argue that those matters may become significant in determining the reasonableness of the
fees charged by Toback Bernstein to the debtors whom they pursued. Although it is not
entirely clear how the financial arrangements between Toback Bernstein and Columbia
would bear on the reasonableness issue, the plaintiff’s argument is sufficient to establish
relevance for the purposes of discovery, where the standard is whether the information is
reasonably calculated to lead to evidence admissible at trial. Fed. R. Civ. P. 26(b)(1).
Upon in camera review of the documents submitted by the defendants, the court
concludes that they too are unprotected by the attorney-client privilege. The Second Circuit

1

The defendants mistakenly argue that New York state law concerning privilege applies
because state law supplies the rule of decision in this action. As this case arises under a federal
statute, the Fair Debt Collection Practices Act, it is a federal question case, and federal common law
of privilege therefore applies. E.g., Woodward Governor Co. v. Curtiss Wright Flight Systems, Inc., 164 F.3d
123, 126 (2d Cir. 1999); von Bulow v. von Bulow, 811 F.2d 136, 141 (2d Cir. 1987); Fed. R. Evid. 501.
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has outlined the elements of the attorney-client privilege under federal common law as
follows:
(1) Where legal advice of any kind is sought (2) from a professional legal advisor 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 advisor, (8) except the protection be waived.
In re Grand Jury Subpoena Duces Tecum, 731 F.2d 1032, 1036 (2d Cir. 1984); accord United States v.
Int’l Bhd. of Teamsters, 119 F.3d 210, 214 (2d Cir. 1997). The Second Circuit has reiterated on
numerous occasions that, like most privileges, the attorney-client privilege “should be strictly
confined within the narrowest possible limits underlying its purpose.” United States v.
Goldberger & Dubin, P.C., 935 F.2d 501, 504 (2d Cir. 1991) (citing, inter alia, In re Grand Jury
Subpoena (Shargel), 742 F.2d 61, 62 (2d Cir. 1984)); accord, e.g., In re County of Erie, 473 F.3d 413,
418 (2d Cir. 2007); Int’l Bhd. of Teamsters, 119 F.3d at 214. Thus, unlike the New York state
law regarding this privilege, only communications “by the client” qualify for protection.2
Although the privilege may extend to communications of legal advice by an attorney to his
client, it does so only if the advice discloses, directly or indirectly, a privileged
communication made by the client to the attorney. See In re Six Grand Jury Witnesses, 979 F.2d
939, 943-44 (2d Cir.1992), cert. denied sub nom. XYZ Corp. v. United States, 509 U.S. 905 (1993);
Bank Brussels Lambert v. Credit Lyonnais, 160 F.R.D. 437, 442 (S.D.N.Y. 1995).

2

In contrast, New York provides protection to all confidential communications between an
attorney and his or her client relating to legal advice, whether the communication is by the client or
by the attorney. N.Y.C.P.L.R. § 4503(a); Rossi v. Blue Cross & Blue Shield, 73 N.Y.2d 588, 592, 540
N.E.2d 703, 705, 542 N.Y.S.2d 508, 510 (1989).
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Each of the documents submitted for in camera review is a letter from Toback
Bernstein to Columbia seeking information about the debt they were apparently hired to
collect. The only information obtained from Columbia that is revealed in the letters is the
name of the debtor, information that can hardly be considered confidential. Moreover, the
purpose of the communications is not for Columbia to obtain legal advice from Toback
Bernstein, but for Toback Bernstein to obtain information related to their debt collection
business. Since the letters reveal no confidential communications from a client to a lawyer
for the purpose of obtaining legal advice, they are not protected by the attorney-client
privilege.
The plaintiff’s motion to compel production of the retainer agreement is granted.
The defendants are to produce the agreement as well as the documents submitted for in
camera review to the plaintiff within fourteen days.
SO ORDERED:

Viktor V. Pohorelsky
VIKTOR V. POHORELSKY
United States Magistrate Judge
Dated:

Brooklyn, New York
January 24, 2012

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