Gray et al v. City of New York et al

Filing 99

ORDER summarizing and supplementing rulings made on the record during a conference held on March 30, 2016 denying Defendants' 90 motion to compel. Ordered by Magistrate Judge Marilyn D. Go on 4/18/2016. (Proujansky, Josh)

United States District Court
Eastern District of New York
MINUTE ORDER
14cv2488 (MKB)(MDG) Gray, et al. v. City of New York, et al.,
This order summarizes and supplements rulings made on the
record during a conference held on March 30, 2016. Defendants' [90]
motion to compel is denied as discussed below.
1. Defendants seek an order that no attorney-client privilege
attaches to shield communications made at an initial meeting between
non-party Jaquan Fraser and his attorney, Anthony Ricco. Bringing
the motion as one to compel, defendants submitted selected pages
from the transcript of the deposition of Mr. Ricco, during which Mr.
Ricco refused to answer certain questions on the basis of the
attorney-client privilege. None of the parties provided an
affidavit from Mr. Ricco, but, at the Court's invitation, Mr. Ricco
participated at the discovery hearing and made statements, as an
officer of the Court, regarding the circumstances surrounding the
interview of Mr. Fraser by the Kings County District Attorneys'
Office. As all counsel agree, prior to the interview, Mr. Ricco was
driven by Kevin Hinkson, plaintiffs' investigator, to meet with
Jacquan Fraser and his grandmother at their residence.
2. "The attorney-client privilege forbids an attorney from
disclosing confidential communications obtained from the client
during the course of professional consultations." U.S. v. Adlman,
68 F.3d 1495, 1499 (2d Cir. 1995). "The burden of establishing the
existence of the attorney-client privilege, in all of its elements,
rests with the party asserting it." In re Grand Jury Proceedings,
219 F.3d 175, 182 (2d Cir. 2000).
3. Defendants contend that no attorney-client relationship was
established between Mr. Fraser and Mr. Ricco. As this Court noted
at the hearing, "[i]t is well-settled that preliminary discussion
between a witness and an attorney can be privileged even if the

witness does not retain the attorney." United States v. Devery,
1995 WL 217529, at *5 (S.D.N.Y. 1995); see Fierro v. Gallucci, 2007
WL 4287707, at *6 (E.D.N.Y. 2007). The key to "whether an
attorney/client relationship existed is the intent of the client and
whether he reasonably understood the conference to be confidential."
United States v. Dennis, 843 F.2d 652, 657 (2d Cir. 1988).
4. The Court credits Mr. Ricco's statements at his deposition
that Mr. Frazer, then a minor, and his grandmother, agreed at their
initial meeting to have Mr. Ricco represent Mr. Fraser in connection
with a grand jury investigation into the shooting of Kimani Gray.
See Transcript of Deposition of Anthony Ricco (ct. doc. 94-1) at 28.
5. Defendants further argue that any attorney-client privilege
created was waived because Mr. Hinkson was present in the room when
Mr. Ricco met Jaquan Fraser and his grandmother. Communications in
the presence of a third party are not privileged because
communications between attorney and client must be made in
confidence and have been maintained in confidence. See U.S. v.
Mejia, 655 F.3d 126, 134 (2d Cir. 2011).
6. The defendants point to the transcript of Mr. Ricco's
deposition in arguing that Mr. Hinkson was present when Mr. Ricco
met with Jaquan Fraser. However, the excerpts merely establish that
Mr. Hinkson was with Mr. Ricco when they arrived at the Fraser
apartment. The questioner apparently assumed that Mr. Hinkson
remained with Mr. Ricco after the two men entered the apartment
until the time the two left. It is possible, in a hurried and hasty
review, to infer from the few questions asked and answers given that
Mr. Hinkson remained in the same room with Mr. Ricco. However, Mr.
Ricco denied that was the case; there simply were no questions
regarding where Mr. Hinkson, Mr. Ricco and Mr. Fraser were when Mr.
Ricco began meeting with Mr. Fraser and his grandmother. As Mr.
Ricco made clear at the motion hearing, he sat with Mr. Fraser and
his grandmother in the living room during the meeting, while Mr.
Hinkson and two other people in the apartment were in the dining
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room. See Transcript of 3/30/16 Hearing (ct. doc. 98) at 5, 8-10,
19. Mr. Ricco also stated he explained to Mr. Frazer and his
grandmother that their conversation was confidential and that was
the reason they were speaking outside the presence of others who
were in the apartment. See id. at 11, 17-18. Notably, other than
refusing on privilege grounds to answer questions regarding the
substance of his conversation with Mr. Fraser, Mr. Ricco gave
responsive and straightforward answers to the questions posed at his
deposition. Defendants did not seek to probe further to elicit the
reasons for Mr. Ricco's assertion of privilege, and have provided no
reason to the Court to discredit Mr. Ricco's now fuller explanation
of the circumstances surrounding his initial meeting with Mr.
Fraser. Further, Mr. Ricco confirmed that he did not disclose the
substance of the conversation with Mr. Fraser to Mr. Hinkson. See
id. at 6.
7. This Court finds that Mr. Ricco has established the
applicability of the attorney-client privilege to protect
communications with his client, Jaquan Fraser, at their initial
meeting. The purpose of the conversation was for Mr. Ricco to
provide Mr. Fraser with legal advice and it was intended to be, and
in fact, was kept confidential. The fact that Mr. Ricco offered his
services to Mr. Fraser rather than Mr. Fraser seeking out Mr. Ricco
is irrelevant to whether an attorney-client relationship existed.
SO ORDERED.
Dated:

Brooklyn, New York
April 18, 2016
_/s/__________________________
MARILYN D. GO
UNITED STATES MAGISTRATE JUDGE

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