Dean et al v. The Town of Hempstead et al

Filing 204

ORDER re 190 MOTION for pre motion conference re Order on Motion for Leave to Electronically File Document under Seal, 185 MOTION for pre motion conference (re-filed as a separate document pursuant to the order of Magistra te Gold) filed by Look Entertainment LTD., Rori Leigh Gordon, Green 2009 Inc., William Stephen Dean, One55Day Inc. For the reasons stated in the attached Memorandum and Order, plaintiffs may not make use of the attorney-client communication s and work-product material included in the envelope that appeared on the doorstep of plaintiff Dean last December, and shall forthwith return all such documents to counsel for defendants. To the extent defendants seek the imposition of sanctions or disqualification of plaintiffs' counsel, the application is denied.Ordered by Magistrate Judge Steven M. Gold on 11/9/2018. (Gold, Steven)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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WILLIAM STEPHEN DEAN, et al.,
:
:
Plaintiffs,
:
:
-against:
THE TOWN OF HEMPSTEAD, et al.
:
:
Defendants.
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MEMORANDUM
AND ORDER
14-cv-4951 (MKB) (SMG)

GOLD, STEVEN M., U.S.M.J.:
Plaintiffs filed a letter motion on July 18, 2018 seeking, among other things, to reopen
discovery and compel production of certain documents. Docket Entry 190. The circumstances
underlying the motion are somewhat strange. As related to the Court without dispute, an
unmarked envelope containing documents was left on plaintiff Dean’s doorstep in or about
December 2017. Tr. of Proceedings held Aug. 23, 2018 (“Tr.”) at 21:4–6, Docket Entry 193.
The envelope contained documents that defendants (other than defendant Steven Rhoads, who is
not involved in the pending motion) contend reveal privileged attorney-client communications or
consist of attorney work product.
In their motion, plaintiffs argued that the content of the documents indicates that they
were created in furtherance of a crime or fraud, and that the documents therefore should not be
protected from disclosure. Plaintiffs argued further that they should be permitted to reopen
discovery in light of the documents. 1 After hearing arguments from counsel and reviewing the
documents in camera, I concluded that the crime-fraud exception did not apply and denied
plaintiffs’ application to reopen discovery. See Min. Entry for Conference held Sep. 5, 2018. I

1

Plaintiffs’ letter motion also seeks leave to file an amended complaint based upon information contained in the
documents. During a telephone conference held on September 5, 2018, however, plaintiffs clarified that they were
not currently seeking leave to amend.

also sought briefing on one additional question: what use, if any, plaintiffs may make of
defendants’ attorney-client and work-product materials that came into plaintiffs’ possession
through no wrong-doing of their own. This Memorandum and Order resolves this last aspect of
plaintiffs’ motion. 2
Defendants argue that plaintiffs should be precluded from making use of any privileged
or work-product documents that came into their possession under these unusual circumstances.
This Court agrees. Plaintiffs have suggested no reason to believe that defendants did anything
that might arguably constitute a waiver of their attorney-client privilege or work-product
protection. The mere fact that documents were mysteriously delivered to plaintiff Dean’s
doorstep provides no basis for concluding that defendants waived their privilege or that the
documents are for any other reason no longer privileged or protected work product, and plaintiffs
have identified no authority that would support a contrary conclusion. Nor have plaintiffs
pointed to any authority supporting their right to make use of documents that are privileged or
protected work product absent some sort of waiver. Accordingly, plaintiffs may not make use of
the attorney-client communications and work-product material included in the envelope that
mysteriously appeared on the doorstep of plaintiff Dean last December. Plaintiffs shall forthwith
return all such documents to counsel for defendants.
Neither side has presented authority that directly addresses whether plaintiffs may make
use in this litigation of information that they learned as a result of reviewing the documents in
issue. The Court sees no reason why, if the documents themselves are not available to plaintiffs

2

Plaintiffs argue that some of the documents may not be privileged because they were shared with both counsel for
the Board of Zoning Appeals and counsel for the Town Board. Defendants argue that these are, for all practical
purposes, either the same entity or that, at a minimum, the two entities share a common interest. Case law supports
defendants’ position. See Matter of Commco, Inc. v. Amelkin, 62 N.Y.2d 260, 265–66 (1984) (noting that zoning
board “was created’ by a town board “pursuant to a statutory mandate” and is “not a separate corporation”); id. at
268 (noting that generally, zoning board may not retain its own counsel without approval of the town board).

2

for use in this litigation, there should be any different result with respect to the information the
documents contain or that plaintiffs may have learned simply as a result of knowing what the
documents contain. Plaintiffs’ counsel argues that she cannot “un-know” what she has learned.
However, discovery is at least essentially complete, 3 and a dispositive motion is now pending
before the Court. See Mot. to Dismiss, Docket Entry 157. In this procedural posture, it should
not be challenging to avoid making use of the information learned from any privileged or
protected documents included in the package.
In both their opening and reply memoranda of law, defendants assert that plaintiffs’
counsel engaged in misconduct warranting sanctions and perhaps disqualification. Although
defendants have not formally moved for disqualification or sanctions, the Court takes this
opportunity to state that it does not agree. First, although defendants contend that plaintiffs’
counsel had access to these documents and did not reveal that fact for many months, their
contention assumes that plaintiffs’ counsel received the documents shortly after plaintiff Dean
did. Plaintiffs’ counsel represents, though, that Dean did not alert her to the existence of the
documents until several months after he discovered them. Second, with respect to defendants’
argument that plaintiffs’ counsel should have immediately recognized the privileged nature of
the documents and returned them, the Court concludes that the privileged character of the
documents was not immediately apparent. The critical document is an email dated November

3

Plaintiffs argue that discovery is not complete based upon an Order entered by this Court on May 2, 2016,
suspending discovery without date pending further application to or Order of the Court. Docket Entry 81. The
Order was entered in the context of a motion then pending before United States District Judge Brodie which has
long since been decided. See Min. Order dated July 20, 2016. Moreover, with the exception of plaintiffs’ recent
motion—which has already been denied—no party has moved to reopen discovery since that date. Finally, plaintiffs
themselves seek leave to “reopen discovery” in their letter motion, Docket Entry 190 at 1, thereby indicating that
they, like the Court, understood that discovery was closed. Accordingly, if any additional discovery is to be taken at
all, it should be limited to discovery about any relevant events that have taken place since 2016. The most recent of
the documents in dispute appears to be dated some time in 2014. Thus, even if there were to be additional
discovery, it seems highly unlikely that knowledge of the documents at issue would come into play.

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22, 2011 that appears as page 18 in the copy of the mysterious package provided to the Court. It
is plain from the email that it is authored by Charles Kovit. The Court understands Kovit to be
Chief Deputy Attorney for the Town of Hempstead. Tr. at 2:16–17. It is also plain that the
email is addressed to outside counsel representing the Town in this case. The email, however, is
also copied to four other individuals identified only by their names. Although as discussed
above counsel for defendants has satisfactorily explained why distribution to these four
additional persons did not waive the attorney-client privilege, that result is not immediately
apparent just from looking at the email. Accordingly, to the extent defendants seek the
imposition of sanctions or disqualification of plaintiffs’ counsel, the application is denied.

/s/
Steven M. Gold
United States Magistrate Judge
Brooklyn, New York
November 9, 2018

U:\Dean v Town of Hempstead.docx

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