Karam et al v. County of Rensselaer, New York et al

Filing 76

DISCOVERY ORDER. The Court conducted an in camera review of two tapes of conversations provided to chambers. For all the reasons stated herein, the taped conversations between Union Representations and Karam -- tape 802_042 and 802_44 -- are not pr otected by the work product doctrine and must be disclosed to defendants. ORDERED that the plaintiff retrieve the disk with thesse taped conversations from the Court's Chambers and then disclose them to the defendants forthwith. Signed by Magistrate Judge Randolph F. Treece on 2/10/2015. (lah, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JAMES KARAM,
Plaintiff,
-v-

Civ. No. 1:13-CV-1018
(MAD/RFT)

COUNTY OF RENSSELAER, et al.,
Defendants.
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RANDOLPH F. TREECE
United States Magistrate Judge
DISCOVERY ORDER
Recently, Karam served upon the Defendants a privilege log that listed a series
of taped conversations. Apparently, prior to and throughout this litigation, Karam

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taped his conversations with various persons. On January 29, 2015, the Court issued
a Discovery Order that discussed, inter alia, Karam’s privilege log. Dkt. No. 71, Disc.
Order, dated Jan. 29, 2015, at p. 2. Relevant to our discussion here, there are two
taped conversations between Karam and officials of the United Public Services Union
that he claims are protected by the work product doctrine. This Court opined that

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“[g]enerally, conversations between union officials and members of a union are not
afforded any protection, but there may be an aspect of these conversations that
conceivably could be work product.” Id. The Court directed the parties to meet and
confer to determine if indeed a work product privilege attached and if the parties could
not resolve the issue, the Court would conduct an in camera review of the two tapes

to ascertain if they are shielded by the work product doctrine. Id.
Ostensibly, the parties were unable to resolve the matter because the two tapes
were forwarded to the Court for an in camera review. The Court closely and
assiduously listened to the two tapes – a minimum of three times – in order to
understand the nature of the conversation in order to pronounce its status.
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The work product doctrine establishes a zone of privacy in order to protect an
attorney’s mental impressions, opinions, and legal theories concerning litigation. This
doctrine may be triggered when there is a prospect or anticipation of litigation.
NXIVM Corp. v. O’Hara, 241 F.R.D. 109, 127-28 (N.D.N.Y. 2007) (citations
omitted). “The fact that the materials [may] serve other functions apart from litigation

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does not mean that they should not be protected by the work product immunity if they
reveal directly or indirectly the mental impressions or opinions of the attorney who
prepared them.” United States v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998)
(citations and quotation marks omitted). On the other hand, even if documents ,which
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would have been created irrespective of the litigation, “might also help in the
preparation for litigation, they do not qualify for protection because it could not fairly
be said that they were created ‘because of’ actual or impending litigation.” Id.
(citations omitted).

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Essentially, in order to assert the work-product doctrine, three elements must
be established. The material must be (1) a document or a tangible thing, (2) that was
prepared in anticipation of litigation, and (3) was prepared by or for a party, or by or
for his representative. BNP Paribas v. Bank of New York Trust Co., N.A., 2013 WL
2434686, at * (S.D.N.Y. June 5, 2013).
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Two of these elements are obviously present. The tapes are tangible items and
they were prepared by Karam, the party. The second element is much harder to
define.
Here, these tapes are conversations between representatives of the United Public
Service Union, which did not represent Karam. Karam is not a member of the Union,

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although his wife is a member. Moreover, the Union was not working as a
representative of Karam’s attorney because, at the moment of these conversations,
Karam had not retained an attorney to represent him.1 The primary purpose of the

There is a split of authority as to whether an attorney needs to be involved for the work
product doctrine to be invoked. “When a document is created because of the prospect of litigation,
analyzing the likely outcome of that litigation, it does not lose protection under this formulation
merely because it was created in order” with other decisions. United States v. Adlman, 134 F.3d
1194, 1202 (2d Cir. 1998). Even though many courts within the Second Circuit state that the
presence of a lawyer is not absolutely necessary for the work product doctrine to exist, Wultz v. Bank
of China Ltd., 2015 WL 363667, at *9 (S.D.N.Y. Jan. 21, 2015) (citations omitted), a principal
element absent form Karam’s discussions is that the Union was not acting on behalf of or at the
direction of an attorney nor is there an obvious legal analysis of the outcome of the litigation.
“[D]ocuments are not protected by the attorney work-product doctrine, because (though they may
have been created because of the prospect of litigation) they are not the work product of an
individual acting as the siblings’ attorney.” Bice v. Robb, 511 F. App’x 108, 110 (2d Cir. 2013)
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(continued...)

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conversation, however, was that the Union was filing a grievance on behalf of its
members who were being precluded from donating sick leave hours to Karam, and the
Union’s strategy to promulgate the issue to the union members and the public at large.
Yet, there were brief conversations about him filing an Article 78 proceeding,
potentially with the aid of Union attorneys, and the possibility of a lawsuit. At best,
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the discussion could very well be a reporting by Union representatives as to what the
Union was prepared to do that could minimally, albeit indirectly, benefit Karam. In
any event, the Union was prepared to help him in any manner.
The Court cannot definitely say that Karam’s practice of taping everyone who
speaks with him automatically means that such tapes were being created because of

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an actual or impending litigation. Adlman, 134 F.3d 1202. Conversely, the Court
cannot gainsay that the process of taping everyone was not meant for impending
litigation. However, coordinating a media campaign or giving public relation advice,
even if it bears on litigation, falls outside the ambit of the work product doctrine.
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Gucci America Inc., v. Guess?, Inc., 271 F.R.D. 58, 78 (S.D.N.Y. 2010); NXIVM v.
O’Hara, 241 F.R.D. at 142. It does appear that the Union was sharing with Karam its
public relation strategy to assist him, mostly by publishing the matter through a couple
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(...continued)

(citing, inter alia, United States v. Adlman, 134 F.3d at 1196 (emails between siblings considering
their potential claims against another sibling were not work product). If the Court was to apply this
standard, the work product doctrine would not stand.
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of reporting vehicles. Assuming that the doctrine may have initially attached to these
taped conversations, if the overall strategy was to disseminate information throughout
the Union’s membership and the public at large regarding Karam’s plight with
Rensselaer County, there was no intention of keeping the information in confidence,
a hallmark of the immunity. See Egiazaryan v. Zalmayev, 290 F.R.D. 421, 436
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(S.D.N.Y. 2013). Based upon the consideration that this information was to be shared
with others, it is not reasonable for Karam to have had any expectation that what was
being discussed would maintain any legally recognized confidence. The work product
doctrine is not absolute. Such protection, like any other privilege, can be waived and
the determination of such a waiver depends on the circumstances. United States v.

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Nobles, 422 U.S. 225, 239-40 (1975). A voluntary disclosure of work product, for
some or any inexplicable benefit, to a third party, may waive the privilege. In re
Steinhardt Partners, L.P., 9 F.3d 230, 234-37 (2d Cir. 1993); see also In re Grand
Jury Proceedings, 219 F.3d 175, 191 (2d Cir. 2000); Strougo v. Bea Associates, 199
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F.R.D. 515, 522 (S.D.N.Y. 2001) (disclosing some of the information to nonparties
constitutes a waiver). As illustration, when a party makes a strategic decision, no
matter how broad and sweeping or limited, to disclose privileged information, a court
can find an implied waiver. In re Grand Jury Proceedings. 219 F.3d at 190-92.
Moreover, a party cannot partially disclose a privileged document nor selectively
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waive the privilege and then expect it to remain a shield. Id. at 191. Thus, even if the
tapes constitute work product, a waiver has occurred.2
For all of these reasons, the taped conversations between Union Representatives
and Karam – tape 802_042 and 802_44 – are not protected by the work product
doctrine and must be disclosed to the Defendants.
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It is hereby Ordered that the Plaintiff retrieve the disk with these taped
conversations from the Court’s Chambers and then disclose them to the Defendants
forthwith.
IT IS SO ORDERED.

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February 10, 2015
Albany, New York

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Additionally, the Court struggles with the legal reality that these conversations could
conceivably constitute fact work production because the conversations do not appear to be essential
to the preparation of Karam’s case. In re Grand Jury Subpoena, Dated July 6, 2005, 510 F.3d 180,
184 (2d Cir. 2007). The mere mention of an Article 78 proceeding and the possibility of litigation
without some legal analysis or strategy being involved, does not deserve to be cloaked by the work
product doctrine.
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