Harris v. Tioga County et al
MEMORANDUM-DECISION and ORDER: that Judge Dancks's Order is Affirmed and that the Clerk is directed to terminate the pending 78 motion. Signed by Judge David N. Hurd on 07/16/2021. (hmr)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
TIOGA COUNTY, TIOGA
GERALD KEENE, Former
Tioga County District
JANE/JOHN DOE #1-10
ANDERSEN, New York
State Police Investigator,
SUSAN MULVEY, New
York State Police Investigator,
New York State Police
JANE/JOHN DOE #11-20
NEW YORK STATE POLICE
EMPLOYEES, and BARBARA
BARKET EPSTEIN & KEARON
ALDEA & LOTURCO, LLP
Attorneys for Plaintiff
666 Old Country Road, Suite 700
BRUCE A. BARKET, ESQ.
DONNA ALDEA, ESQ.
In opposition, the Tioga County defendants argue that Attorney Miller's
disclosure of his client file does not extend to Attorney Keene's
communications with Mrs. Harris. Defendants point out that Attorney Keene
has consistently refused to testify about her communications with Mrs.
Harris, even going so far as to refuse to do so during the underlying criminal
trial against Mr. Harris. Defs.' Opp'n, Dkt. No. 80-1 at 11. In defendants'
view, Attorney Miller's disclosure to law enforcement occurred pursuant to an
ethics rule that permits disclosure without waiving privilege. Id. at 12.
"The attorney-client privilege protects confidential communications
between client and counsel made for the purpose of obtaining or providing
legal assistance." In re County of Erie, 473 F.3d 413, 418 (2d Cir. 2007).4 As
a general matter, the privilege "attaches to (1) a communication between
client and counsel that (2) was intended to be and was in fact kept
confidential, and (3) was made for the purpose of obtaining or providing legal
advice." Haider v. Geller & Co., LLC, 457 F. Supp. 3d 424, 428 (S.D.N.Y.
This privilege is "the oldest of the privileges for confidential
communications known to the common law." Upjohn v. United States, 449
4 The parties have been imprecise on this point, but "questions about privilege in federal
question cases are resolved by the federal common law." Woodward Governor Co. v. Curtiss Wright
Flight Sys., Inc., 164 F.3d 123, 126 (2d Cir. 1999); see also von Bulow ex rel. Auersperg v. von Bulow,
811 F.2d 136, 141 (2d Cir. 1987).
acknowledged that there may be certain circumstances where an attorney
possesses 'an implied authority to waive the privilege on behalf of his
client."' Lama, 25 F.Supp.3d at 319 (quoting In re von Bulow, 828 F. 94,
101 (2d Cir.1987)).
Neither party contends that Mrs.Harris waived the privilege. Instead,
Mr.Harris principally relies on Rule 502(a) of the Federal Rules of Evidence
to argue that Attorney Miller's intentional disclosure of his client file to law
enforcement during the investigation into her disappearance effected a
subject matter waiver of the privilege. Pl.'s Mem.at 13-15.
"[A] subject matter waiver ...is reserved for those unusual situations in
which fairness requires a further disclosure of related, protected information,
in order to prevent a selective and misleading presentation of evidence to the
disadvantage of the adversary." Swift Spindrift, Ltd., 2013 WL 3815970, at
*5 (quoting Rule 502(a) advisory committee's note).
"Subject-matter waiver applies where considerations of fairness should
allow the attacking party to reach all privileged conversations regarding a
particular subject once one privileged conversation on that topic has been
disclosed in order to avoid prejudice to the adversary party and distortion of
the judicial process that may result from selective disclosure." Robbins &
Myers , Inc.
u. J.M. Huber Corp.,
274 F.R.D.63, 94 (W.D.N.Y.2011) (cleaned
up). The question of whether fairness requires disclosure must be decided on
a case-by-case basis and depends on the specific context in which the
privilege is asserted. Id. at 95; In re County of Erie, 546 F.3d at 299.
Mr. Harris acknowledges that Attorney Keene did not participate in the
disclosure of any of the materials. Pl.'s Mem. at 14. And as Judge Dancks
noted, plaintiff already has available to him the notes recorded in the client
file that were previously disclosed by Attorney Miller. Dkt. No. 77 at 6.
Considering all of the circumstances, Judge Dancks did not "clearly err" or
act "contrary to law" in denying plaintiffs request to also compel Attorney
Keene to "testify about her recollections with regard to her conversations
with Michele Harris concerning the legal work that [Attorney] Keene did on
the protective order application." Id. at 7.
Therefore, it is
Judge Dancks's Order is AFFIRMED.
The Clerk is directed to terminate the pending motion.
IT IS SO ORDERED.
Dated: July 16 2021
Utica, New York.
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