Harris v. Tioga County et al

Filing 81

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)

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK CALVIN HARRIS, Plaintiff, -v- 3: 17-CV-932 TIOGA COUNTY, TIOGA COUNTY DISTRICT ATTORNEY'S OFFICE, GERALD KEENE, Former Tioga County District Attorney, UNIDENTIFIED JANE/JOHN DOE #1-10 TIOGA COUNTY EMPLOYEES, STEVEN ANDERSEN, New York State Police Investigator, SUSAN MULVEY, New York State Police Investigator, UNIDENTIFIED LESTER, New York State Police Investigator, UNIDENTIFIED JANE/JOHN DOE #11-20 NEW YORK STATE POLICE EMPLOYEES, and BARBARA THAYER, Defendants. APPEARANCES: OF COUNSEL: BARKET EPSTEIN & KEARON ALDEA & LOTURCO, LLP Attorneys for Plaintiff 666 Old Country Road, Suite 700 ALEXANDER ROBERT KLEIN, ESQ. 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. 2020). 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). -7- 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, 2d 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 -9- 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. V. CONCLUSION Therefore, it is ORDERED that 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. - 10 -

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