Yoder, et al v. Town of Morristown, et al

Filing 81

STATUS REPORT Plaintiffs write to provide your Honor with an update on outstanding document discovery issues. by Menno L. Glick, John L. Hershberger, Menno S. Hershberger, Urie Hershberger, Andy A. Miller, Harvey Miller, Mose Miller, Dannie L. Swartzentruber, Mosie Swartzentruber, Peter D. Swartzentruber, Levi Yoder, Jonas Zook, Sam Zook. (Hirschhorn, Russell)

Russell L. Hirschhorn
Attorney at Law

September 23, 2011

d

The Honorable George H. Lowe
United States Magistrate Judge
U. S. District Court for the Northern District
P.O. Box 7346
Syracuse, New York 13261-7346

Re:

corn

of New York

Civil Case No. : 09-cv-00007

I'oder v. Town o Morristown

212.969.3286

t 212.969.2900
rhirschhorn@proskauer.
www. proskauer. corn

PM/GHL

Dear Judge Lowe:

We, along with the Becket Fund for Religious Liberty, represent the Plaintiffs in the
above-referenced matter.
Consistent with Court's request during the September 9, 2011 status conference, we write
to provide your Honor with an update on outstanding document discovery issues. We have
exchanged letters with Defendants' counsel twice since the September 9th conference and are
awaiting a representation from Defendants' counsel as to whether they have withheld any nonprivileged documents on the grounds that such documents are not relevant. If Defendants have
not withheld any documents on that ground, from Plaintiffs' perspective, all document discovery
issues appear to have been resolved (subject, of course, to the parties' continuing obligations to
supplement their responses as required by the Federal Rules of Civil Procedure). In that case, we
are prepared to schedule the depositions of all individuals forthwith. On other hand, if in fact
Defendants have withheld documents based on a "relevance" objection, we do not believe that it
is a proper objection by which to withhold otherwise responsive documents and we will make an
appropriate application to the Court.
Separately, it is our understanding that Defendants' counsel takes issue with our claim
of privilege concerning our communications with two of our consultants, Marianne and David
Fisher. In their September 16, 2011 letter to us concerning this issue, Defendants suggested that
any responsive documents be produced to the Court for in camera review, We believe any such
which they cannot
review is premature and that Defendants should first be required to prove
that attaches to our communications with the Fishers.
that there is no privilege

—

—

Over one year ago, we wrote to Defendants to provide them with information concerning
our retention of the Fishers as consultants in this litigation. The Fishers, as we explained, are
longstanding members of the Morristown community who, over the years, have developed a
special relationship of trust with the local Amish community and, in the process, have gained a
unique understanding of our clients' customs and practices. As a practical matter, they serve a
Because we cannot
vital role as "translators" for us and the Becket Fund as counsel.
times rely upon the Fishers to
communicate with our clients by email or telephone, we must at
convey information to them. The Fishers are an integral part of our clients' legal team and our

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Washington,

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Proskauer»
The Honorable George H. Lowe
Page 2 of 2
September 23, 2011
clients have consistently communicated with the Fishers in confidence and have done so with the
expectation that their communications will remain in confidence.

There can be no doubt that our communications with the Fishers are privileged and
It is well-established that the attorney-client privilege extends to
protected from disclosure.
persons "serving as an agent of either attorney or client, and the work product privilege extends
to individuals who "assist in analyzing or preparing the case, as adjunct to the lawyer's strategic
Hudson Ins. Co. v.
thought processes, thus qualifying for complete exemption from disclosure.
Oppenheim, 72 A. D. 3d 489, 489 (1st Dep't. 2010) (internal quotations omitted); NXIVM Corp. v.
0'Hara, 241 F.R.D. 109, 141 (N. D.N. Y. 2007) ("If the purpose of the third party's participation
is to improve the comprehension of the communication between attorney and client, then the
privilege will prevail. ") (internal quotations omitted). Furthermore, the "scope of the privilege is
not defined by the third parties' employment or function, however; it depends on whether the
People v.
client had a reasonable expectation of confidentiality under the circumstances,
296 F.2d 918, 922 (2d Cir. 1961) ("What is
Osorio, 75 N. Y.2d 80, 84 (1989); see US v. Kovel,
vital to the privilege is that the communication be made in confidence for the purpose of
obtaining legal advice from the lawyer. ").

"

"

"

It is our understanding

that the Court will schedule a status conference within the next

couple

of weeks.

CC;

All by Electronic Mail
Mark Lemire, Esq.
Gregg T. Johnson, Esq.
Lori H. Windham, Esq.
Michael T. Mervis, Esq.
Daniel P, Goldberger, Esq.
Jason D. Gerstein, Esq.