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

Filing 83

LETTER BRIEF 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. (Attachments: # 1 Exhibit(s))(Hirschhorn, Russell)

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Russell L. Hirschhorn
Attorney at Law

October 21, 2011

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212.969, 3286
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rhirschhorn@proskauer.

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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

I'oder et al. v. Town 0 Morristown

Re:

of New York

et al. Civil Case No. : 09-cv-00007 NPM/GHL

Dear Judge Lowe:

We, along with the Becket Fund for Religious Liberty, represent Plaintiffs in the abovereferenced matter. We write in reference to the Court's October 7, 2010 Text Order stating that
"it is Plaintiffs' burden to establish that a privilege is applicable" to communications involving
Marianne and David Fisher (the "Fishers" ), which were identified on Plaintiff's privilege log
dated July 10, 2009 (the "Fisher Documents" ), and to provide "whatever submissions they feel
"
are necessary to meet this burden,
matter, Plaintiffs do not dispute that they have the burden of
As a preliminary
communications between and among the Fishers, on the one hand, and
establishing that the
Plaintiffs and/or their counsel (i. e. , my firm, the Becket Fund and Steve Ballan, Plaintiffs'
counsel for purposes of defending against the prosecutions initiated by defendant Morristown) on
the other hand, are protected by the attorney-client privilege and/or the attorney work product
doctrine. Plaintiffs' September 23, 2011 letter to the Court (see Docket No, 81) did not mean to
suggest otherwise. In our September 23 letter, we intended to make the point that an in camera
review of the Fisher Documents should not occur, if at all, without at least some action on the
part of Defendants to object to the assertion of privilege and explain such objections to the
'
Court.

The attorney-client privilege and attorney work product doctrine clearly apply here. As
we explained in our September 23 letter, the Second Circuit has long held that the privileges
extend not only to attorneys, but also to their agents, and to third parties whose assistance "is
necessary, or at least highly useful, for the effective consultation between the client and the
United States v. Kovel, 296 F.2d 918, 922 (2d
lawyer which the privilege is designed to permit.
Cir. 1961). Kovel explained that such parties are analogized to translators who assist the
the communications of their clients, and vice versa. The privilege
attorneys in understanding
extends to individuals such as accountants, consultants, outside experts, even volunteers who
perform important services for the client. See id, (accountant); NXIVM Corp. v. O' Hara, 241
F.R.D. 109, 139-41 (N. D, N. Y. 2007) (unpaid volunteer); Hudson Ins. Co. v. Oppenheitn, 72

"

with this letter, we undertook an additional review of the documents identified on Plaintiffs'
log and have determined that two of them should be produced in response to Defendants' document
We produced these documents to Defendants on October 20, 2011.

In connection

privilege
requests.

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Washington,

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Pros kau erJ)
The Honorable George H. Lowe
October 21, 2011
Page 2

A. D. 3d 489, 489 (1st Dep't. 2010) (consultant). The important fact is not the title of the person
involved, but whether that person "assist[s] in analyzing or preparing the case, as adjunct to the
lawyer's strategic thought processes, thus qualifying for complete exemption from disclosure" or
"
otherwise "improve[s] the comprehension of the communication between attorney and client.
NXIVM, 241 F.R.D. at 141; Hudson, 72 A. D. 3d at 489 (quotations omitted).
Defendants' October 6, 2011 letter makes no effort to explain why these authorities
Rather, Defendants contend that the Fisher Documents should not be
should not apply here.
immune from discovery because: (i) there is no indication that the Fishers were retained by
Plaintiffs' counsel; and (ii) "it appears that the Fishers are simply individuals who have 'over the
years' become friendly with the Amish community in general and who perhaps Plaintiffs'
" Defendants are wrong on both accounts,
counsel may have used as a convenient intermediary.

First, my law firm, on behalf of Plaintiffs, expressly retained Marianne
(See October 27, 2008 Engagement
consultant in connection with the litigation,
annexed hereto as Exhibit 1). In relevant part, that engagement agreement states:

Fisher as a
Agreement,

with, and specialized
In light of your special relationship
knowledge of, [Plaintiffs], Proskauer wishes to retain you as a
consultant to assist Proskauer, the Becket Fund for Religious
Liberty and Steven G. Ballan, Esq. (collectively, "Counsel" ) in
connection with their representation of [Plaintiffs] (including in
connection with the action entitled Yoder, et al. v. Town of
Morristown, et al. , 7:09-cv-00007-TJM-GHL, currently pending in
the United States District Court for the Northern District of New
York). You have agreed to assist Counsel by performing, on their
behalf and under their supervision, certain services relating to the
Project. The work to be performed by you will be a necessary
adjunct to Counsel's legal services to [Plaintiffs].

Your work will be directed by Counsel or such persons as Counsel
may designate. Your work, including your communications with
[Plaintiffs], and/or Counsel, will be, and will be deemed to be,
The two decisions cited by Defendants are not to the contrary. In Allied Irish Banks, p. l. c. v, Bank of America,
240 F.R.D. 96 (S.D.N. Y. 2007), Allied Irish Banks ("AIB") sought to prevent disclosure of a draft internal
investigation report. The report was prepared by a law firm that had not executed a letter of engagement, was
for the purpose of providing legal
made available publicly, and was not created primarily or predominantly
the court concluded that neither AIB nor the law firm provided any evidence regarding the
advice. Moreover,
manner in which the law firm's purported legal advice was provided to AIB, and AIB did not claim that the
investigator was acting as an agent for the law firm in delivering legal advice to AIB. Thus, the attorney-client
privilege did not attach to the report. In United States v. Ackert, 169 F.3d 136 (2d Cir. 1999), the Second
Circuit held that there was no privilege between a general counsel and an investment banker from whom the
general counsel sought information relating to the tax consequences of a transaction because the investment
banker was acting as a banker, advising on potential investments, rather than a "translator or interpreter of client
communications. " ld. at 139-40.

Proskauer»
The Honorable George H. Lowe
October 21, 2011
Page 3
privileged and confidential information designed to assist Counsel
in representing Plaintiffs in anticipated or actual litigation matters.

agreement confirms that the Fisher Documents are communications that were
made with the expectation that they be maintained in confidence and are immune from
discovery.

The engagement

The engagement agreement also proves that the Fishers were, contrary to Defendants'
Moreover, as explained in our
assertions, retained as more than a "convenient intermediary.
September 23 letter, the Fisher Documents were made solely in furtherance of the legal
representation of Plaintiffs and the Fishers did, in a very real sense, act as translators and
interpreters, facilitating and improving the comprehension of communications between lawyer
and client. They are therefore privileged. The Fishers reside in Plaintiffs' community and have,
over the years, gained the trust and confidence of the local Amish community, including
Plaintiffs. During this time, the Fishers have become very familiar with Plaintiffs' culture.
Plaintiffs rely upon the Fishers to transmit messages to counsel and explain counsels' statements
to them. The Fishers also assist counsel by explaining to counsel certain cultural customs and
Because it is forbidden by Plaintiffs' religious
facilitating communication with Plaintiffs.
Plaintiffs via email or telephone and must rely instead on
beliefs, we cannot communicate with
the Fishers to communicate with our clients in a timely fashion. While we can (and do) rely
upon U. S. mail or in-person communication, such methods are not always practicable during a
litigation, Our clients have consistently communicated with the Fishers in confidence and have
done so with the expectation that their communications will be maintained in confidence and
would not be disclosed to the governmental entity and officials who are attempting to prosecute
Plaintiffs.

"

In short, the Fishers are an integral part of our clients' legal team. We thus respectfully
submit that our September 23 letter, along with this letter, satisfies Plaintiffs' burden and request
the Court to conclude that the communications contained in the Fisher Documents are protected
by the attorney-client privilege and/or the attorney work product doctrine.

Enclosure

Although David Fisher did not sign the engagement agreement, there can be no dispute that the attorney-client
privilege and attorney work product privilege apply to communications with him as well. See United States v.
Devery, 1995 U. S. Dist. LEXIS 4799, at *44 (S.D.N. Y. 1995) (concluding that communications were privileged
notwithstanding the absence of a retainer agreement).

Proskauer»
The Honorable George H. Lowe
October 21, 2011
Page 4

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