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

Filing 87

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. (Hirschhorn, Russell)

Russell L. Hirschhorn

November 15, 2011

Senior Counsel

B Electronic Filin

f 212.969.2900
rhirschhorn@proskauer.
www. proskauer. corn

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The Honorable George H. Lowe
United States Magistrate Judge
U. S. District Court for the Northern District

212.969.3286
corn

of New York

P.O. Box 7346
Syracuse, New York 13261-7346

Re:

Yoder et al. v. Town 0 Morristown

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 response to Defendants' November 11, 2011 letter to your Honor
concerning their challenge to Plaintiffs' privilege log and, in particular, the communications with
Marianne and David Fisher (the "Fisher Documents" ). Defendants' latest missive is rife with
and inconsistent legal assertions, none of which alter the fact that the
factual misrepresentations
Fisher Documents are not discoverable.
Defendants first contend, on the one hand, that the Consulting Agreement by and
between Proskauer and Marianne Fisher is "troublesome" because they do not know when "this
agreement was actually entered into. On the other hand, Defendants claim that the Consulting
Agreement "has little or no probative value with respect to this issue. Defendants are wrong on
both accounts. Although a consulting agreement is not required to protect documents from
disclosure on the grounds of privilege and/or work product (see Plaintiffs' October 21, 2011
letter to The Honorable George H. Lowe at n. 3), that such an agreement was entered into is
certainly probative of the fact that Plaintiffs had an expectation of privacy when speaking with
the Fishers. Moreover, Defendants' assertion that I "suggest[ed]. . . that the agreement was
'created after the fact to bolster [Plaintiffs'] submission to the Court'" is, it hardly need be said,
incorrect. To the contrary, in my October 26, 2011 email that Mr. Lemire refers to (and which is
attached to his November 11, 2011 letter to Your Honor), I stated: "If, by your questions, you
are insinuating that the Consulting Agreement was created after the fact to bolster our
As we explained to
submission to the Court, that is both incorrect and inappropriate.
Defendants in our October 26, 2011 email, the Consulting Agreement "was finalized in or
"'
around the commencement of this litigation.

"

"

"

Second, Defendants' attack on certain undated documents and documents dated prior to
October 27, 2008 as being inappropriately withheld should be rejected because, as explained in
our October 21, 2011 letter to the Court, the attorney-client privilege and/or attorney work
product doctrine apply equally to communications by and between Plaintiffs, Steve Ballan, Esq.
and the Fishers. As Defendants are well aware, Mr. Ballan is Plaintiffs' defense attorney in
Although we are unable to say with certainty the exact date on which Ms. Fisher signed the Consulting
Agreement, our records show that the Consulting Agreement was initially prepared in October 2008.

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Proskauer))
The Honorable George H. Lowe
November 15, 2011
Page 2
connection with criminal actions concerning building code citations issued to Plaintiffs prior to
the start of this litigation.
Lastly, Defendants' conclusory assertions suggesting that Plaintiffs have not met their
burden all should be rejected because: (i) whether or not the Fishers are attorneys is completely
irrelevant since, as discussed in our previous submissions to the Court, the Fishers were retained
by counsel and Plaintiffs had an expectation that the Fisher Documents would be immune from
disclosure; (ii) contrary to Defendants' assertions, it is the very fact that the Fishers had a
preexisting relationship with Plaintiffs that made them appropriate consultants to use in this
litigation; (iii) Defendants fail to provide any reason why Plaintiffs' representations concerning
and (iv) Defendants' assertion that Plaintiffs have not
the Fisher Documents are insufficient;
"indispensible" is legally irrelevant and factually inaccurate for
established why the Fishers are
the reasons stated in our prior correspondence.
In short, Plaintiffs respectfully request that the Court conclude that the communications
contained in the Fisher Documents are protected by the attorney-client privilege and/or the
4
attorney work product doctrine.

We are prepared to answer any questions the Court may have for us before or during the
conference call scheduled for November 29, 2011 at 10:30 a.m.

Russell L. Hirschhorn

Defendants' contention that Plaintiffs have not previously offered any evidence concerning the privileged
nature of Plaintiffs' communications with Steve Ballan, Esq. is plainly wrong. Our October 21, 2011 letter to
Your Honor provided such evidence with respect to communications by and between "Plaintiffs and/or their
'
counsel (i. e. , my firm, the Becket Fund and Steve Ballan, Plaintiffs counsel for purposes of defending against
(Emphasis added. )
the prosecution initiated by defendant Morristown).

"

If the

Court believes it would be useful, we are prepared to obtain affidavits &om all Plaintiffs to further support
the representations made in our prior correspondence. We note, however, that in order to do so, we would need
to make use of the Fishers and/or make a trip to Morristown to see our clients. In either event, we expect that it
would take several weeks to obtain such affidavits.

There is no basis for Defendants' suggestion that our recent production of two documents somehow "heightens
To
the need for Defendants' request that the Court conduct an in camera review of the documents withheld.
the contrary, Plaintiffs' production of these documents demonstrates their good-faith attempt to narrow the
issues for decision. It is hardly evidence that Plaintiffs' privilege determinations have not been made with care.

"

Pros kauer»
The Honorable George H. Lowe
November 15, 2011
Page 3
CC:

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