Fountain v. United States of America et al

Filing 59

DECISION and ORDER re 51 Status Report filed by United States of America and United States Department of Agriculture, 58 Response to Letter Brief filed by Anwar M. Karim. Karim seeks an additional deposition to support his petition and pr ospective motion for declaratory relief. The requested additional deposition pertains solely to the scope of employment. Determining the scope of employment here is a depositive decision which rests solely with a district judge as opposed to a magistrate judge. See Dkt. No. 50 . The Court DENIES Karim's application as premature and outside the Court's province to grant at this time. Signed by Magistrate Judge Randolph F. Treece on 9/30/2014. (lah)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
CORY R. FOUNTAIN,
Plaintiff,
-vUNITED STATES OF AMERICA,
UNITED STATES DEPARTMENT OF
AGRICULTURE and ANWAR M. KARIM

Civ. No. 8:13-CV-255
(NAM/RFT)
[Lead Case]

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Defendants.
ANWAR M. KARIM,
Plaintiff,
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UNITED STATES OF AMERICA and
THOMAS VILSACK as SECRETARY OF
THE UNITED STATES DEPARTMENT
OF AGRICULTURE,

Civ. No. 3:14-CV-964
(NAM/RFT)
[Related Case]

Defendants.
RANDOLPH F. TREECE
United States Magistrate Judge
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DECISION and ORDER
Fountain commenced a personal injury action pursuant to the Federal Tort
Clams Act, 28 U.S.C. § 1346(b). The genesis of this action stems from an incident
that occurred on August 31, 2010, when Fountain and Karim, who was operating a
vehicle owned by the United States, were involved in a two-car motor vehicle
accident. See Civ. Case No. 8:13-CV-255, Dkt. No. 1, Compl. United States

Defendants filed an Answer with an affirmative defense that “[t]here is no subject
matter jurisdiction over it because Karim was not acting within the scope of his
employment.” Dkt. No. 13, Defs. United States Ans. Because of this asserted
affirmative defense, Karim had been representing himself pro se until May 7, 2014.
Dkt. No. 34, Notice of Appearance. Subsequently, on August 1, 2014, Karim
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commenced a new action seeking a declaratory judgment against the United States
alleging that he was, in fact, authorized to use the government vehicle, and
consequently the Government is obligated to provide him with a defense and
indemnify him from liability. Civ. Case No. 3:14-CV-964, Dkt. No. 1.
Eventually these two actions were consolidate into one. Dkt. No. 50, Dec.-

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Order, dated Aug. 29, 2014. Coincidentally, Karim concurrently filed an Amended
Answer with a Cross-Claim and he filed a Petition, pursuant to 28 U.S.C. §
2679(d)(3), seeking a judgment and/or order certifying that he was acting within the
scope of his employment at the time of the accident. Dkt. Nos. 52, Karim Am. Ans.,
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dated Sept 10, 2014, & 55, Mot. to Pet., dated Sept. 18, 2014. The United States
Defendants filed an Answer to Karim’s Cross-Claim. Dkt. No. 57, Gov’t Defs.’ Ans.,
dated Sept. 22, 2014.
During a Hearing held on August 28, 2014, the Court learned that both Karim
and the United States Defendants intend to file dispositive motions. Karim intends to
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file a dispositive motion seeking a declaratory judgment that he is entitled to a defense
provided by the United States and indemnification against any judgment that may be
rendered against him in this matter, while the United States Defendants intend to file
a motion for summary judgment seeking to have themselves dismissed because Karim
was acting outside the scope of his employment. Obviously, these prospective
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dispositive motions are inextricably interconnected and, for judicial economy
purposes, should be presented to the District Judge concurrently. Therefore, the
August 29th Decision and Order establishes when those motions must be filed and are
returnable before the Honorable Norman A. Mordue, Senior United States District
Judge. Dkt. No. 50 at p 8.

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The discovery deadline was extended to allow Karim an opportunity to conduct
depositions. After conducting several depositions related to Karim’s use of the
vehicle, particularly that of Michelle DeMaio Grace, Karim seeks an additional
deposition to support his Petition and prospective motion for declaratory relief. It
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appears that this deposition would be of an attorney who works in the United States
Department of Agriculture (USDA) General Counsel’s Office who may have made
the decision regarding whether it would provide a legal defense to Karim.
Additionally, Karim would like the production of a “timeline” created by DeMaio
Grace. During the Hearing, the United States Defendants raised the specter that
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DeMaio Grace’s communications with anyone from USDA’s General Counsel’s
Office would implicate the attorney-client privilege. The Court initially concluded
that before it would entertain Karim’s request for this final deposition, it would have
to direct the United States Defendants to investigate this matter and file a status report
as to its position. Dkt. No. 50 at p. 9.
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On September 9, 2014, the United States Defendants filed a Status Report
essentially reiterating their view that any attorney deposition of this matter would be
an intrusion into attorney-client privileged communications and accordingly Karim’s
Request should be denied. Dkt. No. 51, Gov’t Lt.-Br., dated Sept. 9, 2014.1 In
response, Karim filed a Letter-Brief laying out a factual basis as to why this deposition

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should be granted. Dkt. No. 58, Karim’s Lt.-Br., dated Sept. 22, 2014.
Both of these recent submissions provide portions of DeMaio Grace’s
deposition testimony germane to this issue. Apparently on or about January 14, 2011,
Ms. DeMaio Grace consulted with the USDA General Counsel’s Office on behalf of
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Karim regarding Fountain’s possible tort claim. Prior to the initiation of this action,
Theresa Oderkirk conducted and prepared a fact-finding report that ultimately
generated a Letter of Reprimand stating that Karim’s use of the government vehicle

In a footnote, the United States Defendants state that there is some confusion as to whether
Ms. DeMaio Grace spoke with a USDA Agency Counsel or an Assistant United States Attorney in
Harrisburg, Pennsylvania. Dkt. No. 51, Gov’t Lt.-Br., dated Sept. 9, 2014, at p. 1 n.1.
1

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was without authorization.

Over an extended period of time, DeMaio Grace

communicated with counsel regarding this issue, providing a summary of the car
accident and the fact-finding report. However, it is uncertain when, if ever, the factfinding report was transmitted to Counsel’s Office. Nonetheless, Ms. DeMaio Grace
testified that the decision to deny a legal defense to Karim was made by “General
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Counsel’s Office,” though the actual timing of that decision remains a mystery. See
Dkt. Nos. 51-1 & 58 at pp. 2-3 (DeMaio Grace’s deposition). Also deposed was Ms.
Oderkirk, Human Resources Officer for the USDA. Her critical testimony concerned
Optional Form 26, “Data Bearing Upon Scope of Employment of Motor Vehicle
Operator,” which seems to indicate that Karim’s supervisor, Astor Boozer, authorized

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Karim’s use of the government vehicle during the relevant period. Bewildered by Mr.
Boozer’s apparently inconsistent statements, Oderkirk testified that had she seen
Optional Form 26 before completing her investigation, she would have arrived at a
different conclusion than that reflected through her fact-finding. Dkt. No. 58 at pp.
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4-6.
Based upon the testimony of these governmental witnesses, and the ostensible
conflict between Oderkirk’s investigative report and Optional Form 26, Karim argues
that the fact-finding was “significantly flawed” and counsel’s legal advice “was
clearly erroneous as it was based upon incomplete and contradicting reports.” Id. at
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p. 5. Karim further posits that Oderkirk’s investigation conclusions were mistaken
precisely because Optional Form 26 was not available to her prior to issuing the report
and making a recommendation to reprimand Karim. This predicament, in Karim’s
view, creates a material issue of fact as to whether he was indeed acting in the scope
of his employment. For these reasons, Karim seeks DeMaio Grace’s timeline, if it
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exists, and for the United States Defendants to identify and produce the USDA
General Counsel for a deposition. Id.
Obviously, any inquiry into the communication between a client and an attorney
inextricably invokes the attorney-client privilege. Coastal Gas Corp v. Dep’t of
Energy, 617 F.2d 854, 862-63 (D.C. Cir. 1980). The attorney-client privilege protects

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communications between governmental agencies and officials with governmental
counsel if they are made for the purpose of obtaining or providing legal assistance.
Brennan Ctr. for Justice at New York Univ. Sch. of Law v. United States Dep’t of
Justice, 697 F.3d 184, 207 (2d Cir. 2012) (citing In re Cnty. of Erie, 473 F.3d 413,
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418 (2d Cir. 2007)). But the attorney-client privilege is narrowly construed in order
to achieve its purpose, especially between governmental agency and its attorneys,
where it may render relevant information undiscoverable that which may be
juxtaposed against the competing value of open and accessible government. In re
Cnty. of Erie, 473 F.3d at 418 & 419 (citing, inter alia, Fisher v. United States, 425
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U.S. 391, 403 (1976)). Although legal consideration may play a role in government
policymaking, E.B. v. New York City Bd. of Educ., 2007 WL 2874862, at * 7
(E.D.N.Y. Jan. 11, 2012), the attorney-client privilege will still protect
communications with a governmental lawyer as long as he has no policymaking
authority, Raba v. Suozzi, 2007 WL 128817, at *2 (E.D.N.Y. Jan. 11, 2007). Hence,
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the predominant purpose of the communication must be to render or gain legal
advice. In re Cnty. of Erie, 473 F.3d at 420 (cited in NXIVM Corp. v. O’Hara, 241
F.R.D. 109, 126 (N.D.N.Y. 2007)). The burden of proving that a communication is
privileged rests with the party who invokes it. In re Grand Jury Proceedings, 219
F.3d 175, 182 (2d Cir. 2000).

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“It is vital to a claim of privilege that the communications between client [here
the government] and attorney were made in confidence and have been maintained in
confidence” and the party “invoking the privilege must have taken . . . affirmative
action to preserve confidentiality.” United States v. Mejia, 655 F.3d 126, 134 (2d Cir.
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2011) (quoting in part, In re Horowitz, 482 F.2d 72, 81-82 (2d Cir. 1973)). Stated
another way, the burden rests with the agency to demonstrate that the confidentiality
of the communication was expected and handled in a reasonably judicious manner.
Failure to do so can create a waiver. Additionally, a waiver of this privilege can occur
by implication. For example, if a client testifies concerning portions of the attorney-7-

client communication or when a party asserts reliance on an attorney’s advice as an
element of either a claim or defense, a waiver may ensue. Brennan Ctr. for Justice,
697 F.3d at 207-08 (citing In re Cnty. of Erie, 546 F.3d at 228).
Furthermore, courts have looked askance at deposing attorneys, viewing them
with tremendous disfavor and discouragement. Indeed, it is greatly frowned upon and
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rarely justified. United States v. Yonkers Bd. Of Educ., 946 F.2d 180, 185 (2d Cir.
1991). Such depositions are disruptive and fraught with peril precisely because they
implicate confidential information and significantly intrude upon a privilege, which
is viewed in many respects as nearly sacrosanct. A deposition of an attorney will
invariably cause delay as the parties will have to grapple with what is and what is not

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confidential information during the deposition and the struggle to delineate between
non-privileged facts and privileged communication inextricably makes the process
more costly. Niagara Mohawk v. Stone & Webster, 125 F.R.D. 578, 593 (N.D.N.Y.
1989). Yet, there is no categorical bar to deposing attorneys, especially where the
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attorney is a fact witness or takes part in a significant and relevant way in prelitigation events. Brogan v. Northwestern Mut. Life Ins. Co., 152 F.R.D. 9, 14
(S.D.N.Y. 1993); United States Fidelity & Guar. Co. v. Braspetro Oil, 2000 WL
1253262, at *3 (S.D.N.Y Sept. 1, 2000); Niagara Mohawk v. Stone & Webster, 125
F.R.D. at 593, n. 4 (deposition is clearly appropriate if the attorney is a fact witness).
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These events are not always so clear, but the party seeking an attorney’s deposition
should show that (1) no other means exist to obtain the information than to depose
counsel, (2) the information sought is relevant and non-privileged, and (3) the
information is crucial to the preparation of the case. Shelton v. AMC Corp., 805 F.2d
1323, 1327 (8th Cir. 1986). Although the Second Circuit has not expressly adopted
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the Shelton rule, it has agreed with it in principle. United States v. Yonkers, 946 F.2d
at 185; Gould Inc., v. Mitsui Mining & Smelt Co., LTD., 825 F.2d 676, 680, n. 2 (2d
Cir. 1987) (dictum).
Considering all of the instructions above, a prompt decision on Karim’s request
for a deposition may be elusive because both parties fail to meet their respective

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burdens.2 First, it is not definite whether agency counsel only gave advice or rendered
the ultimate decision as to whether Karim was acting outside the scope of his
employment. If he was the ultimate decision maker, counsel could very well be a fact
witness as opposed to merely as a legal advisor. Thus, the Court, if not the parties, is
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unsure as to who may have been the ultimate decisionmaker - counsel, DeMaio Grace,
or Oderkirk. Second, because there appears to be a competing set of facts as to

Regarding the parties’ respective burdens, the United States Defendants may not have
established that they took affirmative measures to assure confidentiality. DeMaio Grace testified
that she shared with Karim counsel’s perspective on their possible defense. Either sharing the
confidential communications with Karim or even testifying as to the communication could very well
constitute a waive. And, Karim has not established that there are no other means to obtain the
information than to depose an attorney.
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whether Karim was given permission to operate the government vehicle during the
relevant period, the Court acknowledges that such dispute could have a significant
bearing on the United States Defendants’ “lack of subject matter jurisdiction” defense.
And, by pursuing a lack of subject matter jurisdiction defense the United States
Defendants may very well relied on the attorney’s advice to support its principal
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defense. The Court does not know if counsel may become a fact witness within this
context, or becomes a fact witness if he was involved in significant and relevant prelitigation events, or if DeMaio Grace’s or Oderkirk’s deposition testimony waived the
privilege when testifying to portions of the communications with counsel.
Setting aside these unsettled questions that would have a bearing on allowing

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a deposition of an attorney, there is a fundamental issue to address - the timing of this
deposition and which Judge makes that decision. Without exception, the scope of
employment is the penultimate issue in this litigation. It is framed in the United States
Defendants’ affirmative defense and Karim’s Cross-Claim, his separate yet related
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action, and his Petition for a declaratory judgment; even Fountain has a stake in the
outcome of this issue. In addressing this matter, the Court has the benefit of
instructions pronounced in Griebsch v. Weaver, 2005 WL 2260374 (N.D.N.Y. Sept.
16, 2005):
The issue of whether Weaver [a government employee] was acting
within the scope of her employment is a question for the Court to decide.
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See Guttierez de Martinez v. Drug Enforcement Admin., 111 F.3d 1148,
1152-53 (4th Cir.1997); McHugh v. Univ. of Vermont, 966 F.2d 67 (2d
Cir.1992). The Court, and not a jury, decides the factual issues necessary
to make the scope of employment determination. Guttierez de Martinez,
111 F.3d at 1153 (“[A] plaintiff seeking relief against a federal employee
is not entitled to a jury trial on the scope-of-employment issue, even if
the relevant state law would provide a jury trial.... Therefore, the district
court may resolve disputed issues of fact in considering a challenge to a
scope-of-employment certification.”); McHugh, 966 F.2d at 74.
Id. at *1.
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The procedure for rendering a scope of employment determination has several critical
elements: (1) the Government’s certification regarding the scope of employment is
prima facie evidence; (2) however, the district court need not defer to the certification
but rather reviews the question de novo; (3) the parties may submit pleadings,

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affidavits, exhibits, and documentary evidence to either support or contradict the
certification; (3) the court may conduct an evidentiary hearing on the matter if there
is a material dispute as to the facts; and (4) if there is a genuine issue of fact material
to the scope of employment decision, the court may allow any needed discovery.
Guittierez de Martinez, 111 F.3d at 1153-55 (quoted in Griebsch v. Weaver, 2005 WL

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2260374, at *2).

There is a “desirability of quickly resolving the scope-of-

employment issue,” requiring the district court to “ensure that both the discovery and
[any evidentiary hearing] are circumscribed as narrowly as possible[.]” Id. at 1154.3
The desirability for a quick resolution of this issue may have eluded the litigants because
Karim was proceeding pro se and was unfamiliar with the petition process pursuant to 28 U.S.C. §
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(continued...)

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Since the requested additional deposition pertains solely to the scope of
employment, and following the instructions of Guittierez de Martinez, another
deposition would have to await a determination that an issue of material fact is
present. Determining the scope of employment here is a dispositive decision which
rests solely with a District Judge as opposed to a Magistrate Judge. Those issues will
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soon be presented to Judge Mordue. See Dkt. No. 50. Because the courts are to
“circumscribe as narrowly as possible” discovery on the issue, the decision to grant
yet another deposition may have shifted away from this Court to the District Judge.
Since formal discovery is closed, and abiding by the directions of Guittierez de
Martinez, the Court concludes that allowing further limited discovery, which may

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include one more deposition, consequently now resides with the District Judge.
The Court denies Karim’s application as premature and outside the Court’s
province to grant at this time. Because DeMaio Grace’s timeline was a topic of
interest during her deposition, the United State Defendants shall produce. If it does
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not exist, the United States Defendants shall so advise Karim.

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(...continued)

2679(d)(3), and the United States Defendants decided to fully engage in discovery before filing a
dispositive motion on their certification.
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IT IS SO ORDERED.
September 30, 2014
Albany, New York

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