Montesa et al v. Schwartz et al

Filing 633

OPINION AND ORDER re: 560 MOTION to Compel Plaintiffs to Produce Documents Disclosed to Third Parties, but Withheld On Privilege Grounds. filed by East Ramapo Central School District. For the foregoing reasons, Defendant District& #039;s motion to compel is granted in part and denied in part. The Court finds that the attorney-client privilege does not protect communications with the third parties at issue here, with the exception of Carole Anderson, AFJ interns Colette Menal dino, Jason Shatz, Kevin Toussaint and Carlos Ortiz. Regarding the work product doctrine, the Court finds that communications sent by Ms. Barbieri, Plaintiff White, Ms. Anderson, Ms. Menaldino, Mr. Shatz, Mr. Toussaint, Mr. Ortiz and any other atto rneys from AFJ, which were made in anticipation of litigation, are covered by the work product doctrine. That protection is not waived by virtue of the disclosure of those communications to Dr. Cohen, Ms. Hatton, Mr. Luciano, Mr. Kerkula, Mr. Fo rrest or any of the other third parties in Plaintiffs' April 15, 2016 and May 4, 2016 submissions, with the exception of Mr. Brandler. Privilegeprotecion is, however, waived by virtue of disclosure to Mr. Casteliuecio or Mr. Brandler. The Cour t finds that communications sent by Ms. Hatton, Mr. Luciano, Mr. Forrest, Dr. Cohen or Mr. Kerkula, in anticipation of the Montesa action, are covered by the work product doctrine. Communications sent by Mr. Castelluccio and the third parties list ed in Plaintiffs' April 15, 2016 and May 4, 2016 submissions, except as noted above, are not protected by the work product doctrine. In line with these rulings, Document Nos. 11, 14 and 17 may be withheld under the attorney-client privilege an d the work product doctrine; Document Nos. 3, 4, 5, 6, 7, 8, 10, 12, 13, 15, 16, 18, 19, 20, 26, 30, 32 and 40 may be withheld under the work product doctrine; Document Nos. 1, 2, 25 and 82 must be released. Finally, the Court finds that the attorn ey- client privilege, work product doctrine, and common interest doctrine do not protect any discussions of strategy at the meetings attended by Plaintiff Lahens in 2015. Defendant District shall have an additional opportunity to depose Plaintiff L ahens. The Court hereby instructs the parties to proceed with discovery in accordance with this ruling. The Clerk is respectfully requested to terminate the pending motion (Docket No. 560). (Signed by Magistrate Judge Judith C. McCarthy on 6/20/2016) (rj)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
N

REBECCA MONTESA. ci aT.
Plaintiffs.

OPINION AND OR1)ER

-against-

12 Civ. 6057 (CS)(JCM)

DANIEL SCHWARTZ. ci al.,
Defendants.
N

By motion filed November 20. 2015. defendant East Ramapo Central School District
(‘Defendant District” or “ERCSD”) seeks to compel plaintiff Steven White (“Plaintiff White”) to
produce e-mail communications with third parties, and to compel plaintiff Marguedala Lahens
(“Plaintiff Lahens”) to disclose the content of Plaintiff White’s statements at meetings regarding
the litigation in 2015. (Docket No. 560). Plaintiffs oppose the motion. (Docket No. 567). The
Court heard oral argument on these issues at a pre-motion conference held on October 15, 2015.
(Docket No. 558). On April 4. 2016. the Court directed Plaintiffs to submit for in camera review
copies of the e-mail communications listed in Plaintiffs’ privilege log (“Plaintiffs’ First Privilege
Log”). (Docket No. 599). Plaintiffs complied with the Court’s order at a status conference held
on April 7, 2016. At that conference, Defendant District informed the Court that Plaintiffs had
served a supplementary privilege log (“Plaintiffs’ Second Privilege Log”) on April 6. 2016, with
further nrivileue assertions over vhich Defendam i)islrict raises the ofrections noted in the
pending motion. The Court ordered supplemental affirmations and briefing from Plaintiffs and
Defendant District, which the Court received from Plaintiffs on April 15, 2016 and May 4, 2016,
and from Defendant District on April 28, 2016, (Docket Nos. 604, 616, 613).

I. BACKGROUND

The Court assumes familiarity with the history of this case, and recites only the facts
necessary to this Order. Plaintiffs are parents acting on behalf of current students in the ERCSD
and taxpayers residing within the District (collectively, “Plaintiffs”). Plaintiffs allege that
defendants, who are or were ‘members, employees, or attorneys” of the ERCSD Board of
Education, “divert[ed] federal, State, and local District education funds to promote religion and
private religious schools and institutions,” and ‘gutt[ed] the District’s funding of the public
schools thereby depriving its students of educational opportunities.” (Docket No. 554

¶ 1.)

A. Plaintiff White’s E-mails with Third Parties

The documents at issue are e-mail communications sent between Plaintiff White,
Plaintiffs’ counsel and additional non-parties to this litigation (‘the Montesa action”). Plaintiffs
contend that these non-parties are “Consultants/Investigators” retained by Plaintiffs’ counsel,
Advocates for Justice, (“AFJ”), “over the course of the pre-litigation investigation and the
litigation of the Montesa action for various purposes at various times.” (Docket No. 568 at

¶ 3).

They therefore argue that the attorney-client privilege, the work product doctrine, the common
interest privilege, the investigative reporter privilege, or some combination thereof protects
these communications. (Docket No. 5 03-1), Defendant District objects to these privilege
assertions.
Defendant District first raised its obiection.s in a letter on Septern.ber 4, 2015, requesting a
pre-rn.otion conference. (I)ocket No. 503). A pre-motiol.. conference was held on October 15,
2015, at which the Court ordered Plaintiffs to expressly identify the AFJ consultants by October
22, 2015. (Docket No. 558). On November 2, 2015, following a letter from Defndant District
averring that Plainti.ffs had not complied with that order, Plaintiffs suhrn itted to the Court a copy

of a letter sent to Defendant District on July 10. 2015. which listed seven
consu1tants investigators: Oscar Cohen. Margaret (“Peggy”) Hanon, Antonio Luciano, Robert
Forrest, Carole Anderson. Robert Kerkula and Michael Castelluccio. (Docket No. 549).
Defendant District filed its motion to compel on November 20. 2015. objecting to the assertion
of these privileges in relation to those individuals. (Docket No. 560).
In opposition to Defendant District’s motion. Laura D. Barhieri. an attorney with AFJ,
submitted a declaration further identifying the same seven individuals listed in Plaintiffs July
10. 2015 correspondence, and clarifying their role in the Moniesa action. (Docket No. 568). She
explained that the “Consultants/Investigators” included on these communications “have
specialized knowledge and experience with the School District so as to well serve Plaintiffs’
counsel in the investigation and litigation against members of the School Board and District
administration.” (Id. at ¶ 5). Ms. Barbieri asserted that each individual worked with AFJ in a
volunteer capacity, (Id. at

¶ 7). and that their roles were to obtain and/or provide information

regarding East Ramapo to AFJ and its counsel to assist counsel in rendering legal advice to
Plaintiffs, including

prosecuting

and defending the Montesa action,” (Id. at

that these individuals did not have “an hnterest’ in the litigation
at

40). She asserted

pecuniary or otherwise.” (Id.

¶ 34). More specifically, Ms. Barbieri provided biographical information on each

Consultant/lnvestigator.” and explained how each individual assisted AFJ with the instant
litiation. Id. at

‘

8—28). 1 will summarl/e this infornuttion for each individual in turn.

Ms. l3arhieri asserted that Dr. Oscar Cohen was previously a teacher and a superintendent
of the Lexington School for the Deai and• •for the past ten years has been involved in activism
against the East Ramapo School Board. (Id. at

¶ 8), I-ic currently serves as the Educational Chair

ot the NAACP, Sprinc Valley Branch. and in that capacity, brought a complaint against the East

Ramapo School Board with the Office of Civil Rights, Department of Education in 2010. (Id.).
Ms. Barbieri asserted that Dr. Cohen consults with AFJ on “a variety of issues, including but not
limited to (1) the ERCSD’s failure to provide its children of color with a sound basic education,
[and] (2) other potential claims and complaints against the District and School Board” and stated
that he “also works with other stakeholders to bring attention to the failures of the School
Board.” (Id. at

¶ 10). Dr. Cohen was a recipient of two e-mail communications at issue,

Document Nos. 26 and 30. (P1. 1st Priv. Log’).
Next, Ms. Barbieri discussed the qualifications of Peggy Hatton. (Docket No. 568 at J
11-14). Ms. Hatton is the mother of two special education students who previously attended
schools within the East Ramapo Consolidated School District. (Id. at

¶ 11). She was a parent

member of the Committee for Special Education from 2006 to 2007. (Id. at

¶ 11). In June 2008,

she lobbied parents and the community against the plan to rent out the bottom floor of an
elementary school to a yeshiva. (Id. at

¶ 12). She serves as a co-host of East Ramapo

Underground, “a popular radio program that serves the Ramapo Community.” (Id. at

¶ 13). Ms.

Barbieri noted that in October 2012, upon learning that Ms. 1-latton had “substantial information
concerning political and educational affairs in East Ramapo and the surrounding community” she
“recruited [Ms. Hatton and Antonio Luciano, discussed below]

...

[to] contribut[ej their

personal and specialized knowledge and experience in furtherance of the litigation.” (Id. at

¶ 14),

Ms. 1-latton is a recipient of eight e-mail com.munications at issue, Document Nos, 3, 4, 9, •10, 19,
20, 32 and 40. (P1. 1st i.riv. Log). Additionally, Ms. Hatton sent one e-mail communication at
issue, .Document No. 8. (Id.).

Refers to Plaintift3’ First Privilege Log, tbund at Dock.et Nos. 503-i, 560-1, 568.
-4-

Regarding Mr. Luciano. Ms. Barbieri asserted that he also previously had children in the
ERCSD. has attended and videotaped “almost every School Board meeting since 2007.” and has
obtained “a substantial number of documents” from the School Board through Freedom of
Information Law (“FOIL”) requests. (Docket No. 568 at ¶1 16-17). As noted above, Mr.
Luciano has provided consultant/investigative services “concerning the political and educational
affairs of the ERCSD” and “contrihute[d his] personal and specialized knowledge and expertise
in furtherance of the litigation.” (Id. at

l

19). Mr. Luciano was a recipient of eight e-mail

communications at issue, Document Nos. 4. 5. 8. 10. 19, 20. 38 and 40, and he sent two e-mail
communications at issue, Document Nos. 6 and 7. (P1. 1st Priv. Log).
Robert Forrest sent one e-mail, Document No. 1, and was a recipient of one e-mail,
Document No. 40. (Id.). Ms. Barbieri asserted that Mr. Forrest is “a volunteer Real Estate
Consultants[sic]/Investigator for AFJ and provides informal opinions regarding the particular
property transactions that are the subject of this litigation.” (Docket No. 568 at

1

20). Mr.

Forrest also sought legal advice from AFJ regarding an administrative proceeding before the
State Education Commissioner in the Appeal of Forrest. (Id. at

1 21).

Robert Kcrkula was a recipient of three c-mails at issue, Document Nos. 18, 20 and 40.
(P1. 1st Priv. Log). Ms. Barbieri asserted that Mr. Kerkula is an activist in opposition to the
School Board who has assisted AFJ in serving school board members with administrative actions
tiled against certain members. Docket No. 568 at

‘

24). Additionally. Mr. Kerkula has routinely

sought out documents tfrrough FOlL requests. and has provided those documents and other
information to AFJ at various times over the course of the litigation. (Id, at

25),

AFJ also recruited Carole Anderson to serve as a volunteer consultant/investigator, with
the dufr of obtan

ing

mfoimation

from

various Plai 1itts in order to rLspond

to

interrogatones

(Id. at ¶ 22). Ms. Anderson sent one e-mail at issue. which contained six attachments, and
Plaintiffs assert that privileges protect the e-mail and all attachments. Document Nos.

1-17. (P1.

I st Priv. Log). Finally. Plaintiffs assert privilege protection over communications between Mr.
White and Mr. Castelluccio. the editor and reporter for Preserve Ramapo. a xvebsite and blog.
Document Nos. 2 and 25. (Docket No. 568 at

‘

27: P1. 1st Priv. Log).

The Court received the initial twenty-eight c-mails at issue for in camera review at a
status conference on April 7, 2016. At that conference. Defendant District reported that
Plaintiffs served their Second Privilege Log on April 6, 2016, asserting privileges over
communications with additional third parties, who were not detailed in Ms. Barhieri’s original
submission in opposition to the motion. Plaintiffs’ counsel responded that production of Plaintiff
White and other Plaintiffs’ c-mails was ongoing, and that although Plaintiffs’ counsel could not
yet anticipate all of the Plaintiffs’ communications that would raise these privilege issues, they
could detail for the Court the overall list of third parties that had been included on such
communications. As such, the Court ordered Plaintiffs to supplement their opposition briefing to
include the information about the additional third parties not included in Ms. Barbieri’s earlier
declaration.
On April 15, 2016, Ms. Barbieri submitted a supplemental letter and declaration
regarding additional “Consultants/Investigators.” (Docket No. 604). Ms. Barhieri named eight
additional, individuals: Amy Al stun., Louise CasteHuc.cio. Eu.stache Clerveaux,. Julio Cierveaux.
David A. Curry. Judith Johnson, Steven Lee and Willie Frotman. (Docket No, 604i at

4). Ms.

Barbieri explained that these individuals were “membcr[sj of the Last Ramapo communAL’
some of whom “have been more vocal in bringing the failures of the school Board and District
Administrators to the attention ol’ the uhlic” while some “have been more ac1i e in the search

6-

for solutions to the critical educational deprivation suffered by the public school children of East
Rarnapo.” (Id. at

‘

5). Plaintiffs assert that the specific assistance that each of these newly

detailed individuals provided to AFJ is privileged. hut Ms. Barbieri disclosed that the individuals
had provided “critical advice and information regarding the history and background of the East
Rarnapo

community

and the difficulties people of color. particuIarl children. have faced over

the years in this community and have provided assistance with Plaintiffs’ discovery obligations.”
(Id. at J 6). She specifically noted that Judith Johnson and Willie Trotman were both “known in
the community as leading advocates for the welfare of East Ramapo’s children[,]” Ms. Johnson
for her “extensive knowledge and experience as an educator” and Mr. Trotman “because of his
role in the Spring Valley NAACP and his knowledge of the minority community’s struggles
within East Ramapo and the surrounds.” (Id. at ¶1 7).
In response to Ms. Barbieri’s April 15, 2016 submission. Defendant District continued to
argue that the privileges at issue here do not apply to these individuals. (Docket No. 613). In
addition, Defendant District pointed out that certain individuals that appeared on Plaintiffs’
Second Privilege Log were not included on Plaintiffs’ updated list of consultants/investigators.
(Id. at 3). On May 2, 2016, the Court ordered Plaintiffs to provide clarification as to the
identities and roles of these individuals and of five individuals who appeared on Plaintiffs
Second Privilege Log with AFJ email addresses. hut who had not been identified for the Court:
Stephanie Torre. Christopher Owens, Colette Menaldino. Jason Shatz and Kevin Toussaint.
(Docket No. 615). P1antiff4 complied on May 4. 2016. (Docket No, 616r Ms. Barbieri’s
declaration clarified that Stephanie Torre is an attorne who worked with AID in 2012 during the

investigation and initial pleadine stage of the .\Ioiiie,s’u action. and left AF.J
2012. Ud. at

in

or about October

3). She also explained that Christopher Owens was the thrmer Executive Director

of AFJ. a role he held from 2012 to April 30. 2013. (Id. at ¶ 4). Colette Menaldino. Jason Shatz,
Kevin Toussaint and Carlos Ortiz were

summer interns for

AFJ in 2012. with Mr. Toussaint

continuing to work part-time with AFJ until the end of 2014. (11 at ¶ 5). Ms. Barbieri reported
that Ashley Okonkwo was a volunteer with the NAACP during the summer of 2012. (JcL at ¶ 6).
Ms. Barbieri also confirmed Defendant Districf s allegation that Simon Brandler is an Assistant
Attorney General with the Office of the Attorney General of the State of New York. (Id. at ¶ 7).
Ms. Barbieri did not assert that Mr. Brandler was engaged as a consultant with AFJ, instead
stating that the State Attorney General’s Office “shared a common interest in
various aspects” of Defendant District.

investigating

(Id.).

B. Plaintiff Lahens’ Deposition
In addition to the documents discussed above. Defendant District moves to compel the
testimony ofPlaintiffLahens. At a deposition on May 12. 2015, Plaintiff Lahens reported that
she had attended meetings in which Plaintiff White had discussed the litigation, with the last
2
meeting occurring sometime in March 2015. (Lahens Depo. at 23). Plaintiff Lahens confirmed
that no attorneys attended the meeting in March, and that there were between thirty and fifty
people in attendance. (Lahens Depo. at 27). Plaintiff Lahens said that all of the attendees were
Plaintiffs, but when asked how she knew, she said “Because we’re all there for one

one cause.”

(Lahens Depo. at 28). Counsel for Defendant District followed up: “But it was just about the
lawsuit or talking about the school district in genera]?” and Plaintiff Lahens replied, “Yeah. The
school district in general” Id). When asked about the content of the discussions at these
meetings. Ms. Barhieri objected. statine that “discussions of Plaintiffs’ strategy at Plaintiffs’

Refers to the transcript of the

depo

eon of Plainuff Likens. Lund at Docket No 5O54.

meetings is objectionable” and directed the witness “not to answer the question if it’s discussing
the strategy of the litigation.” (Lahens Depo. at 25).
Counsel for Defendant District then questioned Plaintiff Lahens about attendance at the
meeting prior to March 2015, and whether only Plaintiffs were invited to attend or anybody
could attend. (Lahens Depo. at 29-30). Plaintiff Lahens testified that the meeting was announced

a her church and “anybody anybody who has kids or nieces or nephews or grandkids” could
—

attend. (Lahens Depo. a 31). When asked if anyone in attendance a the meeting was not a
plaintiff; PlaintiffLahens responded, “Oh, I don’t think they’re going to identify themselves like
they’re not the Plaintiffs” and she intimated that she would not question each person to see if he
or she was a plaintiff. (Lahens Depo. a 32). Plaintiff Lahens confirmed, however, that she did
not know whether any non-Plaintiffs attended this meeting. (Lahens Depo.

a 32).

H. DISCUSSION
Motions to compel are “entrusted to the sound discretion of the district court,” and “[a]
trial court enjoys wide discretion in its handling of pre-trial discovery.” In re Fitch, Inc., 330
F.3d 104, 108 (2d Cir.2003) (internal quotation marks and citation omitted). Under Rule 26 of
the Federal Rules of Civil Procedure (“Rule 26”), the scope of discovery extends to “any
nonprivileged matter that is relevant to any party’s claim or defense and proportional to the
needs of the case[.]” Fed. R. Civ. P. 26(b)(l). The relevancy requirement “has been construed
broadly to encompass any matter that bears on, or that reasonably could lead to other matter that
could bear on, any issue that is or may be in the case.” Oppenheimer Fun4 Inc.
U.S. 340, 351 (1978).

-9-

i

Sanders. 437

A. The Attorney-Client Privilege

The attorney-client privilege protects “communications ( I) between a client and his or
her attorney (2) that are intended to be. and in fact were. kept confidential (3) for the purpose of
obtaining or providing legal advice.” United Sicues u. .lIe/ia. 655 F.3d 126. 132 (2d Cir. 201 1).
As an initial matter, “the privilege protects not only communications b the client to the lawyer
[but also] communications by the lawyer to the client.” In ie Grand Juiy Subpoenas Dated
Mar. 24, 2003 Directed to (A) Grand Jury Witness Firm & (B) Grand Jun iJ?tness, 265 F. Supp.
2d 321, 334 (S.D.N.Y. 2003) (“In re Grand Jury Subpoenas”) (citations omitted). While not
dispositive, generally, “the presence of a third party counsels against finding that the
communication was intended to be, and actually was, kept confidential” Mejia. 655 F.3d at 134.
However, courts have extended the attorney-client privilege to communications involving
“persons assisting the lawyer in the rendition of legal services” including “office personnel, such
as secretaries and law clerks, who assist lawyers in performing their tasks.” In i’e Grand Jan’
Subpoenas. 265 F. Supp. 2d at 325 (citations omitted).
The Second Circuit extended this principle in United States v. Kovel. 296 F.2d 918 (2d
Cir. 1961), holding that the attorney-client privilege would still apply to communications with an
accountant employed by a law firm where “the presence of the accountant is necessary, or at
least highly useful, for the effective consultation between the client and the lawyer which the
privilege is designed to permiL” 296F .2d at 922 Analogizing an accountant to an interpreter
who provides foreign tangnaLe translation tdr an attornex, the court clad tied that the privilege
would apply recardless of u hether the accountant v as present for the consultation with the
attorney and the client, or the attorney had directed the client to communicate with the

accountant directly: “[w]hat is vital to the privilege is that the communication be made in
confidence for the purpose of obtaining legal advice ftom the lawyer.” Id,
Plaintiffs and Defendant District disagree over the extent to which Kovel and its progeny
stand for the proposition that communications with third parties working with attorneys are
covered by the privilege. Defendant District asserts that the Kovel exception applies only where
the third party is working to improve the comprehension” of attorney-client communications,
and therefore does not allow for investigators such as the third parties involved here to fall under
the privilege. (Docket No. 561). Plaintiffs interpret Defendant District’s argument to be that
only accountants and interpreters can qualify under the Kovel attorney-client privilege analysis,
and assert that this interpretation of Kot’el is too restrictive. (Docket No. 567).
Since Kovel, the Second Circuit has further clarified thai the Kovel decision “recognized
that the inclusion of a third party in attorney-client communications does not destroy the
privilege if the purpose of the third party’s participation is to improve the comprehension of the
communications between attorney and client.” United States v. Ackert. 169 F.3d 136, 139-40 (2d
Cir. 1999). On the other hand, where an attorney seeks out a third party in order to obtain
information that his client does not have, the third party’s role is “not as a translator or interpreter
of client communications, [and] the principle of Kove! does not shield his discussions with [the
attorney].” Id.: See also. Merck Eprova JOy. Gnosis SpA.. No. 07 Civ. 5898(RJS)(JCK). 2010
\VL 3835149. at *2 S.DN.Y. Sept. 24. 2010): United Stares Postal Service

Phe!ps Dodcze

Refining Corp.. 852 F. Supp. 156, 161 (1zJ),N,Y. l 994) (where the experts “function was not to

put information gai.ned from defe.ndants into usable form for their attorneys to render legal
advice, but rather. to collect information not obtainable directly from defendants” the privilege
did not apply).

“The party claiming the benefit of the attorney-client privilege has the burden of
establishing all the essential elements.” Uiiited States v. Adirnan, 68 F.3d 1495, 1500 (2d. Cir.
1995) (“Adiman 1”). While not required, courts have looked to contemporaneous documentary
proof, such as retainer agreements and billing statements, or the absence thereof, in determining
the nature of the third party’s engagement with counsel. See Id. at 1500 n. I (holding that district
court did not err in considering the absence of a contemporaneous retainer agreement in
concluding that the privilege did not apply, as such an analysis was “an application of common
sense to the circumstances”); Scott v. Chipotle Mexican Grill, Inc., 94 F. Supp. 3d 585, 594
(S.D.N.Y. 2015) (holding that “mere statements” by the third party and others “may not ipse
dixit establish privilege ex post facto” particularly “where the [third party’s resulting] report is
not labeled confidential or privileged”).
B. Analysis of Contested Third Parties

As an initial matter, there has been no assertion that Michael Castelluccio has been
engaged as a consultant or investigator for Plaintiffs’ counsel, or that Mr. Castelluccio is in any
way engaged as an agent of counsel. The attorney-client privilege, therefore, does not protect
communications between Plaintiff White and Mr. Castelluccio,
Plaintiffs similarly fail to meet their burden of demonstrating that the attorney-client
privilege protects communications with Dr. Cohen, Ms. Hatton, Mr. Luciano or Mr. Kurkela,
Plaintiffs assert that all of these individuals “have specialized knowledge and experience with the
School District so as to well serve Plaintiffs’ counsel in the investigation and litigation against
members of the School Board and District administration.” (Docket No. 568 at

¶ 5). Dr. Cohen

allegedly consults with AFJ on “potential claims and complaints against the District and School
Board” based on his ten years of activism against the East Ramapo School Board and position as

Educational Chair of the NAACP. Spring Valley Branch. (Id at

“

8. 10). Plaintiffs counsel

asserts that she recruited Ms. Hatton and Mr. Luciano upon learning that they had “substantial
information concerning political and educational affairs in East Ramapo and the surrounding
community.” (Id. at ¶ 14). Mr. Forrest “provides informal opinions regarding the particular
property transactions that are the subject of this litigation.” (Id. at

20). IVr. Kerkula has

obtained documents through FOIL requests. which he has provided to AFJ. (Id. at

25). None

of these activities involve improve[ingj the comprehension of the communications between’
AFJ and Plaintiff White. See Ackert, 169 F.3d at 139-40. Instead, a review of the contested
communications in camera confirms that the role of these consultants/investigators has been to
obtain and provide information about Defendant District and its board members that Plaintiff
White did not already have. In many instances, Plaintiffs’ counsel sought the input of these third
parties regarding drafted discovery demands and responses and drafted filings to be presented
before this Court. It is clear from these communications that the third parties were assisting with
the provision of legal advice and services, however, it appears from Ms. Barbieri’s affirmation
that their advice is based on their access to information about Defendant District, and not based
on their interpretation of information communicated from Plaintiff White or other plaintiffs in
the Montesa action. In some instances, the third parties provided information from FOIL

requests, which is a clear example of collecting intormation not obtainable from the client, a
function to which the privilege does not attach. See ida/ted States Postnl Sen/ce. 85.2 F. Supp. at
1 6] 62, These cornmunicaions are outside of the hounds of an anorncv-client communication,
Plaintiffs are correct that the Kovel precedent can apply to investigators working on
behalf of counsel. See, e.g.. Carter v. Cornell Univ.. 173 F.R.D. 92.95 (S.DJ.Y. 1997)
(privilege applied where dean of human resources was “told speciOcally by counsel to conduct

an investigation whose sole purpose [was] to assist counsel in rendering legal representation and
[when] she [undertook] such an investigation, she [became] counsel’s agent for the purpose of
that investigation.”). However, in Carter, the court applied the attorney-client privilege to
communications between a third-party who was acting as an investigator at the behest of
counsel, seeking information from employees of the defendant corporation, who the court
deemed to be clients. Id. at 94. In contrast, Plaintiffs have not met their burden of demonstrating
that these third parties were investigating matters by seeking information from clients, or
providing consultative advice based on information provided by clients.
Finally, Plaintiffs have failed to establish that these consultants worked under the
supervision of counsel. Although the Second Circuit has made clear that contemporaneous
records are not required, Adiman I, 68 F.3d at 1500 n.l, in this case, Plaintiffs’ counsel does not
even assert that they had any sort of formal agreement with these third parties in which they
would directly supervise their investigative or consultative functions. The attorney-client
privilege, therefore, cannot protect the communications with Dr. Cohen, Ms. Hatton, Mr.
Luciano or Mr. Kurkela, and any attorney-client communications that have been shared with
these individuals are no longer covered by the privilege by virtue of their disclosure to these third
parties.
The same reasoning applies to the list of consultants in Plaintiffs’ April 15, 2016
suhm.ission, Although Plaintiffs assert privilege protection over the specifics of the roles that
each of these additional third parties held, the limited information provided indicates that these
individuals were also engaged in providing AFJ with outside information regardi.ng Defendant
District and its Board Members, and regularly advised AFJ based on that information, Ms.
Barbieri asserted that thc nere retained to assist \i I h\ prmiding critical ath ice and

information regarding the history and background of the East Ramapo community and the
difficulties people of color. particularly children, have faced over the years in this community.”
(Docket No. 604-1). There is no indication that these individuals were obtaining the information
on the history of these disputes from Plaintiffs in this action. Therefore. Plaintiffs have not met
their burden of establishing that these third parties were engaged in facilitating attorney-client
3
communications. Similarly. Plaintiffs have not met their burden of establishing that the
privilege covers communications with Ashley Okonkwo. Plaintiffs have merely asserted that
Ms. Okonkwo was engaged as a volunteer with the NAACP, and have not indicated that she
assisted with

any

attorney-client communications. Moreover. Plaintiffs have not met their

burden of proving that these individuals were agents of counsel engaged to facilitate attorneyclient communications. The attorney-client privilege does not protect the communications with
any of these individuals, and disclosure of any attorney-client communications to these
individuals waived the privilege.
Carole Anderson’s engagement presents a different analysis. Plaintiffs asserted that Ms.
Anderson was retained to obtain information from various Plaintiffs in order to respond to
interrogatories. (Docket No. 568 at ¶ 22). Additionally, Plaintiffs have provided, for in camera
review, an e-mail confirming that engagement, along with a consultant/investigator agreement
and release and confidentiality agreement. It is clear from these documents that Ms Anderson
was retained as an agent of counsel, who served as a co-between lbr AF! and the myriad of

Plaintiffs in this litigation, and whose communications were intended to remain confidential. As

such, the attorney-client privilege protects the communications between Ms. Anderson and

Additionally, the Court is unpersuaded b\ Plaintiffs’ assertion that the role of these additional third parties is
prtvileged. Questions about the ‘general nature of legal services erformed
do not call for anr confidential
I
( )I
(
t
1
J( 1 2d
i

Plaintiff White over which Plaintiffs have claimed the privilege, (Document Nos. 11. 14, 17).
The privilege also applies to communications with AFJ interns Colette Menaldino. Jason Shatz.
3
Kevin Toussaint and Carlos Ortiz. See

Jii

ie Grand .1urv Subpoenas. 265 F. Supp. 2d at 325

([ihe privilege] has been applied universally to cover office personnel, such as secretaries and
law clerks. who assist lawyers in performing their tasks.”).
Plaintiffs also assert attorney-client privilege protection over an e-mail sent from Plaintiff
White to Simon Brandler, an Assistant Attorney General with the Office of the Attorney General
,
5
of the State of New York. (P1. 2d Priv. Log Doe. No. 82). Plaintiffs have not asserted that Mr.
Brandler is a consultant of counsel, but instead state that the New York State Office of the
Attorney General “shared a common interest in investigating various aspects” of Defendant
District. (Docket No. 6)6 at

‘

7). Without more. Plaintiffs have not met their burden of

establishing that this e-mail from Plaintiff White to Mr. Brandler was an attorney-client
communication.
The Court is cognizant of the fact that Plaintiffs list of consultants and investigators has
evolved over time. The Court has given Plaintiffs ample opportunity to provide Defendant
District and the Court with a complete list of consultants and investigators who have assisted
AFJ on the Moniesa action. On October 15, 2015, the Court ordered Plaintiffs to provide a
complete list of consultants to the Defendants, and on November 2, 2015, Plaintiffs asserted that
they had provided Defendant District with a list of consultant/invettigators on Juh 1.0, 2015.
when they sent a letter that onls included Dr. Cohen, Ms. Hatton, Mr. Luciano. Mr. Forrest. Ms.

Former AFJ Executive Director Christopher Owens and thrmer AFJ attorne Stephanie loire were inchided on
L ip ich 1
1 eg o
sol r of these o ; ]unId 01 5
sJi ltrd O,tr do
t ontc
of
e pi
communications sith Mr C)sens or Ms lorres and. therefore the tOLISt declines to address this issue
Refers to Plaintiftf’ Second Pi ieee Ice. found

at

Docket txo 6 3-1
—

16—

Anderson. Mr. Kerkula and Mr. Casteiluccio. (Docket No. 549). In Plaintilis initial declaration
in opposition to this motion. Ms. Barbieri once again asserted privilege protection over only

those seven individuals. (Docket No. 568). At the April 7, 2016 conference, when Defendant
District raised the issue of additional third parties included on Plaintiffs’ Second Privilege Log,
the Court directed Plaintiffs to provide information on the remaining third parties that had not
been included on Plaintiffs’ earlier submissions. Plaintiffs added eight consultant/investigators
on April 15. 2016. (Docket No. 604-1). and on May 4. 2016 the list grew again to include Ashley
Okonkwo. a volunteer with the NAACP. (Docket No. 616). PlaintilTs have the burden of
establishing the essential elements of an attorney-client privilege claim. Ad/man I, 68 F.3d at
1500. Plaintiffs’ piecemeal privilege assertions have been inefficient and have delayed the
Court’s ruling on this matter. In an effort to avoid future motion practice on this issue, Plaintiffs
are directed to apply the Court’s rulings on the attorney-client privilege moving forward.
C. The Work Product Doctrine

The work product doctrine shields from disclosure materials prepared In anticipation of
litigation or for trial by or for another party or its representative.” Fed. R. Civ. P. 26(b)(3)(A).
As with the attorney-client privilege, the party asserting the doctrine bears the burden of
demonstrating the essential elements. See Gucci America, Inc. v. Guess?, Inc., 271 F.R.D. 58, 74
(S.D.N.Y, 201 0)(citations omitted). In addition to this affirmative showing. the party asserting
the doctrine “also has the burden of establishine ncn-uaver
Sc. Liiie*.

No.

9(; Civ. 1260 (SS. I )93 WL 551125.

ikkal lndov. Lid

01

the

dl\

ilece.” In re P/i:er Inc.

2 Si)\.Y. l)cc. 23, 1993)

(citme

Salfon, Im, 689 12 Supp. 187. 191 (SD.NY. 1088)),

in the Second Circuit, a document has been prepared “in anticipation of litigation” if “in

light of the nature of the document and the factual situation in the particular case, the document

can fairly be said to have been prepared or obtained because ofthe prospect of litigation.” United
States

v.4d/man. 134 F.3d 1194. 1202 (2d Cir. 1998) (“1dlman If’) (emphasis in original)

(citations omitted). The document at issue must have been “prepared with an eye to some
specific litigation.” Occidental Chem. Corp. v. 01-P.! Remediation Servs. Corp.. 175 F.R.D. 431.
434 (W.D.N.Y. 1997) (emphasis added) (citation omitted). The work product doctrine “requires
a more immediate showing than the remote possibility of litigation[,]’ meaning that “litigation
must at least be a real possibility at the time of preparation[.]” Id. On the other hand, it is “well
established” that the privilege does not apply to “documents that are prepared in the ordinary
course of business or that would have been created in essentially similar form irrespective of the
litigation.” Ad/man II, 134 F.3d at 1202.
Unlike the attorney-client privilege, the work product doctrine’s protection is not
automatically waived by disclosure to a third party .Medinol, Ltd. v. Boston ScientifIc Corp., 214
F.R.D. 113, 114 (S.D.N.Y. 2002). “Rather. the courts generally find a waiver of the work
product privilege only if the disclosure substantially increases the opportunity for potential
adversaries to obtain the information.” Williams v. Bridgeport Music, Inc., 300 F.R.D. 120, 123
(S.D.N.Y. 2014)

(citation

and quotation marks omitted); Medinol, Ltd., 214 F.R.D. at 115 (“[I]t

is clear that disclosure of work product to a party sharing common litigation interests is not
inconsistent with the policies of encouraging zealous advocacy and protecting privacy that

underlie the work product doctrine..’).
D. Analysis of Contested Communications

I. Communications Sent In Ms. Barbieri (Document Nos. 3. 3, 5, 10, IS. 19 and 20)
Ms. Barbieri is an attorney with AFJ. and as Plaintiffs’ counsel, there is no question that
she is entitled to create work product. See Fed. R. Ciy, P. 26 h ii 3 A). The Court has revtewed

-

1$-

the communications sent by Ms. Barbieri over which Plaintiffs asserted work product protection
in their First Privilege Log. and finds that these c-mails were written in anticipation of litigation.
In these communications. Ms. Barbieri discussed drafts of discovery documents, motions or
appeals to be filed before this Court, proposed comnuu ications with existing Plaintiffs or
potential witnesses. and proposed investigations into programs within Defendant District. These
types of activities on the part of counsel for Plaintiffs in this action were clearly done in
anticipation of the pendant litigation.
Defendant District argues that even if the work product doctrine protects these
documents. that protection is waived by virtue of the disclosure of these communications to nonparties. This is not the case. The recipients of the e-mail communications in Plaintiffs’ First
Privilege Log, aside from any Plaintiffs or AFJ staffi were Ms. Hatton, Mr. Luciano and Mr.
Kerkula. It is clear from both Plaintiffs and Defendant District’s submissions that these
individuals are partners in advocacy with AFJ and the Plaintiffs in this matter. The disclosure of
work product to advocacy partners such as these third parties does not “substantially increase[1
the opportunity for potential adversaries to obtain the information.’ Williams. 300 F.R.D. at 123.
Work product protection is. therefore, not waived by this disclosure. The Court finds that
Documents Nos. 3,4, 5, 10, 18, 19 and 20 are protected by the work product doctrine and were
properly withheld.
The Court similarly holds than movins forward. any work product of Ms. Barhieri. or any
otler attorney for AFJ, created in anticipation of litigation, is not

\\

ai ved by virtue of its

disclosure to the individuals listed in Plaintiff’ April 15, 2016 and May 4, 2016 submissions,
with the exception of Mr. i3randler, whom the Court will discuss below, Plaintiffs assert that the
other individuals are allies in advocacy. and the Court. therefore. finds that disclosure of Ms.

Barhieri’s work product to these individuals does not waive its protection because such
disclosure does not make it substantially more likely that Plaintiffs’ adversary will acquire the
work product. Plaintiffs are to apply this reasoning in any future productions of c-mails sent by
Ms. Barbieri, Mr. Schwartz. Ms. Torres or any other attorney from AFJ.
ii. Communications Sent by Plaintiff White (Document Nos. 25, 26, 30, 32 and 40)
As a party to this action, Plaintiff White is also entitled to create work product deserving
of protection under Rule 26(b)(3)(A). However, in addition to his role as a plaintiff in this
matter, Plaintiff White has also been engaged in advocacy efforts against Defendant District in
collaboration with many of the third parties at issue here. It is therefore necessary to determine
whether his communications were made in anticipation of litigation, or whether they were made
in the ordinary course of his advocacy efforts aside from this litigation, and would have been
created irrespective of the pending litigation. With that in mind, the Court finds that Document
Nos. 26, 30, 32 and 406 were created in anticipation of’ litigation and may be withheld. In
Document No. 30. Plaintiff White provided his thoughts on potential litigation involving the
Voting Rights Act, which is within the bounds of the work product doctrine, despite the fact that
this work product is actually in anticipation of different litigation than the case at bar. See
Ramsey v. NYF Holdings, Inc., No. 00 Civ. 3478(VM)(MHD), 2002 WL 1402055, at *7 n.6
(S.D.N.Y. June 27, 2002) (“a party may withhold in one lawsuit the work product that it has
created or caused to he creatc.d because of another lawsuit in which it has been involved or
anticipates being involved”h ci Cohen v. C/li of4Vew )hrk, 255 F.R.D. 110. 124 S.D.N.Y,

Document No. $0 is an e-mail communicatlon from PIaintff Whte to Mr. Luciano, Ms. Barbieri. Ms. Hateon.
Plaintiff Carmand. Robert Kerkula. and Robert Forrest. (P1. 1st Priv. Log An in camera review of the e—mail
revealed that within this communication chain are earlier c—mails from Mr. Luciano and Ms. Barhieri. In all
instances in xshich earlier c—mails appear in the chain of one document. I have treated the entire document as the
sork product of the sender of the ton e-mail, which contams the earher communications Witflifl it. lfthe lower e
mails in the chain are responsic to Defendant District’s ESI requests on their own, Plaintitfssiii adhere to the
CourCs rulings on these privileee ssues in complvino with those document demands.
-

20

-

2008) (“the weight of authority
part

of

now

clearly favors protecting work product that was generated as

an earlier litigation at least where, as here. that litigation is related to the current suit.”).

In Document Nos. 32 and 40. Plaintiff White provided his input on interrogatory responses and
other proposed discovery tactics. Document No. 26 is an e-mail sent by Plaintiff White the same
month that the initial complaint was filed in this action, in which he asserted that a “friend”
asked him for “a two page fact sheetj,]” which was meant to “summarize” and provide “depth
and history.” The Court finds that the proximity in time of the sending of this communication
and the filing of the lawsuit indicates that this document was created in anticipation of litigation
as well. These communications, therefore, are all protected by the work product doctrine, and, as
established in Section II.D.i,

supra,

the disclosure of these communications to Dr. Cohen, Ms.

Hatton, Mr. Luciano, Plaintiff Carmand, Mr. Kerkula and Mr. Forrest, did not waive the
7
privilege. Additionally, any future communications from Plaintiff White, or any other plaintiff,
to the third parties detailed in Plaintiffs’ April 15. 2016 and May 4, 2016 submissions, except
Mr. Brandler. discussed infra. similarly would not waive the privilege.
In contrast, the Court fnds that any privilege that would otherwise cover any portion of
Document No. 25 has been waived by virtue of its disclosure to a third party. Document No. 25
is an e-mail communication from Plaintiff White to Mr. Castelluccio. who Plaintiffs assert is the
editor and reporter for Preserve Rainapo, a website and blog. (Docket No. 568 at

27). In this

communication. Plaintiff ‘White forwards an e-mail communication from Arthur Schwartz

instructing Plainti tI White to have Preserve Raniapo publish an updated version of the
complaint. Although Mr. Schwartzs original e-mail would have been considered an attorney-

Former AFJ Executive Director Christopher Owens and former AFJ attorney Stephanie Torre were included on
Docum.ent 26 as well, •This does n.ot waive the privilege, as this disclosure does not make it substantiall more
likely that PlaintifE adversary will obtam this document.

client communication. the protection to which it would otherwise be entitled was waived when
this communication was disclosed to Mr. Castelluccio. a journalist. See Colot v. C/ti of7\ew
York. No. l2-CV-9205(JMF). 2014 WL 3605543, at *1 (S.D.N.Y. July 8. 2014) (Had the letter
at issue actually been sent to a journalist.

.

.

it plainly would not qualify as privileged.”).

Plaintiffs cannot argue that their adversaries in this litigation were not substantially more likely
to obtain this information by virtue of its disclosure to a journalist. who very well could have
published this entire e-mail exchange. To the extent that Document No. 25 was covered by the
work product doctrine, the protection has been waived by virtue of this disclosure. The Court
finds that Documents Nos. 26, 30. 32 and 40 are protected by the work product doctrine and
were properly withheld. Document No. 25 must be released.
Plaintiffs have also failed to meet their burden of demonstrating that any privilege
protection that would otherwise be available for Document No. 82 on Plaintiffs’ Second
Privilege Log was not waived when the document was sent to Simon Brandler at the New York
Attorney General’s Office. Plaintiffs assert that the Attorney General’s Office “shared a
common interest in investigating various aspects of the East Ramapo Central School District.
(Docket No. 616 at L7). However, disclosing information to governmental authorities in the
hope that they will attack an adversary cannot be said to be done “in the pursuit of
preparation.” Bank ofArn., NA,
(citinc Lnied Siute

‘.

i.

...

trial

Terra Nova Ins. Co., 212 F.R.D. 166. 172 (S.D.N.Y. 2002)

.4w. I’! and I47. Co. 642 F.24 1285. 1299 (D.C.Cir, I 9809. Such

disclosure “results in a waiver of the work product protection. Id at 1 73. Consequently.
Document No. 82 must be released,

iii. Communications Sent by Third Parties

Defendant District contends that third parties cannot create work product. (Docket No.
561 at 9). The text of Rule 26(b)(3)(A) affords protection to material prepared ‘by or for another
party or its representative (including the other party’ s attorney, consultant, surety, indemnitor,
insurer, or agent)”——-not merely material prepared by or for an attorney—and several courts,
including courts in the Second Circuit, have interpreted this rule according to its plain meaning.
See, e.g.. Walt:

1’.

Bankof China Ltd.. 304 F.R.D. 384. 394 (S.D.N.Y. 2015) (“Notwithstanding

the conimon description of the doctrine as the attornev’ work product doctrine

.

.

fact necessary that the material be prepared by or at the direction of an attorney.”);

.

it is not in
Gucci

America, Inc., 271 F.R.D. at 74 (citing Adiman 1/, 134 F.3d at 1202) (‘Unlike the attorney-client

privilege, the work product doctrine does not require that the documents be prepared at the
behest of counsel, only that they be prepared ‘because of’ the prospect of litigation.”). The
Supreme Court has noted that “attorneys often must rely on the assistance of investigators and
other agents in the compilation of materials in preparation for trial.” United States v. Nobles, 422
U.S. 225, 238 (1975). As a result, the doctrine protects material prepared by consultants or
agents on the attorney’s behalf. Id.; Fed. R. Civ. P. 26(b)(3).
The Court’s analysis is different, however, where the creator of the work product is truly
a non-party to this action, and not a plaintiff or the attorney’s agent or consultant. ‘[C]ourts have
repeatedly held that Rule 26(b)(3) does not shield xork product produced for non-parties.”
.4/n/elI

CTh ot 1ee Unk. No. 05 Civ. 8453 KNiK JCL 2006 WL 2664313. at *2 (S.D1N,t.

Sept. 14, 2006 (collecting cases). Indeed, courts have held that “a nonparty witness may not

invoke workproduct protection under this rule to preclude production of materials prepared by
or for that witness. even if created in contemplation of the witness’s own pending or anticipated

litigation.” Ramsey. 2002 WL 1402055. at *6: see also Ricoh Co v Aero/lex Inc 219 F.R.D. 66.
.

69 (S.D.N.Y. 2003) (disclosure of material may be required een where non-party is a party in
closely related lawsuit and may suffer disadxantage in latter suit as a result of disclosure). In
contrast, where a third party creates documents for a party because of the very litigation in
which [the party] invoke[s] work-product protection.. they fit squarely within the protective
.

ambit of Rule 26(b)(3).” Flew v. Ltd. Brands, Inc.. No. 08 Civ. 3741(LTS)(MHD), 2009 WL
1119414, at *3 (S.D.N.Y. Apr. 23, 2009).
As Plaintiffs’ list of consultants/investigators seems to grow with each submission, the
Court must consider what qualifications an individual must hold in order to be a consultant or
agent permitted to create work product under Rule 26(b)(3). Rule 26 allows for the protection to
cover documents produced by an ‘attorney, consultant,

.

.

.

or agent,” but courts have provided

little guidance as to the requirements for holding the title of an agent or consultant. Courts have
held that ‘[a]gents include those who are enlisted by legal counsel to perform investigative or
analytical tasks to aid counsel in preparing for litigation.” Costabile v. Westchester, New York,
254 F.R.D. 160, 164 (S.D.N.Y. 2008) (citing Kayata v. Foote, Cone & Belding Worldwide,
L.L.C., No. 99 CIV. 9022 VM KNF, 2000 WY 502859, at *2 (S.D.N.Y. Apr. 26, 2000)).
Additionally, an individual who worked directly with and under the supervision of counsel and
was responsible for such tasks as coordinating the gathering of evidence and identifying and

contacting witnesses, was found to “fall[1 within the scope of Rule 26(h)(3).” Sierling Drug Inc
v Ilarri5, 488 F. Supp. 1019. 1027 (S N Y 1980). “As the Supreme Court has explained. ‘the
[work product] doctrine is an intensels practical one, grounded in the realities of litigation in our
athersary systern.[’]” William A Gross Conct Asoc Inc v Am M/r.s Mu! Ins Co 262
,

F,R,D. 354. 359 (S,D.N.Y. 2009) (citing (mied States v ohle.s, 422 U.S. at 23839). The

Second Circuit cautions that courts must apply the work product doctrine “in a common sense
way in light of reason and experience as determined on a case-by-case basis.” In re Six Grand
Jury Witnesses. 979 F.2d 939, 944 (2d Cir. 1992).
Even where Rule 26(b)(3) does not protect materials from disclosure, federal courts have
recognized broader work product protection under the precedent of hickman v. Ta/or. 329 U.S.
495 (1947).Allied Irish Bcmks, PLC. v. Bunko/America, IVA., 252 F.R.D. 163. 173 (S.D.N.Y.
2008); Abdell. 2006 WL 2006 WL 2664313, at *3 Relying on Hickman, courts have granted
work product protection to non-parties “where it is necessary to achieve the underlying purposes
of the doctrine.” Gonzale.

1’.

City ofNew York. No. 08 CV 2699(JBW), 2009 WL 2253118, at *3

(E.D.N.Y. July 28. 2009) (collecting cases). The three specific purposes which justify
application of the doctrine are: where disclosure would “(1) alter attorney behavior, (2) reward
sloth, or (3) interfere with ongoing litigation.” Haus v. City ofNew York, No. 03 Civ.
4915RWSMHD, 2006 WL 3375395, at *3 (S.D.N.Y. Nov. 17, 2006).
Plaintiffs contend that the work product doctrine protects communications authored by
Oscar Cohen. Peggy Hatton. Antonio Luciano. Robert Forrest. Robert Kerkula and Michael
Castelluccio, in addition to the other consultants detailed in Ms. Barbieri’s April 15, 2016 and
May 4, 2016 submissions over whose communications Plaintiffs generally assert the attorneyclient privilege, the work product doctrine, and the common interest privilege. Therefore, the
Court will next consider these contested communicatlons to determine whether the author of the

document is a consultant or

agent

of counsel and the document was created in anticipation of

litigation, or whether it is deserving of work. product protection under the standard in .Hickman.

a. Communications Sent by Carole Anderson (Document Nos. 11, 12,13,14,15,16 and 17)
P1aintifl claim work product protection over Document Nos. 11. 12. 13, 14, 15, 16 and
17. (P1. 1st Priv. Log). These c-mails were sent from Carole Anderson to Plaintiff White.
However, an in camera review reveals that Ms. Anderson was actually forwarding e-mails and
attachments that Ms. Barbieri sent to her. These e-mails discuss Ms. Anderson’s retention as a
consultant/investigator for AFJ in order to assist with the pendant litigation, and, as suck the
Court finds that they were created in anticipation of litigation. They are, therefore, protected by
the work product doctrine. As established in Section ll.B. szqra, Ms. Anderson was retained as
an agent of counsel, and she is therefore entitled to create work product under Rule 26(b)(3).
TheCourtflndsthatDocumentNos. 11, 12, 13, 14,15, l6and llareprotectedbythework
product doctrine and were properly withheld. The same reasoning would apply to
communications sent by AFJ interns Colette Menaldino, Jason Shatz, Kevin Toussaint and
Carlos Ortiz, all of whom were clearly agents of counsel when they sent communications as
interns at AFJ. See Sterling Drug Inc., 488 F. Supp. at 1027.
b. Communication Sent by Peggy Hatton (Document No.8)
Ms. Hatton sent one e-mail communication at issue, Document No.8. (P1. 1st Priv. Log).
In this e-mail, Ms. Hatton forwarded information received from a FOIL request which Ms.
Barbieri contends was meant for potential use in the Montesa action. (Docket No. 567 at 6). It is
clear from Ms. Barbieri’s submissions and the Court’s in camera review of this communication
that Ms. Hatton was acting as a consultant of counsel. and this e-mail was written in anticipation
of the instant litigation. Ms. Hatton has been included on Plaintiffs’ asserted list of consultants
before the Court and Defendant District since July 2015, (Docket No. 549), Ms. Barbieri
reported to the Court that she specifically recruited Ms. Hatton to assist in the Montesa action,

-26-

(Docket No. 568). and the Courfs in cameru review indicates that i’is Hatton sent out FOIL
requests. which she then shared with counsel and Plaintili White in furtherance of this litigation.
For the same reasons as discussed in Section 1l.I).i .s upra, disclosure of this work product to Mr.
Luciano. a recipient on this e-mail, did not waive the work product protection. Therefore,
Document No. 8 was properly withheld.
8
c. Communications Sent by Antonio Luciano (Document Nos. 6 and 7)
Mr. Luciano authored Document Nos. 6 and 7. (P1. 1st Priv. Log). The Court has

reviewed each of these documents and finds that they were properly withheld under the work
product doctrine.
Document Nos. 6 and 7 are c-mails that Mr. Luciano sent to Ms. Barbieri and Plaintiff
White regarding filings from another case against Defendant District, filed by the tenants of the
Colton School. Although the documents attached to this e-mail were filed in connection with
different litigation, Ms. Barbieri has asserted that Mr. Luciano was engaged as a consultant to
counsel in furtherance of the Moniesa action. (Docket No. 568 at

19). As with Ms. Hatton.

Plaintiffs have sufficiently established Mr. Luciano’s role as a consultant of counsel. He was
included on Plaintiffs’ list of consultants in July 2015, (Docket No. 549), and he has obtained “a
substantial number of documents” through FOIL request which he has shared with AFJ. (Docket
No 568 at ¶ 16-17). Furthermore. Defendant District already has access to the documents that
are attached to this e-mail, as they were tiled in connection with litigation in which Defendant

District was a party Nt-s ertheies, it appears irom an i’z camaro rcs ic’sx that this e-mail exchange
was not made in anticipation of the CoLon School litigation, but rather to proxide AF.1 attorneys

Underlying facts within these FOIL requests, however, are discoverable See Abhu-Bradley v, City ofViagara
Fails, 293 FRD. 401. 408 (WDNY. 2013) (“th.e. work product doctrine does not immunize litigants or th.eir
ultanb horn a woslng the unde1\
I ins oht i ncd iii a the ci USC of ‘i
est1gat1ons

and Plaintiff White information about that litigation to aid them in the Montesa action. The
Court, therefore, finds that these c-mails are work product created by a consultant of counsel, in
anticipation of the Montesa action, and, therefore, the work product doctrine protects them from
disclosure. Document Nos. 6 and 7 were properly withheld.
d. Communication Sent by Robert Forrest

Mr. Forrest authored Document No. 1, an e-mail sent from Mr. Forrest to Plaintiff White
regarding a potential appeal regarding the sale of Colton School. (P1. 1st Priv. Log). Unlike the
c-mails authored by Mr. Luciano, discussed above, here, Mr. Forrest was not providing
information about this appeal for use by Plaintiff White in the Montesa action. Instead, Mr.
Forrest sought Plaintiff White’s input on his own appeal, which is not part of this action. Ms.
Barbieri asserted that Mr. Forrest is a volunteer real estate consultant, who “provides informal
opinions regarding the particular property transactions that are the subject of this litigation.”
(Docket No. 568 at ¶ 20). However, the Court’s in camera review of this communication
indicates that Mr. Forrest was not acting as a consultant to counsel in sending this
communication to Plaintiff White, but was instead seeking Plaintiff White’s advice on Mr.
Forrest’s own case. As a result, this is work product created by a non-party to this action, in
anticipation of Mr. Forrest’s own anticipated litigation, which is not protected by Rule 26(b)(3).
See Ramsey, 2002 WL 1402055, at *6, Consequently, Document No. 1 must be released.

Regarding any future productions of Mr. Forrest’s emails, however, the Court finds that
if he has sent emails regarding “particular property transactions” reiati.ng to the .Montesa action,
(Docket No. 568 at ¶ 20), Mr. Forrest was acting as a consultant of counsel, and those
communications would be protected by Rule 26(h)(3).

e. Communication Sent by Michael Castelluccio

As discussed in Section II.B. supru. there has been no assertion that Mr. Castelluccio has
been engaged as a consultant or investigator for Plaintiffs’ counsel, or that he is in any way
engaged as an agent of counsel. 1-Ic is the author of one e-mail in Plaintiffs’ privilege log.
Document No. 2, in which he c-mailed Plaintiff White about potential litigation outside of the
,iloniesa action. (P1. 1st Priv. Log). This document is therefore the work product of a non-party,
created in anticipation of a separate litigation, and is not protected by the work product doctrine
as articulated in Rule 26(b)(3). See Ramsey. 2002 WL 1402055, at *6. The principles underlying
the Hickman precedent similarly do not justify the withholding of this document. Although
courts have applied the Hickman principles to an investigator working on behalf of counsel, see
Alexander v. F.B.I., 192 F.R.D. 12, 18 (D.D.C. 2000), Plaintiffs cannot say that allowing the
discovery of Mr. Castelluccio’ s thoughts in anticipation of litigation would in any way infringe
upon the “zone of privacy in which a lawyer can prepare and develop legal theories and
strategies.” Adlman II. 134 F.3d at 1196. Plaintiffs have not alleged that Mr. Castelluccio is an
agent or consultant of counsel. and the work product doctrine does not allow Plaintiffs to
withhold his communications made in anticipation of separate litigation. Accordingly,
Document No. 2 must be released.
f. Communications Sent by Other Third Parties

Although Plainti iTs have not pro ided any c-mails sent by Oscar Cohen or Robert
Kerkula to the Couii for in camera reyew, the Court linds that Plaintiffs have met their burden
of establishing that these individuals have been engage.d as consultants of counsel for the purpose
of this litigation. Therefore. as the parties proceed with discovery, any communications sent by
either of these individuals which were written in anticipation of litigation, can he considered

work product under Rule 26(b)(3). Ms. Barbieri asserted that Dr. Cohen uses his expertise as
Educational Chair of the NAACP, Spring Valley Branch to advise AFJ on “potential claims and
complaints against the District and School Board.” among other matters. (Docket No. 568 at ¶
1 0). IVIr. Kerkula has assisted AFJ in serving school board members, and has sought out and
provided information to AFJ regarding the litigation. (Id at ¶ 25). This is sufficient to
demonstrate that these individuals are consultants under Rule 26(b)(3) and, therefore. any
communications they made in anticipation of’ litigation are covered by the work product doctrine.
In contrast, Plaintiffs have not met their burden of establishing that the third parties listed
in Ms. Barbieri’s April 15, 2016 submission have been engaged as agents or consultants of
counsel for Rule 26 purposes. Ms. Barbieri asserts that these “member[s] of the East Ramapo
community” have been “vocal in bringing the failures of the school Board and I)istrict
Administrators to the attention of the public.” (Docket No. 604-1 at

‘

5). As a result. they have

been able to provide AFJ with “critical advice and information.” (Id. at

¶ 6).

Plaintiffs have not

established that these individuals were ‘enlisted by legal counsel to perform investigative or
analytical tasks to aid counsel in preparing for litigation.” Cosiabile v. Westchester, New York,
254 F.R.D. at 164 (emphasis added). Additionaflv. there has been no indication that these
individuals “work directly with and under the supervision of counsel” as in Sterling Drug Inc. v.
Harris. 488 F. Supp. at 1027. Instead. it appears from the limited information provided that
these individuals have been engaged in their own advocacy worb:. without
Plaintiffs’ counsel and.

O\

ersight from

arc not age.nts or consultants of counsel for purposes of Rule

26(b)(3). The same reasoning applies to Ms. Okonkwo, since all Plaintiffs have asserted is that
Ms. Okonkwo was a volunteer \vth the NAACP. (Docket No. 616 at ¶ 6),

As Plaintiffs continue to release e-mail communications of Plaintiff White and other
Plaintiffs on a rolling basis, they are directed to apply the Court’s rulings on the third parties
considered herein in determining whether those e-mail communications are privileged.
9
E. The Common Interest Doctrine
Plaintiffs assert that the common interest doctrine protects Document Nos, 8, 26 and 30,
and, more generally, communications with the additional consultants discussed in Plaintiffs’
April 15. 2016 letter. (Docket No. 604), and May 4, 2016 letter to the Court. (Docket No. 616).
The common interest doctrine “is not an independent source of privilege or confidentiality,” and
where “a communication is not protected by the attorney-client privilege or the attorney workproduct doctrine, the common interest doctrine does not apply.” Sokol v. Wyeth, Inc., No. 07 Civ.
8442(SHS)(KNF), 2008 WL 3166662, at *5 (S.D.N.Y. Aug. 4,2008) (citations omitted).
Instead, the doctrine, serves to protect the confidentiality of communications passing from one
party to the attorney for another party where a joint defense eftbrt or strategy has been decided
upon and undertaken by the parties and their respective counsel.” United States v. Schwiminer,
892 F.2d 237, 243 (2d Cir. 1989). In order to receive protection under the common interest
doctrine, the moving party must make a two-part showing. Fireman ‘s Fund Ins. Co. v. Great

American Ins. Co ofNew York, 284 F.R.D 132, 139 (S.D.N.Y. 2012). First, ‘the parties
exchanging otherwise privileged information must establish a common legal. rather than
commercial. interest.” which courts have ftund embodied in “a cooperative and common

enterprise towards an identical. legal strategy.” id (quotatio.n marks and citations omitted),

The Court notes that the work product doctrine is a qualified privilege, and otherwise privileged documents
“prepared in anticipation of litigation or for trial” are discoverable onl\ if”the party shows that it has substantial
need for the materials to prepare its case and cannot. without undue hardship, obtain their substantial equivalent by
other means” Cosiabile, 254 FR.D, at (63 (citing Fed, R. Civ, P. 26b)(3)(A)(ii)). Defendant District has made no
argument or showing of its substantial need for the materials contained in these communications, Therefore the
Court has not considered that issue.

Second. “the parties must establish that

any

exchange of privileged information was made

in

the

course of formulating a common legal strategv[.] and that the parties understood that the
communication would be in furtherance of the shared legal interest.’ Id. at 140 (citing So/wi,
2008 WL 3166662, at *5 7)
Plaintiffs have failed to make a showing of a shared legal interest between Plaintiff White
and the third parties at issue here. lo the contrary. Ms. Barbieri asserts that “none of the [listed
consultants/investigators] has an •interest’ in the litigation

—

pecuniary or otherwise. None has

anything to lose or gain by the success or failure of the litigation.” (Docket No. 568 at

¶ 34).

Accordingly, the common interest doctrine does not apply to these communications.
F. The Investigative Reporter Privilege
Plaintiffs assert that the investigative reporter privilege protects two documents,
Document Nos. 2 and 25. (P1. 1St Priv. Log). The investigative reporter privilege is meant to
keep press out of the courts. Schooicrafi v. City ofNew York, No. 10 Civ. 6005(RWS), 2014 WL
1621480, at

*

2 (S.D.N.Y, Apr. 22. 2014). The privilege does not apply where the materials

sought are “reasonably obtainable from other available sources.’ Gonzales v. National
Broadcasting Co.. 194 F.3d 29. 36(2d Cir. 1999). The documents at issue here were not being
withheld in response to a subpoena served directly on Mr. Castelluccio. Defendant District is
seeking these documents from Plaintiff White. another available source for this information.
Consequentlr. the in\ esti-tative reporter prvjIeee does not arpiv.
G. Anaksis of Plaintiff Lahens’ Testimony
Defendant District seeks to compel Plaintiff Lahens testimony regarding meetings that
she attended in 2015 in which she, Plaintiff White, and 30-50 other attendees discussed the
t.zIontea action (Docket o 560

Plaintdfc contend thai tlw work product doctrinc attorney

client privilege, and common interest doctrine protect any discussion of litigation strategy that
may have occurred at these meetings. (Docket No. 567). Defendant District contends that
Plaintiffs’ invocation of these privileges was improper because (1) the communications were not
confidential. (2) discussions between aligned parties outside the presence of counsel are not
privileged. (3) Plaintiff Lahens’ disclosure of some of the communications waived any privilege,
and (4) Plaintiffs’ counsel’s instruction not to answer without referencing specific privileged
communications was improper. (Docket No. 503).
i. The Attorney-Client Privilege
As discussed above, the attorney-client privilege protects “communications (1) between a
client and his or her attorney (2) that are intended to be. and in fact were. kept confidential (3)
for the purpose of obtaining or providing legal advice.” Me/ia, 655 F.3d at 132. Here, Plaintiffs
assert that the attorney-client privilege protects the communications regarding legal strategy at
these meetings. (Docket No. 509). Plaintiffs do not contend that any attorneys were present at
these meetings. Additionally, Plaintiffs cannot establish that all of the attendees at these
meetings were Plaintiffs in this case, or even clients of AFJ. There is no list of attendees. and no
assertion that anyone made any effort to deny entry to non-Plaintiffs, or even, potential
adversaries. Based on Plaintiff Lahens’ deposition testimony, the Court can be confident that
Plaintiff Lahens and Plaintiff White were present at these meetings, but the rest of the attendees
are unknown, Based on Plaintiff Lahens’ testimony about the lack of measures taken to ensure
that only Plaintiffs were oreseni. am one from the comniuniiv could have attended this meetine.
includin.g members of the press, or even adversaries. Plaintiffs have not met their burden of
establishing that these strategy discussions were “intended to be. and in liict were. kept
confidential,” )Iejia, 655 F.Sd at 132.

ii. The Work Product Doctrine
The work product doctrine as codified in Rule 26(b)(3) protects against the disclosure of
“documents and tangible things” and, therefore. clearly does not apply to Defendant District’s
questions about the oral discussion at these meetings. Fed. R. Civ. P. 26(b)(3). However, courts
have held that the “disclosure of an attorney’s mental processes-even if those thoughts have not
been reduced to writing-generally cannot be compelled” where it is necessary to achieve the
underlying purposes of the doctrine as articulated in Hickman v. Taylor. Abdell, 2006 WL
*3 (collecting cases). As
2664313, at *3 (collecting cases); Gonzale;. 2009 WL 2253118. at
noted above, those underlying purposes aim to “preserve a zone of privacy in which a lawyer can
prepare and develop legal theories and strategies ‘with an eye toward litigation,’ free from
unnecessary intrusion by his adversaries.” Adlman II, 134 F.3d at 1196 (quoting Hickman, 329
U.S. at 511). Noting that the Supreme Court has applied the work product doctrine to the
tangible work product of a non-attorney, and that Hickman ‘clearly commands that the attorney
work-product doctrine applies with equal, if not greater, force to intangible work product[,j”
courts have also applied the Ijickinan principles to communications of non-attorneys .A lexander
v. FBi, 192 F.R.D. at 18.
However, even if the Hickman standards apply to communications between non
attorneys, such as a group of plaintiffs at a meeting, Plaintiffs have failed to carry their burden of

establishina non-waiver

of

the doctrine, because. they disclosed information to unknown

-1
attendees at urese meetlnes.

in

The Court, therefore, declines to rule on whether I-/ick,nan would provide work product protection to these
discussions.

iii. The Common Interest Doctrine
As discussed in Section lEE., supra. the common interest doctrine is not its own source
of privilege, and only supplies protection to documents disclosed that would otherwise be
privileged. Soko!. 2008 WE 3166662. at

*5

As the Court has already ruled that the attorney-

client privilege does not protect these meetings because of the lack of confidentiality. the
common interest doctrine does not provide any protection. Additionally, even if the attorneyclient privilege would otherwise apply, in order to support an assertion of the common interest
doctrine, Plaintiffs must show that the parties in communication shared “a common legal
interest.” Fireman ‘s Fund Ins. Co., 284 F.R,D. at 139. To establish such a common interest, “the
parties must have come to an agreement, ‘though not necessarily in writing, embodying a
cooperative and common enterprise towards an identical strategy.” Id. (citing Lugosch v.
Congel, 219 F.R.D. 220, 237 (N.D.N.Y. 2003). Courts look to whether “multiple persons are
represented by the same attorney” or other evidence of coordination. Bank Brussels Lambert v.
Credil Lyonnais (Suisse) LA.. 160 F.R.D. 437. 446, 448 (S.D.N.Y. 1995).
Here. Plaintiffs cannot assert that all of the individuals present at these meetings shared a
common legal interest, because they cannot assert who was present at these meetings. If all of
the attendees at the meeting were Plaintiffs, all represented by AFJ. the Court could conclude
that they all shared an identical legal strategy in this matter. However, Plaintiff Lahens’
testimony regarding the earlier meeting she attended was that anyone with an interest in this

litigation was free to attend these meetings. (.Lahens Depo. at 31), Regarding the March 2015
meeting, she attested that all attendees were Plaintiffs. hut her only Ii.mndation for that belief was
that all attendees were “there lbr one

cause.” (lahens Depo. at 28), The meetings were

announced and held in public places. (Lahens Depo. at 31 D2). V ithout more to show that

efforts were made to exclude members of the public who did not have a legal interest in this
litigation. Plaintiffs cannot assert the common interest doctrine to protect these communications.
Fireman’s Fund ins. Co., 284 F.R.D. at 139. Therefore. Plaintiffs’ assertion of the common
interest doctrine fails.
Accordingly. Plaintiffs’ counsel’s instruction to Plaintiff Lahens not to answer questions
regarding litigation strategy from these meetings was improper. Defendant District shall have an
additional opportunity to depose Plaintiff Lahens on this issue without restriction.
III. CONCLUSION
For the foregoing reasons. Defendant District’s motion to compel is granted in part and
denied in part. The Court finds that the attorney-client privilege does not protect
communications with the third parties at issue here, with the exception of Carole Anderson, AFJ
interns Colette Menaldino, Jason Shatz, Kevin Toussaint and Carlos Ortiz. Regarding the work
product doctrine, the Court finds that communications sent by Ms. Barbieri, Plaintiff White, Ms.
Anderson, Ms. Menaldino, Mr. Shatz. Mr. Toussaint, Mr. Ortiz and any other attorneys from
AFJ, which were made in anticipation of litigation. are covered by the work product doctrine.
That protection is not waived by virtue of the disclosure of those communications to I)r. Cohen,
Ms. Ilatton, Mr. Luciano, Mr. Kerkula, Mr. Forrest or any of the other third parties in Plaintiffs’
April15, 2016 and May 4,2016 submissions. with the exception of Mr. Brandler. Privilege
nrotecion is, however. wai\ ed h\

inue of dieiosure o Mr. Casteliuecio or Mr. l3randler. The

(:orirt tnds that communications sent 1w Ms. }{atton. Mr. Luciano. Mr. l’on’est Dr. Cohen or
Mr. Kerkula, in anticipation of the Montees action. are covered by the work product doctrine.
Communications sent by Mr. Castelluccio and the third parties listed in Plaintiffs’ April 15, 2016
and Ma 4, 2016 submissions. except as noted above. are not protected b the work product

doctrine. In line with these rulings. Document Nos. 11. 14 and 17 may be withheld under the
attorney-client privilege and the work product doctrine; Document Nos. 3. 4. 5. 6. 7. 8. 10. 12.
13, 15, 16. 18. 19.20.26.30.32 and 40 may be withheld under the work product doctrine;

Document os. 1. 2. 25 and 82 must be released.
Finally, the Court finds that the attorney-client privilege, work product doctrine, and
common interest doctrine do not protect any discussions of strategy at the meetings attended by
Plaintiff Lahens in 2015. Defendant District shall have an additional opportunity to depose
Plaintiff Lahens. The Court hereby instructs the parties to proceed with discovery in accordance
with this ruling.
The Clerk is respectfully requested to terminate the pending motion (Docket No. 560).
Dated:

June 20, 2016
White Plains, New York
SO ORDERED:

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If

JUDITH C. McCARTHY
United States Magistrate Judge

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