Johnson-Harris v. United States

Filing 42

ORDER with respect to 37 Letter Motion for Discovery. For these reasons, Plaintiff's counsel is directed to produce the document, sanitized of any marks or notes made by prior counsel, as described herein, to Defendant's counsel within five business days of the date of this Order. This constitutes the Decision and Order of this Court. SO ORDERED. (Signed by Magistrate Judge Lisa Margaret Smith on 2/4/2020) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------- X

JOHNSON-HARRIS,

ORDER

Plaintiff(s),
-against-

18 Civ. 4517 (NSR) (LMS)

UNITED STATES OF AMERICA,
Defendant(s)

----------------

----------x

On January 9, 2020, Plaintiff's counsel submitted a letter motion seeking to have a
particular document, hereinafter referred to as "Timeline," deemed protected from disclosure by
the attorney-client privilege. Attached to the letter motion was a portion of Plaintiff's deposition,
starting at page 48 and continuing through page 63. On January 15, 2020, Defendant's counsel
submitted a letter in opposition, to which was attached the same deposition transcript, but this
time beginning at page 47 and continuing to page 63. By Order issued January 21, 2020, the
undersigned directed Plaintiff's counsel to submit the Timeline to the Court for in camera
review. That review has been completed, and upon full consideration of the arguments of
counsel this Court denies Plaintiff's application and directs that the document, sanitized1 of any
marks or notes made by prior counsel, shall be produced to Defendant's counsel within five
business days of the date of this Order.
The issue is whether the document in question, which was first identified during
1

Plaintiff's counsel may redact any and all marks and notes from the document, either by
striking them through or covering them over with a black marker or label. Counsel may also
redact by using Liquid Paper or Whiteout or some similar product which, when photocopied,
may remove any indication at all that marks or notes were made. This is acceptable to the Court.
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Plaintiff's deposition, 2 is protected from disclosure by the attorney-client privilege. It is firmly
established that "[t]he burden of establishing the existence of an attorney-client privilege, in all
of its elements, rests with the party asserting it." United States v. International Broth. of

Teamsters, Chauffeurs, Warehousemen and Helpers ofAmerica, AFL-CIO, 119 F.3d 210,214
(2d Cir.1997); see also Bell v. Pfizer Inc., No. 03 CV 9945 (KMW)(HBP), 2006 WL 2529762, at
*4 (S.D.N.Y. Aug. 31, 2006). The attorney-client privilege may be defined as follows: "(1)
where legal advice of any kind is sought (2) from a professional legal advisor in his [or her]
capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by
the client, (6) are at [the client's] instance permanently protected (7) from disclosure by himself
[or herself! or by the legal advisor, (8) except the protection be waived." In re Grand Jury

Subpoena Duces Tecum Dated September 15, 1983, 731 F.2d 1032, 1036 (2d Cir.1984) (internal
quotation marks omitted). "Because the attorney-client privilege remains an exception that may
withhold relevant information at the pre-trial or the trial stage of a ... civil proceeding, it may be
invoked to hold secret only those communications made in confidence to a lawyer to obtain legal
counsel that would not have been made without the existence of the privilege. See Fisher v.

United States, 425 U.S. 391,403 (1976); United States v. Kave!, 296 F.2d 918, 922 (2d Cir.1961)
(Friendly, J.)." In re Six Grand Jury Witnesses, 979 F.2d 939, 943 (2d Cir. 1992) (parallel

citations omitted).
Plaintiff's counsel argues, in part, that his client had informed him, presumably after the
deposition was completed, that she drafted the Timeline and provided it to her then attorney

The Timeline was not identified in a privilege log as required by Local Civil Rule 26.2,
or in any other discovery production. See also FED. R. CIV. P. 26(b)(5). There has been no
explanation for this failure on the part of Plaintiffs counsel.
2

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"because she thought it would assist him." DE 37 at p. I. As noted by Plaintiffs attorney, the
Timeline was found in the file of plaintiffs former counsel, "with handwritten notes and various
scribbles along the document." Id. at n. 1. No affidavit or other sworn statement has been
offered to support Plaintiffs purported reason for drafting the Timeline, except her statement at
pages 47 and 52 of her deposition, where she affirmatively referred to the Timeline as notes to
try to assist her in refreshing her recollection, or in organizing her recollection. See United
States v. Constr. Prod. Research, Inc., 73 F.3d 464,473 (2d Cir. 1996)(Aprivilege log should
"identify each document and the individuals who were parties to the communications, providing
sufficient detail to permit a judgment as to whether the document is at least potentially protected
from disclosure. Other required information, ... is then typically supplied by affidavit or
deposition testimony.") Plaintiff stated in her testimony that she had created the document
voluntarily, without being asked by her attorney, and that she then sent the Timeline to him,
although the exact circumstances of the delivery are unclear. 3
Plaintiffs counsel not only failed to include the Timeline in any privilege log, as
required, which is alone a basis for denying the assertion of privilege, but Plaintiffs counsel has
also tried to shift the burden on this issue to the adversary. Plaintiff's counsel argues, inter alia,
that Defendant's counsel failed to inquire of Plaintiff during her deposition the purpose of
preparing the Timeline, and the purpose of giving it to her attorney, although counsel "was
invited to (and given free rein) to [sic] question plaintiff on why she wrote the timeline, and why
she gave it to her attorney. Defense counsel chose not to pursue this line of questioning." DE 37
at p. I. This argument places the responsibility to prove absence of privilege on the wrong party

3

See DE 38-1 at pp. 53, 56-57, 60-61.
Page 3 of 5

- the burden is on the party asserting privilege, in this case, on Plaintiff. See United States v.

Ad/man, 68 F.3d 1495, 1500 (2d Cir.1995) ("The party claiming the benefit of the attorney-client
privilege has the burden of establishing all the essential elements.") Counsel's letter includes a
purported statement from his client about the reason for preparing the Timeline, but that
purported statement is not presented in an affidavit or other sworn document. Rather, the
evidence before the Court is that Plaintiff prepared the Timeline for her own use, and that she
also gave it to her attorney. This is insufficient to carry the burden of establishing privilege.
"The fact that a document is sent or received between attorney and client does not make it
privileged unless it contains confidential communications relating to legal advice." Grossman v.

Schwarz, 125 F.R.D. 376,387 (S.D.N.Y. 1989). The document itself appears to contain only
facts, which are not themselves privileged.
It is well-settled that "[t]he privilege only protects disclosure of
communications; it does not protect disclosure of the underlying
facts by those who communicated with the attorney." Upjohn [Co.
v. United States], 449 U.S. [383,] 396 [(1981)]; In re Six Grand
Jury Witnesses, 979 F.2d 939,944 (2d Cir.1992). A party invoking
the attorney-client privilege must demonstrate that there was "(l) a
communication between client and counsel that (2) was intended
to be and was in fact kept confidential, and (3) was made for the
purpose of obtaining or providing legal advice." In re Cnty. of
Erie, 473 F.3d [413,] 419 [2d Cir.2007].

Gucci Am., Inc. v. Guess?, Inc., 271 F.R.D. 58, 70 (S.D.N.Y. 2010)(parallel citation omitted).
For these reasons Plaintiff has failed to carry her burden of establishing applicability of the
attorney-client privilege.
Moreover, even if the document is privileged, which it is not, ifit were used to refresh
Plaintiff's recollection, either at trial or during the deposition, then it would have to be produced.

See FED. R. EVID. 612; see United States v. Mount Sinai Hosp., 185 F. Supp. 3d 383,393
Page 4 of 5

(S.D.N.Y. 2016) (to the extent that a witness uses any privileged documents to refresh
recollection for purposes of testifying, those documents may not longer be withheld). From the
transcript of the deposition it appears that refreshing Plaintiffs recollection was the purpose of
creating the document, but it is not clear whether the document was actually used to refresh her
recollection, so any ruling on that basis may have to await her trial testimony.
For these reasons, Plaintiffs counsel is directed to produce the document, sanitized of
any marks or notes made by prior counsel, as described herein, to Defendant's counsel within
five business days of the date of this Order.
This constitutes the Decision and Order of this Court.
Dated: February 4, 2020
White Plains, New York

Lisa

SO ORDERED

Margaret Smith

Lisa Margaret S
United States Magistrate
Southern District ofNew

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