Lolonga-Gedeon v. Child & Family Services
Filing
164
DECISION AND ORDER. Upon in camera review, Defendants are to produce Bates Nos. CFS-PRIV0016 through and including CFS-PRIV0019, CFS-PRIV0021 through and including CFS-PRIV0040, CFS-PRIV0042, and CFS-PRIV0047 through and including CFS-PRIV0051, CFS00 0085, CFS000301, and CFS000859. Defendants need not produce Bates Nos. CFS-PRIV0001 through and including CFS-PRIV0015, CFS-PRIV0020, CFS-PRIV0041, CFS-PRIV0043 through and including CFS-PRIV0046, CFS000023, CFS000025, CFS000876, and CFS000973.. Signed by Hon. Leslie G. Foschio on 5/15/2012. (SDW)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ROSALIE LOLONGA-GEDEON,
Plaintiff,
v.
CHILD & FAMILY SERVICES,
DECISION
and
ORDER
08-CV-00300A(F)
Defendant.
APPEARANCES:
ROSALIE LOLONGA-GEDEON, Pro Se
410 Remington Pt.
Apartment 205
Greenwood, Indiana 46143-8078
HODGSON RUSS LLP
Attorneys for Defendant
ADAM W. PERRY, and
JOSHUA ISAAC FEINSTEIN, of Counsel
140 Pearl Street, Suite 100
The Guaranty Building
Buffalo, New York 14202
JURISDICTION
This case was referred to the undersigned by Honorable Richard J. Arcara on
July 25, 2008. The matter is presently before the court for in camera review of
documents which Defendant asserts are privileged and thus protected from disclosure.
BACKGROUND and FACTS1
Plaintiff Rosalie Lolonga-Gedeon (“Plaintiff” or “Lolonga-Gedeon”), an AfricanAmerican woman who had immigrated from Central Africa (Congo), commenced this
1
The Facts are taken from the pleadings and m otion papers filed in this action.
employment discrimination action on April 18, 2008, alleging Defendant Child & Family
Services (“Defendant” or “CFS”), discriminated against her based on race, color, sex
and national origin, and retaliated against Plaintiff for complaining about said
discrimination and terminated her employment. Defendant’s answer was filed on July
23, 2008 (Doc. No. 5).
Plaintiff essentially alleges that after commencing employment as a Senior Case
Manager in Defendant’s Chautauqua County office in February 2005, Defendant
repeatedly harassed Plaintiff about her accent which Defendant asserted interfered with
Plaintiff’s job performance, failed to accept Plaintiff’s assertion that Plaintiff had earned
the equivalent of a Bachelor’s degree, a requirement for Plaintiff’s Senior Case
Manager position with Defendant, and that when Plaintiff complained of the
harassment, Defendant retaliated against Plaintiff by terminating her employment on
March 27, 2007. On May 30, 2007, Plaintiff pursued administrative remedies by filing
an employment discrimination charge with New York State Division of Human Rights
(“DHR”), which, on December 12, 2007, issued a Determination and Order after
Investigation finding no evidence supporting Plaintiff’s claims of employment
discrimination.
On June 30, 2010, Plaintiff served Defendant with discovery requests including
document requests(Doc. No. 44) (“Document Requests”), and interrogatories (Doc. No.
45) (“Interrogatories”) (together, “Discovery Requests”). Defendant responded to the
Document Requests by serving Plaintiff with 850 Bates stamped responsive pages. On
August 20, 2010, Defendant served Plaintiff with a privilege log (“First Privilege Log”),
identifying 45 documents otherwise responsive to the Document Requests, but withheld
2
as protected by the attorney-client privilege, work-product doctrine, and a mediator’s
privilege pursuant to New York law. Defendant served Plaintiff with a second privilege
log dated July 27, 2011 (“Second Privilege Log”), listing three items withheld on the
basis of privilege. On October 14, 2011, Plaintiff filed a motion (Doc. No. 99) seeking to
compel discovery in response to Plaintiff’s Discovery Request and requesting in camera
review of certain documents Defendant maintains are protected from disclosure by
various privileges. In a Decision and Order filed December 9, 2011 (Doc. No. 129)
(“Dec. 9, 2011 D&O”), the undersigned directed Defendant to submit for in camera
review each document Defendant claims is privileged or work-product protected, and a
memorandum of law explaining the basis for asserting each document is either
irrelevant to Plaintiff’s Discovery Requests, privileged, or protected from disclosure.
Dec. 9, 2011 D&O at 4. Defendant served Plaintiff with a third privilege log dated
January 12, 2012 (“Third Privilege Log”), listing two additional documents Defendant
maintains are protected from disclosure.
On January 13, 2012, Defendant, in compliance with the Dec. 9, 2011 D&O, filed
the Declaration of Joshua Feinstein, Esq. (Doc. No. 142) (“Feinstein Declaration”),
attached to which as exhibits (“Defendant’s Exh(s). __”) are the First, Second, and
Third Privilege Logs (Defendant’s Exhs. A, B, and C, respectively). The documents
Defendant identified in the Privilege Logs as protected from disclosure were submitted
to the court for in camera inspection, and filed under seal. Defendant also filed on
January 13, 2012, the Affidavit of Dan Weitz (Doc. No. 143) (“Weitz Affidavit”),2 and
2
Pursuant to an E-Filing Notification dated January 17, 2012, advising that the last three pages
were not fully legible, Defendant refiled the W eitz Affidavit on January 18, 2012 (Doc. No. 146).
3
Defendant Child & Family Services’ Memorandum of Law in Support of Assertion of
Privilege (Doc. No. 144) (“Defendant’s Memorandum”). Plaintiff has not filed any
papers opposing Defendant’s assertions that the documents are privileged.
DISCUSSION
1.
Privilege
Defendant has submitted three privilege logs containing a total of 52 entries and
58 pages of documents Defendant has withheld from producing to Plaintiff on the basis
that such documents are protected as attorney-client communications, work product, or
mediation materials. Because resolution of the instant action involves federal
substantive law, e.g., Title VII, federal common law governs Defendant’s claims of
privilege. Fed.R.Civ.P. 501; see Von Bulow v. Von Bulow, 811 F.2d 136, 141 (2d Cir.
1987) (holding federal law of privilege controls where evidence sought is relevant to
both federal and pendent state claims). It is basic that privileged documents are
exempt from disclosure. United States v. Construction Products Research, Inc., 73
F.3d 464, 473 (2d Cir. 1996) (citing United States v. Morton Salt Co., 338 U.S. 632, 639
(1950)). The burden is on the party asserting the privilege to establish the essential
elements of the asserted privilege, id. (citing United States v. Adlman, 68 F.3d 1495,
1499 (2d Cir. 1995); and In re von Bulow, 811 F.2d 136, 144 (2d Cir.), cert. denied, 481
U.S. 1015 (1987)), as well as the absence of any waiver. In re Grand Jury
Proceedings, 219 F.3D 175, 191 (2d Cir. 2000) (observing work product protection can
be waived by disclosing or putting at issue subject of asserted protected documents);
S.E.C. v. Gupta, __ F.Supp.2d __; 2012 WL 990779, at * 4 (S.D.N.Y. Mar. 26, 2012)
4
(attorney waived work product by disclosing to third-party witness who did not share a
common interest with client). United States v. Int’l. Bhd. of Teamsters, 119 F.3d 210,
214 (2d Cir. 1997) (waiver of attorney-client privilege and citing United States v.
Schwimmer, 892 F.2d 237, 234 (2d Cir. 1989)). See also In re Keeper of the Records
(XYZ Corp.), 348 F.3d 16, 22 (1st Cir. 2003) (“the party who invokes the privilege bears
the burden of establishing that . . . it has not been waived”).
Defendant refers to each withheld document by its Bates stamped identifying
number. In particular, the 23 documents Defendant asserts as protected by the
attorney-client privilege include CFS-PRIV0012 through CFS-PRIV0021, CFSPRIV0023, CFS-PRIV0026, CFS-PRIV0041, CFS-PRIV0043 through CFS-PRIV0046,
CFS-PRIV0051, CFS000085, CFS000301, CFS000859, CFS000876, and CFS000973.
Defendants asserts the following 23 documents are protected from disclosure as work
product, including CFS-PRIV0022, CFS-PRIV0024, CFS-PRIV0025, CFS-PRIV0027
through CFS-PRIV0040, CFS-PRIV0042, and CFS-PRIV0047 through CFS-PRIV0051.3
Finally, Defendant maintains that 13 documents are shielded from disclosure pursuant
to New York State Judiciary Law (“N.Y. Jud. Law”)4 § 849-b(6), including CFSPRIV0001 through CFS-PRIV0011, CFS000023, and CFS000025. The court
discusses each of these documents and the asserted privilege in turn.
3
Defendant asserts Bates No. CFS-PRIV0051 is protected both by the attorney-client privilege
and as work product.
4
References to N.Y. Jud. Law are to McKinney’s 1986.
5
2. Attorney-Client Privilege
As stated, Defendant asserts 23 of the withheld documents are communications
protected from disclosure by the attorney-client privilege, including documents CFSPRIV0012 through CFS-PRIV0021, CFS-PRIV0023, CFS-PRIV0026, CFS-PRIV0041,
CFS-PRIV0043 through CFS-PRIV0046, CFS-PRIV0051, CFS000085, CFS000301,
and CFS000859, as well as redacted portions of CFS000876 and CFS000973.
According to Defendant, these documents are communications between Defendant’s
outside counsel, Elizabeth D. Carlson, Esq. (“Carlson”), and CFS Senior Management
including Human Resources Director Collette Romano (“Romano”), Executive Director
Eugene Meeks (“Meeks”), Senior Vice President and Corporate Compliance Officer
Robert Clark (“Clark”), Program Vice President Katey Joyce (“Joyce”), Vice President
for Business and Finance Ian Long (“Long”), CFS Center for Resolution and Justice
(“CRJ”) Director Julie Loesch (“Loesch”), CRJ Director of Operations Michelle Tarbox
(“Tarbox”), Senior Accountant Steve Freebern (“Freebern”), and Human Resources
Specialists Kris Addotta (“Addotta”), and Amanda Diamond (“Diamond”).
A party invoking the attorney-client privilege must demonstrate three elements,
including (1) a communication between a client and counsel, (2) intended to be and
kept confidential, and (3) made for the purpose of obtaining or providing legal advice or
services. Construction Products Research, Inc., 73 F.3d at 473 (citing Fisher v. United
States, 425 U.S. 391, 403 (1976), Adlman, 68 F.3d at 1499, and United States v.
Abrahams, 905 F.2d 1276, 1283 (9th Cir. 1990)). Because the attorney-client privilege
limits the admissibility of relevant evidence in judicial and other proceedings, it is strictly
construed. International Broth. of Teamsters, 119 F.3d at 214 (citing In re Horowitz,
6
482 F.2d 72, 81 (2d Cir.) (citing 8 Wigmore, EVIDENCE §§ 2192 at 70, 554 (1961)), cert.
denied, 414 U.S. 867 (1973)).
When information that is otherwise protected by the attorney-client privilege is
disclosed to third parties, the element of confidentiality is destroyed, and the privilege is
waived. In re Horowitz, 482 F.2d at 81 (“We deem it clear that subsequent disclosure
to a third party by the party of a communication with his attorney eliminates whatever
privilege the communication may have originally possessed, whether because
disclosure is viewed as an indication that confidentiality is no longer intended or as a
waiver of the privilege.” (citing McCormick, Evidence § 93, at 197 (Cleary ed., 1972),
and cases there cited)). Even the dissemination of confidential and privileged
information to persons within an organization not shown to have a need to know such
information waives the attorney-client privilege. Robbins & Meyers, Inc. v. J.M. Huber
Corp., 274 F.R.D. 63, 93-94 (W.D.N.Y. 2011) (citing cases). Further, communications
between a client and attorney intended for publication or communication to third-parties
are not intended to be confidential and, thus, are not within the attorney-client privilege.
Id., at 83-84 (citing cases); 5 MC CORMICK ON EVIDENCE § 91 at 408 (Kenneth S. Broun,
6th ed. 2006).
In the instant case, in camera review of each of the 23 documents for which
Defendant asserts the attorney-client privilege is protected from disclosure establishes
that the attorney-client privilege attached to 12 of the 23 documents, but as to the
remaining 11 documents, the attorney-client privilege never attached, or attached but
was waived when the otherwise privileged communications were shared with thirdparties whom Defendant has failed to establish had a “need to know” the information
7
contained in those communications. Robbins & Meyers, Inc., 274 F.R.D. at 93-94.
Accordingly, those 11 communications are not protected by the attorney-client privilege
and must be produced.
In particular, Bates Nos. CFS-PRIV0012 through and including CFS-PRIV0015
are eight email messages exchanged between Carlson and Romano, between March 5
and March 8, 2007, in which are discussed concerns Romano had about terminating
Plaintiff and Romano requests from Carlson legal advice as to how CFS should
proceed to best avoid being accused of employment discrimination in the event CFS
decided to terminate Plaintiff’s employment. Nothing indicates these communications
were shared with others or that their confidentiality was otherwise destroyed. As such,
these emails are protected by the attorney-client privilege and need not be disclosed.
Bates No. CFS-PRIV0016 is an email dated March 14, 2007, from Addotta to
Carlson, forwarding, at Romano’s request, a March 12, 2007 email Romano received
from Plaintiff. Although the email is addressed to an attorney, the communication
seeks neither legal advice nor legal services. As such, the attorney client privilege has
not attached to this communication, which must, accordingly, be disclosed.
Bates No. CFS-PRIV0017 in a March 21, 2007 email from Romano to Meeks,
and Stewart, with copies to Joyce, Loesch, and Carlson, discussing Plaintiff. Although
Carlson, an attorney, is copied on the email, the communication does not seek any
legal advice or services necessary for the attorney-client privilege to attach. Even if the
privilege had attached, it was waived by the disclosure to the other recipients of the
communication for whom Defendant has failed to explained why such recipients
needed to know such information contained therein. Although entries in Defendant’s
8
First Privilege Log identify Meeks, Stewart, Joyce and Loesch as CFS employees, and
Defendant’s answers to Plaintiff’s interrogatories (Doc. No. 48), further establish that
Stewart is CFS Executive Vice President, and Loesch is CFS Director, Center for
Resolution and Justice (“CRJ”), such that this communication was shared only with CFS
employees, Defendant’s failure to demonstrate that Meeks, Stewart, and Joyce each
needed to know the information contained in the communication has waived the
attorney-client privilege as to Bates No. CFS-PRIV0017. See Robbins & Meyers, Inc.,
274 F.R.D. at 93-94 (dissemination of confidential and privileged information to persons
within an organization “not shown to have a need to know such information” waives the
attorney client privilege). Accordingly, Bates No. CFS-PRIV0017 must be produced.
Bates No. CFS-PRIV0018 is a March 21, 2007 email from Romano to CFS
employees Tarbox, and Loesch, copied to Joyce. The specific basis for asserting this
communication is protected by the attorney-client privilege is not clear from the record
given that it does not, on its face, appear to be a communication between a client and
an attorney. Nor is there any request within the text of the communication for legal
advice or services and, as such, the communication is not protected by the attorneyclient privilege. Construction Products Research, Inc., 73 F.3d at 473. Moreover,
although Tarbox and Joyce are identified in the First Privilege Log as CFS employees,
Defendant offers no explanation as to why Tarbox and Joyce needed to know the
information contained in the communication such that even if the attorney-client
privilege attached to the communication, the dissemination of the communication to
others without a need to know waived the privilege. See Robbins & Meyers, Inc., 274
F.R.D. at 93-94. CFS has therefore failed to carry its burden establishing these
9
documents are protected. See Adlman, 68 F.3d at 1499 (party asserting the attorneyclient privilege has burden to establish the essential elements of the privilege).
Bates No. CFS-PRIV0019 consists of a facsimile cover sheet on CFS letterhead
and dated March 22, 2007, indicating the facsimile is being sent from Romano to
Carlson regarding Plaintiff. This communication, although to an attorney, does not seek
legal advice or services and, as such, is not protected by the attorney-client privilege
and must be produced.
Bates No. CFS-PRIV0020 is a March 23, 2007 email from Romano to Carlson
from whom Romano requests legal advice regarding Plaintiff. There is no indication the
communication has been disseminated to anyone else. Because the communication is
between an attorney and client seeking legal advice, with no indication the
communication was not kept confidential, it is protected by the attorney-client privilege
and need not be produced.
Bates Nos. CFS-PRIV0021 and CFS-PRIV0023, which are identical, are a March
23, 2007 email from Romano to Freebern, copied to Meeks, Clark, Stewart, Carlson,
and Long, discussing the need to notify Defendant’s liability insurance carrier of the
possibility that a discrimination claim will be filed by Plaintiff against Defendant.
Although Defendant describes this communication as an “Email concerning legal advice
re: Lolonga-Gedeon,” First Privilege Log, Bates Nos. CFS-PRIV0021, and CFSPRIV0023, a review of the communication’s text establishes it addresses notice to
Defendant’s liability insurance carrier and seeks neither legal advice nor services. As
such, the attorney-client privilege has not attached to the communication, which must
be produced.
10
Bates No. CFS-PRIV0026 is a facsimile coversheet on CFS letterhead, dated
March 27, 2007, and indicating Romano was sending to Carlson one document
regarding Plaintiff. Defendant asserts that the attached document has already been
produced to Plaintiff, but the cover sheet was withheld to prevent Plaintiff from learning
that the attached document Defendant had already produced to Plaintiff had also been
provided to Defendant’s counsel to obtain legal advice and, and, as such, was a
shielded communication. Defendant’s Memorandum at 3. Defendant references no
caselaw in support of the novel assertion that the fact that a document has been shared
with an attorney vests the document with the attorney-client privilege and the court’s
research has revealed none. It is significant that because Defendant has already
produced to Plaintiff the document attached to the cover sheet, any attorney-client
privilege that could have attached to such document has been waived. Moreover,
although the cover sheet is addressed to an attorney, no legal advice or services are
sought and, as such, this communication is not protected by the attorney-client privilege
and must be produced.
Bates No. CFS-PRIV0041 is an email dated April 5, 2007, from Romano to
Carlson seeking advice from Carlson as to how to respond to questions posed by
CFS’s liability insurance carrier regarding Plaintiff. Because this communication
consists of a client’s request to an attorney for legal advice under circumstances
suggesting it was intended to be confidential, and in the absence of any indication that
the communication was disseminated to any third-party thereby destroying
confidentiality, it is protected by the attorney-client privilege and need not be produced.
Bates Nos. CFS-PRIV0043 through and including CFS-PRIV0046 is comprised
11
of an email dated April 5, 2007 from Carlson to Romano, responding to Romano’s
request contained in Bates No. CFS-PRIV0041, attached to which are documents for
Carlson’s review detailing Defendant’s attempts to verify Plaintiff’s education. There is
no indication that this apparently confidential communication, from a client seeking legal
advice to an attorney, was disseminated to anyone other than Carlson and Romano.
Accordingly, the communication is protected by the attorney-client privilege and need
not be produced.
Bates No. CFS-PRIV0051 contains two emails, both dated June 7, 2007, albeit
sent two hours apart, by Romano to Joyce and Loesch, and copied to Stewart. The
earlier email discusses the receipt of documentation that did not support Plaintiff’s claim
that she had earned the equivalent of a bachelor’s degree, while the latter email further
advises that Defendant’s attorney had approved of the source of the information
contained in the earlier email. Although these communications discuss attempts to
obtain documentation verifying Plaintiff’s asserted education, there is no indication they
constitute a confidential communication with Ms. Carlson; in any event, their
dissemination to Joyce, Loesch, and Stewart without Defendant first establishing each
of these persons had a need to know the information contained therein has waived any
possible attorney-client privilege such that the communication must be produced.
Bates No. CFS000085 is a facsimile coversheet on CFS letterhead, dated March
20, 2007, indicating Romano was sending Carlson via facsimile transmission 12 pages
of documentation regarding Plaintiff, and requesting Carlson telephone Romano upon
receiving the information. The communication itself, however, does not request legal
advice or services. As such, the communication is not protected and must be
12
produced.
Bates No. CFS000301 is a facsimile coversheet on CFS letterhead, dated March
6, 2007, indicating Romano was sending Carlson via facsimile transmission 10 pages of
documentation. Unlike Bates No. CFS000085, Bates No. CFS000301 does not
indicate the subject of documentation. As with Bates No. CFS-PRIV0026, Defendant
asserts that the attached documents have already been produced to Plaintiff, but the
cover sheet was withheld to prevent Plaintiff from learning that the attached documents
Defendant had already produced to Plaintiff had also been provided to Defendant’s
counsel to obtain legal advice and, as such, the cover sheet is a shielded
communication. Defendant’s Memorandum at 3. Nevertheless, the communication
itself does not request legal advice or services and, as such, is not protected by the
attorney-client privilege and must be produced.
Bates No. CFS000859 is a facsimile coversheet on CFS letterhead, dated March
16, 2007, indicating CFS Human Resource Assistant Amanda Diamond (“Diamond”)
was sending Carlson, via facsimile transmission, six pages of documentation regarding
Plaintiff. Defendant again asserts that the attached documents have already been
produced to Plaintiff, but the cover sheet was withheld to prevent Plaintiff from learning
that the attached documents Defendant had already produced to Plaintiff had also been
provided to Defendant’s counsel to obtain legal advice and, and, as such, the cover
sheet is a shielded communication. Defendant’s Memorandum at 3. The
communication, however, contains no other text that could be construed as seeking
legal advice or services. Accordingly, the attorney-client privilege never attached to the
communication and it must be produced.
13
Bates No. CFS000876 consists of two emails, both dated March 8, 2007,
exchanged between Romano and Carlson.5 In the earlier email, Romano requests
legal advice regarding Plaintiff, and in the latter email, Carlson responds to Romano’s
request with legal advice. The circumstances of the exchange suggests the
communication to Carlson was intended by CFS to be confidential. There is no
indication the communications were ever disseminated to anyone else, such that the
attorney-client privilege that attached to the communications continues to protect the
communications from disclosure.
Bates No. CFS000973 contains two emails, both dated July 27, 2007,
exchanged between Romano and Carlson.6 In the earlier email, Romano requests
Carlson’s reaction to another email, already produced to Plaintiff, regarding the
conferment of Plaintiff’s college degree suggesting its confidential nature. In the latter
email, Carlson provides her interpretation of the earlier email. There is no indication the
redacted communications were ever disseminated to anyone else. Accordingly, the
attorney-client privilege protects the communications contained in the two emails
exchanged between Romano and Carlson and need not be produced.
5
Bates No. CFS000876 actually contains three em ails, including the two exchanged between
Rom ano and Carlson, and an earlier em ail also dated March 8, 2007, from Plaintiff to one M.J. Cartwright
(“Cartwright”), copied to Rom ano, regarding the academ ic credits Plaintiff had earned, and which has
already been provided to Plaintiff. As is indicated by highlighting, the earlier em ail exchanged between
Plaintiff and Cartwright was already provided to Plaintiff, while the two em ails between Rom ano and
Carlson were redacted.
6
Sim ilar to Bates No. CFS000876, Bates No. CFS000973 also contains three em ails, including
the two exchanged between Rom ano and Carlson on July 27, 2007, and an earlier em ail also dated July
27, 2007 from Plaintiff to Loesch, and Tarbox, copied to Joyce, regarding one Jeanne Kratt who, although
eligible to receive a degree, failed to apply for its conferm ent. As is indicated by highlighting, the em ail
exchanged between Rom ano and Loesch and Tarbox was already provided to Plaintiff, while the two
em ails between Rom ano and Carlson were redacted.
14
In summary, Bates Nos. CFS-PRIV0012, CFS-PRIV0013, CFS-PRIV0014, CFSPRIV0015, CFS-PRIV0020, CFS-PRIV0041, CFS-PRIV0043, CFS-PRIV0044, CFSPRIV0045, CFS-PRIV0046, CFS000876, and CFS000973, are protected by the
attorney-client privilege and need not be produced. Bates Nos. CFS-PRIV0016, CFSPRIV0017, CFS-PRIV0018, CFS-PRIV0019, CFS-PRIV0021, CFS-PRIV0023, CFSPRIV0026, CFS-PRIV0051,CFS000085, CFS000301, and CFS000859, however, are
not protected by the attorney-client privilege, either because the privilege never
attached, or the privilege has been waived through dissemination of the communication
to those without a demonstrated need to know the information sufficient to avoid a
waiver of any privilege, and must be produced.
3.
Work Product
Defendant has withheld from Plaintiff 23 documents on the basis that the
documents were prepared in anticipation of litigation and are thus protected as work
product. The withheld documents include Bates Nos. CFS-PRIV0022, CFS-PRIV0024,
CFS-PRIV0025, CFS-PRIV0027 through and including CFS-PRIV0040, CFSPRIV0042, and CFS-PRIV0047 through and including CFS-PRIV0051. All such
withheld documents are communications between Defendant and its insurance carrier
except for Bates Nos. CFS-PRIV0022 and CFS-PRIV0024 which are between Romano
and CFS Senior Accountant with CRJ Freebern. Defendant’s Memorandum at 2, n. 5,
and 4. According to Defendant, disclosure of communications between insured litigants
and their insurance carriers could hamper litigation by rendering the insured litigants
unable to comply with their duty to disclose information required by the insurance
15
carrier, without risking having to later disclose such information to litigation adversaries.
Id. at 3-4. Plaintiff has not responded in opposition to this argument.
The so-called “work product doctrine” is codified in Fed.R.Civ.P. 26(b)(3) which
provides that “[o]rdinarily, a party may not discover documents and tangible things that
are prepared in anticipation of litigation or for trial by or for another party or its
representative (including the other party’s attorney, consultant, surety, indemnitor,
insurer, or agent.).” The work-product doctrine “is intended to preserve a zone of
privacy in which a lawyer can prepare and develop legal theories and strategy ‘with an
eye toward litigation,’ free from unnecessary intrusion by his adversaries.” United
States v. Adlman, 134 F.3d 1194, 1196 (2d Cir. 1998) (quoting Hickman v. Taylor, 329
U.S. 495, 510-11 (1947). A party asserting the work product doctrine must demonstrate
that “the documents were prepared principally or exclusively to assist in anticipated or
ongoing litigation.” Construction Products Research, Inc., 73 F.3d at 473 (citing Fed. R.
Civ. P. 26(b)(3) and cases). Documents prepared in the ordinary course of business
are not protected as work product unless the proponent of the protection demonstrates
that the documents would not have been created “but for” the prospect of litigation.
Adlman, 134 F.3d at 1202-04. As with the attorney-client privilege, the work product
doctrine is to be strictly construed, with the burden on the proponent to establish its
applicability and non-waiver. In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d
180, 183 (2d Cir. 2007) (“the party invoking the [work product] privilege bears the heavy
burden of establishing its applicability.”).
With regard to “documents prepared by or for an insurance company, federal
courts generally take a fact specific approach in determining the applicability of the
16
doctrine.” Selective Insurance Company of America v. Swarey, 2011 WL 240750, at * 1
(W.D.N.Y. Jan. 24, 2011). “Because the very business of insurance companies is to
investigate and evaluate claims that might erupt into litigation, ‘without some limiting
principle virtually the entirety of an insurance company’s files would be exempt from
discovery.’” Id. (quoting American Ins. Co. v. Elgot Sales Corp., 1988 WL 647206, at *
1 (S.D.N.Y. Sept. 21, 1998)). “Generally, ‘[a]n investigation that is undertaken to
determine whether there is coverage, whether the claim should be paid and whether a
subrogation claim could be pursued, is not undertaken in anticipation of litigation.’” Id.
(quoting Nicklasch v. JLG Indus., Inc., 193 F.R.D. 568, 570 (S.D.Ind. 1999)).
“[T]he issue of work-product protection is particularly complicated in the context
of insurance claims, since insurance companies are ‘in the business of investigating
and adjusting claims,’ thereby blurring the distinction between documents prepared in
the ordinary course of business and those prepared because of anticipated litigation.”
Koppel v. United National Insurance Co., Inc., 2008 WL 5111288, at * 1 (E.D.N.Y. Nov.
26, 2008) (quoting Mount Vernon Fire Ins. Co. v. Platt, 1999 WL 892825, at *2
(S.D.N.Y. Oct. 19, 1999)). “‘In the context of insurance company cases it has been
recognized that at a certain point an insurance company’s activity shifts from the
ordinary course of business to anticipation of litigation.’” Swarey, 2011 WL 240750, at *
2 (quoting American Ins. Co., 1988 WL 647206, at *1 (internal quotation and citation
omitted)). As such, “[t]he relevant inquiry is ‘when the insurance company shifted its
focus from collecting information and evaluating a claim to preparation for a lawsuit.’”
Id. (quoting Taroli v. General Electric Co., 114 F.R.D. 97, 99 (N.D.Ind. 1987), aff’d, 840
F.2d 920 (7th Cir. 1988)). “‘[C]ourts frequently presume that investigative reports
17
prepared by or for an insurer prior to a coverage decision are prepared in the ordinary
course of the insurer’s business and are not afforded work-product protection.’” 105
Street Associates, LLC v. Greenwich Ins. Co., 2006 WL 3230292, at *2 (S.D.N.Y. Nov.
7, 2006) (quoting Mount Vernon Fire Insurance Company v. Try 3 Building Services,
Inc., 1998 WL 729735, at *6 (S.D.N.Y. Oct. 16, 1998)). In the instant case, a review of
the documents Defendant has withheld as work product establishes that they are not
protected by that doctrine.
In particular, with the exception of Bates No. CFS-PRIV0051, all the documents
to which Defendant asserts protection from disclosure as work product were prepared
between March 23, 2007 and April 9, 2007, well before Plaintiff filed her administrative
claim with DHR on May 30, 2007. Further, Defendant has not submitted any affidavit
made by someone with personal knowledge or other documentation establishing that
Defendant received any notice that Plaintiff was actually pursuing any claim for which
Defendant would have sought coverage from its insurer prior to the dates of these
communications. See 105 Street Associates, LLC, 2006 WL 3230292, at *2 (refusing
to extend work product protection to investigative reports prepared by or for an insurer
prior to a coverage decision). Moreover, Bates Nos. CFS-PRIV0022 and CFSPRIV0024, consist of emails dated March 23, 2007, exchanged between Romano and
Freebern discussing the telephone number for the insurance claims representative to
be contacted in case Plaintiff were to file a claim and makes no reference to any legal
theory or strategy. Adlman, 134 F.3d at 1204 (“The Memorandum falls within the most
protected category of work product - that which shows the ‘mental impressions,
conclusions, opinions or legal theories of an attorney or other representative.’” (quoting
18
Fed.R.Civ.P. 26(b)(3))). Similarly, although Bates No. CFS-PRIV0025 contains emails
exchanged on March 26, 2007 between Romano and one Charmaine A. Derenda
(“Derenda”), an insurance claim representative with Walsh Duffield, Defendant’s
insurance agent, and mentions that an employment discrimination action is anticipated,
the emails merely refer to Defendant’s need to document why Plaintiff is being
terminated from CFS. Bates Nos. CFS-PRIV0027 through and including CFSPRIV0032 is a communication from Mark A. Frombach (“Frombach”), Sr. Professional
Liability Examiner with Defendant’s insurer, Philadelphia Insurance Companies (“PIE”)
to Romano enclosing a copy of portions of Defendant’s liability insurance policy that
may be relevant to any claim Plaintiff were to file regarding the termination of her
employment. Again, these documents do not contain any legal theory or strategy .
Other documents that are devoid of any legal theory or strategy include Bates No. CFSPRIV0033 which is a copy of an envelope bearing a return address for PIE, Bates No.
CFS-PRIV0034 which is a handwritten note with a telephone number for Frombach at
PIE and the notation “Notice of Potential Claim” with a number and Plaintiff’s name,
Bates No. CFS-PRIV0035 which is more handwritten notes, the author of which is not
revealed, Bates Nos. CFS-PRIV0036 through and including CFS-PRIV0040, CFSPRIV0042, and CFS-PRIV0047 through and including CFS-PRIV0050 which are emails
dated between March 29, 2007 and April 9, 2007, and discussing general information
about Plaintiff’s employment with CFS, but no legal theory or strategy. Finally, Bates
No. CFS-PRIV0051 is comprised of two emails dated June 7, 2007, after Plaintiff filed
her administrative employment discrimination claim with DHR, exchanged between
Romanno, Joyce, Loesch, and Stewart, discussing documentation regarding Plaintiff’s
19
education credentials. Nevertheless, these emails also fail to reveal any legal theory or
strategy and, as such, are not protected as work product.
In short, none of the documents which Defendant maintains are work product are
protected as such and must be produced.
4.
Mediation Privilege
Defendant has withheld from production Bates Nos. CFS-PRIV0001 through and
including CFS-PRIV0011, and redacted portions of Bates Nos. CFS000023 and
CFS000025, on the basis that such communications are mediation materials that are
protected from disclosure pursuant to N.Y. Judiciary Law § 849-b[6] (“§ 849-b[6]”).
Defendant’s Memorandum at 4-7. According to Defendant, the privilege created by
New York in § 849-b[6] exempts from discovery a mediator’s memoranda, work
product, and case files, as well as communications pertaining to the subject matter of
the resolution made during the resolution process by any mediation participant or others
present during mediation. Id. at 4-5. In support of its argument, Defendant submits the
affidavit of Dan Weitz (“Weitz”) (Doc. No. 146), Deputy Director of the Division of
Professional and Court Services for New York’s Unified Court System, Office of Court
Administration (“OCA”). Weitz explains that the Community Dispute Resolution Centers
(“CDRC”) provide mediation services to the public under a contract with the OCA and
pursuant to Article 21-A of New York’s Judiciary Law (“Art. 21-A”). Weitz Affidavit ¶ 2.
The CRJ, operated by Defendant, qualifies as a CDRC providing mediation services
pursuant to Art. 21-A under the CDRC’s contract with the OCA. Id. ¶ 3. As such, any
mediation case files prepared by the CRJ are protected as confidential under Art. 21-A
20
and § 849-6(b). Id. ¶¶ 4-6. Because Plaintiff has not filed any papers opposing
Defendant’s assertions of privilege, Weitz’s explanation that the CRJ’s mediation
services are provided pursuant to Art. 21-A under the CDRC’s contract with the OCA is
unchallenged.
“An assertion of privilege may preclude the admission of relevant evidence, but
only to the extent the privilege is recognized ‘by the principles of the common law as
they may be interpreted by the courts of the United States.’” United States v. One
Parcel of Property Located at 31-33 York Street, 930 F.2d 139, 141 (2d Cir. 1991)
(quoting Fed.R.Evid. 501 (“Rule 501")). Pursuant to Rule 501, where federal law
supplies the rule of decision regarding a claim or defense, the common law, as
interpreted by federal courts, governs a claim of privilege unless otherwise provided by
the Constitution, a federal statute, or rules prescribed by the Supreme Court. Here,
because Plaintiff’s employment discrimination claims are brought pursuant to Title VII, a
federal law applies to such claims and Defendant’s claims of privilege are pursuant to
common law. Although the mediation privilege on which Defendant relies has been
created by state statute rather than the common law, generally “as a matter of comity
federal courts accord deference to state-created privileges, [albeit] such privileges are
construed narrowly, and must yield when outweighed by a federal interest in presenting
relevant information to a trier of fact.” One Parcel of Property Located at 31-33 York
Street, 930 F.2d at 141 (citing Memorial Hospital v. Shadur, 664 F.2d 1058, 1061-63
(7th Cirt. 1981), and Von Bulow v. Von Bulow, 811 F.2d 136, 141 (2d Cir.), cert. denied,
481 U.S. 1015 (1987)).
The CDRC Program was established in 1981 by N.Y. Jud. Law §§ 849-a to 84921
g, in response to a “compelling need for the creation of . . . alternatives to structured
judicial settings.” United States v. Gullo, 672 F.Supp. 99, 102 (W.D.N.Y. 1987). New
York Judiciary Law establishes that the CDRC program is “to be administered and
supervised under the direction of the chief administrator of the courts, to provide funds
pursuant to this article [Art. 21-A] for the establishment and continuance of dispute
resolution centers on the basis of need in neighborhoods.” N.Y. Jud. Law § 849-b[1].
Each program is to be operated by a grant recipient. Id. § 829-b[2]. Further, all CDRCs
are to be operated pursuant to a contract with the chief court administrator in
compliance with Art. 21-A, and the chief administrator is vested with authority to
promulgate rules and regulations to effectuate the purposes of Art. 21-A. Id. § 849-b[3].
Accordingly, based on the statements by Weitz, undisputed by Plaintiff, the CRJ
qualifies as a CDRC providing mediation services pursuant to Art. 21-A under the
CDRC’s contract with the OCA.
Of particular relevance to this case, § 849-b[6] provides
Except as otherwise expressly provided in this article, all memoranda, work
product, or case files of a mediator are confidential and not subject to disclosure
in any judicial or administrative proceeding. Any communication relating to the
subject matter of the resolution made during the resolution process by any
participant, mediator, or any other person present at the dispute resolution shall
be a confidential communication.
N.Y. Jud. Law § 849-b[6].
Accordingly, § 849-b[6] creates a privilege to which, generally, “as a matter of comity
federal courts accord deference. . . .” One Parcel of Property Located at 31-33 York
Street, 930 F.2d at 141.
This court’s research has revealed that in the only reported federal case
22
discussing the mediation material privilege created by § 849-b[6], the court balanced
four factors in deciding whether to recognize the privilege. United States v. Gullo, 672
F.Supp. 99, 103-04 (W.D.N.Y. 1987), a criminal case in which the defendant sought
dismissal of an indictment based on the fact that statements the defendant had made
during a dispute resolution process at a community dispute resolution center were
privileged and should have been suppressed from the grand jury. The four balancing
factors included (1) the need for the information to enforce substantive and procedural
policies; (2) the importance of the relationship or policy sought to be furthered by the
state-created privilege and the likelihood the privilege would advance the relationship or
policy; (3) the special need for the information sought to be protected; and (4) any
adverse impact on the local policy resulting from not recognizing the privilege. Id. at
104. Upon balancing the four factors, the court found that although the first factor
weighed against the privilege, under the second and fourth factors, failing to recognize
the privilege could seriously discourage participation in the dispute resolution program,
interfering with the program’s effectiveness and placing funding for the program in
jeopardy, and that the government had failed to show any particularized need for the
information. Id. As such, the court, pursuant to Rule 501, recognized the privilege
afforded by § 849-b[6], suppressing from use at a criminal trial all statements made
during dispute resolution involving the defendant, but refused to dismiss the indictment
on the basis that the disclosure of such privileged materials to the grand jury, in the
absence of any evidence establishing the use of such information was prejudicial to the
defendant, did not require dismissal. Id. at 103-04.
Similarly, the only reported New York case is People v. Snyder, 492 N.Y.S.2d
23
890 (N.Y.Sup.Ct., Erie Co., 1985), a criminal proceeding for murder and criminal
possession of a weapon. In Snyder, the district attorney subpoenaed from a
community dispute resolution center all records pertaining to mediation efforts between
the defendant and the victim. Snyder, 492 N.YS.2d at 891. The court, noting that
“[t]here appears to be no reported case construing Section 849-b[6] of the Judiciary
Law,” granted the defendant’s motion to quash a subpoena for the mediation records
because “[t]o grant the District Attorney’s request to review the records of the
Community Dispute Resolution Center would subvert the legislature’s clear intention to
guarantee the confidentiality of all such records and communications.” Id. at 842.
Because the only two reported cases that have considered § 849-b[6] have recognized
the privilege created thereunder, this court also recognizes it.
Balancing the four factors considered in Gullo, 672 F.Supp. at 104, establishes
that the mediation privilege under § 849-b[6] should be applied in the instant case. In
particular, “[d]iscovery rules ‘are to be accorded a broad and liberal treatment [ ] to
effectuate their purpose that civil trials in the federal courts no longer need be carried
on in the dark.’” Ratliff v. Davis Polk & Wardwell, 354 F.3d 165, 170 (2d Cir. 2003)
(quoting Schlagenhauf v. Holder, 379 U.S. 104, 115 (1964)). The first fact thus weighs
against recognizing the privilege. The second and fourth factors, however, weigh in
favor of the privilege as the failure to recognize the privilege could interfere with frank
discourse in mediation, discourage participation in the dispute resolution program, and
jeopardize funding for the CDRC program. As for the third factor, Plaintiff has failed to
demonstrate any particular need for materials from mediation cases on which she may
have worked while employed with Defendant. Accordingly, the factors weigh in favor of
24
recognizing the privilege and the court thus considers whether Defendant’s withholding
of information as privileged under § 849-b[6] was proper.7
Bates Nos. CFS-PRIV0001through and including CFS-PRIV0003, and CFSPRIV0007 through and including CFS-PRIV0009 consist of case notes pertaining to
CRJ Case No. CQ4678, CFS-PRIV0004 through and including CFS-PRIV0006 is a
case summary for CRJ Case No. CQ4678, and Bates Nos. CFS-PRIV0010 through and
including CFS-PRIV0011 are case notes pertaining to CRJ Case No. CQ-4476.8 A
review of these documents establishes they consist of notes and a case summary
prepared in connection with mediation of two separate cases at the CRJ. Because the
statements contained in Bates Nos. CFS-PRIV0001 through and including CFSPRIV0011 were made in the course of mediation at the CRJ, such statements are,
pursuant to § 849-b[6], confidential and not subject to disclosure.
Bates Nos. CFS000023 and CFS0000259 are redacted mediation materials
exchanged between CFS employee Kristen M. Wright (“Wright”) and Romano, dated
December 16, 2006, and described by Defendant as “Quality Concerns.” Each of these
documents consists of what appear to be case notes from a mediation file, singlespaced, which have already been disclosed to Plaintiff, with the exception of the
7
This conclusion is consistent with the policy foundation for Fed.R.Evid. 408 rendering settlem ent
discussions as inadm issible evidence.
8
A plain reading of the docum ents com prising Bates Nos. CFS-PRIV0001 through and including
CFS-PRIV0011 establishes that Defendant has m istakenly described them in the First Privilege Log. In
particular, Defendant describes Bates Nos. CFS-PRIV0001 through CFS-PRIV0002 as the “Case
Sum m ary re: Case No. CQ4678,” Bates No. CFS-PRIV0003 as “CQ4678 Case Notes,” and Bates Nos.
CFS-PRIV0004 through and including CFS-PRIV0011 as “CQ4476 Case Notes.” First Privilege Log.
9
Attached to Third Privilege Log, Defendant’s Exh. C.
25
redaction of one surname in its entirety, and the redaction of four partial names, save
for the initials. Given that these materials qualify as mediation materials, the redacted
portions of Bates Nos. CFS000023 and CFS000025 are privileged under § 849-b[6]
and need not be disclosed.
Defendant need not disclose any of the materials Defendant asserts are
privileged under § 849-b[6], including Bates Nos. CFS-PRIV0001 through and including
CFS-PRIV0011, CFS000023 and CFS000025.
CONCLUSION
Upon in camera review, Defendants are to produce Bates Nos. CFS-PRIV0016
through and including CFS-PRIV0019, CFS-PRIV0021 through and including CFSPRIV0040, CFS-PRIV0042, and CFS-PRIV0047 through and including CFS-PRIV0051,
CFS000085, CFS000301, and CFS000859. Defendants need not produce Bates Nos.
CFS-PRIV0001 through and including CFS-PRIV0015, CFS-PRIV0020, CFSPRIV0041, CFS-PRIV0043 through and including CFS-PRIV0046, CFS000023,
CFS000025, CFS000876, and CFS000973.
SO ORDERED.
/s/ Leslie G. Foschio
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:
May 15, 2012
Buffalo, New York
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