O'KINSKY v. PERRONE et al

Filing 43

MEMORANDUM ORDER THAT COUNSEL FOR PLAINTIFF MAY ASSERT THE ATTORNEY-CLIENT PRIVILEGE DURING PLAINTIFF'S DEPOSITION IN RESPONSE TO QUESTIONS ASKING TO REVEAL THE CONTENT OF COMMUNICATIONS PLAINTIFF HAD WITH HIS FORMER ATTORNEY, IVAN J. KAPLAN, ESQUIRE OF BECKER MEISEL, LLC; ETC.. SIGNED BY MAGISTRATE JUDGE THOMAS J. RUETER ON 10/10/2012. 10/11/2012 ENTERED AND COPIES E-MAILED. (ems)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

EDWARD J. O’KINSKY

:

v.

:

WILLIAM A. PERRONE, et al.

:

CIVIL ACTION

NO. 10-6075

MEMORANDUM ORDER

AND NOW, this 10th day of October, 2012, after a telephone conference call this
date, the court hereby ORDERS that, except as noted herein, counsel for plaintiff may assert the
attorney-client privilege during plaintiff’s deposition in response to questions asking to reveal the
content of communications plaintiff had with his former attorney, Ivan J. Kaplan, Esquire of
Becker Meisel, LLC.
The “attorney-client privilege operates in a two-way fashion to protect
confidential client-to-attorney or attorney-to-client communications made for the purpose of
obtaining or providing professional legal advice.” Gillard v. AIG Ins. Co., 15 A.3d 44, 59 (Pa.
2011) (footnote omitted). There is no dispute that the attorney-client privilege applies here. Mr.
Kaplan was acting as legal counsel to plaintiff Edward J. O’Kinsky when the communications
were made, the communications relate to a fact of which Mr. Kaplan was informed by Mr.
O’Kinsky, the communications were made without the presence of strangers for the purpose of
securing primarily either an opinion of law or legal services, and not for the purpose of
committing a crime or tort. See Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851,
862 (3d Cir. 1994) (describing the elements of the attorney-client privilege under federal

common law). The dispute between the parties concerns whether plaintiff waived the privilege
either (1) by filing this legal malpractice action, or (2) by partially disclosing the advice from Mr.
Kaplan in an e-mail sent by plaintiff to two of the defendants.
1.

Malpractice Action
The court finds that plaintiff did not waive the attorney-client privilege by filing

this action. It is true that the privilege may be waived when the client sues his attorney for
malpractice. See Allstate Ins. Co. v. LaBrum and Doak, 1989 WL 38666, at *2 (E.D. Pa. 1989)
(“Generally, a client waives the attorney-client privilege by filing a legal malpractice claim.”).
Here, however, plaintiff has not filed a claim against attorney Kaplan, but against defendant
attorneys and parties, unaffiliated with Mr. Kaplan. Plaintiff’s communications to Mr. Kaplan
regarding the transaction which is the subject of this legal malpractice action against defendants
may be relevant to the claims in the Amended Complaint, such as showing plaintiff’s knowledge
or state of mind. However, relevance alone does not constitute a waiver of the attorney-client
privilege. “Relevance is not the standard for determining whether or not evidence should be
protected from disclosure as privileged, and that remains the case even if one might conclude the
facts to be disclosed are vital, highly probative, directly relevant or even go to the heart an issue.”
Rhone-Poulenc Rorer, 32 F.3d at 864.
2.

Disclosure in E-mail
Prior to the litigation, and during the course of the business transaction that

plaintiff had with defendants William Luby and Alasdair Richie, plaintiff sent an e-mail to Luby
and Richie on April 10, 2010, in which he revealed Mr. Kaplan’s opinion to him that the
business deal proposed by Luby and Richie was a “bad deal for me.” (Attached as Exhibit to
2

David Jacquette’s Letter dated Oct. 9, 2012.) There is no dispute that plaintiff has waived the
attorney-client privilege as to the contents of this e-mail. Defendants may introduce this e-mail
at trial, and question plaintiff as to its authenticity. Defendants, however, request that the court
impose a full waiver as to all communications between plaintiff and Mr. Kaplan. The court
refuses to do this for the following reasons.
It is true that courts have found an implied waiver of all confidential attorneyclient communications when the party asserting the privilege uses the privilege both as a sword
and a shield by selectively disclosing communications to gain an advantage in litigation. See In
re Chevron Corp., 633 F.3d 153 (3d Cir. 2011) (Plaintiffs waived attorney-client privilege by
disclosing privileged communications to a court-appointed expert to gain advantage in the
litigation.). This “fairness doctrine” has been applied by the courts in order “to prevent prejudice
to a party and distortion of the judicial process that may be caused by the privilege-holder’s
selective disclosure during litigation of otherwise privileged information.” In re von Bulow, 828
F.2d 94, 101 (2d Cir. 1987). See also Westinghouse Elec. Corp. v. Republic of Philippines, 951
F.2d 1414, 1426 n. 12 (3d Cir. 1991) (“When a party discloses a portion of otherwise privileged
materials while withholding the rest, the privilege is waived only as to those communications
actually disclosed, unless a partial waiver would be unfair to the party’s adversary.”).
However, this court finds that the “fairness doctrine” does not justify the
disclosure of all confidential communications between Mr. Kaplan and plaintiff, whether on the
same subject matter as the e-mail, or on a different subject matter. The e-mail of April 10, 2010,
in which plaintiff disclosed the privileged communication, occurred months before the start of
this litigation. This is not the situation where in the course of a judicial proceeding, the plaintiff
3

deliberately injected in the case the advice he received from his attorney. Instead, it was the
defendants who disclosed the e-mail to plaintiff in the course of discovery. Indeed, all parties
agree that the e-mail hurts plaintiff’s case, rather than helps it, since the e-mail demonstrates
plaintiff knew the business deal was not advantageous to him, yet he proceeded with it. Thus,
because this is a case of an extrajudicial disclosure of an attorney-client communication that
plaintiff is not affirmatively using in this litigation to his adversaries’ prejudice, plaintiff does not
waive the privilege as to all of the other undisclosed communications between himself and Mr.
Kaplan. See Rhone-Poulenc Rorer, 32 F.3d at 863-64 (court found no waiver of confidential
communications because the advice of counsel was not placed in issue by the client); In re von
Bulow, 828 F.2d at 103 (court refused to impose full waiver as to all communications on the
same subject matter where the client had merely disclosed the communication to a third party as
opposed to making some use of it in the litigation). See also In re Chevron Corp., 650 F.3d 276,
287-88 (3d Cir. 2011) (quoting In re von Bulow, 828 F.2d at 102-03).

BY THE COURT:

___/s/ Thomas J. Rueter________________
THOMAS J. RUETER
United States Magistrate Judge

4