Calise et al v. Brady Sullivan Harris Mills, LLC et al
Filing
75
REPORT AND RECOMMENDATIONS re (66 in 1:18-cv-00100-WES-PAS, 65 in 1:18-cv-00099-WES-PAS) MOTION for Protective Order and Other Relief filed by Brady Sullivan Harris Mills, LLC, Brady Sullivan Properties, LLC Objections to R&R due by 4/11/2019.. I recommend that Brady Sullivans motion for a protective order and other relief (ECF No. 65), construed as a motion for a permanent injunction,be granted and that the Court enter a permanent injunction So Ordered by Magistrate Judge Patricia A. Sullivan on 3/28/2019. Associated Cases: 1:18-cv-00099-WES-PAS, 1:18-cv-00100-WES-PAS(Saucier, Martha)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
WILLIAM CALISE, et al.,
Plaintiffs,
v.
BRADY SULLIVAN HARRIS
MILLS, LLC, et al.,
Defendants.
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C.A. No. 18-99WES
Consolidated with
JOSEPH M. RACHIELE, et al.,
Plaintiffs,
v.
BRADY SULLIVAN HARRIS
MILLS, LLC, et al.,
Defendants.
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C.A. No. 18-100WES
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, United States Magistrate Judge.
Virtually all difficult ethical problems arise from conflict between a lawyer’s
responsibilities to clients, to the legal system and to the lawyer’s own interest in
remaining an ethical person while earning a satisfactory living.
R.I. Rules of Professional Conduct, Preamble ¶ 9.
This wise precept, established by the Rhode Island Supreme Court as a guide for
attorneys in discharging their competing responsibilities, supplies the motif that recurs
throughout the unfortunate tale told in this report and recommendation. Pending before the
Court is the motion of Defendants Brady Sullivan Harris Mill, LLC, and Brady Sullivan
Properties, LLC, (“Brady Sullivan”) seeking a permanent injunction.1 ECF No. 65. The motion
Brady Sullivan labeled its motion as one seeking “Protective Order and Other Relief.” ECF No. 65 at 1. At the
hearing on the motion, the parties and Attorneys Coloian and Calabro agreed that it is really a motion seeking a
1
arises in both of these consolidated cases (“the Cases”),2 which are based on an alleged mold
infestation in a renovated mill building. Brady Sullivan is the real estate development
corporation that renovated and manages the building; Plaintiffs are tenants in two of the
apartment units. The motion veers off course from the merits of the Cases. Its focus is on the
conduct of the two attorneys – Artin Coloian and Daniel Calabro, Jr. – who filed both of the
Cases but withdrew on the eve of the Court’s bench decision on Brady Sullivan’s motion to
disqualify them. Plaintiffs are now represented by other counsel.
The pending motion is based on Brady Sullivan’s well-founded assertion that Attorneys
Coloian and Calabro accepted as clients two of its former employees, an engagement fraught
with undisclosed and unresolved conflicts of interests, as a result of which the Attorneys came
into possession of Brady Sullivan’s contractually protected confidential information, attorneyclient information and related attorney work product (collectively, “Confidential Information”)
without authorization or consent in violation of Brady Sullivan’s legal rights. Having acted
promptly and worked aggressively to stuff the genie back in the bottle, Brady Sullivan now seeks
to bring the matter to a close for good with a permanent injunction banning Plaintiffs and
Attorneys Coloian and Calabro from using, reviewing, discussing, communicating and/or
forwarding the Confidential Information to anyone (including successor counsel) and prohibiting
Attorneys Coloian and Calabro from receiving or otherwise participating in any attorneys’ fees
associated with the Cases.
permanent injunction, which is an excepted motion pursuant to 28 U.S.C. § 636(b)(1)(A). Therefore, I must issue a
report with proposed findings of fact and recommendations for disposition. Id. § 636(b)(1).
2
Unless indicated otherwise, all ECF citations are to the first filed case, Calise v. Brady Sullivan, C.A. No. 1899WES. The Court consolidated the cases on March 28, 2018. Text Order of Mar. 28, 2018.
2
The Court’s task in resolving the motion is eased by the absence of any dispute over the
remedy: Plaintiffs (acting through their new counsel) and Attorneys Coloian and Calabro agree
that Brady Sullivan may have the requested relief. The sticking point is whether the Court will
issue the permanent injunction based a reasoned decision that includes findings of fact based on
violations of the Rhode Island Rules of Professional Conduct, particularly R.I. Rules 1.7, 4.3 and
4.4(a).3
I.
FACTUAL AND PROCEDURAL BACKGROUND
The motion arises from events that occurred mostly in March 2018, which may be briefly
summarized.4 At its heart are two former management-level employees of Brady Sullivan: Julio
Basabe, Maintenance Manager, and Christina Rahn, Property Manager (the “former
employees”).
As a condition of their employment with Brady Sullivan, both of the former employees
signed confidentiality agreements barring them from, inter alia, disclosing certain information
related to Brady Sullivan’s products or services. At least one of them, Rahn, was privy to
extensive confidential attorney-client communications directly related to the issues in the Cases
and related matters pertaining to other tenants and former tenants of Brady Sullivan. While still
employed at Brady Sullivan, Rahn surreptitiously printed, copied on thumb drives or CDs and/or
emailed to her home email account Brady Sullivan documents that included substantial quantities
of Brady Sullivan’s confidential attorney-client information. Shortly after the Cases were filed
by Attorneys Coloian and Calabro, the former employees abruptly resigned from Brady Sullivan
3
The Rhode Island Rules of Professional Conduct are codified as Article V of the Rhode Island Supreme Court
Rules; in the interest of brevity, they will be cited as “R.I. Rule __.”
4
The factual background summarized here is reiterated infra in the form of proposed findings of fact, together with
the source of each proposed fact. The source citations are not repeated here.
3
and immediately engaged Attorneys Coloian and Calabro to represent them in connection with
matters pertaining to Brady Sullivan. Attorneys Coloian and Calabro undertook this engagement
and provided legal advice to the former employees despite the obvious conflict between the
interests of the former employees and their existing clients, Plaintiffs and other tenants or former
tenants of Brady Sullivan contemplating or already in litigation against it.
Over several days in March 2018, having formed an attorney-client relationship with the
former employees, Attorneys Coloian and Calabro obtained information from Basabe and Rahn.
They accepted documents from Rahn that she had secretly taken while employed at Brady
Sullivan. Among these documents were many clearly reflecting Brady Sullivan’s attorney-client
communications. Attorneys Coloian and Calabro reviewed at least a handful of these
documents, which constituted bulls-eye attorney-client communications between Brady Sullivan
and its counsel regarding matters directly pertaining to the Cases and related matters.
There is no evidence that Attorneys Coloian and Calabro advised Basabe or Rahn about
the jeopardy posed to them by breaching the confidentiality agreements or any duty of loyalty
they might owe to their former employer. There is no evidence that Attorneys Coloian and
Calabro advised Rahn about the jeopardy posed to her by her actions in taking and making a
wholesale disclosure of Brady Sullivan’s attorney-client information to the attorneys for the
parties opposing it in litigation. There is no evidence that Attorneys Coloian and Calabro
instructed either Rahn or Basabe not to disclose Brady Sullivan Confidential Information or took
any steps to avoid an unwarranted intrusion into Brady Sullivan’s privileged relationships. There
is no evidence that Attorneys Coloian and Calabro advised or obtained a written waiver from
Basabe or Rahn regarding limitations on the Attorneys’ ability to represent the former employees
in light of the Attorneys’ concurrent representation of Plaintiffs and their other tenant clients.
4
Relatedly, Attorneys Coloian and Calabro did not advise or obtain a written waiver from
Plaintiffs or any of their other tenant clients on their acceptance of a materially limiting
competing engagement. Instead, despite the conflicts, in derogation of their duty to Basabe and
Rahn and likely animated by the competing duty owed to Plaintiffs and the other tenant clients,
the Attorneys communicated with the former employees without regard to the confidentiality of
the information being provided, and accepted documents from Rahn that they knew Rahn had
taken from Brady Sullivan during her employment, among which they found (and accessed)
Brady Sullivan’s purloined attorney-client information.
Beginning on March 5, 2018, Brady Sullivan was alerted to the possibility of the breach
through comments Attorney Coloian made to one of its attorneys. After further investigation, it
promptly sued the former employees, Basabe and Rahn, in a separate action filed on March 15,
2018, and removed to this Court on March 22, 2018. Brady Sullivan v. Rahn, C.A. No. 18133WES (“18-133”).5 On April 12, 2018, the Court entered an injunction mandating that Basabe
and Rahn comply with the confidentiality agreements, as well as that they and their attorneys
(Attorneys Coloian and Calabro, and Attorney Sean Doherty, who briefly entered an appearance
on behalf of Basabe and Rahn) must return all of the Brady Sullivan Confidential Information,
including the attorney-client privilege information, to Brady Sullivan. 18-133 ECF No. 20.
Because the Confidential Information taken by Rahn had been delivered in various
electronic formats and in hard copy, the Court’s April 12, 2018, Order included specific
requirements to ensure its return. This triggered a flurry of collateral activity in 18-133, as Brady
Sullivan worked diligently to recover all of the Confidential Information. However, through no
fault of Basabe, Rahn or Attorneys Coloian and Calabro, all of whom cooperated in good faith to
To distinguish it from citations to the Cases, this report and recommendation uses “18-133 ECF No. __,” for
citations to the case against the former employees.
5
5
comply with the Court’s April 12, 2018, Order, this effort was not entirely successful. Most
recently, at the hearing of February 28, 2019, it was revealed that two thumb drives containing
thousands of documents taken by Rahn appear to be irretrievably lost. Transcript Feb. 28, 2019,
at 24, 26, 34 (18-133 ECF No. 69).6 Meanwhile, Basabe and Rahn are no longer actively
defending themselves in 18-133; as a result, the clerk has entered default against them. 18-133
ECF No. 66.
Returning to the Cases, on April 13, 2018, based on R.I. Rules 4.4(a) and 1.7(a), Brady
Sullivan moved to disqualify Attorneys Coloian and Calabro from representing Plaintiffs; the
motion was supported by the depositions of Rahn and Basabe and the affidavits of one of Brady
Sullivan’s attorneys and its Information Technology (“IT”) Manager. Following a hearing at
which both parties declined the Court’s offer to hear testimony, the Court scheduled the motion
to disqualify for a bench decision to be delivered on July 25, 2018; this date was extended to
September 25, 2018, at the request of the parties. Less than one week before the bench decision,
Attorneys Coloian and Calabro filed notices of their withdrawals and substitute counsel entered
for Plaintiffs. At the September 25 hearing, the Court found that the motion to disqualify had
become moot but that serious issues remained to be resolved. To allow Brady Sullivan time to
consider its options and with no objection from Plaintiffs, the Court entered a non-disclosure
order barring Attorneys Coloian and Calabro from using or forwarding any of the Confidential
Information to successor counsel or any other person, with a deadline of October 25, 2018, for
The transcripts for this and other hearings are cited as: “Transcript Feb. 28, 2019, at __.” The first time each
transcript is cited, the ECF number is included.
6
6
Brady Sullivan to file a motion seeking an injunction or sanctions for permanent relief.7 Text
Order of Sept. 26, 2018.
On October 25, 2018, the current motion was filed. As directed by the Court, Brady
Sullivan supplemented the motion with proposed findings of fact and conclusions of law. In
response, Plaintiffs and Attorneys Coloian and Calabro made clear that they did not object to
entry of the permanent injunction sought by Brady Sullivan. However, Attorneys Coloian and
Calabro objected vigorously to the Court’s issuance of a reasoned decision, arguing that there is
no Article III case or controversy because Brady Sullivan’s injury is speculative and hypothetical
and that the motion amounts to an improper interference with the contractual agreement between
Attorneys Coloian and Calabro and their former clients, Plaintiffs and the other tenants and
former tenants. The Court offered the parties the opportunity to have an evidentiary hearing;
Attorneys Coloian and Calabro declined, while Brady Sullivan reserved the right to present
testimony on any material fact as to which the Court was inclined to sustain an objection asserted
by Attorneys Coloian and Calabro. For the reasons stated infra, no evidentiary hearing was
deemed necessary.
II.
STANDARD OF REVIEW
“[T]he district court has the duty and responsibility of supervising the conduct of
attorneys who appear before it.” Kevlik v. Goldstein, 724 F.2d 844, 847 (1st Cir. 1984). This
power continues “after that lawyer is no longer representing a party in the proceedings.” SPVLS, LLC v. Transamerica Life Ins. Co., CIV 14-4092, 2017 WL 3668765, at *4 (D.S.D. Aug. 23,
2017), aff’d in relevant part, reversed in part on separate issue, 912 F.3d 1106 (8th Cir. 2019);
Andrew, Merritt, Reilly & Smith, LLP v. Remote Accounting Sols., Inc., 626 S.E.2d 204, 206
7
Because they had withdrawn, Attorneys Coloian and Calabro did not attend the September 25, 2018, proceedings.
However, they were served with the non-disclosure order electronically.
7
(Ga. Ct. App. 2006). The Court’s inherent authority extends to addressing the consequences of
improper ex parte contact with a party’s former employee. Zachair, Ltd. v. Driggs, 965 F. Supp.
741, 755 (D. Md. 1997) (finding “wrongly obtained knowledge ‘can never be erased from
[counsel’s] mind’” and ordering disqualification and exclusion of information). It extends to
prohibiting predecessor counsel from communicating with successor counsel with respect to the
subject litigation when such a restriction is necessary to protect confidential information. Levi
Strauss & Co. v. Abercrombie & Fitch Trading Co., No. C 07-03752 JSW, 2007 WL 3203056, at
*5 (N.D. Cal. Oct. 29, 2007) (“[Disqualified attorney] also is prohibited from communicating or
forwarding to successor counsel any work product created in the course of this action or in
matters related to this action that is based upon or derived from [the company’s] confidential
information possessed by [disqualified attorney].”). It is also clear that the need for protection
against turning over to successor counsel the “tainted” work product of disqualified or
withdrawn counsel is a separate and distinct question from whether the attorney should have
been disqualified in the first place. Milford Power Ltd. P’ship by Milford Power Assocs., Inc. v.
New England Power Co., 896 F. Supp. 53, 57 (D. Mass. 1995).
“An injunction is an exercise of a court’s equitable authority, to be ordered only after
taking into account all of the circumstances that bear on the need for prospective relief.” KG
Urban Enters., LLC v. Patrick, 693 F.3d 1, 27 (1st Cir. 2012) (citing Salazar v. Buono, 559 U.S.
700, 714 (2010)). A party “seeking a permanent injunction must satisfy a four-factor test before
a court may grant such relief. [The party] must demonstrate: (1) that it has suffered an
irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate
to compensate for that injury; (3) that, considering the balance of hardships between the [parties],
a remedy in equity is warranted; and (4) that the public interest would not be disserved by a
8
permanent injunction.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 156-57 (2010).
Equitable relief is not granted as a matter of course, and injunctions in particular should be used
sparingly due to their potential scope and duration. Hekking v. Hekking, C.A. No. 14-295JJM,
2018 WL 6583845, at *2 (D.R.I. Dec. 14, 2018); see Me. Educ. Ass’n Benefits Tr. v. Cioppa,
842 F. Supp. 2d 386, 388 (D. Me. 2012), aff’d, 695 F.3d 145 (1st Cir. 2012) (“[T]he Court must
bear constantly in mind that an [i]njunction is an equitable remedy which should not be lightly
indulged in, but used sparingly and only in a clear and plain case.”).
Rule 65 of the Federal Rules of Civil Procedure governs the issuance of injunctions.8 It
mandates that the contents of an order granting an injunction must “state the reasons why it
issued,” “state its terms specifically,” and “describe in reasonable detail – and not by referring to
the complaint or other document – the act or acts restrained or required.” Fed. R. Civ. P.
65(d)(1)(A-C). “Rule 65(d)(1)(A) must be given a commonsense construction, not a
hypertechnical one.” Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Municipality of San Juan,
773 F.3d 1, 10 (1st Cir. 2014). It is sufficient if a court makes “the essence of its reasoning plain
before ordering injunctive relief.” Id.
When a motion for an injunction is referred to a magistrate judge under the Federal
Magistrates Act, 28 U.S.C. § 631, et seq., the magistrate judge must address it through the
issuance of a report and recommendation. See 28 U.S.C. § 636(b)(1)(B-C). In so doing, the
magistrate judge must “submit to a [district] judge of the court proposed findings of fact and
recommendations for the disposition.” Id. § 636(b)(1)(B). And the district judge “shall make a
de novo determination of those portions of the report or specified proposed findings or
8
Attorneys Coloian and Calabro argue that the Court should eschew the making of findings in reliance on Fed. R.
Civ. P. 52(a)(3). However, Fed. R. Civ. P. 52(a)(3) permits an abbreviated approach only for motions under Fed. R.
Civ. P. 12 and 56 and other motions, “unless these rules provide otherwise.” This motion arises under Rule 65,
which specifically requires a statement of reasons.
9
recommendations to which objection is made.” Id. § 636(b)(1)(C). In this context, the
magistrate judge “does not rule directly on such a motion, but rather must file a report containing
findings of fact and recommendations for the assistance of the district judge who makes the
ruling.” Brown v. Wesley’s Quaker Maid, Inc., 771 F.2d 952, 954 (6th Cir. 1985).
Based on the foregoing, it is clear that Fed. R. Civ. P. 65(d)(1)(A-C) and 28 U.S.C. §
636(b)(1)(A-C) require more than the undeveloped statement that Attorneys Coloian and Calabro
came into possession of Confidential Information and that Brady Sullivan has proffered enough
to meet the legal standard for an injunction. Such a truncated approach would not adequately
“state the reasons why [the injunction should be] issued.” Fed. R. Civ. P. 65(d)(1)(A); see
Watchtower Bible, 773 F.3d at 10 (“essence” of court’s reasoning must be “plain”). Nor would
it fulfill my statutory obligation to provide the district judge with “proposed findings of fact and
recommendations for the disposition.” 28 U.S.C. § 636(b)(1)(B). Accordingly, I find that a
more fulsome set of proposed facts is required, well beyond what Attorneys Coloian and Calabro
contend is sufficient.
III.
APPLICABLE ETHICAL STANDARDS
The Rhode Island Rules of Professional Conduct implicated by the motion may be briefly
summarized.
First, R.I. Rule 1.7(a), titled, “Conflict of interest: Current clients,” governs conflicts of
interest and provides that “a lawyer shall not represent a client if the representation involves a
concurrent conflict of interest.” A conflict is presented not only when there is direct adversity,
but also if the concurrent representation of a client gives rise to a significant risk that the
representation of another client will materially limit the lawyer’s ability to represent either or
both clients. Id. 1.7(a)(1-2). In the latter circumstance, the Rule carves out an exception if the
10
lawyer believes that she will be able to provide competent and diligent representation of each
affected client; nevertheless, such an engagement is permitted only if each affected client gives
informed consent, which must be confirmed in writing. Id. 1.7(b)(4). Related to R.I. Rule 1.7 is
R.I. Rule 4.3, which bars a lawyer from giving legal advice to an unrepresented person (other
than the advice to secure counsel) if the lawyer knows that it is reasonably possible that the
interests of such a person are in conflict with the interests of an existing client.
The most significant of the Rules implicated by the events in issue is R.I. Rule 4.4, titled,
“Respect for rights of third persons.” Subsection (a) of R.I. Rule 4.4 provides:
In representing a client, a lawyer shall not use means that have no substantial
purpose other than to embarrass, delay, or burden a third person, or use methods
of obtaining evidence that violate the legal rights of such a person.
The Rhode Island Rules of Professional Conduct permit a lawyer to communicate with the
former employee of a represented party-opponent. R.I. Rule 4.2, comment [7]. However, the
relevant comment warns that such communications must be done with due regard for R.I. Rule
4.4(a). R.I. Rule 4.2, comment [7] (“In communicating with a current or former constituent of an
organization, a lawyer must not use methods of obtaining evidence that violate the legal rights of
the organization.”) (citing R.I. Rule 4.4). The comment to R.I. Rule 4.4 echoes this caution,
providing that the lawyer may not willfully disregard the rights of a third party, such as the
former employer of a witness, including the right to be free from “unwarranted intrusions into
privileged relationships, such as the client-lawyer relationship.” See R.I. Rule 4.4, comment [1].
While Rhode Island courts have not interpreted R.I. Rule 4.4(a), at the time of the initial
adoption of the Rules, it was noted that the Rules of Professional Conduct should be read
consistently with the American Bar Association (“ABA”) Model Rules of Professional Conduct,
“unless there was a good reason for not doing so.” See § 11.2 Authority for Ethics
11
Considerations, 2011 WL 5027363 (quoting Memorandum of Transmittal of Proposed Rules of
Professional Conduct to the Rhode Island Supreme Court (Jan. 6, 2006)). Therefore, it is
appropriate for the Court to look to the interpretations by other states of analogous rules derived
from the ABA Model Rules. For example, the Bar Association for the District of Columbia has
interpreted its analog to R.I. Rule 4.4:
The most significant concern in [communication with former employees of a
party opponent] is the possibility that the former employees were privy to
privileged information and that, without counsel present, they might be inclined to
reveal this information to the opposing lawyer. This concern is serious and a
lawyer may not solicit information when communicating with former employees
of a party-opponent that is reasonably known or which reasonably should be
known to the lawyer to be protected from disclosure . . . by an established
evidentiary privilege. We based this conclusion on Rule 4.4, which requires
lawyers to refrain from using “methods of obtaining evidence that violate the
legal rights of [third parties].” These rights include the former employer’s right to
protect its privileged information from disclosure.
Ex Parte Contact With Former Employees of Party-Opponents, D.C. Bar Ethics Opin. 287,
available at https://www.dcbar.org.bar-resources/legal-ethiscs/opinions/opinions287.cfm.
(internal citations omitted). Similarly, cases from other jurisdictions with an analogous rule
emphasize that an attorney who communicates with the former employees of a party-opponent
must affirmatively “take care not to seek to induce or listen to disclosures by former employees
of privileged communications.” Aiken v. Bus. & Indus. Health Grp., Inc., 885 F. Supp. 1474,
1480 (D. Kan. 1995); see, e.g., Chamberlain Grp., Inc. v. Lear Corp., 270 F.R.D. 392, 398 (N.D.
Ill. 2010) (“[I]t is generally ‘an improper litigation tactic to use a disgruntled employee to
secretly obtain non-public internal business documents from an opposing party.’”); Arnold v.
Cargill Inc., No. 01-2086 (DWF/AJB), 2004 WL 2203410, at *7-9 (D. Minn. Sept. 24, 2004) (to
comply with Rule 4.4, before communicating with former employee of adverse party, attorneys
have affirmative duty to advise former employee that he cannot disclose privileged
12
communications; without such warning, court may conclude from circumstances that privileged
and confidential information was disclosed despite denials by attorneys); In re Grievance
Proceeding, No. 3:01GP6(SRU), 2002 WL 31106389, at *3 (D. Conn. July 19, 2002) (during ex
parte contact, “plaintiff’s counsel must take care not to seek to induce or listen to disclosures by
the former employees of any privileged attorney-client communications to which the employee
was privy”) (quoting Dubois v. Gradco Sys., 136 F.R.D. 341, 347 (D. Conn. 1991)).
In summary, while there is no barrier to an attorney interviewing or developing evidence
from the former employee of a party-opponent, it is a clear violation of R.I. Rule 1.7(a) for an
attorney to form an attorney-client relationship with the former employee of a party-opponent
without carefully considering and appropriately addressing all conflicts of interest, including all
limitations on the attorneys’ ability to simultaneously represent a litigant and the former
employee of the party opposing the litigant. It also is a clear violation of R.I. Rule 4.3 for an
attorney to give any legal advice to an unrepresented former employee of an opposing party if
there is a reasonable possibility of a conflict arising from the attorney’s existing attorney-client
relationship with the litigant opposing the former employer. And if an attorney communicates
with the former employee of an opposing party, R.I. Rule 4.4(a) mandates that the attorney
undertaking such communications has an affirmative duty to proceed with due care to ensure that
the former employee does not inadvertently or intentionally disclose privileged attorney-client or
other confidential information in violation of the legal rights of the opposing party.
IV.
PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
The proposed factual findings that follow are drawn from an array of sources. I relied on
the facts proposed by Brady Sullivan, ECF No. 65-2 (“BS Proposed Facts ¶ __”), focusing on
those to which Attorneys Coloian and Calabro did not interpose any objection, apart from their
13
vague assertion that all of the Brady Sullivan facts lack the support of sufficient evidence.9
Mindful of the latter plaint, I also reexamined various sources of evidence to ensure that each of
the facts that follow is grounded in an adequate evidentiary foundation. In so doing, I relied,
first, on prior findings made at hearings held on June 27, 2018 (ECF No. 54), and on December
21, 2018 (ECF No. 71), in the Cases, as well as on the representations made during colloquy
with Attorneys Coloian and Calabro at those hearings. Second, for the limited purpose of
supporting the finding that some of the Confidential Information has not been recovered, I relied
on the representations of counsel made during colloquy with Attorney Alberto Cardona10 at the
hearing in 18-133 held on February 28, 2019. Third, I relied on my in camera review of a
subset11 of the documents taken by Rahn; the findings based on the in camera review were
announced on the record during the hearing on June 27, 2018, at which Attorneys Coloian and
Calabro were present. Transcript June 27, 2018, at 6-8 (in camera review). Fourth, I relied on
the depositions of Basabe and Rahn.12 ECF No. 34-3 (“Rahn Dep.”); ECF No. 34-4 (“Basabe
9
After Attorneys Coloian and Calabro acknowledged at the hearing on December 21, 2018, that at least some of the
Brady Sullivan proposed facts were undisputed, the Court directed them to specify which are factually disputed and
why. Transcript Dec. 21, 2018, at 33 (ECF No. 71). They complied. Their specific objections to Brady Sullivan’s
proposed facts are found at ECF No. 72-7 at 2-4. Plaintiffs did not object separately to any of Brady Sullivan’s
proposed facts, relying instead on whatever objections Attorneys Coloian and Calabro might assert. Transcript Dec.
21, 2018, at 31.
10
Attorney Cardona entered his appearance after Attorneys Coloian, Calabro and Doherty all withdrew as counsel
for Basabe and Rahn in 18-133.
11
The documents that were reviewed in camera were returned to Brady Sullivan at the September 25, 2018, hearing
(ECF No. 64), with instructions for them to be filed on a sealed ex parte basis if Brady Sullivan wished to make
them part of the record. Transcript Sept. 25, 2018, at 18-19. Together with other documents taken by Rahn, Brady
Sullivan subsequently filed them ex parte under seal. The in camera review set is filed at 18-133 ECF No. 62-3.
12
These depositions were taken in 18-133 on March 30 and April 2, 2018. Subsequently, the transcripts were filed
in the Cases and the Court ruled that, although they had been taken in 18-133, they may be considered when
resolving a motion in the Cases. See Text Order of June 28, 2018 (citing Alexander v. Casino Queen, 739 F.3d 972,
978 (7th Cir. 2014)). Each deposition is sealed because they contain the substance of Brady Sullivan’s Confidential
Information, including information relating to attorney-client communications. The references to them in this report
and recommendation are crafted to avoid disclosure of these secrets. In addition, Brady Sullivan cites to a second
Rahn deposition, taken on September 6, 2018. That transcript was not filed so neither the Court nor Plaintiffs nor
14
Dep.”).13 Fifth, I relied on the affidavits of Todd Romano, counsel for Brady Sullivan, and Mark
Schneider, Brady Sullivan’s IT Manager. ECF No. 17-2 (“Romano Aff.”); ECF No. 17-3
(“Schneider Aff.”). Finally, I used some of the proposed findings proffered by Attorneys
Coloian and Calabro. ECF No. 72-7 at 5 (“C+C Proposed Facts ¶ __”).14
It is important to note that none of the attorneys involved in these matters testified,
leaving me to rely instead on their representations made in filings and during hearings; relatedly,
I relied on transcripts of the testimony of Basabe and Rahn and did not hear them live. This
approach to the issues was partly informed by my reluctance to put an officer of the court in the
witness box. I also was mindful of the need to avoid placing Brady Sullivan’s attorney-client
confidences at further risk of disclosure. In any event, no party or attorney asked for an
evidentiary hearing.15 See, e.g., Transcript June 27, 2018, at 120. Most importantly, however,
there did not appear to be material factual disputes that could be resolved only by the assessment
of credibility. Rather, the disagreements seemed to derive from differing characterizations of the
facts and differing perspectives on events.16 In general, I found that all counsel, including
Attorneys Coloian and Calabro had access to it. As a result, I relied on none of Brady Sullivan’s proposed facts
sourced to that transcript.
13
The pinpoint citations for the depositions correspond to the page number on the ECF header.
The C+C Proposed Facts were presented “for the Court’s consideration should this Court determine findings are
necessary to grant stipulated injunctive relief.” ECF No. 72-7 at 5. Because my recommendation is not based on
“stipulated injunctive relief,” I limited reliance on the C+C Proposed Facts to circumstances where there was other
evidence to support the finding.
14
15
There is one exception: Brady Sullivan asked the Court to afford it an opportunity to present evidence in the event
that the post-hearing objections presented by Attorneys Coloian and Calabro created a material factual dispute.
Because the Coloian/Calabro objections left untarnished a more-than-adequate factual foundation for the permanent
injunction that I am recommending, I found that no such hearing was necessary.
16
To illustrate, the evidence established that Brady Sullivan has first-hand knowledge of the attorney-client
communications its counsel had with Basabe and Rahn, while Attorneys Coloian and Calabro know only what they
recall of what they were told by Basabe and Rahn. This difference of perspective explains, for example, the
discrepancy between the representation of Attorneys Coloian and Calabro that Basabe had never met with counsel
for Brady Sullivan, ECF No. 72-7 at 2, and Brady Sullivan’s insistence that he did. The absence of a genuine factual
15
Attorneys Coloian and Calabro, conducted themselves throughout these proceedings with due
regard for their duty of candor towards the tribunal. See R.I. Rule 3.3 (“Candor toward the
tribunal”). In the end, I concluded that the relief requested by Brady Sullivan is well supported
by the largely undisputed version of events on which the following proposed facts are based, and
I found that a time-consuming evidentiary hearing, which would have been required if the Court
had to resolve credibility issues, was unnecessary.
My proposed findings of fact and related conclusions of law17 are as follows:
1.
After the Cases were filed by Attorneys Coloian and Calabro in the Rhode Island
Superior Court on January 25, 2018, and removed to this Court, two management-level
employees of Brady Sullivan (Basabe, the Maintenance Manager, and Rahn, the Property
Manager) abruptly resigned on March 2 and 7, 2018, respectively. Basabe Dep. at 12; Rahn
Dep. at 47-49; BS Proposed Facts ¶¶ 6, 11, 13, 33, 37.
2.
Prior to their resignations, both of the former employees had interacted with
Brady Sullivan’s attorneys in connection with the Cases and/or related matters. Basabe Dep. at
145-46, 156-62; Rahn Dep. at 44-46, 81-82, 122-23. Both of the former employees understood
that these communications with Brady Sullivan’s attorneys were protected by the attorney-client
privilege. Basabe Dep. at 158, 167, 171-72; Rahn Dep. at 123-24. During her employment,
Rahn was specifically advised that any communications with Brady Sullivan’s counsel were
confidential at its discretion. Rahn Dep. at 131-33. At least as to Rahn, the privileged
dispute is clinched by Basabe’s unimpeached testimony that he did have such a meeting. E.g., Basabe Dep. at 15658.
17
These findings of fact and conclusions of law are presented together because, unlike Fed. R. Civ. P. 52(a), § 636
does not require that they be stated separately. Compare Fed. R. Civ. P. 52(a) (for bench trial, “court must find the
facts specially and state its conclusions of law separately”), with 28 U.S.C. § 636(b)(1)(B) (magistrate judge shall
submit “proposed findings of fact and recommendations for the disposition, by the judge of the court, of any
motion”).
16
communications to which she was privy referenced Brady Sullivan’s litigation strategy for the
Cases and related matters. Transcript June 27, 2018, at 7 (in camera review).
3.
As a condition of their employment with Brady Sullivan, both of the former
employees had signed confidentiality agreements barring, inter alia, the disclosure of certain
confidential information related to Brady Sullivan’s products or services; the agreement defined
“confidential information” as any business data or information not generally known outside the
company.18 Basabe Dep. at 141-43; Rahn Dep. at 128-30; BS Proposed Facts ¶¶ 14-15. The
contractual obligations of Basabe and Rahn under the confidentiality agreements survived the
termination of employment with Brady Sullivan. BS Proposed Facts ¶ 16. Rahn was also aware
that her employment was subject to the provisions in Brady Sullivan’s employee handbook,
which strictly prohibited the unauthorized disclosure of Brady Sullivan’s confidential
information. Rahn Dep. at 125-30.
4.
Upon resigning, the former employees immediately engaged Attorneys Coloian
and Calabro to represent them in connection with matters pertaining to Brady Sullivan. Basabe
Dep. at 176-78; Rahn Dep. at 47-48; BS Proposed Facts ¶¶ 32-33, 37-38. At the time of these
engagements, Attorneys Coloian and Calabro were actively engaged to represent Plaintiffs and
other tenants or former tenants of Brady Sullivan contemplating or already in litigation against it.
BS Proposed Facts ¶¶ 26-27, 29; Transcript June 27, 2018, at 84-85, 108.
5.
In violation of R.I. Rule 1.7(a) and R.I. Rule 4.3, Attorneys Coloian and Calabro
undertook the engagements to represent, and provided legal advice to, the former employees
18
It is important to note that the Court has not directly addressed either the enforceability of the confidentiality
agreements or what specific factual information known to Basabe and Rahn those agreements rendered confidential.
This contrasts with the information taken by Rahn that is protected by the attorney-client privilege. Based on the
Court’s in camera review, I find that Rahn wrongly took privileged information protected by Brady Sullivan’s
attorney-client privilege and wrongly disclosed privileged information to the attorneys for the directly adverse party.
17
despite conflicts between the interests of the former employees and the concurrent clients of
Attorneys Coloian and Calabro, Plaintiffs and the other tenant clients. These conflicts created a
significant risk that the representation of the former employees would be materially limited by
Attorneys Coloian and Calabro’s representation of Plaintiffs and their other tenant clients,19 as
well as that the representation of Plaintiffs and their other tenant clients would be materially
limited by Attorneys Coloian and Calabro’s representation of the former employees.20
Transcript June 27, 2018, at 11-12; Transcript Dec. 21, 2018, at 5, 11.
6.
Notwithstanding the requirements of R.I. Rule 1.7(b)(4), Attorneys Coloian and
Calabro did not obtain written informed consent from the former employees to the limitations on
the Attorneys’ ability to represent the former employees in light of the Attorneys’ concurrent
representation of Plaintiffs and their other tenant clients. See BS Proposed Facts ¶¶ 27, 29.
Attorneys Coloian and Calabro also did not obtain written informed consent from Plaintiffs and
their other tenant clients to the limitations on the Attorneys’ ability to represent Plaintiffs and
their other tenant clients in light of the Attorneys’ concurrent representation of the former
employees. Transcript June 27, 2018, at 86.
7.
After they were engaged to represent him, and aware that he was a former
employee of Brady Sullivan, Attorneys Coloian and Calabro met with and obtained information
from Basabe. Basabe Dep. at 15, 176, 181-86. While the content of those oral communications
is not known,21 there is no evidence that Attorneys Coloian and Calabro advised Basabe of his
19
By way of one example only, the duty Attorneys Coloian and Calabro owed to Plaintiffs to uncover information to
aid in prosecution of the Cases limited their ability to properly advise the former employees regarding the risk of
breaching their legal duties to Brady Sullivan.
20
One significant limitation is the inability of Attorneys Coloian and Calabro to aggressively cross examine the
former employees on behalf of Plaintiffs and the other tenant clients. See Transcript June 27, 2018, at 108, 113.
21
Basabe was instructed not to answer all questions regarding the content of his privileged communications with
Attorneys Coloian and Calabro. E.g., Basabe Dep. at 185-86. Therefore, I make no finding with respect to whether
18
duty not to disclose the content of attorney-client communications with Brady Sullivan’s
attorneys during his employment with Brady Sullivan as its Maintenance Manager, or of any
other duties not to disclose Brady Sullivan’s confidential information. Immediately after the
meeting with Basabe, Attorney Coloian told an attorney for Brady Sullivan that Basabe had
provided certain information; the Brady Sullivan attorney, who had met at least once with
Basabe, immediately recognized the information as what he had discussed with Basabe in the
course of a privileged communication on behalf of Brady Sullivan. Romano Aff. ¶¶ 12-14;
Basabe Dep. at 156-58 (acknowledging that he knew his communications while meeting with
Attorney Romano were privileged). As a result of Attorney Coloian’s statements regarding his
communications with Basabe, Brady Sullivan was placed in fear that its attorney-client
relationship had been breached, as well as that its contractually protected secrets had been
revealed.
8.
During their communications with Basabe, who was relying on them to advise
him, Attorneys Coloian and Calabro acted with disregard for the legal rights of Brady Sullivan,
particularly its right to unwarranted intrusion into privileged communications, such as the clientlawyer relationship. This conduct violated R.I. Rule 4.4(a).
9.
During her employment with Brady Sullivan as its Property Manager, Rahn was
privy to Brady Sullivan’s privileged attorney-client communications and attorney work product
(including litigation strategy) directly related to the matters in issue in the Cases. See Transcript
June 27, 2018, at 6-8 (in camera review). While still employed at Brady Sullivan, Rahn
surreptitiously printed, copied to thumb drives or CDs and/or emailed to her home email account
substantial quantities of Brady Sullivan’s privileged attorney-client communications and attorney
Basabe actually disclosed Confidential Information. Rather, I find that Brady Sullivan’s fear that he did is well
founded.
19
work-product, as well as what may be non-privileged Confidential Information. Transcript June
27, 2018, at 6-7, 27-28, 87-93, 101-02; Rahn Dep. at 140-42, 155-57; Schneider Aff. ¶¶ 11-12;
BS Proposed Facts ¶¶ 45-47, 52-53. Rahn’s taking of such material was a breach of her duty of
loyalty to Brady Sullivan, a breach of Brady Sullivan’s contractual rights under the
confidentiality agreement and in derogation of Brady Sullivan’s legal right to the protection of its
privileged attorney-client communications and attorney work product. See Rahn Dep. at 131-32.
10.
After they had formed an attorney-client relationship with Rahn, and knowing that
she had just resigned as Property Manager of Brady Sullivan, a party opponent, Attorneys
Coloian and Calabro met with Rahn twice and obtained information from her. Rahn Dep. at 28.
While the content of the oral communications that she had with the Attorneys is unknown,22
there is no evidence that Attorneys Coloian and Calabro advised Rahn of her duty not to disclose
the content of attorney-client communications with Brady Sullivan’s attorneys during her
employment with Brady Sullivan as its Property Manager, or of any other duties not to disclose
Brady Sullivan confidential information. There is no evidence that Attorneys Coloian and
Calabro took care not to seek, to induce or to listen to disclosures of privileged communications
or other protected Confidential Information in violation of their duty to abjure the use of a
method of obtaining evidence that amounts to “unwarranted intrusions into privileged
relationships, such as the client-lawyer relationship.” R.I. Rule 4.4, comment [1].
11.
Because Rahn understood that Attorneys Coloian and Calabro, whom she had
engaged to act as her attorneys, had requested that she provide them with all of the documents
22
Rahn was instructed not to answer all questions regarding the content of her privileged communications with
Attorneys Coloian and Calabro. E.g., Rahn Dep. at 75-77.
20
that she had surreptitiously taken during her employment with Brady Sullivan,23 she provided the
documents to Attorneys Coloian and Calabro over a period of several days in email and hard
copy and on thumb drives. Rahn Dep. at 144-46. The documents that she provided to Attorneys
Coloian and Calabro contained what may be Brady Sullivan’s non-privileged Confidential
Information and included many documents that were obviously Brady Sullivan’s privileged
attorney-client communications and attorney work product directly related to the matters in issue
in the Cases. Transcript June 27, 2018, at 6-7, 27-28 (in camera review); C+C Proposed Facts ¶
3; BS Proposed Facts ¶¶ 47-48, 50-54, 56.
12.
While most of the material provided by Rahn was not read or accessed, Attorneys
Coloian and Calabro read at least some of Brady Sullivan’s privileged attorney-client
information contained in the documents provided by Rahn. Transcript June 27, 2018, at 87, 99100, 102; BS Proposed Facts ¶¶ 50-51; see ECF No. 26-1 at 3 (“Counsel read a total of 7 emails,
not all of which contained attorney-client communications.”).
13.
Based on their review of at least some of Brady Sullivan’s privileged attorney-
client information contained in the documents provided by Rahn, Attorneys Coloian and Calabro
notified Brady Sullivan that they had received Brady Sullivan’s purloined attorney-client and
attorney work product information.24 After that, they accepted more documents from Rahn,
My finding is based on Rahn’s testimony regarding her understanding of what she was told by Attorneys Coloian
and Calabro – “they asked for them.” Rahn Dep. at 144. In their objection to Brady Sullivan’s reliance on this
aspect of Rahn’s testimony, the Attorneys used carefully cabined language, asserting that, “[n]either Coloian or
Calabro asked for ‘those’ emails as neither Coloian or Calabro knew the contents of the emails prior to them being
sent.” ECF No. 72-7 at 4. Mindful of this limited denial, I make no finding regarding what the Attorneys actually
said to Rahn. Rather, I find that, in the setting of an attorney-client communication, the Attorneys said enough to
cause Rahn to understand that they wanted her to give them all of the documents that she had surreptitiously taken
during the period of her employment and they took no steps to advise her to avoid the transmission of attorney-client
documents or other Confidential Information.
23
24
To justify their conduct, Attorneys Coloian and Calabro make the ex post argument that they provided Brady
Sullivan with the notice contemplated by R.I. Rule 4.4(b). However, R.I. Rule 4.4(b) applies to the circumstance of
inadvertent disclosure, which is not the case here. I make no finding with respect to compliance with R.I. Rule
4.4(b); rather, I find that the claim of Attorneys Coloian and Calabro that they gave notice is confirmation that they
21
specifically the hard copy set of documents that included significant amounts of material
protected by Brady Sullivan’s attorney-client privilege. Transcript June 27, 2018, at 89-91 (in
camera review). Attorneys Coloian and Calabro read at least one email from the hard copy set
of documents. ECF No. 72-7 at 4 (“Coloian and Calabro collectively read only one of the
printed emails.”).
14.
Attorneys Coloian and Calabro accepted from Rahn the Brady Sullivan
documents she had taken during the period of her employment in disregard for whether those
documents constituted evidence taken in violation of the legal rights of Brady Sullivan and in
disregard for whether any of the documents contained Brady Sullivan’s privileged attorney-client
communications and attorney work product taken in violation of Brady Sullivan’s legal right to
unwarranted intrusions into its privileged relationships. Attorneys Coloian and Calabro accepted
these materials, knowing that Rahn relied on them as her attorneys to advise her, knowing that
the material had been taken by Rahn during the course of her employment and – after they
reviewed the first set – knowing that the material included documents that constituted Brady
Sullivan’s privileged attorney-client communications and work product.
15.
By engaging in the conduct described in Paragraphs 10 and 12 to 14, supra,
Attorneys Coloian and Calabro used a method of obtaining evidence that was in disregard for,
and in violation of, the legal rights of Brady Sullivan, amounting to an unwarranted intrusion
into Brady Sullivan’s privileged relationships, all contrary to the obligations imposed by R.I.
Rule 4.4(a). Transcript June 27, 2018, at 6-7, 101; Transcript Dec. 21, 2018, at 5, 11.
16.
While it is not known what information was discussed when Attorneys Coloian
and Calabro engaged in oral communications with Basabe and Rahn, and while the Attorneys
knew that Rahn was providing information protected by Brady Sullivan’s attorney-client privilege, yet they did
nothing to stop the flow and continued to accept documents from her.
22
reviewed only a few documents protected by Brady Sullivan’s attorney-client privilege, what the
Attorneys did see and hear is enough to give rise to a continuing risk of further dissemination of
the Confidential Information, including attorney-client communications and attorney work
product.
17.
Through no fault of Basabe, Rahn or Attorneys Coloian and Calabro, all of whom
acted in good faith to comply with the Court’s April 12, 2018, Order, the effort to recover all of
the Confidential Information was not entirely successful, in that two thumb drives containing
thousands of documents taken by Rahn appear to have been irretrievably lost. Transcript Feb.
28, 2019, at 36-37. This loss exacerbates the continuing risk of further dissemination of the
Confidential Information, including the attorney-client communications and attorney work
product.
18.
Because of the nature of the Confidential Information, particularly the attorney-
client communications and attorney work product, and because the Cases and related matters
continue as ongoing litigation and/or disputes likely to lead to litigation, further dissemination of
the Confidential Information will irreparably harm Brady Sullivan. See C+C Proposed Facts ¶ 5.
19.
Brady Sullivan is also subject to ongoing harm of “nagging suspicion” to the
extent that Attorneys Coloian and Calabro retain the right to seek attorneys’ fees or to assert an
attorney’s lien in connection with the Cases, which would give rise to a financial incentive or
motivation to assist successor counsel by disclosing any Confidential Information that they
learned as a result of their representation of Basabe and Rahn. See MMR/Wallace Power &
Indus. v. Thames Assocs., 764 F. Supp. 712, 727 (D. Conn. 1991) (litigant whose confidential
information might wrongly have been disclosed to opposing counsel is harmed by ongoing
“nagging suspicion”).
23
20.
An Order barring Attorneys Coloian and Calabro from receiving or participating
in attorneys’ fees25 arising as a result of the Cases26 would have no adverse impact on Attorneys
Coloian and Calabro because they have expressly agreed not to seek attorneys’ fees in
connection with the Cases. Transcript Dec. 21, 2018, at 19.
21.
Brady Sullivan acted promptly upon learning of the breach of its legal rights. See
Romano Aff. ¶¶ 4-14.
22.
Brady Sullivan has inadequate remedies at law due to the nature of the
Confidential Information, particularly the attorney-client communications and attorney work
product. C+C Proposed Facts ¶ 5.
23.
Plaintiffs and Attorneys Coloian and Calabro agree that Brady Sullivan is entitled
to the permanent injunction requested in the motion. C+C Proposed Facts ¶ 8; Transcript Dec.
21, 2018, at 18-19, 30-31. Neither Plaintiffs nor Attorneys Coloian and Calabro argued or
presented any evidence establishing that any of them would be harmed or prejudiced by the
issuance of the permanent injunction requested in the motion.
24.
In light of the nature of the harm to Brady Sullivan (¶¶ 18-19, supra) and the lack
of harm to Plaintiffs and Attorneys Coloian and Calabro (¶¶ 20, 23, supra), the balance of the
equities favors the relief requested by Brady Sullivan. See C+C Proposed Facts ¶ 6.
25.
Granting the relief requested by Brady Sullivan would be in the public interest in
that the permanent injunction reduces and potentially eliminates the ongoing risk that further
25
Brady Sullivan does not seek, and I do not recommend, any limitation on the right of Attorneys Coloian and
Calabro to recover advanced costs.
26
Brady Sullivan asks for this relief as a sanction to deter similar conduct and as a punishment for dilatory litigation
tactics. In light of my finding that non-participation in any fee earned in the Cases is justified by the equitable
interest in reducing the harm to Brady Sullivan caused by “nagging suspicion,” there is no need also to characterize
this relief as a sanction.
24
proceedings in the Cases would be tainted by the use of evidence procured in violation of R.I.
Rule 4.4(a). See C+C Proposed Facts ¶ 7.
26.
Brady Sullivan continues to have a legally cognizable interest in the outcome of
this motion because there is an ongoing risk of disclosure of its Confidential Information,
particularly its attorney-client confidences. See Mangual v. Rotger-Sabat, 317 F.3d 45, 61 (1st
Cir. 2003) (for matter to be moot under Article III, it must be “absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to recur”); Martins v. Fed. Hous. Fin.
Agency, 214 F. Supp. 3d 163, 167 (D.R.I. 2016) (case is moot when the issues presented are no
longer live or the parties lack a legally cognizable interest in the outcome).
V.
RECOMMENDED PERMANENT INJUNCTION
“[T]aking into account all of the circumstances that bear on the need for prospective
relief,” I find that the law entitles Brady Sullivan to a permanent injunction in this case. KG
Urban Enters., 693 F.3d at 27. Accordingly, in reliance on the foregoing proposed findings of
fact and conclusions of law, I recommend that the Court enter the following permanent
injunction:
Until further Order of the Court, it is hereby ordered that:
(1)
Plaintiffs and Attorneys Coloian and Calabro are prohibited from any use or
disposition in any way of Brady Sullivan’s Confidential Information, which was
obtained from Rahn or Basabe during their period of engagement with Attorneys
Coloian and Calabro in 2018, provided that successor counsel for Plaintiffs may
seek discoverable non-privileged information from Basabe and Rahn by
deposition or through other means consistent with R.I. Rule 4.4(a);27
(2)
Plaintiffs and Attorneys Coloian and Calabro are prohibited from ever reviewing
or discussing Brady Sullivan’s Confidential Information obtained from Rahn or
Basabe during their period of engagement with Attorneys Coloian and Calabro in
2018, with any other person or entity, including successor counsel for Plaintiffs,
except as may be necessary to physically transfer client files; and
27
This proviso was added sua sponte by the Court to avoid the potential for an interpretation of the Order as barring
Basabe or Rahn from testifying as a fact witness.
25
(3)
VI.
Attorneys Coloian and Calabro are prohibited from receiving or otherwise
participating in any attorneys’ fees associated with or arising out of the claims
asserted in the Cases.
CONCLUSION
Based on the foregoing analysis, I recommend that Brady Sullivan’s motion for a
protective order and other relief (ECF No. 65), construed as a motion for a permanent injunction,
be granted and that the Court enter a permanent injunction as set forth above.
Any objection to this report and recommendation must be specific and must be served
and filed with the Clerk of the Court within fourteen (14) days after its service on the objecting
party. See Fed. R. Civ. P. 72(b)(2); DRI LR Cv 72(d). Failure to file specific objections in a
timely manner constitutes waiver of the right to review by the district judge and the right to
appeal the Court’s decision. See United States v. Lugo Guerrero, 524 F.3d 5, 14 (1st Cir. 2008);
Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir. 1980).
/s/ Patricia A. Sullivan
PATRICIA A. SULLIVAN
United States Magistrate Judge
March 28, 2019
26
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