Summary
finding 12 day delay in attempting to remedy disclosure unreasonable
Summary of this case from Hanson v. Wells Fargo Home Mortg., Inc.Opinion
03 Civ. 2102 (RCC)(THK)
February 20, 2004
MEMORANDUM OPINION AND ORDER
Plaintiff, Celeste Baptiste ("Baptiste"), brings this action under 42 U.S.C. § 1981, and Title VII of the Civil Rights Act of 1964, as amended, §§ 2000e et seq. ("Title VII"), claiming employment discrimination on the basis of age, race, color, and gender, as well as unlawful retaliation for the exercise of protected rights, against her former employer, Cushman Wakefield ("CW"). The action was referred to this Court by the Honorable Richard C. Casey, United States District Judge, for general pretrial supervision. Presently before the Court is a dispute between the parties regarding Defendant's request for the return by Plaintiff of an e-mail that came into her possession, which Defendant contends is protected by the attorney-client privilege. Plaintiff responds that the document is not privileged and, in any event, the privilege has been waived.
BACKGROUND
At her deposition, Plaintiff testified that an envelope full of printed e-mails was left anonymously on her desk, some time late in February 2003, before she commenced a disability leave of absence from her employment with Defendant. The e-mails were not addressed to Plaintiff, and Defendant considers them to have been confidential. Among the e-mails was the e-mail in question, dated February 4, 2003, which was authored by Dennis Waggner, CW's Director of Commission Accounting, who was the supervisor of Plaintiff's immediate supervisor, Anthony Barra. The e-mail was addressed to Grace Ben-Ezra, CW's Assistant Manager of Human Resources, as well as several other CW employees — Michael Flood, Waggner's supervisor, Anthony Barra, Plaintiff's supervisor, Patricia Glorioso, Ms. Ben-Ezra's supervisor, and Kenneth R. Goldstein, CW's Assistant General Counsel. The subject of the e-mail was Plaintiff. Specifically, the e-mail references Waggner's having spoken with Howard Rothschild, CW's outside counsel, and it provides his views on the EEOC's dismissal of Plaintiff's administrative charge, her retention of new counsel, and his suggestion as to the legally appropriate way in which to treat her. The e-mail also reflects Waggner's views about Plaintiff's job-performance. (See Jones Ltr., Ex. A.)Plaintiff contends that the e-mail is not protected by the attorney-client privilege because it is not labeled so, does not refer to legal advice, except in one sentence, does not contain legal advice, was not authored by an attorney, was circulated to non-attorneys, and "[it] primarily contains information incidental to business advice. . . . (Jones Ltr. at 2.) Plaintiff also contends that any privilege was waived because Defendant waited approximately two months after receipt of the e-mail from Plaintiff to assert privilege, did not file an appropriate privilege log in which the e-mail was identified, and "never filed an assertion of attorney-client privilege with the Court." (Id. at 12.)
DISCUSSION
The attorney-client privilege affords confidentiality to communications among clients and their attorneys, for the purpose of seeking and rendering an opinion on law or legal services, or assistance in some legal proceeding, so long as the communications were intended to be, and were in fact, kept confidential. See United States v. International Brotherhood of Teamsters, 119 F.3d 210, 214 (2d Cir. 1997); In re Six Grand Jury Witnesses, 979 F.2d 939, 944 (2d Cir. 1992), cert. denied, 509 U.S. 905, 113 S.Ct. 2997 (1993); In re John Doe Corp., 675 F.2d 482, 487-88 (2d Cir. 1982); Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 160 F.R.D. 437, 441 (S.D.N.Y. 1995) (citing United States v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950)). The privilege is among the oldest of the common law privileges and "exists for the purpose of encouraging full and truthful communication between an attorney and his client. . . . " In re von Bulow, 828 F.2d 94, 100 (2d Cir. 1987);accord United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir.), cert. denied, 502 U.S. 813, 112 S.Ct. 63 (1991). Thus, the burden of breaching the privilege is particularly onerous. United States v. Davis, 131 F.R.D. 391, 398 (S.D.N.Y. 1990). The privilege does not protect the client's knowledge of relevant facts, whether or not they were learned from his counsel, or facts learned by the attorney from independent sources. In re Six Grand Jury Witnesses, 979 F.2d at 945; Arkwright Mut. Ins. Co. v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, No. 90 Civ. 7811 (AGS), 1994 WL 510043, at *4 (S.D.N.Y. Sept. 16, 1994) (citing Upjohn Co. v. United States, 449 U.S. 383, 395-96, 101 S.Ct. 677, 685-86 (1981));Alien v. West Point-Pepperell Inc., 848 F. Supp. 423, 427-28 (S.D.N.Y. 1994); Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., No, 93 Civ. 6876 (KMW) (JCF), 1995 WL 598971, at **9-10 (S.D.N.Y. Oct. 11, 1995).
The attorney-client privilege will be waived if the holder of the privilege discloses or consents to disclosure of any significant part of the communication to a third party or stranger to the attorney-client relationship. See In re Grand Jury Proceedings, No. M-ll-189 (LAP), 2001 WL 1167497, at *7 (S.D.N.Y. Oct. 3, 2001); In re Kidder Peabody Sec. Litig., 168 F.R.D. 459, 468 (S.D.N.Y. 1996). However, communications which reflect advice given by counsel to a corporation do not lose their privileged status when shared among corporate employees who share responsibility for the subject matter of the communication. See SR Int'l Bus. Ins. Co. Ltd, v. World Trade Ctr. Props., LLC, No. 01 Civ. 9291 (JSM), 2002 WL 1455346, at *5 (S.D.N.Y. July 3, 2002); Bank Brussels Lambert, 160 F.R.D. at 442; Strougo v. BEA Assocs., 199 F.R.D. 515, 519-20 (S.D.N.Y. 2001) ("[A]lthough dissemination of privileged information to third parties generally waives attorney-client privilege, the distribution within a corporation of legal advice received from its counsel does not, by itself, vitiate the privilege."); In re Grand Jury Proceedings, 2001 WL 1167497, at *27.
Applying these principles to the e-mail in issue, the Court has little difficulty in concluding that the first four paragraphs of the e-mail are protected by the attorney-client privilege. It is of no moment that the e-mail was not authored by an attorney or addressed to an attorney. The e-mail was clearly conveying information and advice given to Waggner by CW's outside counsel. That advice pertained to the effect of the termination of the EEOC proceeding on Plaintiff's claims, what the attorney anticipated would occur, and his advise as to how CW supervisors should conduct themselves in dealing with Plaintiff, while legal matters with Plaintiff were pending. Moreover, Waggner was conveying the attorney's thinking and advice to other supervisory employees who needed to know, including Human Resources personnel, Plaintiff's supervisor, and the Assistant General Counsel of CW. As discussed, communications from counsel to a single corporate executive acting on behalf of the corporate client retain their privileged status when communicated to other executives who have relevant responsibility.
In addition, there is nothing to suggest that the e-mail was not intended to be treated as confidential. It was only conveyed to a hand-full of high-level employees who had need to know. That Plaintiff came into its possession appears to have been the result of improper conduct by someone at CW, which was clearly not sanctioned by the officials to whom the e-mail was addressed. Moreover, "the determination of whether a document is privileged does not depend upon the technical requirement of a privilege legend." In re Grand Jury Proceedings, 2001 WL 1167497, at *10.
An investigation by Defendant led to the conclusion that, with one exception, the format of the e-mails indicated that they had been obtained and printed from outside of CW's offices. (See Fullerton Ltr. at 3.)
Nevertheless, the final paragraph of the e-mail is of a different order. In that paragraph, Waggner, a non-attorney, is simply conveying to his colleagues his own impressions and frustrations about Plaintiff's conduct on the job. That this is the case is made apparent by his final statement — "thanks for listening (again). . . talk to you later. . . . There is no legal advice contained in the paragraph and the information is not being conveyed to an attorney for the purpose of seeking legal advice. Accordingly, the final paragraph of the e-mail is not protected by the attorney-client privilege.
The only remaining issue is whether CW has waived the attorney-client privilege with respect to the first four paragraphs of the e-mail. Relying on the decision in SEC v. Cassano, 189 F.R.D. 83 (S.D.N.Y. 1999), Plaintiff appears to contend that there was a waiver of privilege by CW because of inadvertent conduct. That decision, however, is inapposite to the issues before this Court. In Cassano, the SEC made documents available for inspection by defense counsel, with the understanding that once counsel selected documents that were to be produced, the SEC would copy and produce them. In the course of the inspection, defense counsel found one document of nearly one hundred pages, which he considered extremely useful, and requested that it be produced prior to the more general production. The document was an action memo by the SEC staff relating to the litigation. The SEC paralegal in charge of the process checked with SEC counsel, identified the Bates number of the document in issue, and, without examining the document, counsel provided permission to copy and produce it. Moreover, the document had not been listed on the SEC's privilege log. Once produced, it was distributed among five defense attorneys, clients, and some outside parties. Twelve days later, the SEC's counsel sought the return of the document, claiming attorney-client privilege. The Court found that the SEC's carelessness in protecting the attorney-client privilege resulted in a waiver of the privilege. The Court further found that "[a]lthough the SEC acted promptly once it determined that the document had been produced, a factor cutting in its favor, the time taken to rectify the error, in all the circumstances, was excessive. There was no excuse for waiting 12 days to find out what the document was." Id. at 86.
In this case, the e-mail in issue was not produced to Plaintiff by Defendant or its counsel, inadvertently or otherwise. There is no evidence that Defendant failed to take appropriate precautions to protect the confidentiality of the document. Indeed, Plaintiff acknowledged at her deposition that by being in possession of the e-mail she appeared to be violating company policy on confidentiality. See Baptiste Dep. Tr. at 100.
Plaintiff further contends that there was a voluntary waiver of privilege by CW because of Defendant's two-month delay in asserting attorney-client privilege after receiving the document from Plaintiff as part of the discovery production. (See Jones Ltr. at 8-9.) The Court disagrees.
Plaintiff produced the e-mail to Defendant on or about August 11, 2003. According to Defendant's counsel, CW immediately undertook an investigation, through its Information Technology Department, to attempt to determine how and when the e-mails had been obtained from the CW e-mail system. At the time, Defendant did not know how Plaintiff had obtained the e-mails, and whether or not they had been provided by someone who was authorized to do so. If they had been provided by an authorized person, it would have been difficult to argue that the privilege had been properly preserved. CW decided that one way to obtain relevant information about the disclosure of the e-mails was to ask Plaintiff at her deposition, while she was under oath. (See Fullerton Ltr. at 2-3.)
As further evidence that it did not voluntarily waive its privilege, Defendant contends that when it provided its response to Plaintiff's discovery requests, on August 22, 2003, it did not produce the e-mail and indicated that a privilege log would be produced shortly. (See Fullerton Ltr., Ex. 2.) According to Defendant, the privilege log was served on Plaintiff's counsel on September 24, 2003. In the log, the e-mail was identified as a privileged attorney-client communication. (See Fullerton Ltr., Ex. 3.) Plaintiff was then deposed, on October 3, 2003. She was questioned extensively about all of the e-mails, and stated that she found them on her desk, and that she recognized the e-mail in issue to be conveying an attorney's advice, which was likely to have been confidential. (See Dep. Tr. at 81-82.) At the conclusion of Plaintiff's testimony, after determining that there was no evidence indicating that Plaintiff was authorized to have the e-mails, CW's counsel demanded the return of all of the e-mails. On October 10, 2003, CW's counsel followed-up with a letter, again seeking the return of the e-mails. (See Fullerton Ltr., Ex. 5.) The e-mails were never returned, and, on December 9, 2003, the Court directed the parties to file submissions on the issue.
According to Defendant, the log and other documents were sent to Plaintiff's counsel, via United Parcel Service, on September 24, 2003. They were delivered on September 25.
Plaintiff's counsel has taken issue with Defendant's contention that it provided a privilege log on September 24, 2003. (See Jones Ltr., dated January 27, 2004.) He claims that while he did receive a letter on September 24, indicating that a privilege log was attached, no such log or any other documents were attached to the letter he received. He alleges that the "privilege log was fabricated to support Defendant's claim that it was served," and the assertion that a privilege log was produced to Plaintiff is "outrageous." ( Id.) Moreover, Plaintiff claims, when Defendant's counsel did seek the return of the e-mail, in early October 2003, he only claimed it to be a confidential document, rather than a privileged one. Plaintiff therefore argues that the first time Defendant's counsel ever asserted the attorney-client privilege with respect to the February 4, 2003 e-mail was at depositions in December 2003.
Defendant's counsel strongly takes issue with the assertion that he did not serve a privilege log and that he misrepresented the fact of service to the Court. He has provided a United Parcel Service tracking log which reflects the delivery of a 3.30 pound package to Plaintiff's counsel on September 25, 2003, and asserts that the package included Defendant's First Supplemental Document Production and Privilege Log, as the September 24 cover letter indicated. Defendant's counsel maintained a complete set of the documents which were sent to Plaintiff's counsel on September 24, and "represent [s] to the Court that Defendant's Privilege Log is in the set of documents we maintained for our records. We offer these facts to further rebut Plaintiff's outlandish claim that my colleague and I fabricated a privilege log after the fact and lied about delivering it to counsel for Plaintiff." (Fullerton Ltr., dated Jan. 30, 2004.)
Defendant's counsel's proffer is sufficient to satisfy the Court that a privilege log was sent on September 24, 2003, and it is not contradicted by Plaintiff's counsel's assertion that he did not receive the log. The Court need not resolve the issue of whether Plaintiff's counsel actually received a privilege log from Defendant. The issue here is whether Defendant asserted attorney-client privilege in the log, and made a good faith effort to serve the log on Plaintiff's counsel. Assuming, for the sake of argument, that the log was inadvertently left out of the package that was transmitted to Plaintiff's counsel on September 24, and it was not received, that would not serve as evidence that Defendant had waived the right to assert privilege. Indeed, since Plaintiff's counsel does not deny that he received a letter on September 24 indicating that a privilege log was attached, it is puzzling that he did not simply call Defendant's counsel and advise him that he did not receive the log. Privilege was not waived simply because counsel chose to remain silent and play a game of "gotcha."
The Court therefore rejects the contention that the attorney-client privilege was waived because it was not raised until December 2003, some four months after Defendant learned that Plaintiff was in possession of the February 4th e-mail. Nor was waiting to seek return of the document until October 3, 2003, after questioning Plaintiff at her deposition about how she came into possession of the e-mails, a delay that serves to waive the privilege. Again, this is not a case where a privileged document was mistakenly turned over to an adversary, and, even after learning of the error, counsel delayed in seeking its return. Cf. Prescient Partners. L.P. v. Fieldcrest Cannon. Inc., No. 96 Civ. 7590 (DAB) (JCF), 1997 WL 736726, at *6 (S.D.N.Y. Nov. 26, 1997) (even where party inadvertently produced privileged documents to adverse party, there was no inordinate delay in taking approximately one month to seek return since a comprehensive review of an extensive document production was required); Aramony v. United Way of Am., 969 F. Supp. 226, 237 (S.D.N.Y. 1997) ("The period after the producing party realizes that privileged information has been disclosed is the relevant period for measuring whether the privilege has been waived.") (emphasis added). Here, Plaintiff came into possession of the documents through no fault of Defendant. By the time Defendant learned that she had the e-mails, Plaintiff had already been in possession of the documents for approximately six months, and had shared them with her attorney. When it produced its privilege log, approximately one month later, Defendant claimed privilege for the February 4th e-mail, and demanded its return less than two weeks later, after examining Plaintiff about how she came to possess the e-mail. Plaintiff has not claimed, or demonstrated, that she was prejudiced because of any delay in Defendant's assertion of privilege. Under these circumstances, the Court concludes that there has not been a voluntary waiver of the attorney-client privilege. Cf. RMED Int'l, Inc. v. Sloan's Supermarkets, Inc., No. 94 Civ. 5587 (PKL)(RLE), 2003 WL 41996, at *4 (S.D.N.Y. Jan. 6, 2003) (one-year delay in serving privilege log, where there were adjournments of time to respond to discovery requests and other motion practice, did not waive privilege where there was no evidence of prejudice); Strougo, 199 F.R.D. at 523 (two-week delay in invoking work-product privilege, after privilege log was produced, did not waive privilege, where adversary failed to show any harm arising from the delay).
Contrary to Plaintiff's contention, the identification of the e-mail in the privilege log was adequate. Consistent with Rule 26.2 of the Local Civil Rules of the Southern District of New York, the log entry described the type of document (an e-mail), the general subject matter of the document ("Re: Ms. Baptiste, relaying advice from Howard Rothschild, Esq."), the date of the document, its author, and its recipients. (See Fullerton Ltr., Ex. 3.)
In this case, unlike most other cases involving inadvertent production of privileged material, Plaintiff's counsel assumed no responsibility for promptly advising Defendant that he and his client had come into possession of what appeared to be a privileged communication. Although the e-mail was not written by an attorney, it obviously reflects the transmittal of attorney advice in the context on an ongoing legal proceeding. Cf. Armony, 969 F. Supp. at 237 (attorney wrote to adversary, indicating that privileged documents had been made available to him);Prescient Partners, 1997 WL 736726, at *2 ("Prescient learned that privileged documents had been sent to the defendants . . . when it received a letter from defendants' counsel."); United Fidelity Guar. Co. v. Braspetro Oil Servs. Co., Nos. 97 Civ. 6124 (JGK)(THK), 98 Civ. 3099 (JGK)(THK), 2000 WL 744369, at *6 (S.D.N.Y. June 8, 2000) (counsel for plaintiffs informed defendant's counsel of their receipt of several privileged documents).
Accordingly, all copies of the February 4th e-mail in Plaintiff's and her counsel's custody and control shall be returned to Defendant's counsel. The document shall then be redacted to reflect this Court's decision as to the portions that are privileged, and produced in redacted form to Plaintiff. Assuming that the other e-mails which came into Plaintiff's possession are relevant to the claims and defenses in this action, Defendant shall have the option of designating them as "confidential" pursuant to the Stipulation and Order of Confidentiality that has been entered in this action.
SO ORDERED.