Freeman v. Indian Spring Land Co.

Full title: John D. Freeman et al. v. The Indian Spring Land Company et al

Court: Connecticut Superior Court Judicial District of Stamford-Norwalk at Stamford

Date published: Jan 8, 2007

2007 Ct. Sup. 483 (Conn. Super. Ct. 2007)

42 CLR 630

Opinion

No. FST CV-05-4002991S

January 8, 2007

Memorandum of Decision on Plaintiffs' Motion to Compel the Production of Documents by Defendant The Indian Spring Land Company

ALFRED J. JENNINGS, Jr., Judge.

Procedural and Factual Background

This is an action by the former in-house general counsel of a real estate development company which owns and sells building lots for residential development in the town of Greenwich. The plaintiff is claiming damages for his alleged wrongful termination in violation of his employment agreement, specific performance of an alleged agreement by the defendant to sell him certain building lots, and damages for alleged libel. Now before the court is the plaintiff's motion to compel the production of certain documents the production of which the defendant The Indian Spring Land Company (ISLCO) objects to on the basis of attorney-client privilege and/or attorney work product.¹ The motion to compel was first argued at the short calendar of April 24, 2006. At that time it was agreed that the disputed documents would be submitted to the court conditionally under seal for in camera review. A Motion to Seal Documents Submitted for In Camera Review pursuant to Practice Book § 7-4B was filed by the defendant. The motion to seal was duly noticed under Practice Book § 11-20(e), and the motion to seal was granted following a hearing of December 18, 2006. The Court has now reviewed in camera the disputed documents, a privilege log prepared by counsel for ISLCO and two rounds of briefing by the parties.

1 ISLCO had also objected to the production of certain of the documents dated after December 31, 2004 because they were irrelevant, but that objection has now been withdrawn and will not be addressed. At oral argument counsel for ISLCO also opposed production of some of the disputed documents on the ground that they relate to settlement negotiations between the parties, but that theory of protection has not been briefed and will be considered to have been abandoned. Evidence of settlement negotiations is generally inadmissible at trial on the issues of liability and the amount of the claim, subject to certain exceptions. Connecticut Code of Evidence § 4-8, but, under our rules, discovery is not limited to admissible evidence but rather extends to information ". . . reasonably calculated to lead to the discovery of admissible evidence" Practice Book § 13-2. At oral argument counsel for the defendant cited no authority that evidence from settlement discussions is privileged, and there is Superior Court authority that it is not. See, Sharon Motor Lodge, Inc. v. Tai, Docket No. CV98-0077828S, Superior Court, judicial District of Litchfield at Litchfield (December 3, 2001, Cremins, J.) 2001 Ct.Sup. 15989, 30 Conn. L. Rptr. 753 (Interrogatories allowed to be submitted to mediator re settlement discussions over defendant's objection that discussions before mediator were "privileged").

Discussion

Whether or not the disputed documents must be produced, or are protected by the attorney-client privilege or as attorney work product, centers largely on the role of counsel for ISLCO in the preparation or receipt of the document. Prior to ISLCO's representation by its current counsel, Lynch, Traub, Keefe, and Errante, ISLCO claims that it was receiving legal advice relative to the dispute with Mr. Freeman from its now director² Gregg Stone who is a graduate of Harvard Law School and a former member of the Massachusetts bar. Many of the disputed documents are claimed to be privileged because of that claimed attorney-client relationship with Mr. Stone, or as his work product. In support of this position the defendant ISLCO has presented the affidavit of its president Theodore S. Proxmire, II, in which he states that on or about June 7, 2004 Mr. Stone was appointed as a member of a negotiations committee to negotiate with the plaintiff John Freeman concerning his continued employment with the company, and that:

2 Mr. Stone was elected as a director of ISLCO on August 11, 2004. Prior to that his connection with ISLCO was that he was a co-trustee of four trusts that own shares in the company.

I contacted Mr. Stone and asked him to be on the Negotiations Committee because Mr. Stone was a lawyer and I believed that ISLCO needed someone with legal training and experience and to adequately protect the company's interest in the negotiations with John Freeman. Specifically, I asked Mr. Stone to be on the committee for the purpose of seeking his legal advice.

Proxmire Affidavit, June 6, 2006, ¶ 9

Mr. Stone's status as an attorney is crucial to the claim of work product and significant as to the claim of attorney-client privilege. The lack of involvement of counsel negates a claim that reports were the product of a party's attorney. To be covered by the work product rule an attorney's work ". . . must have formed an essential step in the procurement of the data which the opponent seeks and the attorney must have performed duties normally attended to by attorneys." The Stanley Works v. New Britain Redevelopment Agency, 155 Conn. 86, 95 (1967). And in Connecticut the contours of the attorney-client privilege are established by the common law. Connecticut Code of Evidence § 5-1. Connecticut law is well settled on what is necessary to invoke the privilege. "The attorney-client privilege applies to communications: (1) made by a client; (2) to his other attorney; (3) for the purpose of obtaining legal advice; and (4) with the intent that the communications be kept confidential." Pagano v. Ippolito, 245 Conn. 640, 649 (1988). It is also well established that the burden of proving each element of the privilege, by a fair preponderance of the evidence, rests with the party seeking to assert the privilege. PSE Consulting, Inc. v. Frank Mercede Sons, Inc., 267 Conn. 279, 330 (2004).

To claim the benefit of the work product doctrine, ISLCO must prove that Gregg Stone was an attorney. Despite what is said in the Proxmire affidavit it is clear by Mr. Stone's own statements, and the court finds, that he is not presently nor was he in the relevant time period with regard to the disputed documents an attorney (member of the bar in good standing) in Connecticut or any other jurisdiction. He is a law school graduate and was at one time a member of the state and federal bars of Massachusetts, but even those bar affiliations had been relinquished. In response to an inquiry from plaintiff's counsel as to whether or not he represented ISLCO in this dispute, Mr. Stone responded on August 2, 2004 by email: "I am not a director of ISLCO, nor am I acting as its counsel, nor have I ever acted as its counsel. I am not a member of the Bar." Exhibit I to Memorandum of Law in Support in Support of Plaintiff's Motion to Compel the Production of Documents from Defendant Indian Spring Land Company. Shortly thereafter, at the first board meeting he attended as a director of ISLCO, Mr. Stone said, with reference to a telephone conversation he had recently had with plaintiff's lawyer Atty Louis Pepe:

I am not a lawyer — I went to law school, I'm not a member of the bar anymore. I'm not here [at ISLCO] in a legal capacity. And in Massachusetts, it's against the code of ethics for a lawyer to try to negotiate with a non-lawyer.

Minutes of Executive Meeting of the Board of Directors of Indian Spring Land Company, August 11, 2004 (Exhibit J to Memorandum of Law in Support of Plaintiff's Motion to Compel the Production of Documents from Defendant Indian Spring Land Company.

To which ISLCO president Proxmire replied:

I think, first of all, we have to do is get counsel. Id.

And Mr. Stone himself later responded:

I move to authorize you, as president, to hire counsel to represent us with regard to John Freeman on whatever terms you ultimately consider. Id. ³

3 Mr. Stone's motion to authorize Mr. Proxmire to hire counsel passed unanimously and resulted in the retention of Lynch, Traub, Keefe, and Errante.

Under the foregoing circumstances existing in the spring of 2004 and thereafter it would probably have been illegal for Mr. Stone to have given legal advice to ISLCO:

Any person who violates any provision of this section [ § 51-88, Conn. Gen. Stat. (Practice of law by persons not attorneys)] shall be fined not more than two hundred and fifty dollars or imprisoned not more than two months or both. The provisions of this subsection shall not apply to any employee in this state of a stock or nonstock corporation . . . who, within the scope of his employment, renders legal advice to his employer or its corporate affiliate, and, who is admitted to practice law before the highest court of original jurisdiction in any state, the District of Columbia, the Commonwealth of Puerto Rico or a territory of the United States or in a district court of the United States and is a member of good standing of such bar. For purposes of this subsection "employee" means any person engaged in service to an employer in the business of his employer and does not include an independent contractor. (Emphasis supplied.) Conn. Gen. Stat. § 51-88(b).

Since he was not an attorney, and could not and did not provide legal advice or representation to ISLCO, no protected work-product status can attach to documents authored, sent, or received by Gregg Stone. "Work product can be defined as the result of an attorney's activities when those activities have been conducted with a view to pending or anticipated litigation." The Stanley Works v. New Britain Redevelopment Agency, supra, 155 Conn. at 95. Documents which are claimed in the privilege log as work product because of the involvement of Gregg Stone must therefore be produced.

Claims of attorney-client privilege are not necessarily precluded by the fact that Mr. Stone was not an attorney. "The privilege depends on the client's belief that he or she is consulting a lawyer for professional advice. It is sufficient if the client reasonably believes that the person consulted is an attorney, even if in fact the person is not." Tait, Handbook of Connecticut Evidence (Third Edition, 2001) § 5.22.1 citing McCormick § 88. Certainly, ISLCO and its officers and directors including president Theodore Proxmire could not have reasonably believed that Gregg Stone was an attorney after the August 11, 2004 board meeting (excerpts of minutes quoted above). Any documents created after the board meeting of August 11, 2004 claimed to be attorney-client privileged because of the involvement of Gregg Stone must be produced. The court finds, however, based on the Proxmire affidavit, that ISLCO did have a reasonable belief prior to August 11, 2004 that Mr. Stone was an attorney because of his having graduated from law school and having practiced law in Massachusetts. There is no evidence before the court of Mr. Proxmire or any other officer or director having knowledge prior to August 11, 2004 that Mr. Stone had relinquished or lost his bar membership. Documents produced prior to August 11, 2004 claimed to be protected by the attorney-client privilege will therefore be scrutinized individually to determine if the defendant has met its burden of showing that the attorney-client privilege applies.

Order

Based on the foregoing principles, the court rules on the disputed documents as follows. (Listing taken from defendant's privilege log of June 5, 2006 submitted with the disputed documents for in camera review; documents identified by Bates stamp number; only the "Asserted Privilege" has been considered. "Granted" means that the motion to compel is granted and the document must be produced. "Denied" means that the motion to compel is denied and the document need not be produced because it is protected by the asserted privilege.)

Documents ordered to be produced shall be produced to plaintiff's counsel forthwith upon receipt of this order.

Document Date Asserted Privilege Ruling on Motion to Compel

00016-17 6/11/04 Work Product Granted 00161-162 10/21/04 Work Product Granted 00163 10/24/04 Work Product Granted 00163-164 10/21/04 Work Product Granted 00165 10/22/04 Work Product Granted 00175 (2 emails) 11/02/04 Work Product Granted 00179 11/02/04 Work Product Granted 00180 11/03/04 Work Product Granted 00181 11/03/04 Work Product Granted 00182 11/04/04 Work Product Granted 00182 11/03/04 Work Product Granted 00182-00183 11/02/04 Work Product Granted (Duplicate of 00179) 00186-87 11/03/04 Work Product Granted (Duplicate of 00182-00183 11/04/05 00193 11/05/04 Work Product Granted 00195 11/03/04 Work Product Granted 00198 11/03/04 Work Product Granted 00200 11/08/04 Attorney-client Denied Work Product 00227-00229 12/08/04 Attorney-client Denied Work Product 00231-00232 12/08/04 Attorney-client Denied Work Product 00536 11/26/04 Attorney-client Denied Work Product 00537 11/26/04 Attorney-client Denied Work Product 00607-08 12/08/04 Attorney-client Denied Work Product 00608 12/07/04 Attorney-client Denied Work Product 00609-610 12/08/04 Attorney-client Denied Work Product 00632-633 11/08/04 Attorney-client Denied Work Product 002645 Granted (Duplicate of 00180) (Same order as 00180) 002646-2647 Granted (Duplicate of 00181) (Same order as 00181) 002648 Granted (Duplicate of 00198) (Same order as 00198 002649 Granted (Duplicate of 00163-164 (Same order as 00163-164) 002653-54 11/30/04 Attorney-client Denied Work Product 002660 07/01/04 Work Product Granted 002661 Granted (Duplicate of 00165) (Same order as 00165) 002667 06/22/04 Work Product Granted 002687 06/29/04 Work Product Granted (Author: Proxmire) 002687 06/29/04 Work Product Granted (Author: Stone) 002687-88 06/29/04 Work Product Granted (Author: Greene) 002687-88 06/28/04 Work Product Granted (Author: Proxmire) 002689 10/20/04 Work Product Granted (Author: Stone) 002689 10/20/04 Work Product Granted (Author: Proxmire) 002690 06/13/04 Work Product Granted 002691-2692 Work Product Granted (Duplicates of 00016, 00017 002700(2) (Same order as 00016-17) 002694-95 Work Product Granted (Duplicates of 00016) (Same order as 00016) 002698 06/13/04 Work Product Granted 002699-700 Work Product Granted (Duplicate of 00016) (Same order as 00016) 002700 undated Work Product Granted 002723 11/5/04 Attorney-client Granted (Duplicate of 000198) Work Product (Same order as 000198) except that Attorney- client privilege was not asserted for 000198.) 002725 11/3/04 Attorney-client Granted (Duplicate of 00180) Work Product (except that Attorney- client privilege was not asserted for 00l80.) 002730 11/29/04 Attorney-client Denied Work Product 002730-31 11/29/04 Work Product Denied 002742 11/29/04 Attorney-client Denied Work Product 002743 11/18/04 Attorney-client Denied Work Product 002743 (forwarded) Attorney-client Denied Work Product 002744 11/05/04 Work Product Granted (Author: Stone) 002744 11/05/04 Work Product Granted (Author: Rockefeller) 002746 11/03/04 Work Product Granted (Author: Stone) 002746 11/03/04 Work Product Granted (Author: Greene) 002747 11/3/04 Work Product Granted 002747 Granted (Duplicate of 00180) (Same order as 00180) 002748-49 Granted (Duplicates of 002646-47) (Same order as 002646-47) 002750 Granted (Duplicate of 00165) (Same order as 00165) 002751 Granted (Duplicate of 002649-00163-164 (Same order as 00163-164) 002752 Granted (Duplicate of 00163) (Same order as 00163) 002828 Granted (Duplicate of 000116) (Same order as 000116-17) 003208 -003212 undated Attorney-client Denied Work Product 003266-3267 06/02/04 Attorney-client Denied Work Product 003268-3273 06/03/04 Attorney-client Denied Work Product 003282-003285 07/07/04 Attorney-client Denied Work Product 003290 06/30/04 Attorney-client Denied 07/01/04 Work Product 003296-003301 07/21/04 Attorney-client Denied Work Product 003302-003304 07/13/04 Attorney-client Denied Work Product All documents submitted for in camera review will be maintained under seal in the court file for purposes of preserving an appellate record.

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