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In Kirschner v. Klemons, 2001 WL 1346008 (S.D.N.Y. Oct. 31, 2001) the court found plaintiff had waived the privilege by revealing conversations with counsel regarding the alleged letter but found no subject-matter waiver regarding documents reflecting conversations with other counsel concerning the subject of the propriety of defendant's publishing the fact of professional disciplinary actions in the actionable letter based on defendant's "partial disclosures" of defendant's conversations with a particular attorney regarding the drafting the letter.
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99 Civ. 4828 (RCC) (DFE)
October 31, 2001
OPINION AND ORDER
Defendant Ira Klemons ("Klemons") moves pursuant to Rule 72(a) of the Federal Rules of Civil Procedure to vacate certain portions of the October 17, 2001 Memorandum and Order of Magistrate Judge Douglas F. Eaton (the "Order"), on the grounds that the Magistrate improperly directed Klemons and his former attorney Michael Garber, Esq. ("Garber") to disclose attorney-client privileged communications and other protected matter. Judge Eaton found that Klemons waived any claim of attorney-client privilege by revealing, during his deposition, the substance of counsel's advice. For the reasons set forth below, this Court upholds Judge Eaton's finding of a waiver, but limits the scope of the disclosure required by that ruling.
I. BACKGROUND
This case arises out of a state professional disciplinary proceeding brought against plaintiff Howard J. Kirschner, D.D.S. ("Kirschner"), purportedly at the instigation of defendant Klemons. Klemons allegedly initiated the disciplinary action in order to discredit Kirschner and silence his medical opinions. Kirschner also claims that Klemons breached the confidentiality of the proceedings by making numerous disclosures to third parties about the existence and substance of the disciplinary investigation.
During his deposition, Klemons was questioned about one of those disclosures, a letter dated February 5, 1996:
Q. Why did you feel you could disclose the existence of an investigation regarding Dr. Kirschner in that letter?
[Defense Counsel]: Objection to form.
A. I have never been given any suggestion or hint of any type that I could not do so by anyone. As stated previously, I've been involved in a number of matters, legal matters in the past. I have no recollection whatsoever of ever having any suggestion made that anything about it was to be kept secret. Had I had any knowledge at all that that was a requirement, then this would not have been in there. But I never had any knowledge.
I did consult an attorney and the attorney told me it is absolutely appropriate to include information so long as it is truthful. And of course, I always intend to be truthful when he made the statement that simply be truthful [sic] because the truth is a defense against any allegation of defamation.
Q. Who would that lawyer be?
A. I've been told that by many attorneys over the years, but in this matter I asked specifically Michael Garber.
Q. At what time did you make that request to Mr. Garber?
A. Prior to writing this statement.
Q. Was it between your February 1 conversation with Ms. Stern and the sending of this letter'?
[Defense Counsel]: Objection to form.
A. I believe so, since this is wording that was developed in discussion with him based on my conversation with her. However, I also discussed this with other attorneys in advance of that as well.
Transcript of Deposition dated October 4, 2001 ("Tr."), at 72-74.
When asked whose advice he was relying on, defense counsel instructed Klemons not to answer based on attorney-client privilege. After the questioning resumed, Klemons stated that he had been told comparable things by numerous attorneys over the years other than Mr. Garber, but could not recall with whom he had consulted. Klemons stated:
A. I believe this is attorney-client privilege. And I don't feel it appropriate to give those kinds of details at this point without discussing further with counsel.
However, I will state very clearly that I did not make any statement about this without discussing it first with counsel.
Q. Who was the counsel — before you made the statement contained in that letter that I marked as Exhibit 10, you consulted with counsel as to whether it was permissible to say those things?
[Defense Counsel]: Objection to form.
A. To the best of my recollection, this is wording that Mr. Garber recommended.
Q. When you say this is wording, are you referring to language that I read to you, the one that begins "further, Dr. Kirschner is under investigation"?
A. Yes.
Q. Did you show Mr. Garber drafts of your language?
[Defense Counsel]: Objection to form. I'm going to direct him not to answer on the grounds of attorney-client privilege. What he did with an attorney is privileged.
Tr. at 75-76.
After the deposition, Kirschner served a subpoena and notice of deposition upon Mr. Garber, and defense counsel moved to quash on the grounds that the subpoena improperly required the disclosure of attorney-client privileged, attorney-work product privileged and/or other protected matter. Defense counsel also opposed plaintiffs request for an additional deposition of Klemons regarding issues of legal advice.
Judge Eaton ruled in plaintiff's favor, concluding that Klemons had waived the attorney-client privilege by revealing the substance of the advice he had received from Mr. Garber and the other attorneys. Order at 1. Judge Eaton, citing In re Grand Jury Proceedings, 219 F.3d 175, 184 (2d Cir. 2000), found that Klemons made "a deliberate decision to disclose privileged information in a forum where disclosure was voluntary and calculated to benefit the disclosing party," and therefore waived the privilege. Id. at 1-2. Judge Eaton construed the scope of the waiver to extend to "all communications concerning the permissibility of disclosing the existence of any investigation of any dentist for possible professional misconduct, whether the investigation took place in New York or any other jurisdiction." Id. at 2. The Order further directed Mr. Garber and Klemons to answer all questions and to produce certain documents within the scope of the waiver. Id. In addition, Klemons was required to supply the names and addresses of any other attorneys with whom he had consulted. Id.
Klemons, by order to show cause, now moves to vacate certain portions of the Order pursuant to Fed.R.Civ.P. 72(a). Specifically, defendant objects to the finding of waiver and argues that Judge Eaton erred in directing Mr. Garber and Klemons to answer all questions within the scope of the waiver. In addition, Klemons objects to producing the documents set forth in the Order, to the extent that it requires the disclosure of privileged materials.
II. DISCUSSION
Discovery orders entered by a Magistrate Judge are reviewed under a highly deferential standard. Both Fed.R.Civ.P. 72(a) and the Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(A), provide that the District Court shall reverse a Magistrate's findings as to nondispositive matters only if they are clearly erroneous or contrary to law. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire record is left with "the definite and firm conviction that a mistake has been committed." Concrete Pipe Prods. of Cal., Inc. v. Construction Laborers Pension Trust for So. Cal., 508 U.S. 602, 622 (1993); see also Verschoth v. Time Warner, Inc., No. 00 Civ. 1339, 2001 WL 546630, at 1 (S.D.N.Y. May 22, 2001). An order may be deemed contrary to law when it misapplies relevant statutes, case law or rules of procedure. Verschoth, 2001 WL 546630 at 1 (citations omitted).
It is well established that the attorney-client privilege is waived if the privilege holder voluntarily discloses or consents to the disclosure of any significant part of the matter or the communication. Equal Employment Opportunity Comm'n v. Johnson Higgins, Inc., No. 93 Civ. 5481, 1998 WL 778369, at 8 (S.D.N.Y. Nov. 6, 1998); see also In re von Bulow, 828 F.2d 94, 101 (2d Cir. 1987) ("[I]t is has been established law for a hundred years that when the client waives the privilege by testifying about what transpired between her and her attorney, she cannot thereafter insist that the mouth of the attorney be shut."). This concept of implied waiver is based on fairness considerations, which "aim to prevent prejudice to a party and distortion of the judicial process that may be caused by the privilege-holder's selective disclosure during litigation of otherwise privileged information." In re von Bulow, 828 F.2d at 101. In other words, "a party cannot partially disclose privileged communications or affirmatively rely on privileged communications to support its claim or defense and then shield the underlying communications from scrutiny by the opposing party." In re Grand Jury Proceedings, 219 F.3d 175, 182 (2d Cir. 2000).
The Magistrate's finding of waiver was not clearly erroneous or contrary to law. This is not a case where the deponent merely referred to the fact that he had been advised by counsel without revealing the substance of that advice. See, e.g., United States v. White, 887 F.2d 267, 270-71 (D.C. Cir. 1989) ("An averment that lawyers looked into a matter does not imply an intent to reveal the substance of the lawyers' advice.") (cited in In re Grand Jury Proceedings, 219 F.3d at 183). Here, when confronted with the February 5, 1996 letter, Klemons volunteered that he had sought the advice of counsel, specifically identified Mr. Garber, estimated the time period in which he had communicated with Mr. Garber, recounted the substance of the advice and discussed the wording that Mr. Garber had recommended. See Tr. at 71-76. Moreover, although defense counsel made a few belated objections on privilege grounds during Klemons' testimony, Klemons nonetheless continued to answer questions regarding Mr. Garber's advice. See id. at 75-76. The record therefore supports a finding of waiver on the basis that Klemons selectively revealed the substance of his communication with Garber with respect to the February 5, 1996 letter.
However, Klemons' vague references to discussions with other unnamed attorneys do not sufficiently reveal the substance of his communications with them so as to effectuate a waiver on that ground.See, e.g., United States v. Gasparik, 141 F. Supp.2d 361, 371-72 (S.D.N.Y. 2001) (finding no implied waiver where defendant merely stated that he consulted with counsel and did not reference a particular conversation or disclose any confidential information).
Klemons argues that waiver is inapplicable here because he has not asserted "advice of counsel" as an affirmative defense and thus has not placed privileged communications in issue. Def. Mem. at 5. Klemons states that he does not intend to raise that defense unless Mr. Garber is required to disclose privileged materials. Def. Mem. at 7 n. 2. However, this argument is more properly directed at the scope of the waiver, i.e., whether the deponent waived the privilege solely as to the specific communication disclosed at the deposition or as to all other privileged communications regarding the same subject matter. See Johnson Higgins, 1998 WL 778369 at 8 ("Subject matter waiver applies where the privilege holder puts the privileged communications in issue by virtue of his claims or defenses and prejudices the opposing party, in other words, seeks to use the privilege as both a `sword' and a `shield'; whereas a more limited waiver applies if the holder releases only communications or portions of communications favorable to his litigating position, while withholding any unfavorable ones, and the opposing party is not prejudiced.").
Here, Judge Eaton concluded that a broad subject matter waiver was warranted, extending to all communications concerning the permissibility of disclosing the existence of any investigation of any dentist. Order at 2. However, this Court finds that the Magistrate's determination as to the scope of the waiver is clearly erroneous, given that Klemons does not intend to rely on "advice of counsel" as a defense in this action, and thus is not seeking to use privileged communications as both a shield and a sword. A subject matter waiver is therefore not appropriate here. See, e.g, Johnson Higgins, 1998 WL 778369 at 11 (limiting waiver to encompass only the disclosure at issue where the plaintiff was not seeking to use the disclosure as both a sword and a shield).
The Second Circuit has directed that "the waiver should be tailored to remedy the prejudice" to the opposing party. In re Grand Jury Proceedings, 219 F.3d at 188. Accordingly, this Court will uphold a waiver only to the extent necessary to prevent any prejudice to plaintiff. Here, Klemons made partial disclosures as to the substance of his discussions with Mr. Garber regarding the February 5, 1996 letter. Therefore, Kirschner properly may depose Klemons and Mr. Garber about those specific discussions and may seek the production of documents relating to that letter. See e.g., Koster v. Chase Manhattan Sink, No. 81 Civ. 5018, 1984 WL 883, at 4 (S.D.N.Y. Sept. 18, 1984) ("[I]f a party's disclosure of a portion of a communication or of one among several related communications may be misleading because the party has disclosed only favorable material while concealing unfavorable information, waiver is likely to be found for so much of the withheld information as will make the disclosure complete and not misleadingly one-sided.") (internal citations omitted). However, because defendant does not intend to utilize "advice of counsel" as a defense in this action, there is no need to expand the waiver to encompass any other communications between Klemons and Mr. Garber or between Klemons and other attorneys.
The Court has narrowed the scope of the waiver in reliance upon defendant's statement that "advice of counsel" is not in issue. The Court will strictly enforce this disclaimer at trial, and defendant will not be permitted to raise "advice of counsel" as a defense to plaintiff's claims.
III. CONCLUSION
For the foregoing reasons, the Court upholds Judge Eaton's Order with respect to the finding of waiver, but limits the scope thereof in accordance with this Opinion. Any issues as to the applicability of attorney-work product privilege should be raised with Judge Eaton in the first instance.