Opinion
No. 02-CV-847 (TJM/DRH)
February 11, 2003
ELMER ROBERT KEACH, III, ESQ., Attorney for Plaintiffs, Albany, New York.
BERANBAUM, MENKEN BEN-ASHER, JASON J. ROZGER, ESQ., Attorney for Plaintiffs, New York, New York.
O'CONNOR, YOQUINTO RYAN, LLP, THOMAS J. O'CONNOR, ESQ., Attorney for Defendants, Troy, New York.
MEMORANDUM-DECISION AND ORDER
Plaintiffs allege in this action that they were subjected to strip searches upon their admission to the Rensselaer County Correctional Facility (RCCF) following arrests for non-felony offenses. On behalf of themselves and a putative class of those similarly subjected to strip searches at the RCCF, plaintiffs allege that such searches violated their Fourth Amendment protection against unreasonable searches. They seek injunctive relief as well as compensatory and punitive damages under 42 U.S.C. § 1983 against the County of Rensselaer, the Rensselaer County Sheriff's Department, County Executive Kathleen Jimino, Sheriff Daniel Keating, three Sheriff's Department officials and 100 "John Jane Does."
Presently pending is plaintiffs' motion to compel defendant Robert Loveridge ("Loveridge") to answer questions at his oral deposition concerning communications regarding RCCF strip searches which he has had with Sheriff Keating and employees of the RCCF since the commencement of this law suit. Hearings on this motion were held on January 31 and February 4, 2003. For the reasons which follow, plaintiffs' motion is granted in part and denied in part.
The facts set forth in this opinion constitute the Court's findings of fact from the testimony and evidence presented at the evidentiary hearing on February 4, 2003.
I. Background
Loveridge has served as a Colonel in the Rensselaer County Sheriff's Department and the Superintendent of the RCCF since 1994. This action was commenced on June 27, 2002. Docket No. 1. Loveridge learned of this action on or about the same day from a newspaper article. Loveridge then spoke with Sheriff Keating and at least six RCCF employees concerning strip searches at RCCF. Each of these conversations occurred before an attorney had been retained to represent defendants in this action. These conversations served two purposes. First, Loveridge sought to determine what occurred concerning the allegations reported in the newspaper to assess the performance of the RCCF and its employees. Second, Loveridge sought to amass facts to assist defendants' counsel when counsel appeared in the case.
Defendants' counsel commenced representation of defendants in this action several weeks after June 27, 2002. At counsel's specific direction, Loveridge initiated additional conversations with RCCF employees regarding this law suit to communicate or obtain information for counsel. All such conversations were initiated at the direction of defendants' counsel and all solely served Loveridge's function to coordinate the defense of civil actions against the RCCF and its employees. None related to Loveridge's function as supervisor of the operations of the RCCF.
On January 9, 2003, plaintiffs took the oral deposition of Loveridge. During the deposition, plaintiffs' counsel asked Loveridge about conversations concerning strip searches which Loveridge had with Sheriff Keating and other employees of the RCCF after the commencement of this action. At the direction of defendants' counsel, Loveridge declined to answer any such questions. In a telephone conference with the Court during the deposition, defendants asserted that the answers to such questions were protected from disclosure by the "joint defense" privilege. See, e.g., United States v. Schwimmer, 892 F.2d 237, 243-44 (2d Cir. 1989) (recognizing privilege and describing its function as to "protect the confidentiality of communications passing from one party to the attorney for another party where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel"). However, in a letter-brief dated January 27, 2003, defendants abandoned their claim of this privilege. Defendants now contend that Loveridge's testimony is protected from disclosure by the attorney-client privilege.
II. Discussion
"Narrowly defined, riddled with exceptions, and subject to continuing criticism, the rule affording confidentiality to communications between attorney and client endures as the oldest rule of privilege known to the common law." Schwimmer, 892 F.2d at 242. That privilege "protects confidential communications made for the purpose of obtaining legal advice." Vingelli v. U.S. Drug Enforcement Agency, 992 F.2d 449, 454 (2d Cir. 1993). The party asserting the privilege bears the burden of establishing its applicability. In re Grand Jury Proceedings, 219 F.3d 175, 182 (2d Cir. 2000). The privilege applies to "(1) a communication between client and counsel, which (2) was intended to be and was in fact kept confidential, and (3) made for the purpose of obtaining or providing legal advice." United States v. Construction Prods. Research, Inc., 73 F.3d 464, 472 (2d Cir. 1996).
Because inanimate entities such as corporations and governments may act only through their agents, communications between counsel and the employees of such entities which satisfy the elements of the privilege are deemed to fall within the scope of its protection. See C.F.T.C. v. Weintraub, 471 U.S. 343, 348 (1985); Upjohn Co. v. United States, 449 U.S. 383, 393-96 (1981). Thus, where an employee communicates information to counsel for a corporate or government entity in confidence for the purpose of obtaining legal advice for the entity, that communication is protected from disclosure by the attorney-client privilege. Upjohn, 449 U.S. at 393-96; United States v. International Bhd. of Teamsters, 119 F.3d 210, 214 (2d Cir. 1997). However, the applicability of the privilege to the communications of employees must be decided on a case-by-case basis. Upjohn, 449 U.S. at 396-97.
Moreover, the privilege may extend to protect communications between a client and the agent of an attorney if the communication is confidential and made for the purpose of obtaining legal advice from counsel. See Schwimmer, 892 F.2d at 243 ("[i]nformation provided to an accountant by a client at the behest of his attorney . . . is privileged to the extent that it is imparted in connection with the legal representation"); Carter v. Cornell Univ., 173 F.R.D. 92, 94 (S.D.N.Y. 1997) (finding privilege applicable to communications by employees to college dean where interviews in question were conducted "at the request of counsel and for the exclusive use of counsel in rendering legal representation"), aff'd 159 F.3d 1345 (2d Cir. 1998).
Here, defendants contend that all communications between Loveridge and Sheriff Keating and RCCF employees are protected by the privilege as they were made in confidence to Loveridge as an agent of counsel for defendant Rensselaer County for the purpose of obtaining legal advice. As a threshold matter, plaintiffs contend that Loveridge could never function as an agent of counsel for purposes of the privilege because he is also a party to this action. Plaintiffs cite no authority for this proposition and research has revealed none. No reason appears to prohibit this practice per se. Rather, the applicability of the privilege where a party claims to be acting as an agent of counsel must be determined on a case-by-case basis as with any other claim of privilege. See Upjohn, 449 U.S. at 396-97 ("`the recognition of a privilege based on a confidential relationship . . . should be determined on a case-by-case basis'") (citations omitted). Plaintiffs' contention in this regard must be rejected.
Defendants also contend that communications among co-defendants or putative co-defendants are privileged from disclosure. No such "co-defendant privilege" exists.
The evidence offered by defendants has clearly established the second element of the privilege that all communications in question were intended to be confidential and were in fact kept confidential. However, the first and third elements remain in dispute. For the reasons discussed below, the analysis and conclusions for these elements differs between communications which occurred before defendants' counsel commenced representation and those which occurred thereafter.
A. Communications Prior to Legal Representation
The first element requires proof that the communications occurred between client and counsel. See Consumer Prods. Research, Inc., 73 F.3d at 472. Counsel for defendants did not commence representation until several weeks after Loveridge learned of the filing of the action. In those weeks, Loveridge had numerous communications with Sheriff Keating and RCCF employees. Because there was no counsel for defendants in this period, Loveridge could not function as counsel's agent.
The Rensselaer County Attorney was available at all times material herein. However, there exists no evidence that Loveridge had any contact with any representative of that office at any time concerning this case.
The evidence is uncontradicted that Loveridge initiated communications with Sheriff Keating and RCCF employees in this period on his own and not at the behest of any attorney. Defendants contend, however, that there existed an "inchoate" attorney-client relationship in this period between defendants and the then unidentified counsel who would inevitably be retained to represent them. Defendants cite no authority for this proposition and research reveals none. The attorney-client privilege protects from disclosure communications between clients and attorneys actually providing representation, not whose representation is anticipated. In the absence of an attorney actually providing representation, no attorney-client relationship can exist to shield communications from disclosure. Defendants have thus failed to establish the first element of the privilege as to communications in this period.
The third element of the privilege requires defendants to establish that the communications in question were made for the purpose of obtaining or providing legal advice. See Consumer Prods. Research, Inc., 73 F.3d at 472. Prior to the commencement of representation by defendants' counsel in this case, Loveridge initiated conversations with Sheriff Keating and RCCF employees for two purposes. First, Loveridge sought to obtain information to communicate to defendants' counsel when that counsel commenced representation to facilitate the defense of this case. Second, Loveridge sought the information to evaluate the performance of RCCF employees, practices and procedures. The first purpose satisfies the requirement that the communications in question be for the purpose of obtaining legal advice. The second purpose does not as Loveridge there sought information in furtherance of an internal, administrative investigation unrelated to obtaining legal advice.
Thus, as to the communications between Loveridge and Sheriff Keating and RCCF employees prior to the commencement of legal representation by defendants' counsel, the communications served dual purposes. Where, as here, any purpose of a communication falls outside the scope of the attorney-client privilege, that communication loses the protection of the privilege. See St. Paul Reinsurance Co., Ltd. v. Commercial Fin. Corp., 197 F.R.D. 620, 642 (N.D.Iowa 2000) (holding that communications to attorney acting as a claims investigator were not protected by attorney-client privilege); Carter, 173 F.R.D. at 94 n. 3 (stating in dicta that any information obtained by counsel's agent "which she obtain[ed] in connection with her position as Associate Dean is discoverable"); Griffith v. Davis, 161 F.R.D. 687, 697 (C.D.Cal. 1995) ("defendant . . . cannot prevent disclosure of an administrative investigation by having its litigation counsel (or an agent of its litigation counsel) conduct that investigation"). Thus, defendants have as well failed to establish the third element of the privilege as to communications in this period.
In these communications, Loveridge did not advise Sheriff Keating or the RCCF employees that he was acting on behalf of an attorney. Therefore, while Loveridge may have intended in part to act on behalf of defendants' counsel here, there is no evidence that Sheriff Keating or any RCCF employee communicated to Loveridge in this period for the purpose of seeking legal advice for defendant County of Rensselaer. See Upjohn, 449 U.S. at 394 ("the employees themselves were sufficiently aware that they were being questioned in order that the corporation could obtain legal advice"). Thus, defendants have also failed to establish the third element for this reason as to communications in this period.
Therefore, as to the communications between Loveridge and Sheriff Keating and RCCF employees which occurred between June 27, 2002 and the commencement of legal representation by defendants' counsel, the protection of the attorney-client privilege is unavailable and Loveridge must answer questions concerning any such communications.
B. Communications After Legal Representation
As to all communications between Loveridge and Sheriff Keating and RCCF employees after defendants' counsel commenced representation in this case, the evidence demonstrates that each such communication occurred at the specific direction of defendants' counsel. As to these communications, therefore, defendants have established the first element of their claim of privilege. The evidence also demonstrates that each such communication was intended solely to provide directions from defendants' counsel or to obtain information for counsel to render legal advice. As to all such communications, then, defendants have satisfied all elements of the privilege and Loveridge may not be compelled to disclose the contents of those communications.
III. Conclusion
WHEREFORE, for the reasons stated above, it is hereby
ORDERED that plaintiffs' motion for an order compelling Loveridge to answer questions at oral deposition concerning communications between Loveridge and Sheriff Keating and RCCF employees is:
1. GRANTED as to all such communications which occurred between the commencement of this action and the commencement of legal representation by defendants' counsel; and
2. DENIED as to all such communications which occurred after the commencement of legal representation by defendants' counsel and up to February 4, 2003.
IT IS SO ORDERED.