Opinion
Civil No. 97-212 (SMO).
March 2, 1999.
Mark Cimino, Esquire, Deptford, New Jersey, Attorney for Plaintiffs.
Douglas A. Baker, Esquire, Sewell, New Jersey, Attorney for Defendants.
O P I N I O N
Presently before the Court is Defendants' motion for a protective order prohibiting Plaintiffs from introducing into evidence a letter dated September 22, 1995 from Gary F. Stowell, Esquire, to Bradley Blubaugh. For the reasons discussed below, Defendants' motion is denied.
Background
Plaintiffs allege in their complaint that they were employed by the Township of Deptford in various positions. Camilli v. Township of Deptford, Civ. No. 97-212, slip op. at 2 (D.N.J. July 22, 1998). In November, 1995 the Township promoted Plaintiff Shirley Herbert to the position of Municipal Court Administrator and at the same time promoted Annemarie Camilli to the position of Deputy Municipal Court Administrator. See Plaintiffs' Brief in Opposition to Defendants' Motion to Suppress Certain Evidence Produced by Plaintiffs ("Plaintiffs' Opposition"), Attachment 1 at ¶ 12. According to Plaintiffs, in January, 1996 the Township named Dawn Schocklin as Municipal Court Administrator and demoted Plaintiffs in retaliation for their political beliefs. See id. at ¶ 19. Plaintiffs complaint alleges that the Township's actions violate, among other things, their First Amendment rights, as well as their rights to equal protection of the law and due process. See Camilli, slip op. at 2.
In their present motion, Defendants seek a protective order prohibiting Plaintiffs from introducing into evidence a letter in Plaintiffs possession written by a former special prosecutor hired by the Township in 1995 to bring administrative proceedings against two Deptford Township police officers. See Defendants' Brief in Support of Motion to Suppress Certain Evidence Produced by Plaintiffs ("Defendants' Brief") at 7. Defendants claim that the letter is protected by the attorney-client privilege and the attorney work product doctrine.
The author of the letter, Gary F. Stowell, Esquire, was hired by the Township in 1995 to represent the Township in administrative proceedings against two Deptford police officers. See id. at 1. Apparently during the course of that administrative proceeding, the defendant police officers produced to Mr. Stowell a voided traffic summons, which the initials of a court clerk named Dawn Schocklin. See id. During the course of his prosecution of the administrative proceedings against the officers, Mr. Stowell discovered that another Township employee, Dawn Schocklin, allegedly had been involved in a traffic ticket "fixing" scheme in which she would void summonses to the municipal court without first receiving the approval of the municipal court judge. See Plaintiffs' Opposition at 1; Certification of Mark Cimino, Esquire, filed in support of Plaintiffs' Opposition ("Cimino Cert.") at Exhibits C-G. By letter dated September 22, 1995, Mr. Stowell forwarded this information to the Township Manager, Bradley Blubaugh. See Defendants' Brief at 1 and Exhibit A. Defendants believe that the letter was produced to Plaintiffs in this action by either Mr. Stowell or Mr. Blubaugh. See id. at 1. Defendants claim that the September 22, 1995 letter is protected by the attorney-client privilege and the work product doctrine notwithstanding the fact that Plaintiffs already have the document in their possession. Discussion
Because the Court finds that the September 22, 1995 letter is not protected by the attorney-client privilege or the attorney work product doctrine, the Court will not address whether Defendants waived the privilege. See 8 Wright, Miller Marcus, Federal Practice and Procedure: Civil 2d § 2016.2 at 248 (West 1994) (noting that "privilege depends upon confidentiality and broaching this confidentiality as to one person destroys [the privilege] as to the world."). Additionally, the Court finds that it does not have enough evidence before it regarding the circumstances in which the letter was disclosed to Plaintiffs to determine whether Defendants waived any privilege or protection.
Pursuant to Rule 26 of the Federal Rules of Civil Procedure, a party seeking a protective order bears the burden of demonstrating good cause to preclude or limit discovery. Fed.R.Civ.P. 26(c). The United States Court of Appeals for the Third Circuit has elaborated on the applicable standard applied to protective orders:
Rule 26(c) places the burden of persuasion on the party seeking the protective order. To overcome the presumption [in favor of discovery], the party seeking the protective order must show good cause by demonstrating a particular need for protection. Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test. [citations omitted.] Moreover, the harm must be significant, not a mere trifle.Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986).
Additionally, the burden of establishing the existence of a privilege falls on the party asserting the privilege. In re Bevill, Bresler Schulman Asset Management Corp., 805 F.2d 120, 126 (3d Cir. 1986). In this instance, Defendants have the burden of establishing the existence of an applicable privilege or protection. Since the claims in this action arise under federal law, the Court shall apply federal common law to Defendants' claims of privilege.
In cases premised upon federal question jurisdiction, federal common law governs the applicability of evidentiary privileges, rather than state law. Wm. T. Thompson Co. v. General Nutrition Corp., Inc . , 671 F.2d 100, 103 (3d Cir. 1982); Wei v. Bodner , 127 F.R.D. 91, 94 (D.N.J. 1989) (stating that both federal and state law claims, federal privileges rather than state privileges apply to all claims). The work product doctrine, however, is a protection and not a privilege. See 8 Wright, Miller Marcus, Federal Practice and Procedure: Civil 2d § 2023 (West 1994). Therefore, federal law, as codified in Fed.R.Civ.P. 26(b)(3), governs its applicability even in cases where the court's jurisdiction is based on diversity of citizenship. See Maertin v. Armstrong World Indus., Inc . , 172 F.R.D. 143, 147 (D.N.J. 1997) (citing United Coal Companies v. Powell Construction Co . , 839 F.2d 958 (3d Cir. 1988); Varuzza v. Bulk Materials, Inc . , 169 F.R.D. 254, 257 (N.D.N.Y. 1996) (citations omitted). Accordingly, the Court will apply federal law to Defendants' assertions of attorney-client and work product protection.
Because privileges obstruct the search for truth by shielding from discovery otherwise relevant information, privileges are disfavored in the law. See In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 918 (8th Cir. 1997) (citations omitted). The Court will analyze Defendants' claims of privilege with these considerations in mind.
Defendants assert both attorney-client and work product protection for the September 22, 1995 letter. The attorney- client privilege and the work product doctrine both protect from disclosure certain documents and communications between attorneys and their clients. However, the doctrines provide protection under separate and distinct circumstances. Accordingly, the Court will address each claim in turn.
Attorney-Client Privilege
Defendants claim that the letter at issue here is protected by the attorney-client privilege. The privilege applies to confidential communications between an attorney and his client in the context of the attorney providing legal advice in his capacity as a lawyer.
The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law. . . . Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client.Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (citations omitted). See also In re Grand Jury Proceedings, 604 F.2d 798, 802 (3d Cir. 1979) ("The attorney-client privilege is designed to encourage clients to make full disclosure of facts to counsel so that he may properly, competently, and ethically carry out his representation."). Its protections are the result of the judicial recognition that the public is well served by sound legal counsel based on full and candid communication between attorneys and their clients. Id.
In Upjohn, the Court refused to create a bright-line rule by which to evaluate the applicability of the attorney-client privilege. 499 U.S. at 396-97. Rather, the Court indicated that the determination of its applicability must be made on a case-by- case basis. See id.
The traditional elements of the attorney-client privilege are:
(1) the asserted holder of the privilege is or sought to become a client;
(2) the person to whom the communication was made:
(a) is a member of the bar of a court, or his or her subordinate, and
(b) in connection with this communication is acting as a lawyer;
(3) the communication relates to a fact of which the attorney was informed
(a) by his client
(b) without the presence of strangers
(c) for the purpose of securing primarily either
(i) an opinion of law or
(ii) legal services or
(iii) assistance in some legal proceeding, and
(d) not for the purpose of committing a crime or tort; and
(4) the privilege has been (a) claimed and (b) not waived by the client.Rhone-Poulenc Rorer Inc., 32 F.3d at 862 (citations omitted). See also Arcuri v. Trump Taj Mahal Assoc., 154 F.R.D. 97, 101-102 (D.N.J. 1994). The privilege protects both communications between attorney and client, and legal advice or opinion from an attorney to his client. See id. at 102 (citing United States v. Amerada Hess Corp., 619 F.2d 980, 986 (3d Cir. 1980)).
The Court will assume for purposes of this motion that the Township and Mr. Stowell were in an attorney-client relationship in September, 1995 when Mr. Stowell wrote the letter in question here, and that Mr. Stowell was acting as an attorney when he wrote the letter. Therefore, the first two elements of the attorney-client privilege are present here.
Defendants' argument fails on the third element. First, the fact about which Mr. Stowell was communicating with the Township- -Ms. Schocklin's alleged improper voiding of summonses — was not communicated to Mr. Stowell by his client, the Township, for purposes of receiving legal advice. Ms. Schocklin's conduct and the existence of a ticket that had been voided by Ms. Schocklin was revealed to Mr. Stowell by the defendant police officers in the administrative proceeding. See Defendants' Brief at Exhibit A. Second, there is nothing in the letter that indicates the Township sought Mr. Stowell's advice regarding Ms. Schocklin's conduct. As far as the Court can determine, Mr. Stowell was informing the Township manager about possible wrongdoing that he had uncovered during his investigation and prosecution of an unrelated matter.
Defendant argues that even if the facts that are the subject matter of the letter are not protected by the attorney-client privilege, the letter is nonetheless protected because it transmits to the Township legal advice from its attorney. The Court finds that the letter does not contain any advice whatsoever. The letter merely reports facts that Mr. Stowell learned from third-parties during the course of his investigation and prosecution of an unrelated matter. Additionally, the letter encloses a copy of an administrative law judge's decision in which a court clerk was dismissed on similar facts. Nowhere in the letter does Mr. Stowell purport to advise the Township on its legal rights or obligations as to Ms. Schocklin. Nor is there any evidence before the Court that the attorney-client relationship between the Township and Mr. Stowell had anything to do with Ms. Schocklin's conduct. All parties appear to agree that the Township hired Mr. Stowell to prosecute two Township police officers.
Therefore, the Court finds that the September 22, 1995 letter from Mr. Stowell to Mr. Blubaugh is not a protected attorney-client communication.
Work Product Doctrine
Defendants also claim that the September 22, 1995 letter is protected from disclosure by the work product doctrine. The work product doctrine protects from disclosure documents "prepared in anticipation of litigation." Maertin v. Armstrong Indus., Inc., 172 F.R.D. 143, 148 (D.N.J. 1997) (citing Conoco, Inc. v. United States Dep't of Justice, 687 F.2d 724, 730 (3d Cir. 1982)). The doctrine provides an independent basis upon which the litigants may rely for protection of an attorney's trial preparation thoughts and materials. Hickman v. Taylor, 329 U.S. 495, 497 (1947). The work product doctrine protects from disclosure those documents and other tangible things that a party or a party's representative prepares in anticipation of litigation, in recognition of the need for a lawyer to "work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel." Id. at 510-11. The doctrine covers the "written material obtained or prepared by an adversary's counsel with an eye toward litigation," and it includes: "interviews, statements, memoranda, correspondence, briefs, mental impressions, [and] personal beliefs. . . ." Bogosian v. Gulf oil Corp., 738 F.2d 587, 592 (3d Cir. 1984). See also United States v. Adlman, 134 F.3d 1194, 1196 (2d Cir. 1998) ("The work-product doctrine, codified for the federal courts in Fed.R.Civ.P. 26(b)(3), is intended to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy `with an eye toward litigation,' free from unnecessary intrusion by his adversaries. . . . Analysis of one's case is a classic example.") (quoting Hickman v. Taylor, 329 U.S. 495, 510-11 (1947)).
The work product doctrine is narrower than the attorney- client privilege in that it can be pierced in some circumstances if the party seeking the information can demonstrate a "substantial need" for the information. See Fed.R.Civ.P. 26(b)(3).
Rule 26(b)(3) in effect codifies the work product doctrine and its limited protection. The Rule provides, in pertinent part:
Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative . . . only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.Fed.R.Civ.P. 26(b)(3).
Assuming again for purposes of this motion that the Township retained Mr. Stowell in 1995 to represent it in litigation against two of its police officers, the September 22, 1995 letter is not protected by the work product doctrine because it was not prepared in anticipation of, or in relation to, that litigation. The litigation for which the Township retained Mr. Stowell was the administrative proceeding against the two officers. There is nothing in the letter that reveals Mr. Stowell's mental impressions or strategies concerning that litigation, or any other litigation, actual or anticipated. Defendants argument might have more merit had Mr. Stowell been retained by the Township to investigate and litigate against Ms. Schocklin for her alleged improper conduct. This, however, was not the circumstances under which the Township retained Mr. Stowell. The September 22, 1995 letter was not prepared in anticipation of the Township's litigation against its two officers, nor was it prepared in anticipation of this litigation or any other litigation.
Therefore, the Court finds that the September 22, 1995 letter from Mr. Stowell to Mr. Blubaugh is not a protected by the attorney work product doctrine.
Conclusion
For the reasons discussed above, the Court finds that the September 22, 1995 letter from Mr. Stowell to Mr. Blubaugh is not protected by the attorney-client privilege or the attorney work product doctrine. Defendants' motion for a protective order is denied.
O R D E R
THIS MATTER having been brought upon motion before the Court by Douglas A. Baker, Esquire, attorney for Defendants, for a protective order; and the Court having considered the moving papers; and the opposition thereto; and for the reasons discussed in the opinion filed with this Order;
IT IS this 2nd day of March, 1999 hereby
ORDERED that the defendants' motion is DENIED.