Opinion
C. A. NP-2019-0213 NC-2012-0261
11-06-2020
MARCIA SALLUM GLASSIE v. PAUL DOUCETTE IN HIS CAPACITY AS EXECUTOR OF THE ESTATE OF DONELSON C. GLASSIE
For Plaintiff: Jeffrey K. Techentin, Esq. Joshua S. Parks, Esq. For Defendant: R. Daniel Prentiss, Esq.
For Plaintiff: Jeffrey K. Techentin, Esq. Joshua S. Parks, Esq.
For Defendant: R. Daniel Prentiss, Esq.
DECISION
VAN COUYGHEN, J.
Befre this Court is Appellat Macia Sallum Glassie's (Macia or Plaintiff Third Motion to Compel Production of Documents ad Second Motion to hold Paul Doucette, the Executor of the Estate of Donelson C. Glassie (the Executor or Mr. Doucette), John Taf (Mr. Taf), and Elizabeth Doucette (Ms. Doucette) in contempt. This matter arises out of a consolidated probate appeal in which Macia seeks the sum of two million dollars under the provisions of the Last Will and Testament of Donelson C. Glassie. Plaintif moves this Court to grant her motion to compel and adjudicate the Executor, Mr. Taf, and Ms. Doucette in contempt fr filure to adequately respond to request fr production despite multiple orders fom this Court. Jurisdiction is pursuant to Rule 26 of the Superior Court Rules of Civil Procedure.
The use of first names is to avoid confusion due to many people involved in the litigation having the last nae Glassie. The Court means no disrespect.
I
Facts and Travel
This case comes before the Court after a long and tortured history. As best put by the Supreme Court when deciding a companion case, "[t]his case is but one chapter in what is a complicated, multistate continuing saga over the decedent's estate, arising in the context of a legacy of wealth." Glassie v. Doucette, 157 A.3d 1092, 1094 (R.I. 2017). A full recitation of the facts of this case can be found in Glassie v. Doucette, 159 A.3d 88 (R.I. 2017). Following the Supreme Court's decision, Marcia sought to amend her Complaint to file another potential claim for breach of contract (C. A. No. NP-2019-0213). This Court conducted a non-jury trial on March 9, 2020 to determine whether there was excusable neglect to bring the alleged breach of contract claim out of time in the Newport Probate Court. The Court has since issued a written Decision denying Marcia's petition to file a claim out of time. This case, NC-2012-0261, is still pending before this Court.
The companion cases include two cases involving Marcia's daughter Alison: NP-2016-0265 consolidated with NC-2012-0262.
These consolidated cases and their companion cases have interwoven the Court in a serpentine procedural morass between the Probate Court, the Superior Court, and the Supreme Court, while additionally forcing this Court to deal with many contentious discovery issues concerning production of documents from the Executor, his wife, Ms. Doucette, and decedent's business partner, Mr. Taft. On December 4, 2019, in an effort to control the various cases before the Court, this Court invoked G.L. 1956 § 8-2-13 and took exclusive jurisdiction of all claims arising out of the consolidated cases to avoid repeated trips back and forth to the Probate Court. All claims in these consolidated cases arise out of the same transaction and/or occurrence and have equitable issues interwoven. In doing so, the Court consolidated these cases in an attempt to make them easier to manage and to bring to trial. However, while dealing with the complicated jurisdictional issues in these cases, several contentious discovery issues began to compound as well.
Marcia first came to this Court with a Motion to Compel documents from Mr. Taft and Ms. Doucette (the parties) pursuant to a subpoena issued in furtherance of Rule 45 of the Superior Court Rules of Civil Procedure, which was heard on December 5, 2019. The documents included emails between the various individuals. The Court ordered the parties, who are also now represented by counsel for the Executor, to produce the documents in accordance with the subpoena. At the same hearing, the Court also granted Alison Glassie's motion to compel documents in the companion cases based upon redacted copies of emails that were provided to her without a privilege log. The issue of the sufficiency of privilege logs had come before this Court in the past in other cases and has often resulted in an unnecessary expenditure of time. Therefore, the Court addressed the issue with defense counsel.
Specifically, the Court stated to counsel for the Executor, as it related to Alison's motion, the following:
[Y]our failure to adequately respond belies your 40 years of litigation experience and has caused delay in this particular case. Mr. Doucette did not provide a privilege log or give any reason for the redactions in the request for production. Mr. Doucette did not comply with the rules of procedure and describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing the information itself, privileged or protected, will enable the other parties to assess the applicability of the privilege or protection. The rule is there so counsel for the other side can feel confident and comfortable with the fact that there is or is not a privilege and that if the privilege is going to be fought out, the basis for the motion to compel or whatever motion is utilized, but a party has to feel comfortable with acquiescing to matters that are claimed to be privileged and without that information there's no way for that party to feel comfortable to assess whether or not the privilege is justified. See Rhode Island Rule of Civil Procedure 26(b)(5). At this point there is no way for Alison to know if communications between Mr. Doucette and his attorneys were privileged conversations or merely conversations not concerning attorney/client information. Furthermore, some of the communications that were redacted were carbon copied to other beneficiaries of the estate, such as Mr. Doucette's wife, Elizabeth, and John Taft. Mr. Doucette also failed to provide reason as to why those communications are privileged and why the Common Interest Doctrine applies to those communications. See DeCurtis, 152 A.3d at 425. Again, by failing to provide a privilege log as to these communications, Alison is unaware as to whether or not these communications are protected by privilege in the Common Interest Doctrine or are merely correspondence between the attorney and executor and other beneficiaries of the estate. As such, Mr. Doucette shall provide a privilege log of all the redacted communications and provide all e-mails and other documents not protected by the privilege. In the privilege log, Mr. Doucette shall, one, layout the privilege asserted; two, the basis of the privilege; three, why the privilege was not waived if it's applicable, and why the Common Interest Doctrine applies to the documents and e-mails. As I just said, the same is required for any documents that were attached to those e-mails. See Hr'g Tr. 32:4-33:25, Dec. 5, 2019.
Thereafter, Ms. Doucette, Mr. Taft, and the Executor, who was also served with a document request, produced a privilege log and documents in paper format, which was insufficient because multiple emails stated "quoted text hidden" so it was unclear what the emails actually contained. Marcia moved to compel production against Mr. Taft and Ms. Doucette, as well as the Executor, for failure to adequately respond to the document production. Marcia also asserted that the privilege logs that the parties provided were vague and were lacking in its description of the applicability of the attorney-client, spousal, and common interest privilege. Marcia asserted that the privileges were inapplicable in many of the instances claimed. The Executor, Mr. Taft, and Ms. Doucette argued that the privileges did apply and that the explanations given were sufficient under the law.
The Court again heard the matter on February 3 and 4, 2020. On February 4, 2020, the Court reiterated the requirements of claiming privilege and the ramifications of failing to comply. The Court stated:
As everybody knows in this room, privileges are not favored in the law. They are strictly construed and not favored in the law because it hides information which may be relevant. However, that said, there are privileges that are legitimate and have been recognized by the law, including lawyer-client, common interest, and marital privilege. Because they're not favored in the law, there are strict rules as it relates to claiming the privilege or asserting the privilege. You must have a description of the conversation or the documents or the nature of the conversations in order to give the other side confidence that the privilege applies or doesn't apply or at least can contest it based on the information provided. Rule 45(d)(2), as it relates to the subpoenas, states that there must be sufficient information to enable the party to contest the claim. The First Circuit has stated that a party asserting privilege must do "the best he or she can to reasonably describe the materials to which the claim adheres." In re Grand Jury Subpoena, 274 F.3d 563, [576] (1st Cir. 2001). So when you take the body of law as it relates to privileges, it's clear that based on the privilege, there are elements necessary to satisfactorily assert that privilege. If counsel fails to or a party fails to comply with the requirements of the various law, and by no means am I trying to set forth the entirety of the law on this subject, I think it's been put forth in the papers and I think I encourage counsel, if there's any question, to investigate and research it yourselves. But, privilege can be waived if not specifically asserted. State vs. Lead Industries, 64 A.3d 1183 (R.I. 2013). . . Also, sanctions as well as contempt can be imposed pursuant to Rule 37 and 26(a)(1)(B). There may be other sanctions involved in the rules but for the purposes of today's hearing, the Court wants to make clear that privilege has specific requirements as far as its assertion and that failure to comply with those requirements can result in waiver, sanctions including contempt, and otherwise. Hr'g Tr. 16:16-18:4, Feb. 4, 2020.
The Court went on to describe the privileges at issue, noting:
The lawyer-client privilege is probably the most oft-cited privilege and it has a legitimate purpose as the case law states, however, it must be asserted that the lawyer represents a party and it must describe the nature of the communications in a general sense in order to give the other side knowledge and confidence that it is, in fact, a protected communication. The Common Interest Doctrine requires an assertion that the declarants are represented by attorneys at the time of the communication and if so, who, and as I said, as of when. When did the representation start? A person asserting the privilege must provide [information] to establish a common defense, must disclose the nature of the conversation, and that the privilege is not waived if other third parties were present. Id. at 18:9-24.
The Court referred to the hearing when Alison's Motion to Compel was brought before it on December 5, 2019 and stated that:
We had the conversation in general last month when Alison's motion to compel was heard before the Court, and I went into the responses that were received and I remember saying . . . the response[s] belief] your experience.... So, I want to establish, ... for a second time, that these privileges are not favored by the law and the response has to be compliant with what the law is as it relates to each privilege. I went through all the privileges logs and they're insufficient based on the criteria that I've just discussed and put forth. It's impossible to tell and I'm not committing to whether or not they're accurate or not, I'm trying to explain that I don't have a sense that they're sufficient to provide the other side with confidence that they apply or, at the very least, with enough information to be able to contest them. I haven't seen any certification or documentation that there's been any representation of those people when you've claimed lawyer-client privilege. I think that's essential... as to when that representation initiated or if it's a common interest, either you represent them or if another counsel represents them, it's essential to the elements necessary to move forward with this. Id. at 19:8-20:12.
The Court then granted the motion to compel and ordered the Executor, Mr. Taft, and Ms. Doucette to provide more responsive privilege logs within fifteen days. Id
The Court also ordered the Executor, Mr. Taft, and Ms. Doucette to produce all documents in electronic format.
The parties did revise the privilege logs and provided them to Marcia. However, no resolution was reached between the parties and, on March 2 and 5, 2020, the Court heard Marcia's Second Motion to Compel and First Motion to hold the Executor, Mr. Taft, and Ms. Doucette in contempt due to the fact that the privilege logs were still lacking detail and not supporting attorney-client, common interest, or spousal privilege in many instances. The Court again found that the privilege logs were unclear and did not adequately provide confidence to Marcia and her counsel that the material was privileged.
The Court again ordered that counsel for the Executor, Mr. Taft, and Ms. Doucette be more specific in their respective privilege logs regarding the representation of the individuals where attorney-client privilege was claimed. The Court stated to defense counsel,
If that's the sole basis, even if it's not the sole basis, if you have an attorney-client relationship, then I want it specified, I want the basis of the attorney-client relationship. Like, at some point you say that you've got an attorney-client relationship with Tom and somebody else, and you said that that relates to - started in 2014. Well, I want to know the basis for that. Is it the Utah lawsuit? I want to know when it started. Are there parameters? Just because you represented somebody ten years ago doesn't mean you represent them in this litigation. So you need to put some specifics as it relates to that. Hr'g Tr. 24:3-14, Mar. 5, 2020.
The Court also ordered the parties to meet and confer for no less than an hour and a half to work through the documents and come up with specific objections based upon the privilege log.
The Court specifically stated,
the next question is to make sure all the e-mails correspond with the privilege log. Does everybody get that? If they correspond with the privilege log and there's an objection, I want each objection grouped into the three areas, common interest, attorney-client privilege and marital privilege. I want each objection specified and grouped into those categories. Then I want you and Mr. Prentiss to sit in a room for no less than an hour and a half, I'm ordering it, I want attestation, an attestation that you did it and you tried to work out what your differences are in a civil manner. Then, if there are specific objections remaining and you can't work them out, for example, if it's attorney-client privilege, what document, I'll tell you what document, done. If you can't work them out, then you come back to this Court with a motion to compel based on the exact notations alleging privilege. Id. at 18:2-19.
The Court again took the issue of contempt under advisement.
Due to the pandemic, the parties were unable to meet in person, but a meet and confer did occur via telephone on March 18, 2020. PL's Renewed Mot. to Adjudge Executor, Mr. Taft and Ms. Doucette in Contempt, filed June 25, 2020, at 2. Marcia claims that numerous issues related to the document production were discussed during the more than ninety-minute call, but no compromises were reached. Id. Marcia contends that counsel for the Executor, Mr. Taft, and Ms. Doucette disagreed with almost all issues raised by counsel for Marcia and Alison about the applicability of the attorney-client privilege, the common interest privilege, and the spousal privilege to various documents. Id. In each case, he took the position that Marcia and Alison would have to pursue their objections through further motion practice. Id. Thereafter, Marcia filed a third motion to compel and a second motion to adjudicate the Executor, Mr. Taft, and Ms. Doucette in contempt on June 25, 2020 with a supplemental memorandum filed on July 14, 2020, which had specific line-by-line objections to the privilege log.
The Court heard the matter again on July 23, 2020 via an electronic hearing and reviewed the specific line-by-line objections to Executor's privilege log. Specifically, the Court must now decide whether the attorney-client privilege, the common interest privilege, and the spousal privilege have been sufficiently asserted and apply to the documents objected to. The Court must also determine if any privileges were waived due to the allegedly vague descriptions contained in the privilege log or by forwarding the emails in question to third parties. Finally, the Court must determine whether the imposition of sanctions is appropriate.
II
Standard of Review
A responding party must exercise good faith in responding to a discovery request. See Zaino v. Zaino, 818 A.2d 630, 640-41 (R.1.2003). Indeed, absent such an obligation, the requesting party's duty pursuant to Rule 37(a)(2) of the Superior Court Rules of Civil Procedure, to confer with opposing counsel in order to secure the information sought without court action, would be nugatory. Further, "a party who withholds information that is 'otherwise discoverable' by claiming that it is privileged or subject to protection as trial preparation material is required under Super. R. Civ. P. 26(b)(5) to make this claim expressly and to describe 'the nature' of the documents not produced or disclosed in a manner that will enable other parties to assess the applicability of the privilege or protection that is claimed." D 'Amario v. State of Rhode Island, 686 A.2d 82, 86 n.ll (R.I. 1996). Therefore, the objecting party must be specific enough in its objections to support its claim of privilege and to provide a means to assess the claim. If a responding party fails to adequately state the reason for an objection, he or she may be sanctioned by being held to have waived the objections, including those based on privilege. See 8A Wright and Miller, Federal Practice and Procedure § 2213 (2019); Rivera v. Kmart Corp., 190 F.R.D. 298, 300 (D.P.R. 2000) (citing Marx v. Kelly, Hart & Hallman, P.C., 929 F.2d 8, 12 (1st Cir. 1991). But cf. Taydus v. Cisneros, 902 F.Supp. 288, 297 (D. Ma.1995) ("[a] party who withholds privileged documents that lie within the scope of Rule 26(a)(1)(B) without providing a brief description of the documents is subject to sanctions under Rule 37(c)"). Furthermore, failure to initially provide privilege logs will entitle the opposing party to costs under Rule 37(a)(4)(A) of the Superior Court Rules of Civil Procedure.
Additionally, where an objection to discovery is not warranted by existing law, is motivated by an intent to harass, or is made as a dilatory tactic, sanctions are justified and warranted under Rule 26(f) of the Superior Court Rules of Civil Procedure. '"These sanctions have a twofold purpose: to deter repetition of the harm, and to remedy the harm caused.'" Cf. Michalopoulos v. C&D Restaurant, Inc., 847 A.2d 294, 300 (R.I. 2004) (quoting Lett v. Providence Journal Co., 798 A.2d 355, 368 (R.I. 2002)). When a party files a motion to compel production which is granted-or subsequent to which production is voluntarily made-the Court may "require the party ... whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney's fees. . ." Super. R. Civ. P. 37(a)(4)(A). A sanction of costs will be avoided only if the Court finds that the motion was filed with a good faith effort to obtain the discovery without court action; and that the nondisclosure, response, or objection was substantially justified; or that other circumstances make an award of expenses unjust. Id. Superior Court Rule of Civil Procedure 37 sanctions are intended to "penalize those whose conduct may be deemed to warrant a sanction and deter those who may be tempted to engage in improper conduct." Fremming v. Tansey, 626 A.2d 219, 221 (R.I. 1993) (citing National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643 (1976) (per curiam)).
Furthermore, Rule 11 of the Superior Court Rules of Civil Procedure provides that the signature of an attorney or a party on a pleading, motion, or other paper constitutes a certificate by the signer that he or she has read it and "that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry [it] is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that [it] is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation." Super. R. Civ. P. 11. Rule 11 goes on to authorize "any appropriate sanction, which may include an order to pay to the other party ... the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee." Id.
Finally, '"[a] civil contempt proceeding is an appropriate vehicle to enforce compliance with court orders and decrees when attempting to preserve and enforce the rights of parties litigant.'" Direct Action for Rights and Equality v. Gannon, 819 A.2d 651, 661 (R.I. 2003) (quoting Trahan v. Trahan, 455 A.2d 1307, 1311 (R.I. 1983)). "A complaining party can establish civil contempt on behalf of his [or her] opponent when there is clear and convincing evidence.that a lawful decree has been violated." Id. "Willfulness need not be shown as an element of civil contempt." Trahan, 455 A.2d at 1311 (citing McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949)). "A finding of civil contempt must be based on a party's lack of substantial compliance with a court order, [which is] demonstrated by a failure of a party to 'employ[ ] the utmost diligence in discharging [its] . . . responsibilities.'" Durfee v. Ocean State Steel, Inc., 636 A.2d 698, 704 (R.I. 1994) (quoting Natural Resources Defense Council, Inc. v. Train, 510 F.2d 692, 713 (D.C. Cir. 1975)). "Substantial compliance must 'depend on the circumstances of each case, including the nature of the interest at stake and the degree to which noncompliance affects that interest.'" Id. at 704-05 (quoting Fortin v. Commissioner of Massachusetts Department of Public Welfare, 692 F.2d 790, 795 (1st Cir. 1982)). '"The terms of the order should be specific, clear and precise so that one need not resort to inference or implications to ascertain his [or her] duty or obligation thereunder. As the respondent must obey the order at his [or her] peril it should be clear, definite and explicit so that an unlearned [person] can understand its meaning.'" Ventures Management Co. v. Geruso, 434 A.2d 252, 254 (R.I. 1981) (quoting Sunbeam Corp. v. Ross-Simons, Inc., 86 R.I. 189, 194, 134 A.2d 160, 162-63 (1957)).
III Analysis
Superior Court Rule of Civil Procedure 26(b)(1) provides broad and general parameters regarding the scope of information permitted through the tools of discovery. This rule states, in relevant part, that "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action ... if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." A justice of the Superior Court has broad discretion to grant or deny motions regarding discovery requests. Dawkins v. Siwicki, 22 A.3d 1142, 1150 (R.I. 2011) (citing Travelers Insurance Co. v. Hindle, 748 A.2d 256, 259 (R.I. 2000)). Pursuant to this liberal rule of civil procedure, whether information is discoverable depends on the circumstances of the pending action. 8 Wright & Miller, Federal Practice and Procedure: Civil § 2008 (3d ed.). It is during the discovery process that all parties are expected to disgorge the information requested of them, fully, candidly, and expeditiously. Southern Railway. Co. v. lanham, 403 F.2d 119, 130 (5th Cir. 1968) (quoting Hickman v. Taylor, 329 U.S. 495, 504 (1947)).
Rhode Island Superior Court Rule of Civil Procedure 26(b)(5) states in pertinent part:
When a party withholds information otherwise discoverable under these rules by claiming that it is privileged ... the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection. (Emphasis added.)
Privileges '"are not favored in the law and therefore should be strictly construed.'" Gaumondv. Trinity Repertory Co., 909 A.2d 512, 516 (R.I. 2006) (quoting Moretti v. Lowe, 592 A.2d 855, 857 (R.I. 1991)). As the Court stated on the record on February 5, 2020, a party who withholds information that is "otherwise discoverable" by claiming that it is privileged or subject to protection as trial preparation material is required under Rule 26(b)(5) of the Superior Court Rules of Civil Procedure to make this claim expressly and to describe "the nature" of the documents not produced or disclosed in a manner that will enable other parties and the Court to assess the applicability of the privilege or protection that is claimed. D'Amario, 686 A.2d at 86 n.ll. The objecting party must be specific enough in its objection to support its privilege and to provide a means to assess the claim, and consider the elements of the asserted privilege. If a responding party fails to adequately state the reason for an objection, he or she may be held to have waived the objections, including those based on privilege. State v. Lead Industries Association, Inc., 64 A.3d 1183, 1197 (R.1.2013); 8B Charles A. Wright, et al., Federal Practice and Procedure § 2213 at 185 (3d ed. 2010). While courts assessing the adequacy of a privilege log "should avoid hair-trigger findings of waiver," the party relying on the privilege needs to provide significant backup information. Id. (quoting Wright, supra)
Addressing the same issue in the federal courts, the United States District Court for the District of Rhode Island has stated that "[a]lthough the federal rules do not specifically address the subject, the 'universally accepted means' of claiming that requested documents are privileged is the production of a privilege log." Corvello v. New England Gas Co., Inc., 243 F.R.D. 28, 33 (D.R.I. 2007) (quoting In re Grand Jury Subpoena, 274 F.3d 563, 576 (1st Cir. 2001)). "Like any other means of claiming that requested documents are privileged, '[t]he privilege log should: identify each document and the individuals who are parties to the communications, providing sufficient detail to permit a judgment as to whether the document is at least potentially protected from disclosure.'" Id. (quoting United States v. Construction Products Research, Inc., 73 F.3d 464, 473 (2nd Cir. 1996)). "The privilege log must include a detailed description of the documents to be protected with precise reasons given for the particular objection to discovery." Id. (quoting National Union Fire Insurance Co. of Pittsburgh, PA v. Midland Bancor, Inc., 159 F.R.D. 562, 567 (D. Kan. 1994) (internal quotation marks omitted)).
In some instances, courts may be required to conduct an in camera inspection to resolve a privilege dispute. See id. at 34. "However, in camera inspection is unnecessary where the party claiming privilege has failed to make a prima facie showing that the documents in question are privileged by submitting a privilege log that adequately describes the documents and the basis for the claimed privilege." Id. A deficient privilege log precludes an adverse party from raising an informed objection. Therefore, an in camera review is not warranted where a party has not met its initial obligation to justify the withholding of documents through a detailed privilege log. See id; Diamond State Insurance Co. v. Rebel Oil Co., Inc., 157 F.R.D. 691, 700 (D. Nev. 1994).
1
Attorney-Client Privilege
"It is well established that 'communications by a client to his attorney for the purpose of seeking professional advice, as well as the responses made by the attorney to such inquiries, are privileged communications not subject to disclosure.'" State v. Grayhurst, 852 A.2d 491, 512 (R.I. 2004) (quoting Mortgage Guarantee & Title Co. v. Cunha, 745 A.2d 156, 158-59 (R.I. 2000)). Our Supreme Court, quoting the analysis of the United States Court of Appeals for the Fifth Circuit, has stated that the following elements must be established in order to invoke the attorney-client privilege:
(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 a bar of a court, or his 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 on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and
(4) the privilege has been (a) claimed and (b) not waived by the client.State v. von Bulow, 475 A.2d 995, 1004-05 (R.I. 1984) (quoting United States v. Kelly, 569 F.2d 928, 938 (5th Cir. 1978), cert, denied, 439 U.S. 829 (1978)). The burden of establishing these elements is on the party advancing the privilege. Rosati v. Kuzman, 660 A.2d 263, 265 (R.1.1995) (citing von Bulow, 475 A.2d at 1005)).
Generally, attorney-client communications are protected unless the privilege has been explicitly or implicitly waived by the client. Gray hurst, 852 A.2d at 512. The Rhode Island Supreme Court has cautioned, however, that "exceptions to the attorney-client privilege should be made only when the reason for disclosure outweighs the potential chilling of essential communications." Mortgage Guarantee & Title Co., 745 A.2d at 159 (citing Upjohn Co. v. United States, 449 U.S. 383, 389-90 (1981)). The attorney-client privilege may be waived through disclosure of a confidential communication to a third party. See, e.g., von Bulow, 475 A.2d 995. Waiver also may occur implicitly "when a party puts an attorney-client communication at issue ..." See, e.g., Grayhurst, 852 A.2d at 512. This type of waiver occurs '"when [the client's] conduct touches a certain point of disclosure, [as] fairness requires that his privilege shall cease. . ."' von Bulow, 475 A.2d at 1007 (quoting United States v. Aronoff, 466 F.Supp. 855, 862 (S.D.N.Y. 1979)). Finally, waiver can occur "when the contents of the legal advice is integral to the outcome of the legal claims of the action." See, e.g., Mortgage Guarantee & Title Co., 745 A.2d at 159 (internal quotation omitted). Mindful of these precepts, this Court will now address the arguments advanced by the parties.
In this case, the Executor, Mr. Taft, and Ms. Doucette withheld many documents on the basis of attorney-client privilege. After reviewing the various privilege logs, the Executor, Mr. Taft, and Ms. Doucette have waived many instances of alleged attorney-client privilege where it was claimed. The specific rulings as to waiver of privilege are fully laid out in the appendices of this Decision. However, generally, the Executor waived attorney-client privilege by forwarding many attorney-client claimed emails to third parties.
This Decision is incorporated into the rulings on the privilege log.
For example, a document that was redacted on page 715 of the Doucette response is a March 1, 2016 email from attorney R. Daniel Prentiss to Executor and attorneys Brian Bardorf, Mark Bardorf, and James Redding. (See Appendix C.) The document is described as "Report and forward of discovery requests, comment on litigation" and is withheld based on attorney-client privilege. However, the document was forwarded to Elizabeth Doucette, John Taft, and Marc Wieder. See von Bulow, 475 A.2d at 1006 (where attorney-client privilege was waived when confidentiality of the represented party was initially desired, but the family subsequently chose to disclose their suspicions and the information they had obtained to the authorities).
Here, there is insufficient information as to when the representation of Ms. Doucette began. Ms. Doucette states that she has been represented since 2014 by counsel for the Executor, R. Daniel Prentiss (Mr. Prentiss), but in a separate sentence states that she has been represented since 2019 by Mr. Prentiss. (See Appendix B, at 2.) She does not state in what capacity she has been represented and in connection to which litigation. The very fact that Mr. Prentiss again represented Ms. Doucette in 2019 implies that the 2014 representation ceased, but no details are provided.However, it is clear from Mr. Taft's privilege log that Mr. Taft was not represented by Mr. Prentiss until November 2019. (See Appendix A, at 2.) This shows waiver of the attorney-client privilege by disclosure to an unrepresented third party. See von Bulow, 475 A.2d at 1006. Although the parties have had multiple opportunities to supplement the privilege logs with detailed information about when legal representation of the multiple individuals involved in this litigation began, the parties have provided no affidavits or copies of engagement letters or other documents to support their contention of when representation occurred or what the parameters of that representation were. Theyjnerely rely upon general assertions of previous legal representation and, in some instances, when that representation began. In Re Grand Jury Subpoena, 274 F.3d at 563 (holding that the party asserting the privilege "must describe the nature of the communication in general sense in order to give the other side knowledge and confidence that it is, in fact, protected communication"). Many of the parties' assertions lacked the requisite specificity. Additionally, with multiple cases in litigation involving these individuals in both Utah and Rhode Island, the burden has been on the parties to show the existence and the parameters of the representation including who was represented in which lawsuit and when. See von Bulow, 475 A.2d at 1005 (citing In Re Horowitz, 482 F.2d 72, 81-82 (2d Cir. 1973)) (holding "[i]t is well settled that the burden of establishing these elements is on the party advancing the privilege). By failing to properly assert the legal representation of parties such as Ms. Doucette, Mr. Taft, and John Glassie, despite instructions from this Court to provide specific information, many instances of forwarding emails to them have been waived.
Although there are generalized assertions of previous representation by other attorneys, the assertions lack specificity in order to establish the actual representation in these cases. The same is true of John Taft.
See generally Mr. Taft's privilege log (Appendix A).
2 Common Interest Privilege
It is well settled that the disclosure of otherwise confidential communications to a third party generally will result in a waiver of the attorney-client privilege. See von Bulow, 475 A.2d at 1005. An exception to that rule is the common interest doctrine. The common interest doctrine is typically understood to apply "[w]hen two or more clients consult or retain an attorney on particular matters of common interest." Cavallaro v. U.S., 284 F.3d 236, 249 (1st Cir. 2002) (citations omitted). More specifically, it applies when "two or more clients with a common interest in a litigated or nonlitigated matter are represented by separate lawyers and they agree to exchange information concerning the matter. . ." DeCurtis v. Visconti, Boren & Campbell, Ltd, 152 A.3d 413, 425 (R.I. 2017) (quoting Restatement (Third) Law Governing Lawyers § 76(1) (2000)). "The communications must relate to the common interest, which may be either legal, factual, or strategic in character." Restatement (Third) Law Governing Lawyers § 76, comment e (2000). Information exchanged about parallel lawsuits rather than about the same litigation, does not necessarily remove the privilege. See U.S. v. American Telephone and Telegraph Co., 642 F.2d 1285 (D.C. Cir. 1980) (involving two antitrust suits with closely related issues, the court held that the two plaintiffs in the cases had shared a common interest because they were both proceeding on overlapping antitrust issues against a common adversary).
"[T]he doctrine applies only when all attorneys and clients have agreed to take a joint approach in the matter at issue." Cooey v. Strickland, 269 F.R.D. 643, 652 (S.D. Ohio 2010). "[S]o long as the parties clearly and specifically agree to the joint venture in some manner, the doctrine will apply." Id. Federal courts require some degree of involvement of counsel in such agreements involving client-to-client communication. See Dawe v. Corrections USA, 263 F.R.D. 613, 622-23 (E.D. Cal. 2009) ("the common interest privilege does not extend to communications between co-plaintiffs where counsel is not present, or at the very least, where the specific conversations of the co-parties at issue was not expressly directed by counsel"). "It is insufficient 'to justify a claim of privilege simply by demonstrating that a confidential communication took place between parties who purportedly share a common interest.' OXY Res, Cal. LLC v. Superior Court, 115 Cal.App.4th 874, 9 Cal.Rptr.3d 621, 635 (2004). Instead, 'the party seeking to invoke the doctrine must first establish that the communicated information would otherwise be protected from disclosure by a claim of privilege.' Id. Therefore, to invoke the common interest doctrine, a party first must demonstrate the elements of privilege and then must demonstrate that the communication was made in pursuit of common legal claims including common defenses. Cf. Pac. Pictures, 679 F.3d at 1129; OXY, 9 Cal.Rptr.3d at 635." Waymo LLC v. Uber Technologies, Inc., 870 F.3d 1350, 1360 (2017). It is this Court's opinion that for the privilege to apply, counsel for both parties must agree to the exchange of information in addition to the parties' own agreement. "When a lawyer is involved in the communication, the judicial system gains confidence that the communication concerned a subject actually within the common interest of the clients and occurred because a legal advisor believed the communication was reasonably necessary to further the provision of legal advice connected to the joint interest." Ducker v. Amin, No. 1:12-cv-01596-SEB-DML, 2013 WL 6887970, *6 (S.D. Ind. 2013). In such a situation, "the communications between each of them and the attorney are privileged against third parties." Cavallaro, 284 F.3d at 249. Similarly, the "privilege applies to communications made by the client or the client's lawyer to a lawyer representing another in a matter of common interest." Id. (internal quotation marks and citations omitted).
Federal courts also consider the applicability of the privilege by examining the actual or potential relationship of the parties. Royal Surplus Lines Insurance v. Sofamor Danek Group, 190 F.R.D. 463, 472 (W.D. Tenn. 1999) (citing Continental Oil Co. v. United States, 330 F.2d 347 (9th Cir. 1964)). "The weight of authority also favors considering the actual or potential identity of interest which the parties share rather than limiting the privilege to communications occurring only after litigation commences." Id. (citing SCM Corp. v. Xerox Corp., 70 F.R.D. 508, 513 (D. Conn. 1976)). "The privilege protects the free flow of information for the purpose of receiving legal advice, either in contemplation of litigation, or in attempting to avoid it." Id.
After reviewing the privilege logs, the Court does not adopt counsel's expansive interpretation of the Common Interest Doctrine and holds that it does not apply in many instances where it has been claimed. The specific rulings are listed in the appendices but, generally, the common interest privileges were inapplicable because there is no evidence of an agreement between counsel to share information, and privileged documents were forwarded to third parties who were unrepresented by counsel at the time.
In addition, the common interest exception requires that the parties have an agreement with respect to the exchange of information. Id. While "formality is not required" for such agreements (Restatement (Third) Law Governing Lawyers § 76 (2000)), the parties have not even alleged the existence of such an agreement, and there is none among the documents that were produced. Second, "[a] person who is not represented by a lawyer and who is not himself or herself a lawyer cannot participate in common-interest arrangement within this Section." Id.; see also Restatement (Third) Law Governing Lawyers § 76(1) (2000) (stating that the common interest doctrine applies when "two or more clients with a common interest in a litigated or nonlitigated matter are represented by separate lawyers and they agree to exchange information concerning the matter") (emphasis added). For example, emails forwarded to Mr. Taft prior to November 2019 when his representation by Mr. Prentiss began are not covered under attorney-client privilege, thus not protected under the common interest doctrine. Even if, arguendo, the common interest exception could apply when both parties are represented by one lawyer, there still must be an agreement with counsel in order to protect the communication between the clients. No evidence of any such agreement has been presented to this Court.
See a sampling of examples on pages 752, 757, 758 of Appendix C.
Additionally, common interest does not apply to emails sent to or from accountant Marc Wieder. The Executor claims that Mr. Wieder's accounting firm has "provided accounting services and advice for all aspects of estate administration, from preparation of estate tax returns to accounting for transactions involving estate assets to resolution of complex accounting relationships among the many different business entities in which the estate has an ownership interest." (See Appendix C, at 2.) However, there is no confidential accountant-client privilege akin to the attorney-client privilege. Couch v. United States, 409 U.S. 322, 335 (1973). Although, as with other third parties employed to assist a lawyer in rendering legal advice, communications with an accountant may be protected by the common interest or the work product doctrine when the communication is made '"for the purpose of obtaining legal advice from the lawyer'" such as when the accountant is hired by a lawyer to assist when accounting issues are central to the client's representation, such as an IRS audit. Cavallaro, 284 F.3d at 248 (quoting United States v. Kovel, 296 F.2d 918, 922 (2nd Cir. 1961)). The claimant must establish that the accountant's presence was necessary to the effective consultation between the lawyer and the client. See id. generally. The doctrine does not apply if the client is seeking accounting advice or services rather than legal advice. Id.
It is not entirely clear, but it appears from the privilege log that counsel for the Executor, Mr. Taft, and Ms. Doucette grouped the work product privilege into the assertion of CI1 (alleging common interest and derivative client between several of the estate beneficiaries). It is unclear whether the Executor intended to cite work product as it relates to the privilege log. In any event, it appears that no work product privilege was specifically claimed. However, even if counsel's description of the privilege does claim work product, it does not remedy the waiver as "a disclosure to a third party that substantially increases the likelihood that protected content would be revealed to an adverse party might waive the work-product protection." Lead Industries Association, 64 A.3d at 1196. By sending email messages that contained work product to unrepresented third parties, the Executor, Mr. Taft, and Ms. Doucette waived the work product protection.
From the log, it is still impossible to determine which party sought advice from Mr. Wieder and whether that advice was of a legal nature. However, regardless of whether Mr. Wieder was hired by the Executor or by his counsel, the Executor has not demonstrated that Mr. Wieder was retained to assist the Executor's counsel in providing legal advice rather than general accounting services and advice. This is especially true with regard to emails from counsel to the Executor which were then forwarded to Mr. Wieder by the Executor. This indicates that the Executor was seeking advice rather than counsel. The Executor has failed to produce an explanation linking Mr. Wieder and his firm to the substance of the litigation. Since the descriptions in the Further Revised Privilege Log of the services rendered by Mr. Wieder and his firm to the Executor only include "accounting services and advice," the inclusion of Mr. Wieder as a party to these emails waives the attorney-client privilege and thus the common interest doctrine does not apply.
It is not stated which attorney hired Mr. Wieder and what that attorney's role was, if any, regarding representation of the estate in this litigation.
See examples on 715, 716 of Appendix C. No specific assertion of work product was set forth in the Privilege Log as it relates to Mr. Wieder.
Furthermore, the parties' reliance on foreign case law and secondary authority to establish "community of interest" is of no moment. See, e.g., United States v. Gumbaytay, 276 F.R.D. 671, 675 (M.D. Ala. 2011) (finding that the common interest applies under the Fair Housing Act to protect communications between a governmental agency and persons on whose behalf the governmental agency brings suit because Congress set up the Act to encourage and enable persons, who have been victims of discrimination, to pursue justice). This Court is not persuaded that the community of interest theory should be applied in this case. The cases that the parties rely on are distinguishable. In the civil rights context, the community of interest is needed to help the government prove its case and fulfill the purpose of the statute. There is a strong public policy argument in favor of that application due to the civil rights nature of the Fair Housing Act. The same principles do not apply to this case given it is a private will dispute, and not a civil rights matter. Furthermore, the Rhode Island Supreme Court has clearly adopted the definition of Restatement (Third) Law Governing Lawyers § 76(1) (2000) in the DeCurtis case. See DeCurtis, 152 A.3d at 425 (relying on the Restatement's requirement that the parties to the communication have a common interest when it decided that the doctrine did not apply because spouses negotiating an antenuptial agreement have adverse interests). The Court is inclined to follow that holding. Furthermore, the parties have provided nothing to establish the named individuals as qualifying them to assert the privilege. All that has been alleged is that they are beneficiaries of the Donelson Glassie estate. See Audette v. Poulin, 127 A.3d 908 (R.I. 2015) (holding that an attorney who advised trustee did not owe a duty of care to beneficiary of a trust, as required for beneficiary's legal malpractice claim against attorney). As such, where noted in the appendices, the assertion of community of interest is inapplicable.
3 Spousal Privilege
Rhode Island law on Spousal Privilege has been codified at G.L. 1956 § 9-17-13, and states as follows:
In the trial of every civil cause, the husband or wife of either party shall be deemed a competent witness; provided, that neither shall be permitted to give any testimony tending to criminate the other or to disclose any communication made to him or her, by the other, during their marriage, except on trials of petitions for divorce between them, trials between them involving their respective property rights, and under the provisions of [G.L. 1956] § 11-34.1-9.
Ms. Doucette and the Executor's argument that the marital privilege applies is unveiling. First, the emails in question are not testimony, and the production of emails is not testimonial in any way. See DeCurtis, 152 A.3d at 426 (holding that the production of antenuptial and postnuptial agreements were not protected under spousal privilege). Furthermore, it is clear from the brief descriptions that the subject of Executor and Ms. Doucette's communication was the estate, and not the private concerns of husband and wife. For example, the subject of page 199 of Ms. Doucette's Privilege Log (see Appendix B) is described as a "[p]ersonal message related to estate administration." Our Supreme Court has held that "statements of husband and wife to each other, when not of a confidential nature or likely to provoke marital discord, are admissible . . . ." See Bradley v. Quinn, 53 R.I. 349, 351, 166 A. 814, 815 (1933).
The Rhode Island Supreme Court has declined to broaden the terms of this statute by judicial interpretation or "to expand the marital privilege based on its underlying policy 'to encourage, protect, and perpetuate' the intimacy of marital relations." DeCurtis, 152 A.3d at 427 (quoting Campbell v. Chace, 12 R.I. 333, 334 (1879)). Ms. Doucette was not only communicating with her husband as her husband, but also as the executor of her late father's estate. The Executor and Ms. Doucette had no reasonable expectation that those communications would be "of a confidential nature or likely to provoke marital discord..." Bradley, 53 R.I. at 351, 166 A. at 815. Further, the fact that a private "communication [between spouses] relates to business transactions may show that it was not intended as confidential." 1 McCormick on Evidence § 80 (8th ed.) "Usually such statements relate to facts that are intended later to become publicly known. To cloak them with privilege when the transactions come into litigation would be productive of special inconvenience and injustice." Id. Therefore, because the private communications where noted in the appendices discussed business matters related to the estate, it would be unjust to protect such emails with the spousal privileges.
4 Vague or Insufficient Descriptions
As stated above, '"[t]he privilege log should: identify each document and the individuals who are parties to the communications, providing sufficient detail to permit a judgment as to whether the document is at least potentially protected from disclosure.'" Corvello, 243 F.R.D. at 33 (quoting Construction Products Research, Inc., 73 F.3d at 473). Privilege logs which include only "generalized, brief statements about the subject matter" of documents or "cursory description[s] of each document" do not provide adequate information to determine whether the documents are, in fact, privileged communications. Management Capital, LLC v. F.A.F., Inc., C. A. No. PB 08-2362 (R.I. Super., Apr. 21, 2015) (citing SEC v. Yorkville Advisors, LLC, 300 F.R.D. 152, 162-64 (S.D.N.Y. 2014) and Construction Products Research, Inc., 73 F.3d at 473).
In this case, the Executor, Mr. Taft, and Ms. Doucette withheld many documents on the basis of attorney-client, common interest, and spousal privilege. For example, a document that was redacted in the Executor's Privilege Log on page 723 (see Appendix C) on the basis of spousal privilege states "Personal discussion of litigation." There is no other information about the specific subject matter that allows the Court to determine whether privilege applies, despite multiple opportunities to do so. See Yorkville Advisors, LLC, 300 F.R.D. at 164 (finding plaintiffs two privilege logs did not provide sufficient information required by Rule 26(b)(5) of the Federal Rules of Civil Procedure to support the asserted claims of privilege). Additionally, as noted above, the Executor, Mr. Taft, and Ms. Doucette failed to include specific information about counsel's alleged representation of multiple individuals throughout the years, including Ms. Doucette.
In Yorkville Advisors, a federal district court found that the two privilege logs at issue failed to provide enough facts when the entries only included generalized, brief statements about the subject matter, the author and recipient, followed by what privilege applied. Id. at 162-64. The court found both privilege logs to be uninformative and, ultimately, found that the entries "[do] not contain even basic information that would support a claim of attorney-client privilege. The description does not provide the titles or roles of the author and recipient. Also lacking is any basis to conclude that the document contains legal advice that reflects a client confidence." Id. at 164. Similarly, in Construction Products Research, 73 F.3d at 473, a federal appeals court found a privilege log to be deficient when it only contained "cursory description[s] of each document, the date, author, recipient, and 'comments.'" Specifically, the court determined that "[t]he descriptions and comments simply do not provide enough information to support the privilege claim, particularly in the glaring absence of any supporting affidavits or other documentation." Id. at 474 (citing Bowne of N.Y.C, Inc. v. AmBase Corp., 150 F.R.D. 465, 474 (S.D.N.Y.1993)).
Here, after multiple opportunities to comply, there is no question that many entries on the three privilege logs possess similar deficiencies as the privilege logs possessed in the above-cited cases. As was held in Yorkville Advisors, the entries noted within the appendices simply do not give the Court any information to assess whether the privilege claimed properly applies. See Yorkville Advisors, 300 F.R.D. at 164. For the most part, the only information provided in the privilege log before this Court is the author and recipient, the date, and a vague subject line. The Executor, Mr. Taft, and Ms. Doucette have repeatedly relied on the assertion that all redacted documents are privileged, but they do not specify exactly what subject is being discussed in the documents they are withholding, whether the emails that included attorneys were indeed giving legal advice, whether the document was also sent to a third party (which in many cases it was), or any other information serving to permit the Court to analyze the application of a privilege. Without any specifics or accompanying affidavits or documentation, apart from the general assertions in the parties' memoranda, the Court is unclear whether many of the documents are even subject to protection. See Corvello, 243 F.R.D. at 33; Construction Products Research, 73 F.3d at 473-74. This is especially true when compliance with the rules could be easily satisfied by providing sufficient specificity without revealing the substance of the communications. In many instances, a simple statement of the subject matter of the communication would suffice. Regardless, it is the party claiming the privilege whose burden it is to satisfactorily justify the privilege in the privilege log. The Court will not read between the lines to guess whether the privilege log is appropriate. Quite simply, the limited assertions in the privilege log and the lack of supporting affidavits or documentation leads the Court to determine that the Executor, Mr. Taft, and Ms. Doucette have not met their burden to assert privilege on the documents noted in the appendices, despite multiple opportunities to do so and explicit instructions from this Court. For that reason, the Court deems the documents noted as "vague" or "insufficient information provided" in the appendices are waived.
On several emails, although the specific description was insufficient due to vagueness, the Court was able to discern the appropriateness of the privilege by analyzing the context of the emails by date and participants. In those instances, the Court gave the Defendant the benefit of the doubt. However, with other descriptions that were insufficient due to vagueness and which it was impossible to discern the subject matter by context, the Court deemed the privilege waived.
5 Sanctions and Attorneys' Fees
As stated above, a responding party must exercise good faith in responding to a discovery request. See Zaino, 818 A.2d at 640-41. Here, it is clear from the totality of the discovery responses propounded that despite lengthy and numerous opportunities to remedy the privilege log, the responses noted in the appendices continue to be insufficient. This Court cannot reconcile defense counsel's years of accomplished litigation experience and his repeated failure to provide sufficient justification for his claims of privilege. Attempts to justify the inadequate responses based upon legal theory are unavailing. The ultimate reality is that despite numerous instructions by this Court as to the necessary requirements to establish privilege, the Executor, Mr. Taft, and Ms. Doucette's continued unsubstantiated responses remain woefully inadequate in many respects. The Court believes that defense counsel's failure to provide sufficient factual basis to justify the claims of privilege over the past nine months despite numerous opportunities to do so has unnecessarily caused delay to these long-pending cases and expense to Marcia and her counsel and therefore justifies the imposition of sanctions.
In fashioning a sanction, Courts are permitted to use a wide range of alternative possible sanctions for violation of the discovery rules. Doering v. Union County Board of Chosen Freeholders, 857 F.2d 191, 194 (3rd Cir. 1988). This Court is reminded, however, to impose the least sanction adequate to effectuate the purpose of the rule. Id; Young v. City of Providence, 301 F.Supp.2d 187, 197 (D.R.I. 2004). While the rule presently directs the Court to limit sanctions to what "is sufficient to deter repetition of such conduct or comparable conduct by other[s] similarly situated," each judge is largely free to impose the penalty of his or her choice. Thomason v. Lehrer, 182F.R.D. 121, 131 (D.N.J. L99S); Lett, 798 A.2d at 368 (A trial justice must have broad discretion to choose appropriate response to any fraudulent conduct committed by litigants.); See generally, 5 A Wright & Miller, Federal Practice and Procedure: Civil § 1336.3 (2004). Thus, the trial court is vested with considerable discretion because of the authority given to the court by Rule 11 of the Federal Rules of Civil Procedure's use of the word "appropriate." Braden v. South Main Bank, 837 S.W.2d 733 (Tex. App. 1992); Fed.R.Civ.P. 11 advisory committee notes to the 1997 amendments ("The court has significant discretion in determining what sanctions, if any, should be imposed for a violation ...").
"The appropriateness of a particular sanction is primarily a function of two variables: the facts presented and the court's purpose in penalizing the errant party." Anderson v. Beatrice Foods Co., 900 F.2d 388, 394 (1st Cir. 1990). "Sanctions, under both Rules 11 and 37, serve dual purposes of deterrence and compensation." Id; Lett, 798 A.2d at 368. As such, trial justices must be free to create appropriate remedies to address misconduct that occurs in the court of litigation before them. Lett, 798 A.2d at 368-69. However, the Court may also consider past conduct of the offending party when fashioning an appropriate sanction. Lockheed Martin Energy Systems, Inc. v. Slavin, 190 F.R.D. 449, 459 (E.D. Term. 1999). Thus, a court may take into consideration an attorney who has repeatedly and flagrantly behaved in a manner that reflects a callous disregard for the proper and efficient functioning of the court. Id. As well, the Court may consider an attorney whose behavior reflects a sense of disrespect for the authority of the judicial system and the obligations of the legal profession. Id. Accordingly, a court may take into consideration the effect of the offending party's behavior on the public. See id.
Considering the lengthy litigious history, and the hardship caused to Plaintiff due to the Executor, Mr. Taft, and Ms. Doucette's non-compliance with this Court's orders, this Court finds the parties' actions have caused needless delay and expense to Plaintiff. Therefore, this Court awards Plaintiff costs and fees, including attorneys' fees associated with bringing the various motions to compel and motions to adjudicate in contempt.
IV Conclusion
Given the history provided herein, Plaintiffs Motion to Compel Production of Documents is granted as indicated in the appendices to this Decision. The documents noted in the appendices as waived shall be produced by the Executor, Mr. Taft, and Ms. Doucette within thirty days. The Court also awards Plaintiff reasonable costs and attorneys' fees in bringing the relevant motions before this Court. Counsel shall separately submit the appropriate documentation for each party as set forth in Colonial Plumbing & Heating Supply Co. v. Contemporary Construction Co. Inc., 464 A.2d 741 (R.I. 1983) and its progeny within twenty days from the issuance of this Decision. The Court takes the issue of contempt under advisement.
Counsel shall submit an appropriate order for entry.
(Appendix A Omitted)
(Appendix B Omitted)
(Appendix C Omitted)