Opinion
CV156013185
04-12-2016
Kent Literary Club et al. v. Wesleyan University et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO QUASH SUBPOENA (# 132)
Elpedio N. Vitale, Judge.
Pursuant to P.B. § 13-28(e)(1), the Deponent Scott Karsten (" Deponent") filed a Motion to Quash a Subpoena duces tecum issued by the Defendant Wesleyan University (" Wesleyan") addressed to " Custodian of the Records, Karsten and Tallberg, LLC." In the motion, the Deponent alleges that he has " provided legal representation" to the Plaintiff Gamma Phi Chapter of DKE at Wesleyan (" DKE") since at least 1991, " and " has served as legal counsel to the Board of Directors of the plaintiff Kent Literary Club of Wesleyan University (" KLC") since at least 1991." He also alleges that he has " provided legal representation to the Raimand Duy Baird Memorial Association (" RDBMA")." The Deponent also communicated with various alumni and undergraduate members of DKE and KLC. Some of those individuals are named in the subpoena duces tecum. In summary, the Deponent argues that " the subpoena seeks disclosure of documents which are not within the scope of examination permitted by our rules of practice in that " (1) the documents sought include many which are subject to attorney-client privilege and/or the work-produce doctrine; (2) the documents sought are not reasonably calculated to lead to the discovery of admissible evidence; (3) the documents sought are not material to the subject matter involved in the pending action; and (4) the demand for documents is unduly burdensome."
The defendant Wesleyan objects to the motion to quash, arguing that the Deponent has failed to establish that the communications at issue were in fact protected either by the attorney-client or the work-product privilege. Wesleyan further asserts that the documents are relevant, nor overly broad and unduly burdensome, and any privilege, if it existed, has been waived.
In their second amended complaint, plaintiff allege violation of Connecticut Unfair Trade Practices Act (" CUTPA"), promissory estoppel, negligent misrepresentation, and tortious interference with business expectancies, all based on Wesleyan's denial of the proposed plan for co-educating DKE House, suspension of DKE House's Program Housing status, and termination of the Greek Organization Standards Agreement.
The parties filed briefs, and oral argument was heard on April 4, 2016.
Discussion
In ruling on discovery matters, including motions to quash deposition notices and subpoenas, the court is obligated to take a reasoned and logical approach to the relevant contest between the parties. See e.g. Blumenthal v. Kimber Mfg., 265 Conn. 1, 7-8, 826 A.2d 1088 (2003). The Deponent has moved to quash the subpoena duces tecum served on his law firm arguing, inter alia, that the documents sought are subject to the attorney-client privilege and thus, are unavailable for production in any matter. The defendant contends that the privilege does not exist as to the records sought and further, that the Deponent has relied on conclusory statements that the materials are protected. Defendant further argues that any privilege, if it existed, has been waived by virtue of the Deponent's conduct, prior testimony, and prior relinquishment of certain records, all of which occurred within the context of this case.
The subpoena is directed to the law firm's record custodian.
The existence of attorney-client privilege must be established by the party seeking to assert it. PSE Consulting, Inc. v. Frank Mercede & Sons, Inc., 267 Conn. 279, 330, 838 A.2d 135 (2004). Each element of the privilege must be proven by a fair preponderance of the evidence. Id., at 330. " This burden requires the claimant of the exemption to provide more than conclusory language, generalized allegations or mere arguments of counsel. Rather, a sufficiently detailed record must reflect the reasons why [the privilege] applies to the materials requested." City of New Haven v. FOIC, 205 Conn. 767, 775-76, 535 A.2d 1297 (1988).
To invoke the attorney-client privilege, a communication must satisfy four criteria: (1) the attorney participating in the communication must be acting in a professional capacity as an attorney; (2) the communication must be between the attorney and the client; (3) the communication must be for the purpose of providing legal advice; and (4) the communication must be made in confidence. Lash v. Freedom of Information Commission, 300 Conn. 511, 516, 14 A.3d 998 (2011); Shew v. FOIC, 245 Conn. 149, 159, 714 A.2d 664 (1998). Because of its preclusive nature on discovery, the attorney-client privilege is to be narrowly construed to protect the communication of legal advice. PSE Consulting, Inc., 267 Conn. at 330; Turner's Appeal, 72 Conn. 305, 318, 44 A. 310 (1899).
" Not every communication between attorney and client falls within the [attorney-client] privilege." Ullmann v. State, 230 Conn. 698, 713, 647 A.2d 324 (1994). Instead, " communications between client and attorney are privileged [only] when made in confidence for the purpose of seeking legal advice." Olson v. Accessory Controls & Equip. Corp., 254 Conn. 145, 157, 757 A.2d 14 (2000) (citation omitted). In Cuno, Inc. v. Pall Corp., 121 F.R.D. 198, 203 (E.D.N.Y. 1988), the District Court held that some of the documents at issue were not privileged because their " primary purpose" was not for obtaining legal advice.
The privilege does not exempt a party from disclosing other information that may involve a lawyer, such as the identity of who spoke to a lawyer, the date on which they spoke, the length of the communication, etc. Ullmann, 230 Conn. at 712-14; State v. Yates, 174 Conn. 16, 19-20, 381 A.2d 536 (1977). Likewise, information an attorney receives from a non-privileged source does not become privileged when communicated to a client. Turner's Appeal, 72 Conn. at 318; see also Fine v. Moomjian, 114 Conn. 226, 233, 158 A. 241 (1932) (communication from client was not privileged because the attorney was acting as a scrivener and not as a professional providing legal advice); Tait's Handbook of Connecticut Evidence, § 5.23.1 (5th Ed.).
The attorney-client privilege recognized at common law is not, in fact, a general and total bar to discovery of any and all transactions and contracts that involve an attorney and a client. Ullmann v. State, 230 Conn. 698, 711, 713, 647 A.2d 324 (1994); Doyle v. Reeves, 112 Conn. 521, 523, 152 A. 882 (1931). A request, for example, that an attorney obtain information from outside sources is not privileged. Turner's Appeal, 72 Conn. 305, 318, 44 A. 310 (1899).
The Connecticut Supreme Court has stated that the proper approach is " to apply the privilege where the communications at issue are 'inextricably linked to the giving of legal advice.'" Olson v. Accessory Controls & Equip. Corp., 254 Conn. 145, 164, 757 A.2d 14 (2000).
With regard to documents, the Supreme Court has similarly approved a case-by-case inquiry into the primary purpose of the document. If that purpose is to solicit legal advice based on the information supplied, the privilege applies. Olson v. Accessory Controls & Equipment Corp., supra, 254 Conn. 163, quoting Hercules, Inc. v. Exxon Corp., 434 F.Supp. 136, 143 (D.Del. 1977). The Connecticut court cited with approval in Olson the conclusion in Cuno, Inc. v. Pall Corp., 121 F.R.D. 198, 204 (E.D.N.Y. 1988), that " where a lawyer mixes legal and business advice the communication is not privileged 'unless the communication is designed to meet problems which can fairly be characterized as predominantly legal.'" Olson v. Accessory Controls & Equipment Corp, supra, 254 Conn. 163.
In Shew, supra, the Supreme Court ruled that an attorney was acting in her professional capacity when conducting an investigation where the communications at issue were for the purpose of providing legal advice to a public official concerning disciplinary issues, 245 Conn. at 160. The Shew Court concluded that the attorney was acting as a lawyer, because (1) the public official stated that he hired her to seek legal advice and, (2) had she not been a lawyer, he would not have hired her to explore whether the town should take adverse action against its police chief. Id. The public official further testified that he felt that an attorney was needed to interview the agency's employees because of statutory requirements that a police chief not be dismissed without a hearing establishing just cause and to avoid legal complications related to potential discipline. Id.
However, when an activity could be handled by a layperson as easily as a lawyer, the privilege will not apply. See Bird v. Penn. Cent. Co., 61 F.R.D. 43, 47, n.3 (E.D.Pa. 1973) (holding that " [i]t is unnecessary to reach the issue of whether some or all of these reports, correspondence, etc. prepared by counsel were not protected because counsel were acting as lay claim investigators at the time"); Marsh v. Safir, at 34 (S.D.N.Y. Apr. 20, 2000) (" An attorney's performance of a function that is normally done by a non-attorney is not covered by the attorney-client privilege") (A689-03).
A party in a civil action may obtain " discovery of information or disclosure, production and inspection of papers, books or documents material to the subject matter involved in the pending action, which are not privileged." Practice Book Section 13-2. A party asserting the attorney-client or work-product privilege has the burden of establishing that the information sought is protected from disclosure. Babcock v. Bridgeport Hospital, 251 Conn. 790, 848, 742 A.2d 322 (1999).
In addition, " statements made in the presence of a third party are usually not privileged because there is then no reasonable expectation of confidentiality." State v. Cascone, 195 Conn. 183, 186, 487 A.2d 186 (1985).
" [T]he attorney-client privilege implicitly is waived when the holder of the privilege has placed the privileged communications in issue . . . [B]ecause of the important public policy considerations that necessitated the creation of the attorney-client privilege [however], the 'at issue, ' or implied waiver, exception is invoked only when the contents of the legal advice is integral to the outcome of the legal claims of the action . . . Such is the case when a party specifically pleads reliance on an attorney's advice as an element of a claim or defense, voluntarily testifies regarding portions of the attorney-client communication, or specifically places at issue, in some other manner, the attorney-client relationship . In those instances the party has waived the right to confidentiality by placing the content of the attorney's advice directly at issue because the issue cannot be determined without an examination of that advice." (Citation omitted; emphasis added; internal quotation marks omitted.) Hutchinson v. Farm Family Casualty Inc., Co., 273 Conn. 33, 38-39, 867 A.2d 1 (2005).
In addition, the attorney-client privilege is waived where the representation of a former attorney is integral to the resolution of a client's present claim. Cox v. Burdick, 98 Conn.App. 167, 173, 907 A.2d 1282 & N.4, cert. denied, 280 Conn. 951, 912 A.2d 482 (2006). " A party cannot invoke the privilege as to communications whose confidentiality he has already compromised for his own benefit . . . [because] the attorney-client privilege is not designed for such tactical employment." In re Intel Corp. Microprocessor Antitrust Litigation, 258 F.R.D. 280, 289-90 (D.Del. 1994).
The work product doctrine provides that " a party may obtain discovery of documents and tangible things . . . prepared in anticipation of litigation or for trial by or for another party or by or for the other party's representative only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means." Practice Book Section 13-3(a).
The mere fact that a document may contain opinion or legal theories of an attorney is insufficient to cloak it with work product protection. The document must still be prepared by or for an attorney for a client with a view towards pending or anticipated litigation in which that client is a party. Raymond Road Associates, LLC v. Taubman Centers, Inc., superior court, Judicial District of Waterbury, No. CV-07-5007877, (October 30, 2009, Eveleigh, J.) (internal citation omitted).
" Work product can be defined as the result of an attorney's activities when those activities have been conducted with a view to pending or anticipated litigation. The attorney's work must have been an essential step in the procurement of the data which the opponent seeks, and the attorney must have performed duties normally attended to by attorneys (emphasis added)." Stanley Works v. New Britain Redevelopment Agency, 155 Conn. 86, 95, 230 A.2d 9 (1967) (internal citations omitted).
As the court understands the conflict between the parties, at issue are the following document requests attached the defendant's Notice of Deposition dated September 30, 2015:
DOCUMENT REQUEST
1. All documents concerning the co-education of residential fraternities at Wesleyan, including but not limited to communications with Zac Cuzner, Frank Sica, Jeff Gray, Gary Breitbord, Dennis Robinson, Jeff Hoder, David Bagatelle, Terence Durkin, Tucker Ingraham, any other person who is a current or former member of KLC or DKE, Beta, DKE National, Psi U, Rho Ep and/or members of women's sports teams at Wesleyan.
2. All documents concerning the co-education of DKE House, including but not limited to communications with Zac Cuzner, Frank Sica, Jeff Gray, Gary Breitbord, Dennis Robinson, Jeff Hoder, David Bagatelle, Terence Durkin, any other person who is a current or former member of KLC or DKE, Beta, DKE National, Psi U, Rho Ep and/or members of women's sports teams at Wesleyan.
3. All documents concerning the participation of DKE and DKE House in program housing at Wesleyan, including but not limited to communications with Zac Cuzner, Frank Sica, Jeff Gray, Gary Breitbord, Dennis Robinson, Jeff Hoder, David Bagatelle, Terence Durkin, nay other person who is a current or former member of KLC or DKE, Beta, DKE National, Psi U, Rho Ep and/or members of women's sports teams at Wesleyan.
4. All documents concerning the Action, including but not limited to communications with Zac Cuzner, Frank Sica, Jeff Gray, Gary Breitbord, Dennis Robinson, Jeff Hoder, David Bagatelle, Terence Durkin, any other person who is a current or former member of KLC or DKE, Beta, DKE National, Psi U, Rho Ep and/or members of women's sports teams at Wesleyan.
During his testimony at the April 2015 hearing, Mr, Karsten described his posture with regard to the pending litigation. He is an alumnus of DKE and a member of its alumni organization KLC. His communications with Dean Whaley, in e-mail form, can be characterized as suggesting that he was working as an informal spokesperson for DKE and KLC.
The e-mails also reflect Mr. Karsten's active role in discussions between other alumni regarding Wesleyan's co-education plan and " brainstorming" ideas to counteract the plan.
He was publicly vocal, writing letters to Wesleyan's newspaper criticizing Wesleyan's co-education efforts (http://wesleyanargus.com/2015/09/14/the-real-world-consequences-of-wesleyans-anti-frat-campaign/), posting on a website created by DKE alumni to discuss this dispute (http://cardinaltruths.com/a-group-of-guys-that-anyone-would-be-proud-to-call-their-own/), and providing interviews to reporters regarding this dispute (http://cardinaltruths.com/a-group-of-guys-that-anyone-would-be-proud-to-call-their-own/; http://www.theatlantic.com/education/archive/2015/03/wesleyan-coed-frats/389177/).
There is nothing in the materials submitted for the court's review by the parties that in the court's view demonstrated Mr. Karsten either provided or was requested to provide legal advice. It is noteworthy that in November 2014, while discussions regarding the co-education of DKE were in progress, Mr. Karsten affirmatively and unambiguously disclosed his role as counsel to another fraternity, Beta Theta Pi, Mu Epsilon Chapter. This fraternity was involved in a similar dispute with Wesleyan.
Wesleyan's general counsel contacted Mr. Karsten to clarify whether Mr. Karsten was acting as DKE's lawyer in the ongoing dispute. For example, Exhibits 2, 5, 6 and 7 reflect e-mails or e-mail chains involving Mr. Karsten. In Exhibit 7, an e-mail chain, Mr. Karsten confirmed that he had not been acting in such capacity, stating:
I agree with your assessment of the capacity in which I have communicated with Mike Whaley to this point in connection with the coeducation issue; and I further agree that, should my assessment of that capacity change so that it is more in the nature of legal counsel, I will certainly direct any such correspondence to you, or the two of you. I do not anticipate that happening, at least not in the foreseeable future.
In Exhibit 8, Mr. Karsten acknowledged that he may be getting into a " grey area" with respect to the nature of his role in the dispute on January 27, 2015, but still did not claim to be Plaintiffs' counsel. As noted previously, plaintiffs presented Mr. Karsten as a fact witness at the April 22-23, 2015 hearing on the Motion for Preliminary Injunction. While Mr. Karsten described himself as KLC's " informal general counsel, I guess you could say" he did not claim that he acted as KLC or DKE's counsel with respect to the discussions surrounding co-education of DKE House. Mr. Karsten did not decline to answer any questions on the grounds that answering would reveal privileged communications. Much of Mr. Karsten's testimony at the April 2015 hearing on Plaintiffs' Motion for Preliminary Injunction on Plaintiffs' behalf described DKE and KLC's thoughts regarding co-education generally and thoughts and intent behind the formulation and implementation of the co-education plan presented to Wesleyan.
During the hearing, Mr. Karsten testified regarding:
the facts and reasoning behind seeking a survey of DKE alumni and undergraduates regarding co-education (Apr. 22 Tr. at 121:8-19),
the reason behind Plaintiffs' statement in the plan that they reserved rights to amend it as required (id. at 125:8-9),
Plaintiffs' decision and efforts to explore renovations to DKE House to house women (id. ),
the reasoning and basis for the conclusion reached about having separate physical facilities for men and women ( id. at 131:1-18),
the concerns expressed by alumni that they were being " set up for a failure" and coeducation of DKE House might result in a sexual assault on the DKE property (id. ),
Plaintiffs' intentions regarding common areas in their co-education plan (id. at 138:22-139:1),
Plaintiffs' reasoning behind their questions presented to the University regarding co-education (id. at 140:21-141:22),
the level of detail Plaintiffs thought should be included in the initial proposed plan (Ex. 10, Tr. of Apr. 23, 2015 Hearing (" Ap. 23 Tr.") at 38-39).
conversations he had with DKE's associated national fraternity regarding coeducation (id. at 67-68).
Plaintiffs also produced 81 pages of documents Mr. Karsten described as " not privileged" from his files, which were identified as Exhibit Z by Mr. Karsten. (Apr. 23 Tr. at 36-37.) Those pages included correspondence among DKE alumni and with Mr. Karsten regarding co-education generally, and, similar to Mr. Karsten's testimony, revealed the Plaintiff's thoughts and strategy behind the plan proposal. The production included, for instance, correspondence regarding:
efforts to contact fraternities at Trinity that had gone through similar issues (Ex. 2).
the potential usefulness of a law review article in supporting Plaintiffs' position (Ex. 2).
The status of Mr. Karsten as a so-called " fact witness" at the April 2013 hearing in support of plaintiffs' motion for temporary injunction does not appear to be seriously in dispute. The memorandum in support of the motion to quash, dated October 27, 2015, does not directly address said circumstance, nor the fact that some 81 pages of documents regarding communications with other DKE alumni and KLC representations were apparently produced by Mr. Karsten at said hearing.
The court has thoroughly reviewed the exhibits and attachments provided by the parties in connection with their memorandums and motions. Those materials included excerpts from Mr. Karsten's testimony before the court (Domnarski, J.) in April 2015, as well as e-mails exchanged between Mr. Karsten and other interested parties concerning the general area. It is clear that Mr. Karsten is an alumnus of DKE, and is a member of its alumni organization, KLC. A review of the electronic correspondence between Mr. Karsten and Dean Whaley of Wesleyan University evidences an understanding that Mr. Karsten was acting as a liaison or spokesperson for DKE in connection with its dispute with Wesleyan. Some of his efforts in this regard commenced in May of 2014. As referenced in the materials submitted by the defendant,
the alumni survey conducted regarding co-education,
general strategy for reacting to Wesleyan's co-education efforts,
strategy for responding to Wesleyan's questions and comments regarding the proposed plan,
a summary of a strategy call among DKE alumni,
Mr. Karsten's advice to the chapter president of DKE not to have any more conversations with the university without alumni present.
In addition, Mr. Karsten included correspondence he had with various individuals regarding the proposed plan. (Ex. 11 admitted as Exhibit D at the April 22 Hearing; Apr. 22 Tr. at 122:18-23; Apr. 23 Tr. at 128.) In that correspondence, Mr. Karsten recommended that the proposal be " as minimalistic as has some credibility." The correspondence also included discussions among DKE and KLC members regarding the alumni survey as well as wording for a proposal for coeducation. Mr. Karsten testified regarding that correspondence at the hearing, first at Plaintiffs' instigation on direct examination and then again when being cross-examined. (Apr. 22 Tr. at 122:18-23, Apr. 23 Tr. at 35, 37-40, 48-49.) Neither he nor Plaintiffs argued this correspondence was privileged, and that claim was not raised.
In general, the materials submitted demonstrate that Mr. Karsten and the plaintiffs have already produced and discussed documents pertaining to DKE and KLC theories and strategies regarding negotiations with the defendant and its co-education plans.
The Deponent has not pointed to any specific document or testimony that thus far demonstrates he was engaged to provide legal services to the plaintiffs. There is nothing apparent in the materials provided, or specified by the Deponent, that relates to the solicitation of or provision of legal advice. To the contrary, the materials suggest that Mr. Karsten affirmatively represented he was not acting as Plaintiffs' attorney at the times in question.
The attorney-client privilege does not apply in any instance where the client is not seeking legal advice from its attorney. Ullmann, supra at 698 (1994). Similarly, the attorney-client privilege does not apply when a lawyer provides " general business advice." Fine v. Facet Aerospace Prods Co., 133 F.R.D. 439, 444 (S.D.N.Y. 1990) (" [W]hile the privilege covers communications made in connection with the rendering of legal advice, it does not extend to the provision of business and management advice"). Furthermore, " the business aspects of the decision are not protected simply because legal considerations are also involved." Hardy v. New York News, Inc., 114 F.R.D. 633, 643-44 (S.D.N.Y. 1987). Indeed, " legal advice must predominate for the communication to be protected . . . [W]hen the legal advice is merely incidental to business advice, the privilege does not apply[.]" North Pacifica, LLC v. City of Pacifica, 274 F.Supp.2d 1118, 1127 (N.D.Cal. 2003) (emphasis added) (citation omitted).
With regard to whether the communications at issue were " inextricably linked to the giving of legal advice, " a determination must be made that the claimed privileged matter is so intertwined with an non-privileged matter that it cannot be redacted or otherwise separated. Again, the Deponent has not pointed to specific instances where that claim arises or exists.
The court concludes, applying the principles articulated in Lash, supra and Olson, supra, the Deponent has failed to satisfy his burden by a preponderance of the evidence that the attorney-client privilege applies to the documents sought. The Deponent has failed to provide a sufficiently detailed record reflecting why the privilege applies to the materials requested.
As a result, the Deponent has merely asserted conclusory claims.
The court is not persuaded that the documents requested are appropriately categorized as within the attorney-client privileged as asserted by the Deponent.
With respect to the affidavit submitted by Mr. Karsten, the defendant asserts it does not seek those documents referenced in the affidavit Meaning, it does not seek documents kept confidential due to legal advice, thoughts, or impressions of plaintiffs retained counsel, a point made at oral argument.
Even assuming, arguendo, that the attorney-client privilege is applicable, the court could reasonably conclude that it was implicitly waived based on the conduct of the Deponent and Plaintiffs. Mr. Karsten has provided documents, and Plaintiffs produced him as a " fact witness" during the April 2015 hearing. See Beverly Hills Concepts v. Schatz, Schatz, Ribicoff & Kotkin, No. CV 89-0369864-S, (Dec. 18, 1995) (voluntary partial disclosure of attorney advice waived privilege with respect to the remainder); Altayeb v. Warden, No. CV 12-40044 13, Id. at*11 (Apr. 8, 2014) (" it would be unfair to allow a client to assert the attorney-client privilege and prevent disclosure of damaging communications while allowing the client to disclose other selected communications solely for self-serving purposes" (internal quotations omitted)); MBIA Ins. Corp. v. Patriarch Partners VIII, LLC, No. 09 Civ. 3255, at *14-25 (S.D.N.Y. July 2, 2012) (parties could not selectively disclose which communications to reveal regarding intent and understanding of contract); see also Fed.R.Evid. 502(a) (waiver extends to undisclosed communications where they ought in fairness to be considered with disclosed communications).
For the reasons articulated above, and applying the relevant legal principles, the court is also not persuaded that the claim of " work product" precludes the discovery of the requested documents.
The court observes parenthetically that this " separate" claim was not necessarily distinctly briefed or argued extensively by the Deponent.
Turning next to the specifics of the requests, it is the court's understanding, referenced at oral argument, that the parties reached an agreement with respect to document and interrogatory requests 5 through 9, and their current dispute relates only as to requests and interrogatories 1 through 4. The Deponent's additional claims as set forth in his Motion to Quash shall next be succinctly addressed. The court has considered the requests in conjunction with the remaining objections thereto, generally concerning claims of lack of relevance and " overly broad and burdensome." The Deponents remaining objections on the grounds asserted are overruled. The requested documents shall be provided encompassing the time period January 1, 2014 to the present time. For the foregoing reasons, the Motion to Quash is denied.