The Objections Based on Attorney-Client Privilege
In response to plaintiffs' discovery demands defendants produced a privilege log of sixteen pages that lists ninety-nine emails relating to the easement, the subject properties and/or communications between the parties asserted to be protected by attorney-client privilege. Plaintiffs argue that defendants waived attorney-client privilege when they provided plaintiff with two opinion letters written by their attorney, Harry Peden III. In 2010 plaintiffs were given a memorandum written by Attorney Peden in the course of negotiations of a different easement that referred to the right-of-way at issue (“2010 Mem.”). In 2018 plaintiffs received an opinion letter from Attorney Peden to defendants that expressed the opinion the right-of-way was extinguished (“2018 Mem.”). Plaintiff asserts the defendants opened the door to any privileged communications by producing these memoranda and because they have stated they have relied on advice of counsel in asserting the defenses raised in this action.
In State v. Kosuda-Bigazzi, 335 Conn. 327, 2020 WL 1808821 *5 (2020), the Supreme Court recently restated the narrow scope of the attorney-client privilege recognized in this state:
“Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection be waived” ... “In Connecticut, the attorney-client privilege protects both the confidential giving of professional advice by an attorney acting in the capacity of a legal advisor to those who can act on it, as well as the giving of information to the lawyer to enable counsel to give sound and informed advice ... The privilege fosters full and frank communications between attorneys and their clients and thereby promote[s] the broader public interests in the observation of law and [the] administration of justice.” ... The privilege applies, however, only when necessary to achieve its purpose; it is not a blanket privilege. (Citations omitted.) ***
The privilege must be established for “each document separately considered” and must be narrowly applied and strictly construed ... “The burden of establishing the applicability of the privilege rests with the party invoking it ...” Id. 2020 WL 1808821 *6. (Citations omitted).
The privilege is narrowly applied, strictly construed, and applies only when necessary to foster full and frank communications between attorneys and their clients. Id., 2020 WL 1808821 *14.
In State v. Kosuda-Bigazzi, the Supreme Court noted “[voluntary] disclosure of confidential communications ... constitutes a waiver of [the] privilege as to those items.” 2020 WL 1808821 *14 n.15, quoting Harp v. King, 266 Conn. 747, 767 (2003). Defendants do not contend that the 2010 Mem. or the 2018 Mem. are confidential communications; instead they contend they were intended to be communicated to plaintiffs. “For privilege to attach the communication must be confidential.” Fensore v. Lyons, 2017 WL 1311107 *2 (Conn.Super. 2017) (Krumeich, J.) citing PSE Consulting, Inc. v. Frank Mercede and Sons, Inc., 267 Conn. 279, 330 (2004).
The production of non-confidential documents intended to be shared with plaintiffs would not waive privilege as to confidential attorney-client communications that were not intended to be shared with third parties. See McLaughlin v. Freedom of Information Commission, 83 Conn.App. 190, 197-98 (2004). In McLaughlin the Court of Appeals held that disclosure of a letter written by a town attorney to the Greenwich First Selectman that was intended to be shared with the public did not waive attorney-client privilege: “[t]he test in this case is whether the letter was informed legal advice that would not have been given if there were no privilege ... Here, the disclosed letter was not made in confidence, and the factual circumstances fail to meet the fourth prong of Shew[v. Freedom of information Commission, 245 Conn. 149, 159 (1998)].” In holding that disclosure of the non-confidential attorney's letter did not waive attorney-client privilege the Appellate Court relied on the Supreme Court's decision in State v. Taft, 258 Conn. 412, 421 (2001): “[t]he plaintiff does not dispute that the other documents withheld by Bergstresser are privileged. There is also no factual dispute that the disclosure of the Elliot letter was voluntary. '[V]oluntary disclosure of the content of a privileged attorney communication constitutes waiver of the privilege.' ... The [Taft] court found, however, that the disclosed letter was not subject to the attorney-client privilege and, therefore, disclosure of that letter did not constitute an express waiver of the privilege.”
Unlike the 2010 Mem. and 2018 Mem., defendants assert the withheld emails contain confidential communications between attorney and client for the purposes of seeking legal advice that were never intended to be shared with plaintiffs or anyone else. This does not appear to be a case where a party has engaged in “picking and choosing” in selective and strategic disclosure of privileged material that resulted in a finding of waiver of confidentiality of medical records in Hopkins v. Balachandran, 146 Conn.App. 44, 58-59 (2013). Nor did defendants' extrajudicial disclosures “open the door” by seeking to take unfair advantage through selective disclosure in violation of the “fairness doctrine” discussed by the Second Circuit in In re Von Bulow, 828 F.2d 94, 101-03 (1987). The context in which the 2010 Mem. and 2018 Mem. were provided to plaintiffs were the negotiation of property rights unrelated to litigation.
Defendants have the burden of proving each document withheld is protected by attorney-client privilege. “The privilege protects communications between client and attorney for the purpose of seeking legal advice ... and the defendant must meet her burden of establishing that what she claims is protected by the privilege was in fact a communication between herself and her attorney.” State v. Kosuda-Bigazzi, 2020 WL 1808821 *14 (citation omitted). Defendants submitted an affidavit that Mr. Demming considered the withheld communications with counsel confidential and made in connection with the giving of legal advice. No specific documents were addressed. Although this memorandum addresses the general standards to be applied to ascertain whether there was waiver of privilege, the Court has insufficient information to rule on the privileged status of specific documents. Plaintiff must supplement the information provided as to the specific documents they seek to withhold by December 10, 2020.
As to the communications that would otherwise be protected by attorney client privilege, plaintiff alleges that defendant has implicitly waived privilege by placing the advice of counsel “at issue” in the litigation. The “at issue” exception was discussed extensively in the Supreme Court's decision in Metropolitan Life Ins. Co. v. Aetna Cas. & Sur. Co., 249 Conn. 36, 53-54 (1999):
Because of the important public policy considerations that necessitated the creation of the attorney-client privilege, 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. “If the information is actually required for a truthful resolution of the issue on which the party has raised ... the party must either waive the attorney-client privilege as to that information or it should be prevented from using the privileged information to establish the elements of the case.” ...
Merely because the communications are relevant does not place them at issue ... If admitting that one relied on legal advice in making a legal decision put the communications relating to the advice at issue, such advice would be at issue whenever the legal decision was litigated. If that were true, the at issue doctrine would severely erode the attorney-client privilege and undermine the public policy considerations upon which it is based.
Plaintiffs have not demonstrated that defendants have placed the legal advice of their counsel “at issue.” There has been no showing that the contents of any advice of defense counsel with respect to the right-of-way at issue or access to the Khakum Wood roads “are integral to the outcome of a legal claim or cause of action.” McLaughlin, 83 Conn.App. at 195. Evidence of the advice is not required for “truthful resolution” of any of the defenses alleged by defendants. Id. No defense has been alleged based on defendants' reliance on legal counsel's advice. Unlike a claim for vexatious litigation or legal malpractice,
[1] defendants' state of mind or the advice they received are not at issue so testimonial or casual references to reliance on counsel do not touch on matters integral to the defenses alleged that the easement was invalid when reserved, that the easement was abandoned or that the easement serves no purpose anymore because the property lost any right to use the private roads. The confidential opinions of defendants' counsel as to these defenses are not probative of their validity and defendants have not done anything to place the lawyers' advice at issue.
In the present case, the plaintiff has not pleaded reliance on any information or advice contained in the privileged documents. Although the plaintiff's compliance with the requirement in its policy to make reasonable settlements is at issue, that fact does not place the privileged documents at issue. Compliance with contract terms is generally an element in all contractual actions, yet reliance upon legal advice within the process of adhering to contract terms does not automatically place the actual legal advice at issue ... Therefore, even though certain of the plaintiff's senior officials may have stated in depositions that advice of counsel was a significant motivating factor in the officials' decisions to settle the asbestos tort actions, the privileged documents are not at issue because the plaintiff is not relying on the privileged communications to prove that those settlements were reasonable. Metropolitan, 249 Conn. at 54-55 (citations omitted).
To the extent that the withheld documents are protected by attorney-client privilege the motion to compel is denied; however, the motion is granted to the extent that content responsive to the request is not so protected. That certain content is protected by attorney-client privilege does not relieve defendant of the requirement to respond and produce non-confidential factual information requested. “ 'Not every communication between attorney and client falls within the privilege. A communication from attorney to client solely regarding a matter of fact would not ordinarily be privileged, unless it were shown to be inextricably linked to the giving of legal advice.” Fensore, 2017 WL 1311107 *3 n.4, quoting Ulmann v. State, 230 Conn. 698, 713 (2002).
[2] With respect to an email chain, the fact that certain emails in the chain are protected by attorney-client privilege does not mean the entire chain is privileged; as the Supreme Court noted in State v. Kosuda-Bigazzi, 2020 WL 1808821 *10, “privilege must be established for each document separately ... The defendant cites no case law, and we have found none, that supports the proposition that placing a document next to a privileged document transforms what would be a non-privileged document into one protected by the attorney-client privilege.” (Citations omitted.)
The motion is granted to the extent that the documents withheld contain non-confidential factual information that is not protected by attorney-client privilege. Redacted copies of such documents should be produced to plaintiffs with only the privileged portions removed by December 18, 2020. Whether responsive non-privileged portions of documents have any probative value and constitute admissible evidence is best left to another day, for now factual content responsive to discovery requests fall within the broad scope of discovery and must be produced.
[3]