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BAPTISTE v. CUSHMAN & WAKEFIELD

February 20, 2004.

CELESTE T. BAPTISTE, Plaintiff, -against- CUSHMAN & WAKEFIELD, INC., Defendant


The opinion of the court was delivered by: THEODORE KATZ, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, Celeste Baptiste ("Baptiste"), brings this action under 42 U.S.C. § 1981, and Title VII of the Civil Rights Act of 1964, as amended, §§ 2000e et seq. ("Title VII"), claiming employment discrimination on the basis of age, race, color, and gender, as well as unlawful retaliation for the exercise of protected rights, against her former employer, Cushman & Wakefield ("C&W"). The action was referred to this Court by the Honorable Richard C. Casey, United States District Judge, for general pretrial supervision. Presently before the Court is a dispute between the parties regarding Defendant's request for the return by Plaintiff of an e-mail that came into her possession, which Defendant contends is protected by the attorney-client privilege. Plaintiff responds that the document is not privileged and, in any event, the privilege has been waived. Page 2

BACKGROUND

  At her deposition, Plaintiff testified that an envelope full of printed e-mails was left anonymously on her desk, some time late in February 2003, before she commenced a disability leave of absence from her employment with Defendant.*fn1 The e-mails were not addressed to Plaintiff, and Defendant considers them to have been confidential. Among the e-mails was the e-mail in question, dated February 4, 2003, which was authored by Dennis Waggner, C&W's Director of Commission Accounting, who was the supervisor of Plaintiff's immediate supervisor, Anthony Barra. The e-mail was addressed to Grace Ben-Ezra, C&W's Assistant Manager of Human Resources, as well as several other C&W employees — Michael Flood, Waggner's supervisor, Anthony Barra, Plaintiff's supervisor, Patricia Glorioso, Ms. Ben-Ezra's supervisor, and Kenneth R. Goldstein, C&W's Assistant General Counsel. The subject of the e-mail was Plaintiff. Specifically, the e-mail references Waggner's having spoken with Howard Rothschild, C&W's outside counsel, and it provides his views on the EEOC's dismissal of Plaintiff's administrative charge, her retention of new counsel, and his suggestion as to the legally appropriate way in which to treat her. Page 3 The e-mail also reflects Waggner's views about Plaintiff's job-performance. (See Jones Ltr., Ex. A.)

  Plaintiff contends that the e-mail is not protected by the attorney-client privilege because it is not labeled so, does not refer to legal advice, except in one sentence, does not contain legal advice, was not authored by an attorney, was circulated to non-attorneys, and "[it] primarily contains information incidental to business advice. . . . (Jones Ltr. at 2.) Plaintiff also contends that any privilege was waived because Defendant waited approximately two months after receipt of the e-mail from Plaintiff to assert privilege, did not file an appropriate privilege log in which the e-mail was identified, and "never filed an assertion of attorney-client privilege with the Court." (Id. at 12.)

  DISCUSSION

  The attorney-client privilege affords confidentiality to communications among clients and their attorneys, for the purpose of seeking and rendering an opinion on law or legal services, or assistance in some legal proceeding, so long as the communications were intended to be, and were in fact, kept confidential. See United States v. International Brotherhood of Teamsters, 119 F.3d 210, 214 (2d Cir. 1997); In re Six Grand Jury Witnesses, 979 F.2d 939, 944 (2d Cir. 1992), cert. denied, 509 U.S. 905, 113 S.Ct. 2997 (1993); In re John Doe Corp., 675 F.2d 482, 487-88 (2d Cir. 1982); Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., Page 4 160 F.R.D. 437, 441 (S.D.N.Y. 1995) (citing United States v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950)). The privilege is among the oldest of the common law privileges and "exists for the purpose of encouraging full and truthful communication between an attorney and his client. . . . " In re von Bulow, 828 F.2d 94, 100 (2d Cir. 1987); accord United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir.), cert. denied, 502 U.S. 813, 112 S.Ct. 63 (1991). Thus, the burden of breaching the privilege is particularly onerous. United States v. Davis, 131 F.R.D. 391, 398 (S.D.N.Y. 1990). The privilege does not protect the client's knowledge of relevant facts, whether or not they were learned from his counsel, or facts learned by the attorney from independent sources. In re Six Grand Jury Witnesses, 979 F.2d at 945; Arkwright Mut. Ins. Co. v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, No. 90 Civ. 7811 (AGS), 1994 WL 510043, at *4 (S.D.N.Y. Sept. 16, 1994)(citing Upjohn Co. v. United States, 449 U.S. 383, 395-96, 101 S.Ct. 677, 685-86 (1981)); Alien v. West Point-Pepperell Inc., 848 F. Supp. 423, 427-28 (S.D.N.Y. 1994); Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., No, 93 Civ. 6876 (KMW) (JCF), 1995 WL 598971, at **9-10 (S.D.N.Y. Oct. 11, 1995).

  The attorney-client privilege will be waived if the holder of the privilege discloses or consents to disclosure of any significant part of the communication to a third party or stranger Page 5 to the attorney-client relationship. See In re Grand Jury Proceedings, No. M-ll-189 (LAP), 2001 WL 1167497, at *7 (S.D.N.Y. Oct. 3, 2001); In re Kidder Peabody Sec. Litig., 168 F.R.D. 459, 468 (S.D.N.Y. 1996). However, communications which reflect advice given by counsel to a corporation do not lose their privileged status when shared among corporate employees who share responsibility for the subject matter of the communication. See SR Int'l Bus. Ins. Co. Ltd, v. World Trade Ctr. Props., LLC, No. 01 Civ. 9291 (JSM), 2002 WL 1455346, at *5 (S.D.N.Y. July 3, 2002); Bank Brussels Lambert, 160 F.R.D. at 442; Strougo v. BEA Assocs., 199 F.R.D. 515, 519-20 (S.D.N.Y. 2001) ("[A]lthough dissemination of privileged information to third parties generally waives attorney-client privilege, the distribution within a corporation of legal advice received from its counsel does not, by itself, vitiate the privilege."); In re Grand Jury Proceedings, 2001 WL 1167497, at *27.

  Applying these principles to the e-mail in issue, the Court has little difficulty in concluding that the first four paragraphs of the e-mail are protected by the attorney-client privilege. It is of no moment that the e-mail was not authored by an attorney or addressed to an attorney. The e-mail was clearly conveying information and advice given to Waggner by C&W's outside counsel. That advice pertained to the effect of the termination of the EEOC proceeding on Plaintiff's claims, what the attorney anticipated Page 6 would occur, and his advise as to how C&W supervisors should conduct themselves in dealing with Plaintiff, while legal matters with Plaintiff were pending. Moreover, Waggner was conveying the attorney's thinking and advice to other supervisory employees who needed to know, including Human Resources personnel, Plaintiff's supervisor, and the Assistant General Counsel of C&W. As discussed, communications from counsel to a single corporate executive acting on behalf of the corporate client retain their privileged status when communicated to other executives who have relevant responsibility.

  In addition, there is nothing to suggest that the e-mail was not intended to be treated as confidential. It was only conveyed to a hand-full of high-level employees who had need to know. That Plaintiff came into its possession appears to have been the result of improper conduct by someone at C&W, which was clearly not sanctioned by the officials to whom the e-mail was addressed.*fn2 Moreover, "the determination of whether a document is privileged does not depend upon the technical requirement of a privilege legend." In re Grand Jury Proceedings, 2001 WL 1167497, at *10.

  Nevertheless, the final paragraph of the e-mail is of a different order. In that paragraph, Waggner, a non-attorney, is Page 7 simply conveying to his colleagues his own impressions and frustrations about Plaintiff's conduct on the job. That this is the case is made apparent by his final statement — "thanks for listening (again). . . talk to you later. . . . There is no legal advice contained in the paragraph and the information is not being conveyed to an attorney for the purpose of seeking legal advice. Accordingly, the final paragraph of the e-mail is not protected by the attorney-client privilege.

  The only remaining issue is whether C&W has waived the attorney-client privilege with respect to the first four paragraphs of the e-mail. Relying on the decision in SEC v. Cassano, 189 F.R.D. 83 (S.D.N.Y. 1999), Plaintiff appears to contend that there was a waiver of privilege by C&W because of inadvertent conduct. That decision, however, is inapposite to the issues before this Court. In Cassano, the SEC made documents available for inspection by defense counsel, with the understanding that once counsel selected documents that were to be produced, the SEC would copy and produce them. In the course of the inspection, defense counsel found one document of nearly one hundred pages, which he considered extremely useful, and requested that it be produced prior to the more general production. The document was an action memo by the SEC staff relating to the litigation. The SEC paralegal in charge of the process checked with SEC counsel, identified the Bates number of the document in issue, and, without examining the Page 8 document, counsel provided permission to copy and produce it. Moreover, the document had not been listed on the SEC's privilege log. Once produced, it was distributed among five defense attorneys, clients, and some outside parties. Twelve days later, the SEC's counsel sought the return of the document, claiming attorney-client privilege. The Court found that the SEC's carelessness in protecting the attorney-client privilege resulted in a waiver of the privilege. The Court further found that "[a]lthough the SEC acted promptly once it determined that the document had been produced, a factor cutting in its favor, the time taken to rectify the error, in all the circumstances, was excessive. There was no excuse for waiting 12 days to find out what the document was." Id. at 86.

  In this case, the e-mail in issue was not produced to Plaintiff by Defendant or its counsel, inadvertently or otherwise. There is no evidence that Defendant failed to take appropriate precautions to protect the confidentiality of the document. Indeed, Plaintiff acknowledged at her deposition that by being in possession of the e-mail she appeared to be violating company policy on confidentiality. See Baptiste Dep. Tr. at 100.

  Plaintiff further contends that there was a voluntary waiver of privilege by C&W because of Defendant's two-month delay in asserting attorney-client privilege after receiving the document from Plaintiff as part of the discovery ...


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