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April 19, 2004.

STANLEY BULLARD, at al., Plaintiffs; -against- THE CITY OF NEW YORK, et al., Defendants

The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge


This is a civil rights action brought pursuant to 42 U.S.C. § 1983 in which plaintiffs allege that they were the victims of a series of baseless arrests and criminal prosecutions instigated by the individual defendants and other conspirators. According to plaintiffs, this alleged series of abuses was perpetrated in order to drive plaintiffs from their apartment and their neighborhood and to punish Stanley Bullard for his criticism of his arrests, prosecution and treatment by defendants and their conspirators. Plaintiffs' allegations are set forth in greater detail in Judge Koeltl's decision denying defendants' motion to dismiss the complaint, familiarity with which is assumed. Bullard v. City of New York. 240 F. Supp.2d 292 (S.D.N.Y. 2003).

Defendants move to compel the production of part of the audio portion of a video tape made by Stanley Bullard. The video tape in issue was shot by Mr. Bullard on April 11, 2000 and shows two of the alleged conspirators — Jill Freshman Cohen and Michael Brooks — talking outside of plaintiffs' apartment building. Cohen and Brooks then walk into an adjacent wooded area and are lost from sight for several minutes. They then emerge from the wooded areas and continue their conversation. Cohen and Brooks are too distant from the camera for their conversation to be audible; only background noises are heard during their conversation. The video tape then shows Mr. Bullard speaking to the camera and providing his interpretation, based on his lip reading, of what Cohen and Brooks said to each other. Mr. Bullard expressly states on the tape that his comments are intended for Maria Bonavoglia, then an Assistant District Attorney in Bronx County, who was assigned to prosecute one of the cases against Mr. Bullard. It appears that Mr. Bullard prepared the video tape in an effort to prove to the Bronx District Attorney's Office that he was the victim of a conspiracy and that the charges against him were baseless. Plaintiffs' counsel has informed me that the tape was never provided to Ms. Bonavoglia, but that it was provided to Martin Galvin, Mr. Bullard's attorney in one of the state criminal prosecutions. Mr. Galvin never used the tape and never disclosed it to the prosecution. Plaintiffs have withheld the audio portion of Mr. Bullard's comments, asserting the attorney — client privilege and work — product protection.

  The audio portion of the tape recording is clearly not within the attorney — client privilege. The elements of the attorney — client privilege are well settled: "The [attorney — client] privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom communication was made (a) is a member of the 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. "

 Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A.. 160 F.R.D. 437, 441 (S.D.N.Y. 1995), quoting United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950); see United States v. Davis, 131 F.R.D. 391, 398 (S.D.N.Y. 1990). The privilege "exists to protect not only the giving of professional advice to those who can act on it, but also the giving of information to the lawyer to enable him to give sound and informed advice." Upjohn Co. v. United States, 449 U.S. 383, 390 (1981).

  Mr. Bullard's comments do not satisfy these elements. The tape is an unsent communication to adverse counsel prepared in an effort terminate a criminal prosecution. It is not a confidential communication to an attorney made for the purpose of seeking legal advice. United States v. Rockwell Int'l, 897 F.2d 1255, 1265 (3rd Cir. 1987) ("The attorney — client privilege does not apply to communications that are intended to be disclosed to third parties or that in fact are so disclosed.") The fact that it was subsequently given to Mr. Bullard's counsel cannot trans — form it into a privileged attorney — client communication. Ratliff v. Davis Polk & Wardwell. 354 F.3d 165, 170-71 (2d Cir. 2003); Colton v. United States, 306 F.2d 633, 639 (2d Cir. 1962).

  Plaintiffs' work — product claim is a slightly closer case. "[T]hree conditions must be met in order to earn work product protection. The material must (1) be a document or tangible thing, (2) that was prepared in anticipation of litigation, and (3) was prepared by or for a party, or by or for his representative." In re Grand Jury Subpoenas Dated Dec. 18. 1981 & Jan. 4, 1982, 561 F. Supp. 1247, 1257 (E.D.N.Y. 1982) (McLaughlin, J.). Accord Weinhold v. Witte Heavy Lift. Inc., 90 Civ. 2096 (PKL), 1994 WL 132392 at *2 (S.D.N.Y. April 11, 1994); 2 Michael C. Silberberg & Edward M. Spiro, Civil Practice in the Southern District of New York, § 15.04 at 15-13 — 15-14 (2d ed. 2003).

  The Second Circuit has explained that the second element of this test does not limit the doctrine to documents prepared primarily or exclusively to assist in litigation: "Nothing in the Rule states or suggests that documents prepared `in anticipation of litigation' with the purpose of assisting in the making of a business decision do not fall within its scope." United States v. Adlman, 134 F.3d 1194, 1198-99 (2d Cir. 1998). Thus, the appropriate inquiry regarding the second element of the test is whether "`in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.'" United States v. Adlman. supra, 134 F.3d at 1202, quoting 8 C. Wright, A. Miller & R. Marcus, Federal Practice & Procedure § 2024 at 343 (1994).

  In contrast to the attorney — client privilege, which is intended to encourage full disclosure by the client, the work — product doctrine "is intended to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy `with an eye toward litigation,' free from unnecessary intrusion by his adversaries." United States v, Adlman, supra, 134 F.3d at 1196; Genentech. Inc. v. United States Int'l Trade Comm'n, 122 F.3d 1409, 1415 (Fed. Cir. 1997) ("`The work product privilege protects the attorney's thought processes and legal recommendations.'"), quoting Zenith Radio Corp. v. United States, 764 F.2d 1577, 1580 (Fed. Cir. 1985).

  The audio track itself establishes that the recording was made for one of the criminal prosecutions against Mr. Bullard and not the present litigation. This fact does not defeat plaintiffs' work — product claim. The weight of authority in his Circuit holds that material protected by the work product privilege retains its protection in subsequent litigation, especially where, as here, the subsequent litigation is related to the former litigation. A. I. A. Holdings, S.A., v. Lehman Bros., 97 Civ. 4978 (LMM)(HBP), 2002 WL 31556382 at *5, (S.D.N.Y. Nov. 15, 2002); In re Grand Jury Proceedings, No. M-ll-189, 2001 WL 1167497 at *14 (S.D.N.Y. Oct. 3, 2001); Garrett v. Metropolitan Life Ins. Co., 95 Civ. 2406 (PKL), 1996 WL 325725 at *4 (S.D.N.Y. June 12, 1996).

  The more difficult question is whether Mr. Bullard's analysis of the portion of the tape depicting a conversation between Brooks and Cohen is in fact work product. The audio portion track in issue is not work product in the traditional sense. It was not prepared for use in the litigation, rather it was prepared in connection with an aborted effort to terminate the litigation. It does, however, share an important characteristic with traditional work product in that it is Mr. Bullard's analysis of what he believed to be evidence. See United States v. Nobles, 422 U.S. 225, 238 (1975) ("At its core, the work product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case.").

  Research has not disclosed any authority involving identical facts. The most analogous line of cases I have been able to locate are those cases addressing whether a "Wells Submission" is discoverable. Stated simply, a "Wells Submission" is a written submission to the Securities and Exchange Commission ("SEC") by an individual or entity whose conduct is within the scope of the SEC's investigation, and is usually made in an effort to persuade the SEC that either no violation has occurred or that any violation that has occurred is not as serious as the SEC may believe.*fn1 The Court of Appeals for the Second Circuit has squarely held that where such a submission is voluntarily made, any work product protection that might otherwise apply is waived. In re Steinhardt Partners. L.P., 9 F.3d 230, 235 (2d Cir. 1993). In reaching its conclusion, the Second Circuit stressed that it was the actual disclosure of the Wells Submission that resulted in the waiver, not the intention to make disclosure. In re Steinhardt Partners. L.P., supra, 9 F.3d at 235 ("Examination of conflicting authority and of the purposes of the work product doctrine convinces us that Steinhardt waived any work product protection by voluntarily submitting the memorandum to the SEC." (emphasis added)). See also In re Leslie Fay Cos. Sec. Litig., 152 F.R.D. 42, 44-45 (S.D.N.Y. 1993). Nothing in Steinhardt or its progeny suggests that the waiver of protection is a consequence of the intent to make disclosure.*fn2

  Applying the foregoing principles to the audio portion of the video tape in issue leads to the conclusion that the audio portion is protectable as work product. The audio portion of the tape unmistakably sets forth Mr. Bullard's analysis of a conversation between Brooks and Cohen and sets forth his beliefs concerning the relevance of the conversation to the criminal proceeding against him. Since it constitutes a party's analysis of what the party believed to constitute evidence and was prepared in anticipation of litigation, I conclude that it is work product. In addition, plaintiffs have not waived the protection of the work product doctrine since there appears to be no dispute that the audio portion in issue was never disclosed to an adverse party and was never disclosed to anyone in a manner that made it more likely that the audio portion would come into the possession of an adverse party. See In re In — Store Advertising Sec. Litig., 163 F.R.D. 452, 456 (S.D.N.Y. 1995); In re Crazy Eddie Sec. Litig., 131 F.R.D. 374, 379 (E.D.N.Y. 1990). Since the audio portion of the tape constitutes work product, work product protection has not been waived, and ...

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