UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
February 28, 2007
BERNARD H. COHEN, PLAINTIFF,
MIDDLETOWN ENLARGED CITY SCHOOL DISTRICT, ROBIN MARKOVITZ, FORMER BOARD OF EDUCATION PRESIDENT, PAUL JOHNSON, FORMER BOARD OF EDUCATION PRESIDENT, VINCENT CRESCENZO, BOARD OF EDUCATION PRESIDENT, ROBERT SIGLER, FORMER SUPERINTENDENT OF SCHOOLS, PATRICIA MCLEOD, FORMER SUPERINTENDENT OF SCHOOLS, AND KENNETH EASTWOOD, SUPERINTENDENT OF SCHOOLS, SUED IN THEIR INDIVIDUAL CAPACITIES, DEFENDANTS.
The opinion of the court was delivered by: Conner, Sr. D.J.
OPINION AND ORDER
Plaintiff Bernard H. Cohen brings the present action pursuant to 42 U.S.C. § 1983 against defendants Middletown Enlarged City School District (the "District"), Robin Markovits ("Markovits"),*fn1 Paul Johnson ("Johnson"),*fn2 Vincent Crescenzo ("Crescenzo"),*fn3 Robert Sigler ("Sigler"),*fn4 Patricia McLeod ("McLeod")*fn5 and Kenneth Eastwood ("Eastwood")*fn6 (collectively, "defendants"), seeking damages resulting from his allegedly unlawful termination. Plaintiff previously filed a motion to compel defendants to produce certain documents relating to the District's investigation of plaintiff, which resulted in the District's decision to initiate disciplinary charges against him and, ultimately, in his termination. In the Opinion and Order dated January 8, 2007, this Court held, inter alia, that defendants must produce document nos. 1, 2, 9, 21, 27 and 28*fn7 to plaintiff or, in the alternative, to this Court for in camera inspection, on or before February 2, 2007, because defendants' privilege log failed to sufficiently describe the documents alleged to be protected under the attorney-client privilege and/or attorney-work product. On February 1, 2007, defendants produced the documents to this Court for in camera review. We have since reviewed the documents and, for the reasons that follow, plaintiff's motion to compel defendants to produce document nos. 1, 2, 9, 21, 27 and 28 is denied.
This litigation arises from the highly publicized incident involving the molestation of an eighth-grade student attending Twin Towers Middle School by Sigler, the former Superintendent of Schools, who ultimately pled guilty to child molestation charges and is currently serving a prison sentence. (See Defs. Mem. Opp. Mot. Compel, Ex. 6.) In particular, it involves plaintiff's alleged course of action to bring an end to Sigler's contact with the student, his subsequent public criticism of the District's handling of the matter and the District's motivation for ultimately terminating plaintiff. The facts relevant to this lawsuit are set forth in detail in our prior Opinion and Order, dated January 8, 2007, familiarity with which is presumed. The only issue before the Court is defendants' obligation to produce document nos. 1, 2, 9, 21, 27 and 28.
I. Attorney-Client Privilege
As explained in our prior Opinion and Order, the attorney-client privilege is the oldest recognized testimonial privilege in Anglo-American jurisprudence, dating back to the 1600s, and is regarded as a bastion of the attorney-client relationship. See Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998); United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991); EDNA SELAN EPSTEIN, THE ATTORNEY-CLIENT PRIVILEGE AND THE WORK-PRODUCT DOCTRINE, 2 (4th ed. 2001). Indeed, only when communications between an attorney and his client are guaranteed confidentiality can an attorney provide informed legal advice. See EPSTEIN, THE ATTORNEY-CLIENT PRIVILEGE, at 2; see also Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) ("Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice."); United States v. Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., AFL-CIO, 119 F.3d 210, 214 (2d Cir. 1997); In re Rivastigmine Patent Litig., 237 F.R.D. 69, 73 (S.D.N.Y. 2006) ("The attorney-client privilege functions 'to encourage full and frank communications between attorneys and their clients.'") (quoting United States v. Zolin, 491 U.S. 554, 562 (1989)). Courts must define the contours of the privilege to foster open discussion between attorneys and their clients while recognizing the "tension with the proposition that the adversary process is designed to ferret out the truth and that any secrecy accorded by the law must be strictly construed lest the secrecy thwart the search for truth." EPSTEIN, THE ATTORNEY-CLIENT PRIVILEGE, at 12; see also In re Grand Jury Investigation, United States v. Doe, 399 F.3d 527, 531 (2d Cir. 2005). To this end, the party asserting the privilege "must demonstrate that there was: (1) a communication between client and counsel, which (2) was intended to be and was in fact kept confidential, and (3) made for the purpose of obtaining or providing legal advice." United States v. Constr. Prods. Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996); see also Bell v. Pfizer Inc., No. 03 CV 9945, 2006 WL 2529762, at *4 (S.D.N.Y. Aug. 31, 2006) (same); Marsh v. Safir, No. 99 Civ. 8605, 2000 WL 460580, at *8 (S.D.N.Y. Apr. 20, 2000) (same).
In the present case, document no. 1 is an email exchange between Richard Zuckerman ("Zuckerman"), counsel to the District, and a District representative in which the District sought and received legal advice from Zuckerman and, accordingly, it is protected by the attorney-client privilege. Document no. 2 contains a description of an incident written by McLeod at the behest of Zuckerman and then sent to Zuckerman for purposes of seeking legal advice, and it is also protected from discovery.*fn8 Document no. 9 is a communication between Zuckerman and Timothy Conway ("Conway"), Deputy Superintendent of Schools, in which Conway sought legal advice from Zuckerman, and it is therefore protected by the attorney-client privilege. See, e.g., Long v. Marubeni Am. Corp., No. 05 Civ. 639, 2006 WL 2998671, at *2 (S.D.N.Y. Oct. 19, 2006). ("The privilege, designed to facilitate openness and full disclosure between the attorney and the client, shields from discovery advice given by the attorney as well as communications from the client to the attorney.") (emphasis added) (citing Upjohn, 449 U.S. 383). Document 21 is also protected by the attorney-client privilege because it contains a communication between McLeod and Zuckerman containing legal advice that Zuckerman previously provided to McLeod and information provided by McLeod to Zuckerman for purposes of securing future legal advice. Lastly, document nos. 27 and 28 are protected because they contain communications between Sharon Berlin ("Berlin"), legal counsel to the District, and Conway in which Conway sought and received legal advice from Berlin. Accordingly, plaintiff's motion to compel defendants to produce document nos. 1, 2, 9, 21, 27 and 28 is denied.
For the reasons stated above, the motion of plaintiff Bernard H. Cohen to compel production of documents nos. 1, 2, 9, 21, 27 and 28 from defendants is denied.