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Pritchard v. County of Erie

October 31, 2007


The opinion of the court was delivered by: John T. Curtin United States District Judge

On June 12, 2007, this court issued an order denying plaintiffs' motion to compel the production of privileged e-mail communications between an Assistant Erie County Attorney and employees of the Erie County Sheriff's Department, finding that the privilege had not been waived (Item 199). Plaintiffs have moved for reconsideration of this ruling, pursuant to Rule 60 of the Federal Rules of Civil Procedure (see Item 200). Oral argument was heard on October 30, 2007.

For the reasons that follow, plaintiffs' motion is granted.


The factual background of the protracted discovery dispute at hand is set forth at some length in the court's previous orders, and will not be repeated here. Suffice it to state that, upon receiving notice of the decision in In re County of Erie, 473 F.3d 413 (2d Cir. 2007), this court directed briefing and argument to determine the issue left undecided by the Second Circuit in its remand order--specifically, "whether the distribution of some of the disputed e-mail communications to others within the Erie County Sheriff's Department constituted a waiver of the attorney-client privilege." Id. at 423. After receiving and reviewing the parties' initial submissions outlining their positions on waiver, this court issued a subsequent order directing the parties to submit supplemental briefs focused on the following issues:

A. Whether the defendants have preserved the confidentiality of the ten privileged e-mails by limiting their dissemination only to employees with a need to know the content of the communication in order to perform their jobs effectively or to make informed decisions concerning, or affected by, the subject matter of the communication. Cf. Scholtisek v. Eldre Corp., 441 F. Supp. 2d 459, 463-65 (W.D.N.Y. 2006).

B. Whether the circumstances presented in this case warrant application of the "at issue" waiver doctrine--i.e., whether the defendants' assertion of facts in defense of the claims against them in this case has resulted in the involuntary forfeiture of protection from disclosure of matters pertinent to the defenses asserted. Cf. John Doe Co. v. United States, 350 F.3d 299, [303] (2d Cir. 2003).

(Item 183, p. 2).

At oral argument on May 14, 2007, the court limited the discussion to the "waiver by dissemination" issue, and did not hear argument on plaintiffs' position that defendants waived the attorney client privilege by placing the facts discussed in the privileged communications at issue in the case. The court noted this limitation in its June 12, 2007 order, and also noted its intent to limit its ruling accordingly (see Item 199, p. 5 n. 1).

Plaintiffs now ask the court to reconsider this ruling, and urge the court to take up the "at issue" waiver argument.


1. Rule 60(b)

The relevant portions of Rule 60(b) provide that "upon such terms as are just, the court may relieve a party . . . from a final judgment [or] order . . . for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect; . . . or (6) any other reason justifying relief from the operation of the judgment." Fed. R. Civ. P. 60(b); see Mendell In Behalf of Viacom, Inc. v. Gollust, 909 F.2d 724, 731 (2d Cir. 1990). Motions under Rule 60(b) are addressed to the sound discretion of the district court and are generally granted "only upon a showing of exceptional circumstances." Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986), quoted in Scherer v. City of New York, 2007 WL 2710100, at *4 (S.D.N.Y. September 7, 2007).

Under Rule 60(b), reconsideration of a prior order is proper where "the moving party can point to controlling decisions or data that the court overlooked--matters in other words, that might reasonably be expected to alter the conclusion reached by the court." Schrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); see also New York v. Solvent Chem. Co., 235 F. Supp. 2d 238, 239-40 (W.D.N.Y. 2002) (quoting Schrader, 70 F.3d at 257). "The major grounds justifying reconsideration are an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or to prevent manifest injustice." United States v. Tenzer, 213 F.3d 34, 39 (2d Cir. 2000). "[A] motion for reconsideration is not to be used as a vehicle for wasteful repetition of arguments already briefed, considered, and ...

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