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Cante v. Baker

May 9, 2008

RICHARD CANTE, PLAINTIFF,
v.
ROBERT BAKER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Roanne L. Mann, Magistrate Judge

MEMORANDUM AND ORDER

Currently pending before this Court is a series of discovery disputes addressed by the parties in a joint letter filed on March 21, 2008 ("3/21/08 Letter"). Most of the disputes are resolved below; the remaining issues will be discussed at the conference scheduled for May 15, 2008, at 2:00 p.m.

I. Issues Regarding Discovery Sought from Plaintiff Richard Cante ("Plaintiff")

(1) Materials Concerning Plaintiff's Communications With Government Agencies

Citing the attorney-client privilege and work product doctrine, plaintiff has withheld materials concerning his or his attorney's communications with government agencies about the matters at issue in this case. As the proponent of the privilege, plaintiff bears the burden of proving the factual basis for each of the elements of his privilege claim, and that burden "is not . . . discharged by mere conclusory or ipse dixit assertions . . . ." In re Pfizer Inc. Secs. Litig., No. 90 Civ. 1260 (SS), 1993 WL 561125, at *2 (S.D.N.Y. Dec. 23, 1993) (quoting In re Bonanno, 344 F.2d 830, 833 (2d Cir. 1965)); accord Music Sales Corp. v. Morris, No. 98 Civ. 9002 (SAS)(FM), 1999 WL 974025, at *4 (S.D.N.Y. Oct. 26, 1999); see United States v. Constr. Prods. Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996). Furthermore, the proponent of the privilege must also establish the non-waiver of the privilege. See In re Pfizer, 1993 WL 561125, at *2 (citing Nikkal Indus., Ltd. v. Salton, Inc., 689 F.Supp. 187, 191 (S.D.N.Y. 1988)). Plaintiff has not sustained his burden.

Even assuming arguendo that the aforesaid communications with government agencies would otherwise be protected from disclosure,*fn1 cases have held that "protection is waived for materials submitted voluntarily to stimulate beneficial official action" against a third party. Info. Res., Inc. v. The Dun & Bradstreet Corp., 999 F.Supp. 591, 593 (S.D.N.Y. 1998) (discussing cases); see Bank of Am., N.A. v. Terra Nova Ins. Co., 212 F.R.D. 166, 172-74 (S.D.N.Y. 2002). Plaintiff's argument that he shared a common interest with the government agencies is unpersuasive, as they were not his allies when the materials were submitted to them. See Info. Res., 999 F.Supp. at 593; accord Bank of Am., 212 F.R.D. at 173.

In counsels' letter to the Court, plaintiff asserts that his submissions to government agencies were labeled "PRIVILEGED AND CONFIDENTIAL" and that he understood that the documents would remain confidential pending resolution of the agencies' investigations. See 3/21/08 Letter at 2-3. However, plaintiff neither references nor attaches any written confidentiality agreements. Significantly, none of the agencies in question has intervened in this proceeding to protect the secrecy of its investigation. See Info. Res., 999 F.Supp. at 593. Under these circumstances, the demanded documents must be produced, subject to a confidentiality stipulation.

(2) Materials Concerning Plaintiff's Emotional Distress

Plaintiff concedes that his assertion of emotional distress effects a waiver of the protection of the doctor-patient (or therapist-patient) privilege. See 3/21/08 Letter at 5; see also James v. Federal Reserve Bank, No. CV01-1106(RJD)(VVP), 2006 WL 1229109, at *1 (E.D.N.Y. May 8, 2006); see generally Jaffee v. Redmond, 518 U.S. 1, 15 n.14 (1996). Plaintiff mistakenly argues, however, that that waiver is confined to evidence available from his therapist, and that he need not answer deposition questions concerning communications with his therapist. See 3/21/08 Letter at 5. However, once the privilege has been waived, plaintiff has no right to refuse to answer deposition questions on privilege grounds.

Indeed, as plaintiff notes, his objection to being subjected to deposition questions about his therapist's diagnosis is in fact a hearsay objection. See id. A hearsay objection is not a proper basis for a refusal to answer deposition questions; rather, the witness may note the hearsay objection on the record, "but the examination still proceeds; the testimony is taken subject to any objection." Fed. R. Civ. P. 30(c)(2). Therefore, defense counsel was entitled to seek discovery from plaintiff concerning his communications with his therapist.

(3) Plaintiff's Daily Log

Relying on the work product doctrine, plaintiff refuses to produce his daily log, which is alleged to reflect the events at issue in this case. Plaintiff is directed to submit the document for in camera inspection by May 12, 2008.

(4) Plaintiff's Wife's Prescription Drugs

In his Amended Complaint, plaintiff alleges that his refusal to switch from Local 74 to Local 94 was based on the fact that the drug coverage plan available to Local 94 was inferior to the Local 74 plan; specifically, the pleading asserts that plaintiff's wife is disabled; that she "takes thirteen pills and one injection each day" and relies on her husband's health benefits plan; and that defendant Robert Baker ("Baker") tried to force plaintiff to switch unions and thereby "punish Cante by hurting ...


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