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Barcomb v. Sabo

December 28, 2009

DARREN BARCOMB, PLAINTIFF,
v.
ARLENE SABO; JERRY LOTTIE; LAWRENCE MILLS; WILLIAM LAUNDRY; SHAWN P. MURPHY; AND MARY DUPELL, DEFENDANTS,*FN1



The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge

MEMORANDUM-DECISION AND ORDER

Plaintiff Darren Barcomb ("Barcomb") brought this action pursuant to 42 U.S.C. § 1983 alleging that defendants, four State University of New York ("SUNY") employees and two members of the New York State Police (NYSP), falsely arrested and maliciously prosecuted him in violation of his constitutional rights. Am. Compl. (Docket No. 19). Presently pending is Barcomb's motion to compel production of documents for which defendants have asserted the protection of the attorney-client privilege. Docket No. 66. Defendants oppose the motion. Docket No. 71. For the following reasons, it is recommended that Barcomb's motion be granted in part and denied in part.

I. Background

Barcomb was employed as a police officer by SUNY beginning May 3, 1999 at the SUNY Plattsburgh campus. Am. Compl. at ¶ 16. At all relevant times, defendants Arlene Sabo ("Sabo") was employed as the Chief of Police, defendant Jerry Lottie ("Lottie") as the Assistant Chief of Police, Lawrence Miller ("Miller") as the Director of Human Resources, and William Laundry ("Laundry") as the Vice President for Student Affairs, all at SUNY Plattsburgh. Id. at ¶¶ 4-7. Defendants Shawn P. Murphy ("Murphy") and Mary Dupell ("Dupell") were employed as officers for NYSP. Id. at ¶¶ 9,10.

On June 26, 2005, Barcomb was charged in a misdemeanor complaint in Suffolk County, New York with menacing based on a complaint filed by a former girlfriend. Am. Compl. at ¶ 17. The charges were later dismissed, but on June 30, 2005, Sabo and Lottie summoned Barcomb to their offices, advised him of the pending charge, and drove him directly from Plattsburgh to Suffolk County to answer the charge. Id. at ¶¶ 17, 18. As a result of the charge, Barcomb was suspended without pay from his employment as a police officer by SUNY. Id. at ¶ 26. Barcomb remained suspended until the suspension was lifted n a ruling by the Public Employees Relations Board on December 5, 2006. Id.

On January 1, 2006, Barcomb was stopped by Murphy and Dupell at an NYSP sobriety checkpoint and advised that he was a police officer. Am. Compl. at ¶ 28. At that time, Barcomb remained suspended from his employment with SUNY. Id. at ¶¶ 26, 29. Barcomb's representation to Murphy and Dupell that he was a police officer came under investigation by the NYSP and in March 2006, Sabo was asked to provide a sworn, written statement regarding Barcomb's employment status. Docket No. 71 at 2. Sabo authored the statement on March 16, 2006, stating that Barcomb "is not employed by any SUNY Police agency at this time and has not been employed by any SUNY Police agency since his suspension on July 29th, 2005." Docket No. 66-2. This statement was utilized by Murphy in the criminal complaint against Barcomb alleging that Barcomb impersonated a police officer during the stop on January 1, 2006. Docket No. 66-3.

At her deposition in this case, Sabo testified that she conferred with SUNY Associate Counsel Carolyn Pasley regarding the accuracy of her written statement before providing it to Murphy. Sabo Dep. (Docket No. 66-6) at 20-22, 27). Based on this and other discovery, Sabo waived the attorney-client privilege concerning the advise she received from Pasley "on [that] point." Docket No. 71 at 7 (emphasis in original).

Additionally during the course of the depositions, Susan Welch, a SUNY Plattsburgh employee, reviewed a plethora of documents prior to her deposition which affected her testimony and served as the basis for a time-line she created and distributed to other defendants. Welch Dep. (Docket No. 66-11) at 64; Sabo Dep. at 10 (stating that Sabo reviewed "[s]ome of [her] arbitration testimony[, s]ome of the Bates stamped documents, [and] a time line," prior to her deposition). These documents included electronic mail communications shared among defendants.

Barcomb demanded production of these communications, defendants denied production on the ground that the communications were protected from disclosure by the attorney-client privilege, defendants served Barcomb with the requisite privilege log listing the documents for which the privilege was asserted, and this motion followed. Defendants thereafter produced certain of those communications, identified as 609, 614, 617-18, 619-20, 621-22, 623-25, and 704 in their privilege log. Docket No. 71 at 1. However, there remained over forty additional electronic mail communications which are the subject of this motion.

II. Discussion

A. Effect of Sabo's Waiver

The Federal Rules of Civil Procedure allow for broad discovery demands so long as the information requested is relevant and not privileged or otherwise limited by a court order. Fed. R. Civ. P. 26(b)(1). "The attorney-client privilege is the oldest of the privileges for confidential communications . . . [designed] to encourage full and frank communication between attorneys and their clients . . . ." Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). Communications are deemed confidential if:

(1) . . . legal advice of any kind is sought, (2) from a professional legal advisor in his or her capacity as such, (3) the communication relates to that purpose, (4) made in confidence, (5) by the client, and (6) are at his or her insistence permanently protected, (7) from disclosure by the client or the legal advisor, (8) except if the protection is waived.

Trudeau v. New York State Consumer Protection Bd., 237 F. R.D. 325, 335-36 (N.D.N.Y. 2006) (citations omitted). The privilege also protects communications between a government attorney and employees whom he or she serves "in civil suits between government agencies and private litigants." Id. at 336 (citing In re Grand Jury Investigation, 399 F.3d 527, 532-33 (2d Cir. 2005)). Here, there is little dispute that ...


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