The opinion of the court was delivered by: John G. Koeltl, District Judge
The defendants, T-Systems North America, Inc. ("T-Systems") and Gregg Mihallik, move to compel responses to a subpoena issued pursuant to Federal Rule of Civil Procedure 45. The subpoena sought all correspondence between the plaintiff, Patricia Seyler, and her sister, Julie Seyler. The plaintiff argues that the correspondence is covered by the attorney-client privilege, because her sister is an attorney and the correspondence concerned the seeking and provision of legal advice. The defendants argue that the correspondence was outside the scope of the privilege; alternatively, they argue that the plaintiff waived any privilege.
On December 14, 2009, the plaintiff filed suit against T-Systems, her former employer, and Mihallik, her former manager, in the Superior Court of New Jersey, alleging state-law claims of a hostile work environment, retaliation, and intentional infliction of emotional distress. (Certification of Michael M. DiCicco Ex. A.) The defendants removed the case to the District Court for the District of New Jersey. See Notice of Removal, Seyler v. T-Systems N. Am., No. 10 Civ. 1683 (D.N.J. Mar. 31, 2010).
During the course of discovery in the District Court, the plaintiff turned over an email exchange between her and her sister, who is a lawyer with a New York law firm. (Decl. of Michael R. Turco Ex. D, E.) The defendants subsequently issued a subpoena to the law firm for "all documents or electronically stored information sent to, received from, or exchanged amongst Patricia Seyler and Julie B. Seyler" regarding ten different topics related to the lawsuit. (Id. Ex. E.) After the law firm objected to producing the documents on the ground that the documents were protected by the attorney-client privilege, the defendants filed a motion in this Court to compel responses to the subpoena.
Motions to compel a subpoena are "entrusted to the sound discretion of the district court." In re Fitch, Inc., 330 F.3d 104, 108 (2d Cir. 2003) (internal citation omitted). Under the Federal Rules of Civil Procedure, a party is entitled to discovery "regarding any non-privileged matter that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b)(1).
The parties agree that New York law controls the application of attorney-client privilege in this case. See Motorola Credit Corp. v. Uzan, 388 F.3d 39, 61 (2d Cir. 2004) ("[T]he parties' briefs assume that New York law controls this issue, and such implied consent . . . is sufficient to establish choice of law." (omission in original) (internal quotation marks omitted)).*fn1 Although New York has codified attorney-client privilege, it continues to look to the common law for guiding principles. See Spectrum Sys. Int'l Corp. v. Chem. Bank, 581 N.E.2d 1055, 1060 (N.Y. 1991); see also N.Y.C.P.L.R. § 4503(1). To be privileged, a communication must be made "for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship," and must be "primarily or predominantly of a legal character." Spectrum Sys., 581 N.E.2d at 1060 (internal quotation marks omitted).
Whether an attorney-client relationship was created "does not depend on the existence of a formal retainer agreement or upon payment of a fee"; rather, "a court must look to the words and actions of the parties to ascertain the existence of such a relationship." Moran v. Hurst, 822 N.Y.S.2d 564, 566 (App. Div. 2006). The party claiming the privilege bears the burden of establishing it. Spectrum Sys., 581 N.E.2d at 1059.
The subpoena is addressed to the law firm where the plaintiff's sister practices law and broadly seeks all documents received from, sent to, or exchanged among the plaintiff and her sister relating to ten different topics having some relation to the pending lawsuit in New Jersey. This correspondence occurred while the plaintiff was pursuing a claim of a sexually hostile work environment that she had filed with her employer, a claim that ultimately led to this lawsuit. The privilege log filed by the law firm in response to the subpoena reveals that no fewer than five attorneys sent or received email as part of this correspondence. (Certification of Michael M. DiCicco Ex. C.) The sole email that has been submitted to the Court and which was produced in the course of discovery clearly contains "legal advice," in that it concerns the proper response to a memorandum regarding the claim and advises the plaintiff on specific points that she should seek to make. (Id. Ex. B.)
The defendants argue that the disclosed email, and by extension the entire correspondence with the plaintiff's sister's law firm, was "personal in nature," and that the plaintiff "simply called her sister for familial advice." (Def.'s Br. 11.) In addition to the content of the email and the fact of the familial relationship, they point to the fact that the plaintiff's sister's area of expertise was patent law, and to the plaintiff's deposition testimony that she was not "working with a lawyer" and had not "retained a lawyer" at the time of the internal claim. (Decl. of Michael R. Turco Ex. A at 140.)
These contentions are unavailing. The email from the plaintiff's sister contained precisely the sort of advice a lawyer might give in advising a client who is drafting correspondence for a later litigation record. The fact that the plaintiff's sister was a family member and a patent lawyer is not controlling, particularly given the fact that other lawyers from her firm, who may have had more relevant expertise, were brought into the discussion. Moreover, the Court credits the plaintiff's sworn certification that she understood the deposition questions to ask whether she "had hired and agreed to pay for an attorney," rather than whether she had sought any legal advice at all. (Certification of Patricia Seyler ¶ 3.)
The plaintiff has satisfied her burden of showing that a "professional relationship" existed and that the communications sought by the defendants were for the "purpose of facilitating the rendition of legal advice or services," and were "primarily or predominantly of a legal character." Spectrum Sys., 581 N.E.2d at 1060. Accordingly, ...