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Rosalie Lolonga-Gedeon v. Child & Family Services

May 15, 2012


The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge



This case was referred to the undersigned by Honorable Richard J. Arcara on July 25, 2008. The matter is presently before the court for in camera review of documents which Defendant asserts are privileged and thus protected from disclosure.


Plaintiff Rosalie Lolonga-Gedeon ("Plaintiff" or "Lolonga-Gedeon"), an African-American woman who had immigrated from Central Africa (Congo), commenced this employment discrimination action on April 18, 2008, alleging Defendant Child & Family Services ("Defendant" or "CFS"), discriminated against her based on race, color, sex and national origin, and retaliated against Plaintiff for complaining about said discrimination and terminated her employment. Defendant's answer was filed on July 23, 2008 (Doc. No. 5).

Plaintiff essentially alleges that after commencing employment as a Senior Case Manager in Defendant's Chautauqua County office in February 2005, Defendant repeatedly harassed Plaintiff about her accent which Defendant asserted interfered with Plaintiff's job performance, failed to accept Plaintiff's assertion that Plaintiff had earned the equivalent of a Bachelor's degree, a requirement for Plaintiff's Senior Case Manager position with Defendant, and that when Plaintiff complained of the harassment, Defendant retaliated against Plaintiff by terminating her employment on March 27, 2007. On May 30, 2007, Plaintiff pursued administrative remedies by filing an employment discrimination charge with New York State Division of Human Rights ("DHR"), which, on December 12, 2007, issued a Determination and Order after Investigation finding no evidence supporting Plaintiff's claims of employment discrimination.

On June 30, 2010, Plaintiff served Defendant with discovery requests including document requests(Doc. No. 44) ("Document Requests"), and interrogatories (Doc. No. 45) ("Interrogatories") (together, "Discovery Requests"). Defendant responded to the Document Requests by serving Plaintiff with 850 Bates stamped responsive pages. On August 20, 2010, Defendant served Plaintiff with a privilege log ("First Privilege Log"), identifying 45 documents otherwise responsive to the Document Requests, but withheld as protected by the attorney-client privilege, work-product doctrine, and a mediator's privilege pursuant to New York law. Defendant served Plaintiff with a second privilege log dated July 27, 2011 ("Second Privilege Log"), listing three items withheld on the basis of privilege. On October 14, 2011, Plaintiff filed a motion (Doc. No. 99) seeking to compel discovery in response to Plaintiff's Discovery Request and requesting in camera review of certain documents Defendant maintains are protected from disclosure by various privileges. In a Decision and Order filed December 9, 2011 (Doc. No. 129) ("Dec. 9, 2011 D&O"), the undersigned directed Defendant to submit for in camera review each document Defendant claims is privileged or work-product protected, and a memorandum of law explaining the basis for asserting each document is either irrelevant to Plaintiff's Discovery Requests, privileged, or protected from disclosure. Dec. 9, 2011 D&O at 4. Defendant served Plaintiff with a third privilege log dated January 12, 2012 ("Third Privilege Log"), listing two additional documents Defendant maintains are protected from disclosure.

On January 13, 2012, Defendant, in compliance with the Dec. 9, 2011 D&O, filed the Declaration of Joshua Feinstein, Esq. (Doc. No. 142) ("Feinstein Declaration"), attached to which as exhibits ("Defendant's Exh(s). __") are the First, Second, and Third Privilege Logs (Defendant's Exhs. A, B, and C, respectively). The documents Defendant identified in the Privilege Logs as protected from disclosure were submitted to the court for in camera inspection, and filed under seal. Defendant also filed on January 13, 2012, the Affidavit of Dan Weitz (Doc. No. 143) ("Weitz Affidavit"),*fn2 and Defendant Child & Family Services' Memorandum of Law in Support of Assertion of Privilege (Doc. No. 144) ("Defendant's Memorandum"). Plaintiff has not filed any papers opposing Defendant's assertions that the documents are privileged.


1. Privilege

Defendant has submitted three privilege logs containing a total of 52 entries and 58 pages of documents Defendant has withheld from producing to Plaintiff on the basis that such documents are protected as attorney-client communications, work product, or mediation materials. Because resolution of the instant action involves federal substantive law, e.g., Title VII, federal common law governs Defendant's claims of privilege. Fed.R.Civ.P. 501; see Von Bulow v. Von Bulow, 811 F.2d 136, 141 (2d Cir. 1987) (holding federal law of privilege controls where evidence sought is relevant to both federal and pendent state claims). It is basic that privileged documents are exempt from disclosure. United States v. Construction Products Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996) (citing United States v. Morton Salt Co., 338 U.S. 632, 639 (1950)). The burden is on the party asserting the privilege to establish the essential elements of the asserted privilege, id. (citing United States v. Adlman, 68 F.3d 1495, 1499 (2d Cir. 1995); and In re von Bulow, 811 F.2d 136, 144 (2d Cir.), cert. denied, 481 U.S. 1015 (1987)), as well as the absence of any waiver. In re Grand Jury Proceedings, 219 F.3D 175, 191 (2d Cir. 2000) (observing work product protection can be waived by disclosing or putting at issue subject of asserted protected documents); S.E.C. v. Gupta, __ F.Supp.2d __; 2012 WL 990779, at * 4 (S.D.N.Y. Mar. 26, 2012) (attorney waived work product by disclosing to third-party witness who did not share a common interest with client). United States v. Int'l. Bhd. of Teamsters, 119 F.3d 210, 214 (2d Cir. 1997) (waiver of attorney-client privilege and citing United States v. Schwimmer, 892 F.2d 237, 234 (2d Cir. 1989)). See also In re Keeper of the Records (XYZ Corp.), 348 F.3d 16, 22 (1st Cir. 2003) ("the party who invokes the privilege bears the burden of establishing that . . . it has not been waived").

Defendant refers to each withheld document by its Bates stamped identifying number. In particular, the 23 documents Defendant asserts as protected by the attorney-client privilege include CFS-PRIV0012 through CFS-PRIV0021, CFSPRIV0023, CFS-PRIV0026, CFS-PRIV0041, CFS-PRIV0043 through CFS-PRIV0046, CFS-PRIV0051, CFS000085, CFS000301, CFS000859, CFS000876, and CFS000973. Defendants asserts the following 23 documents are protected from disclosure as work product, including CFS-PRIV0022, CFS-PRIV0024, CFS-PRIV0025, CFS-PRIV0027 through CFS-PRIV0040, CFS-PRIV0042, and CFS-PRIV0047 through CFS-PRIV0051.*fn3

Finally, Defendant maintains that 13 documents are shielded from disclosure pursuant to New York State Judiciary Law ("N.Y. Jud. Law")*fn4 § 849-b(6), including CFSPRIV0001 through CFS-PRIV0011, CFS000023, and CFS000025. The court discusses each of these documents and the asserted privilege in turn.

2. Attorney-Client Privilege

As stated, Defendant asserts 23 of the withheld documents are communications protected from disclosure by the attorney-client privilege, including documents CFSPRIV0012 through CFS-PRIV0021, CFS-PRIV0023, CFS-PRIV0026, CFS-PRIV0041, CFS-PRIV0043 through CFS-PRIV0046, CFS-PRIV0051, CFS000085, CFS000301, and CFS000859, as well as redacted portions of CFS000876 and CFS000973. According to Defendant, these documents are communications between Defendant's outside counsel, Elizabeth D. Carlson, Esq. ("Carlson"), and CFS Senior Management including Human Resources Director Collette Romano ("Romano"), Executive Director Eugene Meeks ("Meeks"), Senior Vice President and Corporate Compliance Officer Robert Clark ("Clark"), Program Vice President Katey Joyce ("Joyce"), Vice President for Business and Finance Ian Long ("Long"), CFS Center for Resolution and Justice ("CRJ") Director Julie Loesch ("Loesch"), CRJ Director of Operations Michelle Tarbox ("Tarbox"), Senior Accountant Steve Freebern ("Freebern"), and Human Resources Specialists Kris Addotta ("Addotta"), and Amanda Diamond ("Diamond").

A party invoking the attorney-client privilege must demonstrate three elements, including (1) a communication between a client and counsel, (2) intended to be and kept confidential, and (3) made for the purpose of obtaining or providing legal advice or services. Construction Products Research, Inc., 73 F.3d at 473 (citing Fisher v. United States, 425 U.S. 391, 403 (1976), Adlman, 68 F.3d at 1499, and United States v. Abrahams, 905 F.2d 1276, 1283 (9th Cir. 1990)). Because the attorney-client privilege limits the admissibility of relevant evidence in judicial and other proceedings, it is strictly construed. International Broth. of Teamsters, 119 F.3d at 214 (citing In re Horowitz, 482 F.2d 72, 81 (2d Cir.) (citing 8 Wigmore, EVIDENCE §§ 2192 at 70, 554 (1961)), cert. denied, 414 U.S. 867 (1973)).

When information that is otherwise protected by the attorney-client privilege is disclosed to third parties, the element of confidentiality is destroyed, and the privilege is waived. In re Horowitz, 482 F.2d at 81 ("We deem it clear that subsequent disclosure to a third party by the party of a communication with his attorney eliminates whatever privilege the communication may have originally possessed, whether because disclosure is viewed as an indication that confidentiality is no longer intended or as a waiver of the privilege." (citing McCormick, Evidence § 93, at 197 (Cleary ed., 1972), and cases there cited)). Even the dissemination of confidential and privileged information to persons within an organization not shown to have a need to know such information waives the attorney-client privilege. Robbins & Meyers, Inc. v. J.M. Huber Corp., 274 F.R.D. 63, 93-94 (W.D.N.Y. 2011) (citing cases). Further, communications between a client and attorney intended for publication or communication to third-parties are not intended to be confidential and, thus, are not within the attorney-client privilege. Id., at 83-84 (citing cases); 5 MCCORMICK ON EVIDENCE § 91 at 408 (Kenneth S. Broun, 6th ed. 2006).

In the instant case, in camera review of each of the 23 documents for which Defendant asserts the attorney-client privilege is protected from disclosure establishes that the attorney-client privilege attached to 12 of the 23 documents, but as to the remaining 11 documents, the attorney-client privilege never attached, or attached but was waived when the otherwise privileged communications were shared with third-parties whom Defendant has failed to establish had a "need to know" the information contained in those communications. Robbins & ...

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