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De Oliveira v. Cairo-Durham Central School District

United States District Court, Second Circuit

August 30, 2013

CAIRO-DURHAM CENTRAL SCHOOL DISTRICT; CAIRO-DURHAM BOARD OF EDUCATION; CAIRO DURHAM TEACHER'S ASSOCIATION; SALLY SHARKEY, Individually and as Superintendent of School as aider and abettor; SUSAN KUSMINSKY, Individually and as President of the Board of Education as aider and abettor; JUSTIN KARKER, Indivdually and as President of Cairo Durham Teachers Association as aider and abettor, Defendants.


RANDOLPH F. TREECE, Magistrate Judge.

Presently before the Court are Plaintiff's discovery disagreements with the Responses and production of documents made by both groups of Defendants.[1] Prior to the matter being presented to the Court, the parties had conferred with regard to the Defendants' Responses and disclosures to Plaintiff's Demands for Interrogatories and Production. Those conferences produced various modifications to the initial Demands and Supplemental Responses by the Defendants. And yet, the Plaintiff remains unsatisfied with those Responses.

Plaintiff's dissatisfaction prompted a Letter-Motion for a telephone conference to discuss these discovery issues, Dkt. No. 57, and the Defendants filed Responses thereto, Dkt. Nos. 59, 60, & 61. On July 25, 2013, a telephonic Hearing was held on the record with the expectation of resolving the discovery issues. Because so many discovery issues were being raised by all parties for the first time, the Court was unable to resolve these matters without further briefing. The Court suggested that the parties meet and confer further in order to narrow the issues, and if they were unable to either resolve or narrow the issues, they may re-submit the matter to the Court. Dkt. No. 63, Text Order, dated July 25, 2013.

With no resolution or contraction of the discovery issues forthcoming, pursuant to the Text Order, on July 31, 2013, Plaintiff filed her Letter Brief moving to compel discovery, Dkt. No. 65, to which the respective Defendants responded, Dkt. Nos. 66 & 67. As mentioned above, there has been a series of modifications to Plaintiff's Demands prompting various Supplemental Responses. Rather than comprehensively discuss these historical exchanges between the parties, the Court will address only the most recent Demands and Supplemental Responses. The Court will address the issues percolating between the Plaintiff and the School District Defendants first and then those issues noted between the Plaintiff and the Teacher's Association Defendants.

A. School District Defendants Discovery Issues

Plaintiff argues that the School District Defendants have failed to adequately respond to her last iteration of Interrogatories designated as numbers 4, 7, 10, and 17, as well as Document Demand number 5. Dkt. No. 65, Pl.'s Lt.-Br., at p. 1. The School District Defendants obviously disagree. Dkt. No. 66, Sch. Dist. Defs.' Lt.-Br. The Court address these issues seriatim.

Revised Interrogatory No. 4: Identify each current employee, former employee, agent, trustee, or representative of defendants with whom you have communicated, either in person, by telephone, or in writing, regarding any of plaintiff's allegations in the amended complaint in this case, and identify all documents concerning such communication.

Plaintiff identifies two specific bases as to why the School District Defendants' Supplemental Response is inadequate. First, these Defendants failed to identify all communications as requested. And, second, Plaintiff contends that these Defendants are relying upon the advice of counsel and accordingly have waived all attorney-client privileged communications. Because these Defendants "voluntarily produced communications of counsel[, ]... they cannot selectively produce those communications[.]" Dkt. No. 65 at p. 3.

The School District Defendants acknowledge that they had relied upon the advice of counsel from Kristine Lanchantin, Esq., which they received during the spring of 2010 regarding the determination of teachers' seniority. Dkt. No. 66 at p. 4. In essence, these Defendants argue that those communications - relying upon the advice the School District's Legal Counsel - were revealed were for a limited duration and for a circumscribed topic. Subsequent to those communications relative to seniority, the School District Defendants' current trial attorneys have represented them on a sundry of actions that pertain to the Plaintiff's complaints and grievances. Id. Although the School District Defendants did not seek protection of those documents or communications regarding seniority, they challenge the proposition that such disclosure is a wholesale waiver of the attorney-client privilege with respect to all other litigation matters. Id. at p. 10.

When there is a reliance upon the advice of counsel, it is accurate to note that there is a subject matter waiver of attorney-client privileged communications that may reach all related privileged conversations regarding that particular subject. In re von Bulow, 828 F.2d 94, 103 (2d Cir. 1987). Yet, "[t]his waiver, however, does not grant carte blanche the [plaintiff's] ability to rummage through all of the attorneys' files or to have unfettered access to the defense litigation strategies, " and communications. NewRiver, Inc. v. Newkirk Prods., Inc., 2008 WL 5115244, at *2 (N.D.N.Y. Dec. 4, 2008) (citing In re EchoStar Commc'n Corp., 448 F.3d 1294, 1303 (Fed. Cir. 2006)); In re von Bulow, 828 F.2d at p. 103 ("There exists no reason in logic or equity to broaden the waiver beyond those matters actually revealed.").

Turning to the facts in this case, the Court agrees with the School District Defendants that they have waived neither the attorney-client privilege nor the work product doctrine with respect to those communications that pertain to the New York State Article 78 proceeding, grievances and appeals before the Commissioner of Education of the State of New York and Public Employment Relations Board, and this federal action. However, with that being said, the School District Defendants still have a discovery obligation relative to the communications between the litigation attorneys and their clients that they assert are privileged. When withholding information because of the claims of privilege or protection, the responding party is required to prepare a list expressing the claim and describing the nature of the documents, communications, and the like as to why it is not being disclosed. FED. R. CIV. P. 26(b)(5)(A)(i) & (ii). There is no mention of a privilege log in this discourse. Assuming that there is no privilege log, the School District Defendants are directed to serve such a log upon the Plaintiff.

Further, after reviewing the School District Defendants' Supplemental Response to Interrogatory 4, the Court finds that it is fundamentally adequate and they have reasonably identified the previously disclosed, relevant corresponding documents consistent with FED. R. CIV. P. 33(d). With the exception of the privileged log, no further response nor disclosure is warranted as to this Interrogatory.

In terms of Interrogatory No. 7, Plaintiff indicates that she is satisfied with the Defendants' First Supplemental Response. Dkt. No. 65 at p. 5.

Revised Interrogatory No. 10: Identify all teachers within the District, irrespective of tenure classification, who have actually used accrued paid time without having a certified disability or beyond the period of his or her certified ...

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