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Fine v. Espn, Inc.

United States District Court, N.D. New York

May 28, 2015

LAURIE J. FINE, Plaintiff,
ESPN, INC., et al., Defendants.


LAWRENCE E. KAHN, District Judge.


Presently before the Court in this defamation action is non-party Syracuse University's ("Syracuse" or "the University") Motion to set aside two Decision and Orders filed by the Honorable David E. Peebles, U.S. Magistrate Judge, granting in part Plaintiff Laurie Fine's ("Plaintiff") Motion to compel the University's compliance with a subpoena. Dkt. Nos. 84 ("Motion"); 84-1 ("Memorandum"); 72 ("Work-Product Order"); 83 ("December Attorney-Client Privilege Order"). For the following reasons, the University's Motion is denied and the Work-Product Order and December Attorney-Client Privilege Order are affirmed.


The Court presumes the parties' familiarity with the facts and history of this case, and recites only those facts necessary to the resolution of the pending Motion. For a complete statement of Plaintiff's claims and the history of this case, reference is made to the Complaint and the 2013 Order. Dkt. Nos. 1 ("Complaint"); 21 ("2013 Order").

Plaintiff commenced this action in May 2012, against Defendants ESPN and two ESPN employees, alleging defamation. See 2013 Order at 1-4; Compl. "Plaintiff's claims arise [out of] ESPN's coverage of sexual abuse allegations against [P]laintiff's husband, a former employee of [the] University." Dec. Att'y-Client Privilege Order at 2. In 2005, the University conducted an investigation into those allegations (the "2005 investigation"). Id . Documents related to the University's 2005 investigation are the subject of the present dispute.

A. Motion to Compel

In December 2012, Plaintiff served the University with a subpoena duces tecum, directing the University to produce documents related to the 2005 investigation. See generally Dkt. No. 63-2. The University produced the requested documents, but withheld a number of documents, asserting that they were protected by the attorney-client privilege and the work-product doctrine. See Dec. Att'y-Client Privilege Order at 2, 4. The University also produced a privilege log identifying the withheld documents and the grounds asserted for privilege. Id. at 2; Dkt. No. 63-3 ("Privilege Log").

On August 30, 2014, Plaintiff filed a Motion to compel the University to comply with the subpoena, arguing that the University's Privilege Log was insufficient to meet its burden of showing that the withheld documents were privileged, and asking the court to review the documents in camera in order to determine if the University's asserted privileges applied. See generally Dkt. Nos. 63; 63-1 ("Motion to Compel"). The University opposed the Motion to compel, arguing, inter alia, that in camera review of the withheld documents was inappropriate absent specific challenges by Plaintiff to the University's assertions of privilege. Dkt. No. 66. On September 30, 2014, Judge Peebles heard oral arguments on Plaintiff's Motion to compel, and ordered the University to submit the withheld documents for in camera review. Dec. Att'y-Client Privilege Order at 3-4.

B. Work-Product Order

On October 3, 2014, the University filed an Affidavit from Peter A. Jones ("Jones"), an attorney retained by the University to assist with the 2005 investigation. See Dkt. No. 68 ("Jones Affidavit"). Jones stated that the University asked him to work with its human resources department to conduct the 2005 investigation, and that his law firm, Bond Schoeneck & King PLLC ("BSK") "frequently assisted the University with these types of human resources and employment matters and provided varying levels of support based on the nature of the allegations." Id . ¶¶ 1, 4. During the investigation, Jones interviewed witnesses, "took notes[] and drafted witness statements, " and prepared a final report, with assistance from the University's human resources department. Id . ¶¶ 6-7. Jones further stated that during the investigation, he "anticipated that [Robert Davis ("Davis"), who had brought the allegations] might bring legal action against the University based on his allegations, " and that Davis "[planned] to demand compensation." Id . ¶ 9. Jones also believed that the University anticipated legal action at the time of the investigation. See id. ¶ 10. Plaintiff's attorney filed an Affidavit in opposition to the Jones Affidavit, arguing, inter alia, that the contentions in the Jones Affidavit were unsupported, and that the affidavit "fail[ed] to satisfy the University's burden to establish that the documents being reviewed in camera ... are protected from disclosure by the work product doctrine." Dkt. No. 69 ¶ 6.

On October 16, 2014, Judge Peebles issued a Decision and Order granting Plaintiff's Motion to compel as to documents withheld solely on the basis of the work-product doctrine. See generally Work-Product Order. Finding that the University had conducted the 2005 investigation for business purposes, rather than "because it reasonably anticipated that it would be sued, " id. at 9, Judge Peebles found that documents created during the 2005 investigation were not entitled to workproduct protection, id. at 15. Specifically, Judge Peebles found relevant that the Jones Affidavit stated that the University frequently hired BSK to assist with human resources matters, suggesting that "the investigation concerning Davis' allegations was fairly routine and would have been undertaken even in the complete absence of an anticipation of litigation." Id. at 10. He also noted that a letter from Davis to the University-in which Davis stated that he wanted the matter investigated because "the accused abuser needs serious help, " id. (citing Dkt. No. 69-1 at 1)-suggested that the University did not necessarily expect litigation in conjunction with Davis's allegations, see id. Judge Peebles deferred a decision on documents withheld on the basis of attorney-client privilege pending in camera review of those documents. Id. at 2-3.

C. Attorney-Client Privilege Orders

Following the Work-Product Order, the University filed a Letter Brief describing its relationship with certain individuals listed in the Privilege Log. Dkt. No. 74 ("Letter Brief"). The Letter Brief explained that: (1) the University's counsel had retained the public relations firm Sard Verbinnen in connection with its representation of the University; (2) Paul Verbinnen "and his colleagues worked at the direction of [the University's lawyers] and assisted [them] in [the] provision of legal advice to Syracuse"; and (3) "[a]ccordingly, [the University]... asserted the attorney-client privilege over protected communications that include Sard Verbinnen." Id. at 1-2.

On November 7, 2014, after reviewing the withheld documents in camera, Judge Peebles ordered the University to produce certain documents that had previously been withheld on the basis of attorney-client privilege, including all communications that included Sard Verbinnen. Dkt. No. 76 ("November Attorney-Client Privilege Order"). Judge Peebles found that Sard Verbinnen had provided ordinary public relations advice to the University, and that "the communications between the University, its law firm, and/or Sard Verbinnen do not reveal that Sard Verbinnen was included in the communications for the purpose of obtaining legal advice." Id. at 4-5. Noting that the University had the burden to establish that the attorney-client privilege applied to these communications, and that "the University ha[d] provided the court with scant background regarding its relationship with Sard Verbinnen and no context for the individual communications, " id. at 5, Judge Peebles ordered the University to produce all communications withheld on the basis of attorney-client privilege that included Sard Verbinnen, id. at 6.

On November 21, 2014, the University filed a Motion to reconsider the November Attorney-Client Privilege Order with respect to twenty-two documents. See Dkt. Nos. 79-1 ("Motion to Reconsider") at 1; 81.[1] The University argued that because Plaintiff had not raised specific objections to the University's assertions of privilege, the University "had no opportunity to brief these issues." Mot. Recons. at 1. The University also provided further detail on its relationship with Sard Verbinnen, stating, inter alia, that Sard Verbinnen initially worked with outside counsel "to ensure a cohesive approach to the University's response and related communications" surrounding the 2005 allegations about Plaintiff's husband, and that the University's lawyers at the law firm Debevoise & Plimpton ("Debevoise") later "retained Sard Verbinnen to continue its important role in assisting counsel in providing legal advice around communications and publicity." Id. at 7. The University additionally argued that documents shared among the University, its Board of Trustees (the "Board"), and their respective counsels remained protected from disclosure under the common-interest privilege. Id. at 10-11. Plaintiff opposed the Motion. Dkt. No. 82.

The University filed with the Motion to reconsider Affidavits from Mary Beth Hogan ("Hogan") of Debevoise and Daniel French ("French"), who served as outside counsel to the University. Dkt. Nos. 79-2 ("Hogan Affidavit"); 79-14 ("French Affidavit"). The Affidavits stated, inter alia, that: (1) early in the 2005 investigation, French consulted with Sard Verbinnen in order to "neutraliz[e] negative media coverage" and avoid future litigation, French Aff. ¶ 7; (2) the District Attorney's and U.S. Attorney's Offices had issued subpoenas to the University regarding the allegations against Plaintiff's husband, Hogan Aff. ¶ 4; (3) the 2005 investigation attracted "substantial press coverage, " id. ¶ 7; (4) attorneys for the University believed that the response to media reports could affect the University's legal liability, see id. ¶ 8; and (5) Debevoise consulted with Sard Verbinnen on matters including "press releases and other communications that incorporated and reflected legal advice, " which required sharing privileged information, id. ¶ 10. The University also filed Exhibits demonstrating media coverage of the 2005 investigation and the possibility that the University faced legal action at the time. Dkt. Nos. 79-3 through 79-13 ("Exhibits").

On December 24, 2014, Judge Peebles granted the Motion to reconsider in limited part, with respect to two documents, and denied it in all other respects. Dec. Att'y-Client Privilege Order. In the December Attorney-Client Privilege Order, Judge Peebles found that the Privilege Log was insufficient to establish that the attorney-client privilege applied to the withheld documents because the University "failed to identify the roles or titles of any of the individuals listed in the log." See id. at 9. Furthermore, Judge Peebles rejected the University's contention that there was a burden on Plaintiff to specifically object to the application of privilege to documents listed in the log, noting, "[w]ithout the missing information, it is difficult to understand how the University could expect (or, for that matter, place a burden on) plaintiff to specifically articulate any waiver issues with respect to Sard Verbinnen or the members of the Board of Trustees." Id . He also found that the University had ample opportunity to brief these issues, including: (1) in its Response to Plaintiff's Motion to compel; (2) when it presented oral argument on the Motion to compel; and (3) when it provided additional briefing to the court following oral arguments. Id. at 10-11. Judge Peebles also highlighted that as of the Motion to reconsider, the University still had not identified which individuals listed in the Privilege Log were members of the University's Board. Id. at 10 & n.2.

Despite his belief that "the University [sought] to use [the Motion to reconsider] to raise arguments and set forth evidence that could have been presented earlier but for its neglect, " id. at 11, Judge Peebles reviewed the withheld documents in camera, in light of the new information provided by the University, and found that redaction of the documents purportedly subject to the common-interest privilege was not warranted, see id. at 12-13. Judge Peebles further found with respect to the communications including Sard Verbinnen that, with two limited exceptions, the documents did not contain privileged ...

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