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Bratt v. Jensen

United States District Court, D. Maine

September 11, 2019

RICHARD BRATT, et al., Plaintiffs
v.
JENSEN, BAIRD, GARDNER & HENRY, P.A., et al., Defendants

          MEMORANDUM DECISION AND ORDER ON DISCOVERY DISPUTE

          JOHN H. RICH III, UNITED STATES MAGISTRATE JUDGE

         The defendants seek discovery from a nonparty attorney witness, J. Colby Wallace, Esq., of Bernstein Shur Sawyer & Nelson (“Bernstein Shur”), concerning his and Bernstein Shur's communications with their former client, nonparty Dr. Susan Snow, on the basis that Dr. Snow waived any attorney-client privilege respecting those communications. See Request for Discovery Dispute Hearing Pursuant to Local Rule 26(b) (“Hearing Request”) (ECF No. 46) at 1. For the reasons that follow, I agree that Dr. Snow both implicitly and expressly waived the privilege with regard to her communications with Attorney Wallace and Bernstein Shur relevant to the instant action.[1]

         I. Applicable Legal Standards

         Rule 26(b) of the Federal Rules of Civil Procedure outlines the general scope of permissible discovery in a civil action.

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

         Fed. R. Civ. P. 26(b)(1).

         “[A] party resisting discovery has the burden of showing some sufficient reason why discovery should not be allowed[.]” Flag Fables, Inc. v. Jean Ann's Country Flags & Crafts, Inc., 730 F.Supp. 1165, 1186 D. Mass. 1989) (citation and internal quotation marks omitted). In addition, the proponent of a privilege bears the burden of demonstrating entitlement to its protection. See, e.g., In re Keeper of Records (Grand Jury Subpoena Addressed to XYZ Corp.), 348 F.3d 16, 22 (1st Cir. 2003) (“Despite a grand jury's vaunted right to every man's evidence, it must, nevertheless, respect a valid claim of privilege. But the party who invokes the privilege bears the burden of establishing that it applies to the communications at issue and that it has not been waived.”) (citations omitted).

         II. Factual Background

         This action arises out of the alleged removal of a box of digital media containing the plaintiffs' highly sensitive personal information by a relative of the plaintiffs serving as the personal representative of the estate of Harold F. Snow, the family member in whose home the box was stored. See Complaint and Jury Trial Demand (“Complaint”) (ECF No. 1) ¶¶ 1-2, 19-20. The plaintiffs, Dr. Snow's husband and children, allege that the defendants - Linda Moulton, who is Dr. Snow's sister, and the law firm and attorneys who represented Ms. Moulton in her role as personal representative of their father's estate - collectively used the plaintiffs' private and confidential data retrieved from Mr. Snow's home as leverage during the probate of his estate and have wrongfully refused to return all original copies of the storage media containing that data and destroy any copies thereof. See Id. ¶¶ 33-41; Deposition of Susan R. Snow (“Snow Dep.”) (ECF No. 46-1), attached to Hearing Request, at 24-25, 33-34.[2]

         Dr. Snow was deposed in connection with this case on April 19, 2019. See Snow Dep. at 1. She testified at length concerning the substance of her communications with Attorney Wallace, who represented her in the underlying probate matter, including their strategy discussions and disagreements, see, e.g., id. at 46-53, and, most significantly for these purposes, statements purportedly made to Attorney Wallace by defendant Brendan Rielly, Esq., who was representing Ms. Moulton in the probate matter, as well as Attorney Wallace's own observations regarding Attorney Rielly, see, e.g., id. at 55, 63-64, 91, 94-96, 101-02, 126, 129-31, 135-36, 138, 142.[3]

         On or about June 10, 2019, defendant Moulton served a subpoena to produce documents and to testify on Attorney Wallace and Bernstein Shur, see ECF No. 46-2, attached to Hearing Request, to which Glenn Israel, Esq., of Bernstein Shur responded by letter dated June 25, 2019, stating, in relevant part, that Bernstein Shur would “produce attorney/client privileged communications only after receipt of express written permission from Ms. Snow to do so[, ]” ECF No. 46-3, attached to Hearing Request. On or about June 26, 2019, defendant Moulton served an amended subpoena to produce documents and to testify on Attorney Wallace and Bernstein Shur. See ECF No. 46-4, attached to Hearing Request.

         On July 9, 2019, at Bernstein Shur's request, Benjamin Donahue, Esq., an attorney for Dr. Snow, emailed Attorney Israel, stating, “To the extent that any attorney-client privilege still exists between Susan Snow and Bernstein Shur, Susan waives that privilege and will not object to the production of her Bernstein Shur file[.]” Email dated Tuesday, July 9, 2019, from Benjamin Donahue to Jonathan W. Brogan and Glenn Israel (“Donahue Email”) (ECF No. 46-5), attached to Hearing Request.

         Per representations of counsel during the August 21, 2019, discovery teleconference, the deposition of Attorney Wallace took place on August 9, 2019. On behalf of Bernstein Shur, Attorney Israel sought Dr. Snow's express waiver of the attorney-client privilege. Attorney Hallett contacted Dr. Snow, who stated that she waived the privilege. However, Dr. Snow then called Attorney Hallett back and informed him that she had changed her mind.

         III. ...


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