United States District Court, D. Maine
MEMORANDUM DECISION AND ORDER ON DISCOVERY
H. RICH III, UNITED STATES MAGISTRATE JUDGE
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.
Applicable Legal Standards
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
Civ. P. 26(b)(1).
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).
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,
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.
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.
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.
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.