In re County of Erie, No. 07-5702 (2d Cir. 2008)

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No. 07-5702-op In re County of Erie 1 2 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 3 4 5 August Term 2007 Docket No. 07-5702-op 6 7 (Submitted: May 13, 2008 Decided: October 14, 2008) __________________________________________________________ 8 IN RE THE COUNTY OF ERIE 9 10 11 ADAM PRITCHARD, EDWARD, ROBINSON, AND JULENNE TUCKER, BOTH INDIVIDUALLY, AND ON BEHALF OF A CLASS OF OTHERS SIMILARLY SITUATED, 12 13 Plaintiffs-Respondents, v. 14 15 16 17 18 19 20 21 22 23 24 25 THE COUNTY OF ERIE, PATRICK GALLIVAN, BOTH INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SHERIFF OF THE COUNTY OF ERIE, TIMOTHY HOWARD, BOTH INDIVIDUALLY AND AS UNDERSHERIFF OF THE COUNTY OF ERIE, DONALD LIVINGSTON, BOTH INDIVIDUALLY AND AS ACTING SUPERINTENDENT OF THE ERIE COUNTY CORRECTIONAL FACILITY, AND ROBERT HUGGINS, BOTH INDIVIDUALLY AND AS DEPUTY SUPERINTENDENT OF THE ERIE COUNTY CORRECTIONAL FACILITY, 26 27 H. McCARTHY GIPSON, BOTH INDIVIDUALLY AND AS SUPERINTENDENT OF THE ERIE COUNTY HOLDING CENTER, Defendants-Petitioners, 28 Defendant. 29 __________________________________________________________ 30 Before: 31 32 33 34 35 36 Petition for Writ of Mandamus directing the District Court to vacate its order requiring the production of ten e-mail communications allegedly protected by the attorney-client privilege, the District Court having determined that the petitioners waived the privilege by placing in issue the information contained in the disputed e-mails. FEINBERG, MINER, and B.D. PARKER, Circuit Judges. 1 1 Petition granted. 2 3 4 5 James P. Domagalski, Frank T. Gaglione, Hiscock & Barclay, LLP, Buffalo, NY, for DefendantsPetitioners. 6 7 8 9 Elmer Robert Keach, III, Law Offices of Elmer Robert Keach, III, P.C. Amsterdam, NY, for Plaintiffs-Respondents. 10 11 12 Charles J. LaDuca, Cuneo, Gilbert & LaDuca, LLP, Washington DC, for Plaintiffs-Respondents. 13 MINER, Circuit Judge: 14 I. 15 This Petition calls upon us once again to resolve an 16 important question of attorney-client privilege raised in the 17 course of discovery in the ongoing litigation challenging the 18 strip search practices at the Erie County Jail. 19 production of ten e-mails that passed between attorney and client 20 in this litigation, the District Court applied the rule that the 21 attorney-client privilege is deemed waived when the advice of 22 counsel is placed in issue. 23 some uncertainty surrounding the rule and consider the need for 24 clarification of sufficient importance to invoke the remedy of 25 mandamus. 26 27 In requiring the We recognize that there has been II. The underlying action was commenced in July 2004 by 28 Plaintiffs-Respondents Adam Pritchard, Edward Robinson, and 29 Julenne Tucker on behalf of themselves and a class of others 30 similarly situated as plaintiffs (here the "Respondents"), 2 1 asserting that the written policy of the Erie County Sheriff's 2 Office requiring an invasive strip search of all detainees 3 entering the Erie County Holding Center or Erie County 4 Correctional Facility was violative of the Fourth Amendment. 5 In re County of Erie, 473 F.3d 413, 415 16 (2d Cir. 2007) ( Erie 6 I ). 7 action, brought pursuant to the provisions of 42 U.S.C. § 1983, 8 are Defendants-Petitioners County of Erie, Erie County Sheriff 9 Gallivan, Undersheriff Howard, Acting Superintendent Livingston See Named as defendants in the complaint in the underlying 10 of the Erie County Correctional Facility, and Deputy 11 Superintendent Huggins of the Erie County Holding Center (here 12 the Petitioners"), and defendant Superintendent Gipson of the 13 Erie County Holding Center. Id. at 416. 14 During the course of discovery, the Magistrate Judge to whom 15 the matter was assigned ordered the production of ten specific e- 16 mail communications claimed to be subject to the attorney-client 17 privilege and withheld by Petitioners. 18 consisted of correspondence between the offices of the Erie 19 County Attorney and the Erie County Sheriff. 20 respect to content, suffice it to say, as we did in our preceding 21 opinion involving these same e-mails, that the County Attorney s 22 Office "reviewed the law concerning strip searches of detainees, 23 assessed the County s current search policy, recommended 24 alternative policies, and monitored the implementation of these 25 policy changes." 26 communications did not involve legal advice or analysis but dealt Id. See id. These documents See id. With The Magistrate Judge opined that the 3 1 only with administration and policy, including the drafting of 2 regulations to change existing policy. 3 Judge overruled objections to the Magistrate Judge s order after 4 an independent review of the e-mails and directed that the 5 documents be produced. 6 Court a Petition for a Writ of Mandamus directing the District 7 Court to vacate its order. The District Respondents thereafter filed in this 8 9 See id. See id. III. After reviewing the submissions of the parties in regard to 10 the Petition, we first determined that the writ was an 11 appropriate device to review the discovery order in this case 12 because the Petitioner presented an important issue of first 13 impression: whether communications passing between a government 14 attorney without policy-making authority and a public official 15 are protected by the attorney-client privilege when the 16 communications evaluate the policies legality and propose 17 alternatives. 18 would be lost or undermined if review were to await final 19 judgment. 20 the government context and its application to the factual 21 background of this case led us to conclude 22 23 24 25 26 27 28 29 30 31 Id. Id. at 417. We also noted that the privilege An analysis of the attorney-client privilege in that each of the ten disputed e-mails was sent for the predominant purpose of soliciting or rendering legal advice. They convey to the public officials responsible for formulating, implementing and monitoring Erie County s corrections policies, a lawyer s assessment of Fourth Amendment requirements, and provide guidance in crafting and implementing alternative policies for compliance. This advice particularly when viewed in the context in which it was solicited and rendered does not constitute general 4 1 2 policy or political advice unprotected by the privilege. 3 Id. at 422 23 (internal quotation marks and citations omitted). 4 We therefore granted the writ and directed the District Court to 5 enter an order preserving the confidentiality of the e-mails in 6 question. 7 on remand "to determine whether the distribution of some of the 8 disputed e-mail communications to others within the Erie County 9 Sheriff s Department constituted a waiver of the attorney-client 10 privilege." Our order granting the writ allowed the District Court Id. at 423. 11 IV. 12 On remand, the District Court ordered briefing and oral 13 argument to determine, in accordance with our remand order, 14 whether there was a waiver of the attorney-client privilege with 15 respect to any of the e-mail communications that passed between 16 the office of the Erie County Attorney and the Sheriff s 17 Department. 18 opinion analyzing the circumstances under which disclosure of 19 confidential communications might constitute a waiver of the 20 attorney-client privilege. 21 CV-00534C, 2007 WL 1703832 (W.D.N.Y. June 12, 2007). 22 the facts of this case, the District Court concluded 23 24 25 26 27 28 29 30 31 Following oral argument, the court issued a written Pritchard v. County of Erie, No. 04Turning to that defendants have satisfied their burden of demonstrating with sufficient "factual specificity," . . . that dissemination of any of the ten e-mail communications ruled upon by the Second Circuit was limited to Sheriff s Department employees who needed to know the content of the communication in order to effectively perform their jobs or to make informed policy decisions concerning the authorization of strip searches of inmates or detainees . . . . In the 5 1 2 3 4 5 absence of any factual showing by plaintiffs to suggest a contrary result, the court finds there has been no waiver of the attorney-client privilege pertaining to these particular ten e-mail communications. Id. at *6. 6 On a motion for reconsideration, however, the District Court 7 reversed fields and determined that the attorney-client privilege 8 had been waived as to the ten e-mails. 9 Erie, No. 04-CV-00534C, 2007 WL 3232096 (W.D.N.Y. Oct. 31, 2007). Pritchard v. County of 10 In granting the motion, the court found "that the defendants 11 [had] waived the attorney-client privilege with respect to the 12 disputed e-mails by placing the information in those 13 communications at issue in the litigation." 14 Characterizing this forfeiture of the privilege as an "at issue," 15 or "implied," waiver, the District Court noted our pronouncement 16 that "[i]t is well established doctrine that in certain 17 circumstances a party s assertion of factual claims can, out of 18 considerations of fairness to the party s adversary, result in 19 the involuntary forfeiture of privileges for matters pertinent to 20 the claims asserted." 21 States, 350 F.3d 299, 302 (2d Cir. 2003)). 22 Id. at *5. Id. at *2 (citing John Doe Co. v. United In arriving at its conclusion, the District Court relied on 23 the test first put forth in Hearn v. Rhay, 68 F.R.D. 574 (E.D. 24 Wash. 1975). 25 separate inquiries: 26 27 28 29 30 Hearn required a positive response to three whether: (1) the assertion of the privilege was a result of some affirmative act, such as filing suit or pleading in response to a claim; (2) through the affirmative act, the asserting party has put the protected information at issue by making it relevant to 6 1 2 3 the case; and (3) the application of the privilege would have denied the opposing party access to information vital to the defense. 4 Pritchard, 2007 WL 3232096, at *2 (citing Hearn, 68 F.R.D. at 5 581). 6 In support of its finding that the test enunciated in Hearn 7 was met in this case, the District Court pointed to the 8 Petitioners response to Respondents claim in the underlying 9 action that invasive strip searches were undertaken without 10 regard to the nature of the crime or individualized suspicion and 11 therefore pursuant to an unlawful policy: 12 13 14 15 16 17 18 19 20 21 22 The prison officials respond that there was no such policy in place, or that the policy that was in place authorized searches of individual detainees in accordance with constitutional requirements. Defendants also claim qualified immunity from suit based on an objectively reasonable belief that their actions were lawful and not in violation of any of [Plaintiffs-Respondents ] clearly established constitutional rights. Id. at *4. In its analysis, the District Court adverted specifically to 23 the deposition testimony of Defendant-Petitioner Donald 24 Livingston, who held a supervisory position at the Erie County 25 Jail. 26 memorandum that he had prepared directing jail personnel to 27 discontinue routine strip searches of new inmates, Livingston 28 stated that there were ongoing discussions with the County 29 Attorney s Office regarding changes in the law. 30 testimony by Livingston regarding advice of counsel was 31 terminated by the objection of counsel for Petitioners. Id. at *5. Responding to questions surrounding a 7 Id. Further 1 Defendant Gipson, the jail employee who signed the 2 memorandum, testified at his deposition that the County 3 Attorney s Office was involved in rewriting the strip search 4 policy. 5 clearly indicates [Defendants-Petitioners ] reliance on 6 privileged communications to support the contention that the 7 strip search policy . . . was lawful." 8 3232096, at *5. 9 District Court, "pleading conduct in conformity with the law, and Id. The District Court stated that "this testimony Pritchard, 2007 WL Even at the pleading stage, according to the 10 then asserting privilege to protect from disclosure facts that 11 might disprove this contention . . . has placed the advice 12 rendered by [Defendants-Petitioners ] counsel about the legality 13 of the strip search policy directly in issue in the case." 14 at *4. 15 16 Id. V. In Erie I, we reiterated our long-standing rule that the 17 potential invasion of a privilege appropriately calls forth a 18 writ of mandamus if a three-pronged test is met: 19 petition raises an important issue of first impression; (B) the 20 privilege will be lost if review must await final judgment; and 21 (C) immediate resolution will avoid the development of discovery 22 practices or doctrine that undermine the privilege." 23 416 17. 24 prongs have been satisfied, they strenuously argue that the first 25 has not. 26 implied) waiver have been firmly established. "(A) the 473 F.3d at While Respondents concede that the second and third They contend that the "contours" of the at-issue (or 8 We disagree and 1 see the need to clarify the scope of the waiver to modify the 2 very broad application of the rule that has found favor in some 3 quarters and is exemplified by the District Court s opinion in 4 this case. 5 Although we have cited Hearn in the past in support of some 6 general propositions, we never have decided whether the entirety 7 of the test put forward in that case and relied upon by the 8 District Court was definitive. 9 219 F.3d 175, 182 (2d Cir. 2000) (citing Hearn for the See In re Grand Jury Proceedings, 10 proposition that "a party cannot partially disclose privileged 11 communications or affirmatively rely on privileged communications 12 to support its claim or defense and then shield the underlying 13 communications from scrutiny by the opposing party"); United 14 States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991) (citing 15 Hearn for the proposition that "the privilege may implicitly be 16 waived when defendant asserts a claim that in fairness requires 17 examination of protected communications ). 18 Courts in our Circuit and others have criticized Hearn and 19 have applied its tests unevenly. See, e.g., Rhone-Poulenc Rorer, 20 Inc. v. Home Indem. Co., 32 F.3d 851, 864 (3d Cir. 1994) (deeming 21 Hearn to be of "dubious validity" because, although it "dress[es] 22 up [its] analysis with a checklist of factors, [it] appear[s] to 23 rest on a conclusion that the information sought is relevant and 24 should in fairness be disclosed"); Pereira v. United Jersey Bank, 25 Nos. 94 Civ 1565 & 94 Civ 1844, 1997 WL 773716, at *3 (S.D.N.Y. 26 Dec. 11, 1997) ("Hearn is problematic insofar as there are very 9 1 few instances in which the Hearn factors, taken at face value, do 2 not apply and, therefore, a large majority of claims of privilege 3 would be subject to waiver."); Allen v. West Point-Pepperell, 4 Inc., 848 F. Supp. 423, 429 (S.D.N.Y. 1994) (noting that district 5 courts within this Circuit have reached conflicting decisions in 6 the application of Hearn, and rejecting reliance "upon a line of 7 cases in which courts have unhesitatingly applied a variation of 8 the Hearn balancing test"); Koppers Co., Inc. v. Aetna Cas. & 9 Sur. Co., 847 F. Supp. 360, 363 (W.D. Pa. 1994) (rejecting the 10 third Hearn factor for vagueness and overbreadth); Connell v. 11 Bernstein-Macaulay, Inc., 407 F. Supp. 420, 422 (S.D.N.Y. 1976) 12 ("The actual holding in [Hearn] is not in point because the party 13 there asserting the privilege had expressly relied upon the 14 advice of counsel as a defense to the plaintiff s action."). 15 The test also has been subject to academic criticism. 16 e.g., Richard L. Marcus, The Perils of Privilege: Waiver and the 17 Litigator, 84 MICH . L. REV . 1605, 1628 29 (1986); Note, 18 Developments in the Law Privileged Communications, 98 HARV . L. 19 REV. 1450, 1641 42 (1985) ("[T]he faults in the Hearn approach 20 are (1) that it does not succeed in targeting a type of 21 unfairness that is distinguishable from the unavoidable 22 unfairness generated by every assertion of privilege, and (2) 23 that its application cannot be limited."). 24 foregoing, it seems to us that there is a need for clarification 25 of the scope of the at-issue waiver and the circumstances under 26 which it should be applied. 10 See, In view of the 1 2 VI. The attorney-client privilege is one of the oldest 3 recognized privileges for confidential communications. Swidler 4 & Berlin v. United States, 524 U.S. 399, 403 (1998). 5 is to encourage full and frank communication between attorneys 6 and their clients and thereby promote broader public interests in 7 the observance of law and the administration of justice. 8 403 (internal quotation marks omitted). 9 result in the waiver of this privilege and thus possess the Its purpose Id. at Therefore, rules which 10 potential to weaken attorney-client trust, should be formulated 11 with caution. 12 implication when a client testifies concerning portions of the 13 attorney-client communication, . . . when a client places the 14 attorney-client relationship directly at issue, . . . and when a 15 client asserts reliance on an attorney s advice as an element of 16 a claim or defense. . . ." Sedco Int l S.A. v. Cory, 683 F.2d 17 1201, 1206 (8th Cir. 1982). The key to a finding of implied 18 waiver in the third instance is some showing by the party arguing 19 for a waiver that the opposing party relies on the privileged 20 communication as a claim or defense or as an element of a claim 21 or defense. 22 been properly described as a "quintessential example" of an 23 implied waiver of the privilege. 24 Litig., 168 F.R.D. 459, 470 (S.D.N.Y. 1996). 25 26 Generally, "[c]ourts have found waiver by The assertion of an "advice-of-counsel" defense has See In re Kidder Peabody Secs. In Bilzerian, the defendant argued that he did not intend to violate the securities laws that he was charged with violating 11 1 and contended that the testimony he sought to introduce regarding 2 his good faith efforts to comply with the laws did not implicate 3 any reliance on privileged communications. 4 agreed with the District Court in that case that if Bilzerian 5 testified as to good faith, the door would be opened to cross- 6 examination that might require him to divulge otherwise 7 privileged communications with his attorney. 8 opined that "[t]he trial court s ruling left defendant free to 9 testify without getting into his state of mind, but correctly 926 F.2d at 1291. Id. at 1294. We We 10 held that if he asserted his good faith, the jury would be 11 entitled to know the basis of his understanding that his actions 12 were legal." 13 Id. We noted that the District Court s ruling in Bilzerian left 14 the defendant s privileged communications intact if he merely 15 denied criminal intent but did not assert good faith or if he 16 argued good faith only through defense counsel and the 17 examination of witnesses. 18 assertion of a good-faith defense involves an inquiry into state 19 of mind, which typically calls forth the possibility of implied 20 waiver of the attorney-client privilege. 21 Id. at 1293. Accordingly, the Underlying any determination that a privilege should be 22 forfeited is the notion of unfairness. 23 only "the type of unfairness to the adversary that results in 24 litigation circumstances when a party uses an assertion of fact 25 to influence the decisionmaker while denying its adversary access 26 to privileged material potentially capable of rebutting the 12 This notion implicates 1 assertion." John Doe Co., 350 F.3d at 306. And we have made it 2 clear that "[w]hether fairness requires disclosure has been 3 decided . . . on a case-by-case basis, and depends primarily on 4 the specific context in which the privilege is asserted." 5 Grand Jury, 219 F.3d at 183. In re 6 We agree with its critics that the Hearn test cuts too 7 broadly and therefore conclude that the District Court erred in 8 applying it here. 9 by one who pleads a claim or affirmative defense "put[s] the 10 protected information at issue by making it relevant to the 11 case." 12 be in some sense relevant in any lawsuit. 13 claim or defense certainly is insufficient to place legal advice 14 at issue. 15 relevant and should be disclosed and would open a great number of 16 privileged communications to claims of at-issue waiver. 17 in the Hearn test is found the essential element of reliance on 18 privileged advice in the assertion of the claim or defense in 19 order to effect a waiver. 20 According to Hearn, an assertion of privilege Hearn, 68 F.R.D. at 581. But privileged information may A mere indication of a The Hearn test presumes that the information is Nowhere We hold that a party must rely on privileged advice from his 21 counsel to make his claim or defense. 22 speculate as to what degree of reliance is required because 23 Petitioners here do not rely upon the advice of counsel in the 24 assertion of their defense in this action. 25 Court held, inter alia, that the qualified immunity defense 26 asserted by Petitioners placed the privileged communications 13 We decline to specify or Although the District 1 between the County Attorney s Office and the Sheriff s personnel 2 at issue, this is not so. 3 from liability for civil damages as long as their conduct does 4 not violate clearly established statutory or constitutional 5 rights of which a reasonable person would have known." 6 Repicky, 511 F.3d 239, 243 (2d Cir. 2007) (internal quotation 7 marks omitted). 8 established" is determined by reference to the case law extant at 9 the time of the violation. Qualified immunity protects officials Gilles v. The question of whether a right is "clearly See Moore v. Andreno, 505 F.3d 203, 10 215 16 (2d Cir. 2007). 11 test, and reliance upon advice of counsel therefore cannot be 12 used to support the defense of qualified immunity. 13 This is an objective, not a subjective, Petitioners do not claim a good faith or state of mind 14 defense. They maintain only that their actions were lawful or 15 that any rights violated were not clearly established. 16 of the litigation circumstances, any legal advice rendered by the 17 County Attorney s Office is irrelevant to any defense so far 18 raised by Petitioners. 19 unfairness to the Respondents, because they are "in no way worse 20 off" as a result of the disclosure that communications exist than 21 they would be if they were unaware of them. 22 305. 23 as Respondents have not, "placed the matter at issue so as to 24 cause forfeiture of privilege by reason of unfairness." 25 306. 26 vital to their claims. In view Here, as in John Doe Co., there is no Doe, 350 F.3d at The party asserting the privilege in John Doe Co. had not, Id. at Respondents have not been denied access to information Pritchard, 2007 WL 3232096, at *2 14 1 2 (citing Hearn, 68 F.R.D. at 581). The deposition testimony identified by the District Court 3 does not serve to waive the privilege. The Assistant County 4 Attorney who was present at the deposition properly terminated 5 the inquiries when Livingston began to elaborate on the specifics 6 of the advice received by the Sheriff s Office, and the principal 7 substance of the attorney-client communications was not revealed. 8 Moreover, the fact that the deponent was not before a 9 "decisionmaker or fact finder" when he made the statements 10 claimed by Respondents to have triggered the waiver means that 11 Respondents have not been placed in a disadvantaged position at 12 trial. 13 Nothing in the record suggests that Petitioners have yet waived 14 the privilege by "an assertion of fact to influence the 15 decisionmaker." 16 17 See In re Sims, 534 F.3d 117, 132 (2d Cir. 2008). John Doe Co., 350 F.3d at 306. VII. The Petition for Mandamus is granted. The District Court s 18 order to produce the ten e-mails is vacated, and the District 19 Court is directed to enter an order protecting the 20 confidentiality of those privileged communications. 21 shall have leave to reargue forfeiture of the privilege before 22 the District Court should the Petitioners rely upon an advice-of- 23 counsel or good-faith defense at trial. 15 Respondents

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