Civil Practice – Discovery – Legal Malpractice Suit

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Where (1) a plaintiff company has sued the defendant, its former in-house counsel, for legal malpractice, (2) the defendant has, in response, moved to compel the plaintiff to produce certain documents allegedly relating to the malpractice claim and (3) the defendant has also moved to compel a non-party attorney (who worked with the defendant on the underlying matters giving rise to the malpractice claim) to produce certain documents and to provide certain deposition testimony, I hold that the defendant’s motions should be allowed in part and denied in part.

Attorney-Client Privilege

“In reviewing [defendant Glen] Dash’s requests, this Court has the discretion to determine whether the attorney client privilege exists and whether any exception applies. The party who asserts the attorney-client privilege must prove that the privilege applies to a particular communication. … This burden requires the party to demonstrate not only the existence of an attorney-client relationship, but also that ‘the privilege as to these communications has not been waived.’ … Here, because [plaintiff] Intertek [Testing Services NA, Inc.] has failed to establish this latter requirement, Dash may access the majority of [the] requested information from Intertek.

“Intertek fails to demonstrate that it has not waived its attorney-client privilege to the communications requested by Dash. Massachusetts courts have explicitly recognized that a client may expressly or implicitly waive the attorney-client privilege. See Commonwealth v. Woodberry, 26 Mass. App. Ct. 636, 637 (1988), citing Commonwealth v. Brito, 390 Mass. 112, 119 (1983). When a client, for example, ‘assails his attorney’s conduct,’ the attorney-client privilege ‘as to confidential communications is waived because the lawyer has a right to defend himself.’ … While ‘the privilege is not automatically waived by bringing suit,’ an attorney may access confidential attorney-client communications that are ‘relevant, material, or necessary to defend against the charge.’ …

“In Commonwealth v. Woodberry, the Massachusetts Appeals Court held that the criminal defendant had effectively waived his privilege to all communications relevant to his attorney’s defense when he charged his attorney with misconduct in his pro se ‘Motion to Withdraw Guilty Plea[s] and for a New Trial.’ … Rejecting the defendant’s request to strictly construe his waiver of the attorney-client privilege, the court concluded that the defendant’s attorney could disclose their confidential attorney-client communications that are ‘relevant, material, or necessary’ to the attorney’s misconduct charge. …

“Applying the Woodberry standard here, this Court similarly concludes that Intertek has waived its attorney-client privilege to information relevant, material, or necessary to defend against his legal malpractice suit against Dash. In its claim, Intertek specifically alleges that Dash ‘may have violated the applicable standard of care through his actions and inactions in advising Intertek regarding its legal options in enforcing employment agreements with other employees, including Michael Boucher.’ Additionally, Intertek alleges that Dash ‘departed from the applicable standard of care through his actions and inactions in connection with Intertek’s response to a letter addressed to him from Isidor Straus dated November 30, 1995.’ The majority of the documents and testimony Dash has requested from [third-party attorney Eugene] Curry as well as the Intertek documents contain attorney-client communications related to either the Boucher and Straus restrictive/non-compete agreements or to Intertek’s enforcement policy of those types of agreements.

“Moreover, this information comprises the very communications Intertek with its specific allegations has called into question in its malpractice claim. … The majority of the communications, therefore, are ‘relevant, material, [and] necessary [for Dash] to defend against [his] charge [of legal malpractice].’ … No attorney-client privilege bars Dash’s access to this information.

“Intertek offers nothing to contradict this finding and cannot meet its burden of non-waiver. While Intertek recognizes that an attorney must ‘continue to preserve confidences whose disclosure is not relevant to the defense of the charge of ineffectiveness as counsel,’ Intertek fails to demonstrate that any of these confidences are irrelevant to Dash’s legal malpractice defense. … Intertek, in fact, misconstrues the Woodberry relevancy standard. Mistakenly, Intertek concludes that because documents 1A, 2A, 5A, and 7A of its privilege log do not contain attorney Curry’s opinion on the Boucher matter, they are not relevant to Dash’s defense. Here, Intertek fails to recognize that the relevancy of these documents do not hinge on their inclusion of Curry’s legal opinion. Additionally, Intertek ambiguously argues that because Curry is as a non-party witness, his discussions with Intertek lack any relevance. Given Intertek’s express acknowledgement of Curry’s significant participation in the Boucher matter, this argument lacks any merit.

“Intertek also vaguely asserts that resuming Curry’s deposition would be pointless, but this contention is similarly unpersuasive. Intertek fails to explain how Curry’s additional deposition testimony would not be relevant or ‘meaningful.’ In contrast, Dash has demonstrated that over fifty of his deposition questions target information not only relevant, but also necessary and material to his malpractice defense. The deposition questions Curry has refused to answer on attorney-client privilege and work product grounds address the heart of Intertek’s malpractice claim: the Boucher matter, Intertek’s employee restrictive/non-compete agreements, Intertek’s enforcement policy of those agreement, and communications by Intertek’s attorneys, [John] Connolly, Curry, and Dash, discussing and evaluating these issues. While Curry’s affidavit states that he cannot recall certain matters, his lack of memory, at best, pertains to only two deposition questions and not to the entire scope of Dash’s deposition questions. Moreover, Intertek cites no authority permitting it to substitute Curry’s deposition testimony with his affidavit.

“Furthermore, Intertek misconstrues the extent of its waiver of the attorney-client privilege. Intertek mistakenly asserts that while Intertek may have waived its privilege to communications between it and Dash, it has not waived its privilege to ‘communications between Intertek and its other counsel, whether the communications were made through Dash or not.’ In support of its proposition, the defendant relies on Stone v. Dalton, 1993 WL 818803 (Mass. Super. 1993), but this reliance is misplaced.

“The Stone decision is inapposite to Intertek’s limited waiver assertion. In Stone, the plaintiffs charged one of their former attorneys with legal malpractice because, as they asserted, he allegedly failed to inform them of an encumbrance on the real estate they had sold. … The defendant attorney, in an effort to access relevant information to his defense, moved to compel the production of communications exchanged between the plaintiffs and their prior attorneys. … The defendant contended that these communications would reveal that the plaintiffs not only knew about the encumbrance more than three years before the plaintiffs brought suit against the defendant, but also that the statute of limitations barred their malpractice suit. … While the Stone court recognized the uncertainty regarding whether ‘the defendant attorney should be allowed access to privileged communications between the plaintiff and the plaintiff’s other former counsel’ when these communications are directly relevant to the defendant’s defense, it nevertheless held that the plaintiffs’ malpractice suit waived the plaintiffs’ attorney-client privilege to their communications with their prior attorneys. … Contrary to Intertek’s assertion, therefore, the Stone decision does not preclude Dash’s request for communications between Intertek and its other counsel, especially where Dash and Intertek’s other counsel, Connolly and Curry, unlike the attorneys in Stone, contemporaneously combined their efforts in advising Intertek about the Boucher and Straus matters.

“In light of these circumstances and the context of Intertek’s malpractice allegations against Dash, Intertek cannot establish its non-waiver of attorney-client communications related to those allegations. Intertek has failed to demonstrate that Curry’s further deposition testimony would be irrelevant. In contrast, Dash has established that the majority of Curry’s deposition testimony and the documents he has requested are not only relevant, but also material and necessary. With some exceptions, Intertek and Curry must provide the requested documents and Curry must answer the requested deposition questions. …”

Work Product Doctrine

“In their opposition memorandum, Intertek only articulates a work product argument for Documents 3A, 4A, and 6A from its revised privilege log. By doing so, Intertek fails to establish that the work product doctrine applies to Curry’s deposition testimony and the other documents requested by Dash, including documents 1A, 2A, 5A, and 7A. … Therefore, this Court concludes that the work product doctrine does not bar Dash’s access to this remaining information.

“As for Documents 3A, 4A, and 6A, Intertek successfully establishes that the work product doctrine applies. Massachusetts’ common law work product privilege is codified at Mass. R. Civ. P. 26(b)(3). … This rule restricts the discovery of ‘documents and tangible things otherwise discoverable … and prepared in anticipation of litigation or for trial by or for another party or by or for another party’s representative (including his attorney).’ … The phrase ‘work product’ covers the broad category of materials ‘prepared in anticipation of litigation or for trial or for another party or by or for that other party’s representative.’ … The Rule also provides that ‘[i]n ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.’ … Applying these principles here reveals that the work product doctrine bars Dash’s access to documents 3A, 4A, and 6A.

“First, Intertek’s detailed privilege log reveals that each of these documents involve communications between Intertek’s attorneys. Second, each of these documents focus on either the Boucher or Straus matter. Third, two of these documents were created after Intertek filed suit against Dash in September 1998 while the other document was created just nineteen days before Intertek filed suit. … Fourth, these documents also comprise communications that would reveal the factual investigation conducted by Intertek’s trial counsel. Consequently, as Intertek asserts, their disclosure would unveil Intertek’s trial counsel’s mental impressions and strategy for its malpractice claim against Dash. Given Intertek’s demonstration of these factors, the work product doctrine precludes documents 3A, 4A, and 6A from Dash’s discovery.

“Dash cannot make the requisite showing to overcome Intertek’s work product claim. Dash fails to demonstrate ‘that he has substantial need of the materials in the preparation of his case. …’ Dash merely asserts that ‘it is difficult to imagine that a defendant to a malpractice action does not have a “substantial need of” the documents that were in front of him when he made the allegedly negligent decisions.’ Dash’s assertion overlooks a salient fact documents 3A, 4A, and 6A were never in front of him when he allegedly rendered his Boucher and Straus decisions because each of these documents were authored in late 1998, more than two years after Dash left Intertek. His showing of substantial need for these documents, therefore, is lacking.

“Additionally, Dash contends that to raise the work product privilege, Intertek needed to move for a protective order. Nothing within Rule 26, however, requires this nor does Dash cite to any binding Massachusetts authority establishing a protective order as a mandatory prerequisite to raising the work product privilege. Accordingly, this Court concludes that documents 3A, 4A, and 6A are protected by the work product doctrine and therefore, are not discoverable.”

Intertek Testing Services NA, Inc. v. Dash, et al. (Lawyers Weekly No. 12-367-99) (23 pages) (Herman J. Smith Jr., J.) (Middlesex Superior Court) Jonathan M. Ettinger for the plaintiff; John R. Hallal for defendant Glen Dash (Civil Action No. 98-00903-F).