Jason M. Feinstein et al. v. David Keenan et al. (2012)

Memorandum of Decision on Motion for Protective Order (No. 120);  and Defendant's Objection to Atty. Rizza's Motion for Protective Order (No. 126)

Factual/Procedural Background

Plaintiffs Jason Feinstein and Kelli Feinstein have brought this civil action against David Keenan and Jennifer Keenan from whom they purchased their home in Westport in May of 2010.   The amended complaint in this action against the sellers sounds in breach of contract, fraud and negligence with respect to the sale of the house and real property.   Plaintiffs simultaneously brought an action in this court (Docket No. FST CV10–6007236S) against Attorney Kimberly Rizza, who represented them in the purchase of the home.   The complaint against Atty. Rizza alleges professional negligence (legal malpractice) and breach of contract in connection with Atty. Rizza's representation of the plaintiffs in the purchase of their home.

Both the plaintiffs and Feinsteins are seeking to depose attorney Rizza in their respective matters.   A subpoena duces tecum was served upon Atty. Rizza for the taking of her deposition in this case on August 30, 2011, but did not go forward at the request of the deponent's counsel.   Counsel in this case and the malpractice case then tried without success to arrange a date for a joint deposition of Atty. Rizza, applicable to both cases.   On November 15, 2011 the Keenan defendants filed a Motion for Order, or in The Alternative for Issuance of a Capias (No. 119) seeking a court order compelling Atty. Rizza to appear for deposition and bring with her certain documents relating to the sale of the Keenan home to the Feinsteins.   That motion was denied by the court on November 28, 2012 because the subpoena duces tecum had expired and there was no outstanding notice of deposition or agreed date of deposition.  (Order, No. 119.86.)   On December 1, 2011 counsel for the Keenans served a second subpoena duces tecum upon Atty. Rizza for a deposition to be taken on December 20, 2011.   Atty. Rizza, through her own counsel, has now filed a Motion for Protective Order (No. 120) pursuant to Practice Book § 13–5 ¹ seeking protection from being deposed on the ground that the defendants are attempting to compel testimony from Atty. Rizza that would be in breach of the attorney-client privilege and the provisions of Rule 1.6 of the Rules of Professional Conduct.²  The Defendants have filed Defendant's Objection to Atty. Rizza's Motion for Protective Order dated December 21, 2001 (No. 126).

These motions were argued at the short calendar on February 14, 2012.   This memorandum of decision will adjudicate the motion and objection filed in this case, Feinstein v. Keenan.   A separate memorandum of decision has been filed in Feinstein v. Rizza with respect to similar pleadings in that case.

Discussion

The issue is whether attorney-client privilege or Rule 1.6 of the Rules of Professional conduct applies to attorney Rizza's deposition testimony such that the justice requires an order preventing the deposition from taking place.   The motion for protective order is denied because the application of attorney-client privilege or professional confidentiality to certain facts or information within the subject matter of inquiry would not alone constitute good cause for the issuance of a protective order to block the deposition, and, in any event attorney-client privilege and client confidentiality have been waived, both expressly and by implication.

1. Lack of Good Cause for the Issuance of a Protective Order

Practice Book § 13–5 provides that one must show good cause for the court to grant a motion to quash or for a protective order as to a discovery request such as a deposition.   Additionally, “ § 13–2 provides that ‘[d]iscovery shall be permitted if the disclosure sought would be of assistance in the prosecution or defense of the action ․’ The Supreme Court has characterized this as a ‘mandatory provisions' that limits the trial court's discretion in ruling on discovery requests.  Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 58 (1983).   Accordingly, as the court explained, ‘[a] complete denial of discovery ․ is seldom within the court's discretion unless the court finds that one or more of the limitations on discovery expressed [in the rules of practice] applies.’  Id., at 60, 459 A.2d 503.”   Sharon Motor Lodge, Inc. v. Tai, Superior Court, Judicial District of Litchfield, Docket No. CV 98 0077828 (March 6, 2006, Bozzuto, J.) [40 Conn. L. Rptr. 852].  Practice Book § 13–5 requires that the moving party show good cause for the court to grant a motion to quash or for a protective order as to a deposition.  “Good cause must be based upon a particular and specific demonstration of fact, as distinguished from stereo-typed and conclusory statements.”   Welch v. Welch, Superior Court, Judicial District of Fairfield, Docket No. FA 02 0392039 (February 10, 2003, Hiller, J.) [34 Conn. L. Rptr. 171].

While attorney-client privilege may protect the admissibility of deposition testimony by an attorney, the protection does not exempt attorneys from being deposed.   Busak v. Obuchowski, Superior Court, Judicial district of Stamford–Norwalk at Stamford, Docket No. CV 02 0188494 (December 22, 2004, Hiller, J.) (2004 Ct.Sup. 19423;  38 Conn. L. Rptr. 436).   The Appellate Court has recognized, however, that the duty to answer all questions at a deposition is subordinate to the attorney-client privilege.   In Gebbie v. Cadle Co., 49 Conn.App. 265 (1998), the court noted that, “[t]he defendant's argument that the liberal rules of discovery during a deposition require him to answer improper questions and later assert the privilege at trial is unavailing.   While it is true that the allowable scope of inquiry at a discovery deposition clearly exceeds the boundaries of admissible evidence ․ this does not relieve the attorney of the duty to uphold the attorney-client privilege.”  (Citation omitted;  internal quotation marks omitted.)   Id. 274, n.7.

In Sarfaty v. PNN Enterprises, Inc., Superior Court, Judicial District of New Haven at Meriden, Docket No. CV 02 0280255 (April 19, 2004, Tanzer, J.), the court ruled on a motion for protective order based on the attorney-client privilege, filed prior to the deposition of an attorney.   The court held that, “[t]he deposition of [the attorney] should proceed;  however, the court notes that the attorney-client privilege has not been waived and that deposition questions are not to delve into privileged areas.'   Also, in Page v. DiMaggio Plumbing & Heating, Inc., Superior Court, Judicial District of Danbury, Docket No. CV 98 0334003 (November 15, 2000, Hiller, J.), the court ruled on a motion for protective order that sought to protect certain documents from discovery, and held that, “all information requested shall be produced and available for use in depositions, subject only to claims as to attorney-client privilege.”   See also Busak v. Obuchowski, supra, (“[T]he duty to answer all questions at a deposition is subordinate to the attorney-client privilege.”).   Where the privilege has not been waived, attorney client privilege will apply to an attorney's deposition testimony.

In the present case, attorney Rizza is seeking a protective order and motion to quash the Keenans' subpoena to compel deposition testimony.   Attorney Rizza argues that because the plaintiffs have not waived the attorney-client privilege or Rule 1.6 confidentiality with respect to the seller's litigation, the parties should be prohibited from forcing her to divulge information.   Attorney Rizza's arguments that she may breach attorney-client privilege or that the plaintiffs have not waived the attorney-client privilege, does not amount to “good cause” required for this court to deny a request for discovery by blocking a deposition from proceeding.

2. Express Waiver of Attorney–Client Privilege and Client Confidentiality

The parties have presented to the court copies of written waivers signed by both plaintiffs, Jason Feinstein and Kelli Feinstein, stating:

Pursuant to the Rules of Professional Conduct of the State of Connecticut and in particular Rule 1.6, I, [name], hereby waive any privilege I might have with Kimberly Rizza as a result of an action I am pursuing in Superior Court against Kimberly Rizza.

Contrary to Atty. Rizza's contention ³ that these waivers are limited to the lawsuit between the Feinsteins and Attorney Rizza, and have no applicability to a deposition to be taken in this case against the Keenans, a client cannot selectively waive the privilege only for certain purposes or against certain opponents.   Connecticut courts have consistently refused to give credence to the concept of selective waiver of the attorney-client privilege.  “This result [waiver of the privilege] is reached because once the confidence privilege has been breached, the privilege has no valid ‘continuing office to perform.’  “ Gebbie v. Cadle Co., supra, 49 Conn.App. 265, 274.   See Kowalonek v. Bryant Lane, Inc., Superior Court, Judicial District of Danbury, Docket No. CV96–0324942 (April 11, 2000, Moraghan, J.) (2000WL486961) (“The client cannot be permitted to pick and choose among his opponents, waiving the privilege for some and resurrecting the claim of confidentiality to obstruct others, or to invoke the privilege as to communications whose confidentiality he has already compromised for his own benefit.”) (citing, Permian Corp. v. United States, 665 F.2d 1214, 1219–22 (D.C.Cir.1981) and In re Subpoenas Duces Tecum, 738 F.2d, 1357, 1370 (D.C.1984), and rejecting the “selective waiver” doctrine fashioned by the federal Eighth Circuit in Diversified Industries v. Meredith, 572 F.2d 596, 611 (8th Cir.1977).   Because in this case the plaintiffs have expressly waived both attorney-client privilege and client confidentiality under Rule 6.1 for purposes of Feinstein v. Rizza, they have waived those protections for purposes of this case as well.

3. Implied Waiver of Attorney–Client Privilege and Client Confidentiality

The ‘at-issue,’ or implied waiver exception [to the attorney-client relationship] is invoked ․ when a party specifically pleads reliance on an attorney's advice as an element of a claim or defense, voluntarily testifies regarding portions of the attorney-client communication, or specifically places at issue, in some other manner, the attorney-client relationship.   Metropolitan Life Insurance Co. v. Aetna Casualty & Surety Co., 249 Conn. 36, 52–53 (1999).

The plaintiff Jason Feinstein has waived by implication under the “at issue” doctrine of waiver his attorney-client privilege and client confidentiality by his extensive sworn deposition testimony in this case, with the trial counsel for both plaintiffs present, given on October 20, and December 1, 2011.   He testified extensively and in detail concerning his discussions with Atty. Rizza and her legal advice about, among other things, (i) the results of the inspection of the premises, (ii) the condition of the premises and water damage that was discovered during the inspection;  (iii) the list of repairs that the plaintiffs desired and included in the Purchase and sale Agreement;  (iv) the plaintiffs' discovery during the pre-closing inspection that many of the listed repairs, including most of the water-related repairs, were not made by defendants;  (v) negotiations pre-closing regarding a credit for some of the repairs and the creation of an escrow account to cover certain repairs to the HVAC system;  and (vi) the plaintiffs' decision to close on the premises and accept title thereto despite their knowledge as to the condition of the premises.  (See Deposition Transcripts, pp. 14–15, 19, 64, 65, 28, 29, 191–92, 260, 313–16, 362–64.)

The implied waiver of Mr. Feinstein's privilege attaches to Mrs. Feinstein as well by virtue of her lawyer's failure to assert her privilege or object to the questions put to Mr. Feinstein.  “The power to waive the attorney-client privilege rests with the client or his attorney acting with his authority ․ If the holder of the privilege fails to claim his privilege by objecting to disclosure by himself or another witness when he has an opportunity to do so, he waives his privilege as to the communications so disclosed.”  (Emphasis added;  citation and internal quotation marks omitted.)  Gebbie v. Cadle Co., supra, at 274.

And both Mr. and Mrs. Feinstein have also waived by implication their attorney-client privilege and client confidentiality under the “at-issue” exception by bringing a legal malpractice action against Atty. Rizza concerning her advice and representation in the purchase of their home from the Keenans.

4. Rule 6.1 Confidentiality has been Waived, or Does Not Apply by Exception to the Rule

The two express written waivers signed by the plaintiffs refer to “the Rules of Professional Conduct of the State of Connecticut and in particular Rule 1.6.”   Thus plaintiffs' rights to client confidentiality under Rule 1.6 have been waived.   Those rights are inapplicable under the exception to confidentiality under subsection (d) of the rule itself:  “a lawyer may reveal such information to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client ․ or to respond to allegations in any proceeding concerning the lawyer's representation of the client.”

Conclusion

For the Reasons set forth herein Atty. Rizza's Motion for Protective Order is denied and defendant's objection thereto is sustained.⁴  The deposition of Atty Rizza may proceed.   A notice of deposition under Pracice Book § 13–27 may be filed and a new subpoena duces tecum may be served in lieu of the expired subpoenas previously served.

Although this court by a separate memorandum of decision has denied the Keenan's motion to consolidate this case with the Keenan case for purposes of trial, the reasons given for that ruling would not preclude a joint discovery deposition of Atty. Rizza applicable to both cases.   A joint deposition would be more efficient and convenient for the deponent and all parties and their counsel.   The court therefore orders that the deposition of Atty. Rizza shall be noticed as a combined deposition for purposes of both cases.

Alfred J. Jennings Jr.

Judge Trial Referee

FOOTNOTES

FN1. Section 13–5 provides, in part:  “Upon motion of a party from whom discovery is sought, and for good cause shown, the judicial authority may make any order which justice requires to protect a party from annoyance, embarrassment, or undue burden or expense, including one or more of the following:  (1) that the discovery not be had ․”.  FN1. Section 13–5 provides, in part:  “Upon motion of a party from whom discovery is sought, and for good cause shown, the judicial authority may make any order which justice requires to protect a party from annoyance, embarrassment, or undue burden or expense, including one or more of the following:  (1) that the discovery not be had ․”

FN2. Rule 1.6(a) provides:  “A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by subsection ․ (d).”  Subsection (d) provides, in relevant part:  “a lawyer may reveal such information to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, ․ or to respond to allegations in any proceeding concerning the lawyer's representation of the client..  FN2. Rule 1.6(a) provides:  “A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by subsection ․ (d).”  Subsection (d) provides, in relevant part:  “a lawyer may reveal such information to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, ․ or to respond to allegations in any proceeding concerning the lawyer's representation of the client.

FN3. It is noteworthy that the plaintiffs, as the owners of the privilege, have not joined in this motion for a protective order or argued in favor of it.   Nor have they objected in any way to the scheduled deposition of Attorney Rizza..  FN3. It is noteworthy that the plaintiffs, as the owners of the privilege, have not joined in this motion for a protective order or argued in favor of it.   Nor have they objected in any way to the scheduled deposition of Attorney Rizza.

FN4. The court has not been advised of any specific questions intended to be asked of Atty. Rizza at deposition.   This is not a ruling on a motion in limine as to any particular question.   If counsel for any party believes under the general rulings expressed herein that any particular question calls for facts or information that is privileged and that privilege has not been waived, Practice Book § 13–30(b) provides that “A party may instruct a deponent not to answer only when necessary to preserve a privilege ․” pending a ruling on a motion for court order under subsection (c)..  FN4. The court has not been advised of any specific questions intended to be asked of Atty. Rizza at deposition.   This is not a ruling on a motion in limine as to any particular question.   If counsel for any party believes under the general rulings expressed herein that any particular question calls for facts or information that is privileged and that privilege has not been waived, Practice Book § 13–30(b) provides that “A party may instruct a deponent not to answer only when necessary to preserve a privilege ․” pending a ruling on a motion for court order under subsection (c).

Jennings, Alfred J., J.T.R.