Douglas Morello v. City of Norwich (2014)

ORDER

On July 19, 2013, the plaintiff, Douglas Morello, filed a motion for compliance (# 131) requesting that the defendant, city of Norwich, disclose the emails listed in its April 3, 2013 privilege log.   On August 2, the defendant filed a memorandum of law in opposition to the motion (# 133) and the motion was argued on January 6, 2014.

“[T]he granting or denial of a discovery request rests in the sound discretion of the court.”  (Internal quotation marks omitted.)  Woodbury Knoll, LLC v. Shipman & Goodwin, LLP, 305 Conn. 750, 775, 48 A.3d 16 (2012).   The plaintiff seeks disclosure of a cache of email communications (over 220 in total) which can be separated into two distinct groups.   First, there are approximately 192 communications between attorney Eileen Duggan and high ranking employees of the Norwich police department, to include Chief Luis Fusaro and Chief Warren Mocek, among others.   Second, there are approximately 32 emails between Duggan and Dr. Catherine Lewis or members of her staff.   Dr. Lewis examined the plaintiff in January of 2010 and authored a final report in May of 2010 detailing her opinion of the plaintiff's fitness for duty.   The defendant has cited both the attorney-client privilege and work product doctrine as protection for all 224 communications.

“In Connecticut, the attorney-client privilege protects both the confidential giving of professional advice by an attorney acting in the capacity of a legal advisor to those who can act on it, as well as the giving of information to the lawyer to enable counsel to give sound and informed advice.”  (Internal quotation marks omitted.).  Olson v. Accessory Controls & Equipment Corp., 254 Conn. 145, 157, 757 A.2d 14 (2000).   The work product doctrine, on the other hand, “protects an attorney's interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs and countless other tangible and intangible items ․ when those activities have been conducted with a view to pending or anticipated litigation.”  (Citations omitted;  internal quotation marks omitted.)  Ullmann v. State, 230 Conn. 698, 714, 647 A.2d 324 (1994).

The communications between Duggan and the department officials (Fusaro, Mosek, Brigid Marks, and others) are protected by the attorney-client privilege.   “[T]he communications by town employees to counsel are covered by the attorney-client privilege.”  Shew v. Freedom of Information Commission, 44 Conn.App. 611, 620, 691 A.2d 29 (1997), aff'd, 245 Conn. 149, 168, 714 A.2d 664 (1998).   However, if any of these 192 emails was shared with third parties not employed in command positions by the defendant, the privilege would be deemed waived.  “Generally [the voluntary] disclosure of confidential communications or attorney work product to a third party ․ constitutes a waiver of [the] privilege as to those items.”  (Internal quotation marks omitted.)  Harp v. King, 266 Conn. 747, 767, 835 A.2d 953 (2003).   To that end, the court orders that the defendant investigate, with due diligence, whether any of these emails have been so disclosed and supplement its April 3, 2013 privilege log detailing its findings.

Next, the emails between Duggan and Dr. Lewis and her staff are not protected by attorney-client privilege.   Dr. Lewis is an employee of the University of Connecticut, not the Norwich police department.   Furthermore, the privilege does not extend to Dr. Lewis as a third party employed by Duggan to translate information obtained from the client into a usable form, as it might for a foreign language translator.   The information that Dr. Lewis used for her report was not obtained from Duggan's client but rather from the plaintiff, Mr. Morello, during his evaluation.   Finally, the work product doctrine does not protect these communications either.   First, the emails authored by Dr. Lewis or her staff are certainly not protected given that they were not the product of an attorney.   Second, the court finds that the communications were not sufficiently connected to pending litigation to constitute work product.   The court recognizes that communications do not need to occur on the literal precipice of litigation;  but the communications between Lewis and Duggan began nearly one year before the plaintiff was even terminated and almost two years before this lawsuit was filed.   The defendant argues that Duggan's communication with Lewis came “under circumstances where a grievance was available and likely” and therefore “constitutes advice in anticipation of litigation.”   However, the defendant's generous conception of the work product standard is troublesome given that most of an attorney's work (even a purely transactional attorney) raises the specter of litigation.

For the foregoing reasons, the plaintiff's motion is granted with respect to all communication between Duggan and Dr. Lewis or her staff.   The motion is denied as to all communications between Duggan and Norwich police officials, however the defendant is ordered to supplement the privilege log as detailed above.¹

Parker, J.T.R.

FOOTNOTES

FN1. The plaintiff has identified one email (dated December 6, 2010) listed in the privilege log and sent by the director of human resources to Chief Mocek.   Given that no attorney was involved in this communication, it certainly enjoys no privilege.   At the hearing, the defendant agreed to disclose that communication and will see to it that such disclosure is made..  FN1. The plaintiff has identified one email (dated December 6, 2010) listed in the privilege log and sent by the director of human resources to Chief Mocek.   Given that no attorney was involved in this communication, it certainly enjoys no privilege.   At the hearing, the defendant agreed to disclose that communication and will see to it that such disclosure is made.

Parker, Thomas F., J.T.R.