1

No. 07-5702-op

In re County of Erie

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 August Term 2007

4

5 Docket No. 07-5702-op

6 (Submitted: May 13, 2008 Decided: October 14, 2008)

7 __________________________________________________________

8 IN RE THE COUNTY OF ERIE

9 ADAM PRITCHARD, EDWARD, ROBINSON, AND JULENNE 

10 TUCKER, BOTH INDIVIDUALLY, AND ON BEHALF OF A 

11 CLASS OF OTHERS SIMILARLY SITUATED,

12 Plaintiffs-Respondents,

13 v.

14 THE COUNTY OF ERIE, PATRICK GALLIVAN, BOTH

15 INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY 

16 AS SHERIFF OF THE COUNTY OF ERIE, TIMOTHY 

17 HOWARD, BOTH INDIVIDUALLY AND AS UNDERSHERIFF

18 OF THE COUNTY OF ERIE, DONALD LIVINGSTON, BOTH

19 INDIVIDUALLY AND AS ACTING SUPERINTENDENT OF

20 THE ERIE COUNTY CORRECTIONAL FACILITY, AND

21 ROBERT HUGGINS, BOTH INDIVIDUALLY AND AS 

22 DEPUTY SUPERINTENDENT OF THE ERIE COUNTY 

23 CORRECTIONAL FACILITY,

24 

25 Defendants-Petitioners,

26 H. McCARTHY GIPSON, BOTH INDIVIDUALLY AND AS

27 SUPERINTENDENT OF THE ERIE COUNTY HOLDING CENTER,

28 Defendant.

29 __________________________________________________________

30 Before: FEINBERG, MINER, and B.D. PARKER, Circuit Judges.

31 Petition for Writ of Mandamus directing the District Court

32 to vacate its order requiring the production of ten e-mail

33 communications allegedly protected by the attorney-client

34 privilege, the District Court having determined that the

35 petitioners waived the privilege by placing in issue the

36 information contained in the disputed e-mails.
2

1 Petition granted. 

2 James P. Domagalski, Frank T.

3 Gaglione, Hiscock & Barclay, LLP,

4 Buffalo, NY, for Defendants5 Petitioners.

6 Elmer Robert Keach, III, Law

7 Offices of Elmer Robert Keach, III,

8 P.C. Amsterdam, NY, for

9 Plaintiffs-Respondents.

10 Charles J. LaDuca, Cuneo, Gilbert &

11 LaDuca, LLP, Washington DC, for

12 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. In requiring the

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. We recognize that there has been

23 some uncertainty surrounding the rule and consider the need for

24 clarification of sufficient importance to invoke the remedy of

25 mandamus.

26 II.

27 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"),
3

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. See

5 In re County of Erie, 473 F.3d 413, 415–16 (2d Cir. 2007) (“Erie

6 I”). Named as defendants in the complaint in the underlying

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

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 e16 mail communications claimed to be subject to the attorney-client

17 privilege and withheld by Petitioners. See id. These documents

18 consisted of correspondence between the offices of the Erie

19 County Attorney and the Erie County Sheriff. See id. With

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." Id. The Magistrate Judge opined that the

26 communications did not involve legal advice or analysis but dealt
4

1 only with administration and policy, including the drafting of

2 regulations to change existing policy. See id. The District

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. Respondents thereafter filed in this

6 Court a Petition for a Writ of Mandamus directing the District

7 Court to vacate its order. See id.

8 III.

9 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. Id. at 417. We also noted that the privilege

18 would be lost or undermined if review were to await final

19 judgment. Id. An analysis of the attorney-client privilege in

20 the government context and its application to the factual

21 background of this case led us to conclude 

22 that each of the ten disputed e-mails was sent for the

23 predominant purpose of soliciting or rendering legal

24 advice. They convey to the public officials

25 responsible for formulating, implementing and

26 monitoring Erie County’s corrections policies, a

27 lawyer’s assessment of Fourth Amendment requirements,

28 and provide guidance in crafting and implementing

29 alternative policies for compliance. This advice ——

30 particularly when viewed in the context in which it was

31 solicited and rendered —— does not constitute general
5

1 policy or political advice unprotected by the

2 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. Our order granting the writ allowed the District Court

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." 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. Following oral argument, the court issued a written

18 opinion analyzing the circumstances under which disclosure of

19 confidential communications might constitute a waiver of the

20 attorney-client privilege. Pritchard v. County of Erie, No. 04-

21 CV-00534C, 2007 WL 1703832 (W.D.N.Y. June 12, 2007). Turning to

22 the facts of this case, the District Court concluded 

23 that defendants have satisfied their burden of

24 demonstrating with sufficient "factual specificity," .

25 . . that dissemination of any of the ten e-mail

26 communications ruled upon by the Second Circuit was

27 limited to Sheriff’s Department employees who needed to

28 know the content of the communication in order to

29 effectively perform their jobs or to make informed

30 policy decisions concerning the authorization of strip

31 searches of inmates or detainees . . . . In the
6

1 absence of any factual showing by plaintiffs to suggest

2 a contrary result, the court finds there has been no

3 waiver of the attorney-client privilege pertaining to

4 these particular ten e-mail communications.

5 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. Pritchard v. County of

9 Erie, No. 04-CV-00534C, 2007 WL 3232096 (W.D.N.Y. Oct. 31, 2007). 

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." Id. at *5. 

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." Id. at *2 (citing John Doe Co. v. United

21 States, 350 F.3d 299, 302 (2d Cir. 2003)).

22 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). Hearn required a positive response to three

25 separate inquiries: 

26 whether: (1) the assertion of the privilege was a

27 result of some affirmative act, such as filing suit or

28 pleading in response to a claim; (2) through the

29 affirmative act, the asserting party has put the

30 protected information at issue by making it relevant to
7

1 the case; and (3) the application of the privilege

2 would have denied the opposing party access to

3 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 The prison officials respond that there was no such

13 policy in place, or that the policy that was in place

14 authorized searches of individual detainees in

15 accordance with constitutional requirements. 

16 Defendants also claim qualified immunity from suit

17 based on “an objectively reasonable belief that their

18 actions were lawful and not in violation of any of

19 [Plaintiffs-Respondents’] clearly established

20 constitutional rights.”

21 Id. at *4. 

22 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. Id. at *5. Responding to questions surrounding a

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. Id. Further

30 testimony by Livingston regarding advice of counsel was

31 terminated by the objection of counsel for Petitioners.
8

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. Id. The District Court stated that "this testimony

5 clearly indicates [Defendants-Petitioners’] reliance on

6 privileged communications to support the contention that the

7 strip search policy . . . was lawful." Pritchard, 2007 WL

8 3232096, at *5. Even at the pleading stage, according to the

9 District Court, "pleading conduct in conformity with the law, and

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." Id.

14 at *4.

15 V.

16 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: "(A) the

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." 473 F.3d at

23 416—17. While Respondents concede that the second and third

24 prongs have been satisfied, they strenuously argue that the first

25 has not. They contend that the "contours" of the at-issue (or

26 implied) waiver have been firmly established. We disagree and
9

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. See In re Grand Jury Proceedings,

9 219 F.3d 175, 182 (2d Cir. 2000) (citing Hearn for the

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
10

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. See,

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."). In view of the

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.
11

1 VI.

2 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). Its purpose

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.” Id. at

8 403 (internal quotation marks omitted). Therefore, rules which

9 result in the waiver of this privilege and thus possess the

10 potential to weaken attorney-client trust, should be formulated

11 with caution. Generally, "[c]ourts have found waiver by

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. The assertion of an "advice-of-counsel" defense has

22 been properly described as a "quintessential example" of an

23 implied waiver of the privilege. See In re Kidder Peabody Secs.

24 Litig., 168 F.R.D. 459, 470 (S.D.N.Y. 1996).

25 In Bilzerian, the defendant argued that he did not intend to

26 violate the securities laws that he was charged with violating
12

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. 926 F.2d at 1291. We

4 agreed with the District Court in that case that if Bilzerian

5 testified as to good faith, the door would be opened to cross6 examination that might require him to divulge otherwise

7 privileged communications with his attorney. Id. at 1294. We

8 opined that "[t]he trial court’s ruling left defendant free to

9 testify without getting into his state of mind, but correctly

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." Id. 

13 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. Id. at 1293. Accordingly, the

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 Underlying any determination that a privilege should be

22 forfeited is the notion of unfairness. This notion implicates

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
13

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." In re

5 Grand Jury, 219 F.3d at 183.

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. According to Hearn, an assertion of privilege

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." Hearn, 68 F.R.D. at 581. But privileged information may

12 be in some sense relevant in any lawsuit. A mere indication of a

13 claim or defense certainly is insufficient to place legal advice

14 at issue. The Hearn test presumes that the information is

15 relevant and should be disclosed and would open a great number of

16 privileged communications to claims of at-issue waiver. Nowhere

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 We hold that a party must rely on privileged advice from his

21 counsel to make his claim or defense. We decline to specify or

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. Although the District

25 Court held, inter alia, that the qualified immunity defense

26 asserted by Petitioners placed the privileged communications
14

1 between the County Attorney’s Office and the Sheriff’s personnel

2 at issue, this is not so. “Qualified immunity protects officials

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." Gilles v.

6 Repicky, 511 F.3d 239, 243 (2d Cir. 2007) (internal quotation

7 marks omitted). The question of whether a right is "clearly

8 established" is determined by reference to the case law extant at

9 the time of the violation. See Moore v. Andreno, 505 F.3d 203,

10 215—16 (2d Cir. 2007). This is an objective, not a subjective,

11 test, and reliance upon advice of counsel therefore cannot be

12 used to support the defense of qualified immunity.

13 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. In view

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. Here, as in John Doe Co., there is no

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. Doe, 350 F.3d at

22 305. The party asserting the privilege in John Doe Co. had not,

23 as Respondents have not, "placed the matter at issue so as to

24 cause forfeiture of privilege by reason of unfairness." Id. at

25 306. Respondents have not been denied “access to information

26 vital to” their claims. Pritchard, 2007 WL 3232096, at *2
15

1 (citing Hearn, 68 F.R.D. at 581).

2 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. See In re Sims, 534 F.3d 117, 132 (2d Cir. 2008). 

13 Nothing in the record suggests that Petitioners have yet waived

14 the privilege by "an assertion of fact to influence the

15 decisionmaker." John Doe Co., 350 F.3d at 306.

16 VII.

17 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. Respondents

21 shall have leave to reargue forfeiture of the privilege before

22 the District Court should the Petitioners rely upon an advice-of23 counsel or good-faith defense at trial.