1

No.07-5702-op InreCounty

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 9ADAM 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 16AS 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 1Petition 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.

13MINER, 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 19production 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 25mandamus. 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 e16mail 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 dealt4 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 general5 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 the6 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 to7 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 26memorandum 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 29Attorney’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 3Attorney’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 6privileged 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 19petition 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 and9 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 16waived 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 very10 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 26which 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 26violate the securities laws that he was charged with violating12 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 the13 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 9by 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 16privileged 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 communications14 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 26vital to” their claims. Pritchard, 2007 WL 3232096, at *215 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.