MEMORANDUM AND ORDER ON PLAINTIFFâS MOTION TO COMPEL
AND DEFENDANTâS MOTION FOR PROTECTIVE ORDER
P. Leibensperger, Justice
motions raise an issue as to the scope, and possible waiver,
of the attorney-client privilege.
DeThomas commenced this action against his former employer,
Cumberland Farms, Inc. He joined Cumberland in 2010 as Senior
Vice President of Real Estate and was promoted to Chief Real
Estate Officer. On September 16, 2016, DeThomasâ employment
was terminated. He sues Cumberland for violation of the Wage
Act, breach of contract, breach of the implied covenant of
good faith and fair dealing and unjust enrichment. The crux
of his claims is an averment of wrongful termination.
asserts counterclaims. Cumberland alleges that in connection
with a project to demolish three buildings on Aliens Avenue
in Providence, R.I. (the " Aliens Avenue Project"),
DeThomas, on behalf of Cumberland, engaged a contractor, D.F.
Pray, with whom he had a prior relationship. DeThomas
allegedly failed to disclose to his employer, Cumberland,
that he was involved in unrelated real estate deals with D.F.
Pray and one of its principals. This relationship,
according to Cumberland, caused DeThomas to act for the
benefit of D.F. Pray rather than Cumberland when issues arose
as to D.F. Prayâs performance on the Aliens Avenue Project.
the specific allegations are the following. When a
subcontractor of D.F. Pray sued D.F. Pray for payment arising
from the Aliens Avenue Project, DeThomas approved a
settlement whereby Cumberland paid part of the consideration,
even though Cumberland had not been sued by the
subcontractor. Allegedly, " DeThomas did not consult
with the CEO or the Chief Legal Officer of Cumberland Farms
regarding the settlement agreement or its terms."
Counterclaim Â¶ 14. DeThomas also approved payment to D.F.
Pray for amounts far in excess of the original contract
price. DeThomas refused to terminate D.F. Pray when there
were performance issues. Moreover, Cumberland alleges that
DeThomas " failed to disclose to the CEO of Cumberland
Farms any of the issues associated with the Project,
including the substantially increased costs."
Counterclaim, Â¶ 23. On the basis of these allegations,
Cumberland asserts claims of breach of fiduciary duty, breach
of the implied covenant of good faith and fair dealing, and
propounded requests for Cumberland to produce documents.
Several of the requests sought documents constituting
communications among Cumberland personnel concerning the
Aliens Avenue Project and DeThomasâ performance regarding the
Project. In response, Cumberland produced non-privileged
documents but objected to producing documents constituting
communications with Cumberlandâs in-house counsel and outside
lawyers. Cumberland prepared a privilege log listing
memoranda and emails, by date, and noting the names of the
individuals receiving or participating in the
communications. DeThomas moves to compel the
production of the documents on the privilege log arguing that
the attorney-client privilege was waived by Cumberland by
putting " at issue" the question of whether
DeThomas breached fiduciary duties to Cumberland. In his
motion, DeThomas fails to specify, paragraph by paragraph,
the requests for which he is moving to compel. Instead, he
argues that Cumberland broadly waived the privilege with
respect to all documents on the privilege log.
response, Cumberland broadly asserts the attorney-client
privilege even when the communications, as described on the
privilege log, are with DeThomas. For example, many documents
listed on the privilege log are emails or memoranda from
DeThomas to a Cumberland attorney. Other documents listed on
the privilege log are emails among Cumberland personnel,
including Cumberland attorneys, where DeThomas is also
included as one of the recipients.
also moves for a protective order preventing the testimony at
deposition of two in-house lawyers (Howard and Glennon) and
two lawyers from the law firm that represented Cumberland on
the Aliens Avenue Project, Adler Pollack & Sheehan, P.C.
(Noonan and Chaudary), " regarding communications
protected by the attorney-client privilege and attorney work
product." The motion raises the same legal issue
regarding " at issue" waiver of privilege that is
the subject of DeThomasâ motion to compel. Cumberland
contends that none of its lawyers should be compelled to
testify regarding privileged communications, including
communications received from or made to DeThomas.
concedes that there is an attorney-client privilege
protecting confidential communications with Cumberlandâs
lawyers for the purpose of seeking legal advice. Further, the
privilege belongs to the corporation and only the corporation
may assert or waive the privilege. Here, Cumberland asserts
the privilege with respect to all documents listed on its
privilege log. Cumberland also asserts the privilege with
respect to anticipated testimony by its lawyers concerning
those documents and other subjects coming within the
motion to compel, DeThomas does not challenge the validity of
the assertion of privilege with respect to any of the
approximately 2, 000 documents listed on the log. For
purposes of this motion, therefore, I assume that every
document on the log is, in fact, a confidential
communication, not shared with any third party, constituting
or reflecting the provision of legal advice. The only ground
for DeThomasâ motion to compel is the argument that
Cumberland waived the privilege by putting certain matters
" at issue" by the filing of its counterclaim.
" [A] litigant may implicitly waive the attorney-client
privilege, at least partly, by injecting certain claims or
defenses into a case." Darius v. City of
Boston, 433 Mass. 274, 277 (2001). On that basis,
DeThomas asks that the privilege be deemed to have been
waived with respect to all documents on the
broad-brush approach is antithetical to the Supreme Judicial
Courtâs recognition of the limited " at issue"
waiver. In the seminal case of Darius the Court
recognized the general principle of " at issue"
waiver but noted that such a waiver " should not be
tantamount to a blanket waiver of the entire attorney-client
privilege in the case. By definition, it is a limited waiver
of the privilege with respect to what has been put âat
issue.â " Id. at 283. Accordingly, I must
determine whether a subject has been put " at
issue" by Cumberlandâs counterclaims, and whether there
are documents on the privilege log that should be released
from privilege protection as a result. I must also consider
that in order to substantiate an " at issue"
waiver, it should be shown that the privileged information
sought to be discovered is not readily available from another
source. Id. at 284.
review of Cumberlandâs counterclaim demonstrates beyond
argument that Cumberland puts " at issue" certain
communications regarding the Aliens Avenue Project. The
central premise of Cumberlandâs breach of fiduciary duty
claim is that DeThomas allegedly failed to inform Cumberland
of his relationship with D.F. Pray and, more importantly,
acted to the detriment of Cumberland in connection with
managing the relationship with D.F. Pray. The explicit
allegation is made that DeThomas did not consult with the CEO
or the Chief Legal Officer of Cumberland regarding a
settlement DeThomas agreed to on behalf of Cumberland. More
generally, Cumberland alleges DeThomas failed to disclose to
Cumberland any of the issues associated with the Aliens
Avenue Project, including the substantially increased costs.
Consequently, the substance of communications between
DeThomas and Cumberland, including what was said to or by
Cumberlandâs lawyers, is essential to determining whether
Cumberland was or was ...