With apologies to Tiger King, this has to be the best zoo-related story since Good Night, Gorilla. A former employee at–and now plaintiff against–the Louisville Zoo conspired with a human mole inside the Zoo’s compound to purloin the Zoo’s privileged communications about its litigation strategy.

The Zoo rooted-out the mole and moved for sanctions. The Court first exhibited patience, then pounced. Butrum v. Louisville Metro. Gov’t, 2020 WL 1518629 (W.D. Ky. Mar. 20, 2010). You may access the opinion here.

Let’s explore this beastly tale.

Let Loose

Rachael Butrum resigned her position at the Louisville Zoo after fewer than three years on the job. She sued the Zoo asserting sexual-harassment, discrimination, retaliation, and a host of other claims. But during otherwise routine discovery, the Zoo smelled a rat.

The Mole

Butrum sent the Zoo a document request asking for the search results responsive to an email from the Zoo’s lawyer to John Walczak, the Zoo’s director, and others asking them to search Butrum’s Zoo emails. How did Butrum know about the lawyer’s search request—a lucky coincidence, perhaps?

Butrum asked the Zoo to produce minutes from a meeting between the Zoo’s lawyer and Zoo managers, including Director Walczak. The Zoo managers had marked their calendar entries for this meeting as “private.” Wait, this is too coincidental.

Butrum then asked for Director Walczak’s “F drive files under the heading R. Butrum.” These files were not publicly available and neither Butrum nor her lawyer would have reason to know their existence absent a breach. Okay, time to involve the court.

The Court ordered an evidentiary hearing.  And sure enough, Butrum identified the mole as Nancy Davidson, an assistant to Director Walczak and employee in the Zoo’s IT Department.

Had you already guessed that?

The Ostrich

Butrum, however, played ostrich and put her head in the sand. She denied any culpability, saying that she never asked the Mole to engage in surreptitious behavior. Rather, the Mole always provided her with information unilaterally and without a request to do so. And Butrum denied that the Mole gave her any documents.

The Court took lenient measures. It barred Butrum from talking with the Mole for the remainder of the lawsuit and to provide the Zoo with the Mole’s communications to her. But it denied the Zoo’s attorneys’ fees request.

“An Abrupt Change in Counsel”

After taking Butrum’s deposition, the Zoo renewed its motion for sanctions, arguing that Butrum lied under oath during the evidentiary hearing about receiving documents and soliciting privileged information from the Mole. The Zoo sought a host of sanctions and the Court set another evidentiary hearing.

But the hearing was delayed “due to an abrupt change in Butrum’s counsel.”

A Good Privilege Zookeeper?

At the hearing, Butrum admitted that the Mole sent her text messages and screenshots of privileged information even though she previously denied the Mole provided her with documents. Butrum said that she did not consider text messages and screenshots as “documents.” Wow.

The Court chastised Butrum’s “unacceptable attempt to play word games with the Court and to obfuscate the full extent of her communication with [the Mole] for her own benefit.”

But Butrum wasn’t finished. She criticized the Zoo’s failure to protect the privileged communications from the Mole’s improper use. She argued that Director Walczak waived the attorney–client privilege by allowing the Mole—his assistant—full access to his emails.

The Court simply “disagreed” without giving Butrum’s privilege-waiver argument another thought.

Sanctions

The Court sanctioned Butrum, but not as hard as the Zoo wanted. The Court barred Butrum from calling the Mole at trial or using any documentation received from the Mole. And it awarded the Zoo its attorneys’ fees for having to file and prosecute the second sanctions motion. The Zoo is seeking $21,672.95 in legal fees for this work.

But the Court did not impose the ultimate sanction of dismissal, and it did not give the Zoo its fees associated with evaluating the extent to which Butrum improperly obtained the Zoo’s privileged communications.

The reason? Because the Court based its sanctions on Butrum’s false testimony and not on her receipt of privileged communications.

When a company receives a government subpoena, decides to initiate a lawsuit, or reasonably anticipates a claim against it, in-house litigation counsel often leads the evidence-preserving effort. This typically includes disseminating legal-hold notices to employees possessing relevant documents and information.

All legal holds contain a preservation instruction but may vary in other components. Some, for example, provide detailed information about the investigation, claim, or defense while others simply outline the legal preservation duty. Some notices mandate confidentiality while others assume it.

When litigation later erupts, it is foreseeable that the company’s adversary will challenge the company’s evidence-preservation efforts. And in this litigation-about-the-litigation phase, the adversary moves to compel production of counsel’s legal-hold notices. The question then arises—does the attorney–client privilege or work-product doctrine protect from discovery the in-house lawyer’s legal-hold communications to company employees?

In my Winter 2020 Privilege Place column, I explore how courts answer this question and offer a few practice tips. The column, Privilege and Legal Holdswas published by Today’s General Counsel.

notes privilege

I’m betting this is a common deposition-preparation occurrence. A litigant reviews documents in preparation for her notes privilegedeposition, whether unilaterally or—a key difference—at her lawyer’s request. And in doing so, she makes notes on those documents.

Does the attorney–client privilege protect those notes from discovery? One court said no, and we need to learn why. Ford-Bey v. Professional Anesthesia Servs. of N. Am., LLC, 2020 WL 830016 (Pa. Super. Ct. Feb. 20, 2020). You may read the decision here.

So, take note, folks. Pun intended. Sorry.

Medical Chart

A deceased patient’s administrator filed a wrongful-death, medical-malpractice action against an anesthesia group and a handful of CRNAs, including Thomas Maddaloni. In preparation for his deposition, Maddaloni reviewed the medical chart, making handwritten notes on the chart during the process.

At his deposition, he said this—

Q.  When you reviewed the chart in preparation for your deposition, did you have it printed out like it is in front of you?

A.  Yes.

Q.  Did you write anything on your copy of the chart?

A.  I believe I did.

Q.  And was that to assist you in your review?

A.  Yes.

Q.  Okay. And where is your copy of the chart?

A. It’s at my home.

Third Time Not a Charm

The plaintiff, of course, asked for Maddaloni’s self-annotated medical chart, both informally and formally. Maddaloni’s counsel objected on privilege and work-product grounds. At the first motion-to-compel hearing, the trial court rejected these arguments. Maddaloni filed a motion to reconsider but did not file any sworn statements explaining why the privilege or work-product doctrine covered these notes. Motion denied.

Looking for a third bite at the apple, Maddaloni filed a motion to supplement the record with his affidavit. This affidavit likely would have made a prima facie privilege argument, shifting the burden to the plaintiff, but the Court rejected it as too little, too late.

But no matter, Maddaloni reasoned, because he believed the privilege law is this—

Notes made by a client to assist the client in preparing for his deposition were attorney-client or work-product privileged regardless of whether they were communicated to the attorney.

In other words, “a client’s notes are, ipso facto, attorney–client privileged.”

No Communication, No Privilege

The court did not think so. In Pennsylvania, as elsewhere, the privilege covers communications, which means, simply enough, that the communication occur between a client and her attorney. In short, “the privilege protects communications from both lawyers to their clients and clients to their lawyers.”

Here, Maddaloni did not prove that he communicated the medical-chart notes to his attorney or that he created those notes with the intent to do so. As the court put it, “there is no evidence that the notes were communicated, which is the very essence of the attorney–client privilege.” (emphasis by the court).

What about Work Product?

Having digested this nugget, your instinct is to shout, “Work Product!”, right? That also did not work here. The court noted that, unlike the attorney–client privilege, the Pennsylvania work-product doctrine “belongs to the attorney, not the client.” It protects the attorney’s—not the client’s—mental impressions and opinions.

Here, Maddaloni “simply offered no proof that his notes contained the mental impressions of his attorney or of his attorney’s representatives.”  The court concluded with a point that we should all consider—

Mr. Maddaloni cites no authority, and we know of none, supporting his contention that the mental impressions of the client automatically are protected from disclosure under the attorney work-product doctrine.

POP Analysis

A few lessons here.

First, we must remember the privilege’s limited scope—it does not protect a client’s facts or impressions of those facts—only communications to or from his lawyer. An in-house lawyer also learned this lesson the hard way as you can see in Court Rejects Privilege for In-House Lawyer’s Handwritten Notations.

If a lawyer wants her client to make notes, then she should ask her client to do so and instruct the client to send the notes to her for legal-advice purposes. Or, if the lawyer directs notes be taken for a specific, lawyer-driven purpose, then the work-product doctrine likely protects those notes.

Second, clients and their lawyers must actually prove that the privilege or work-product doctrine applies. It is insufficient to argue that the privilege, ipso facto, covers anything. Another in-house lawyer learned this lesson the hard way as you can see in Ipse Dixit Privilege Assertions Doom In-House adidas Lawyer’s Emails.

Third, if you intend to prove it, do it the first time. While Proctor &Gamble received a second chance to prove privilege protection, as you can read about in P&G Receives a Mulligan–Proves Privilege for Emails Between Non-Attorney Employees, the Ford-Bey court proves that is not always the case.