A plaintiff who may be entitled to recover legal fees as damages can avoid producing attorney billing records that he claims include privileged information, a federal judge ruled Thursday.
U.S. District Judge Anne Thompson upheld a magistrate judge’s order allowing submission of billing-document summaries instead, along with attorney certifications of their veracity.
Noting there is no Third Circuit case law on whether pursuit of fees in itself amounts to waiver of the privilege, she called her plan a “solution to balancing the tension between the attorney-client privilege and fairness concerns.”
In the suit, D’Onofrio v. Borough of Seaside Park, 09-cv-6220, the former owner of a Seaside Park restaurant and bar asserts constitutional, civil rights and racketeering claims against the borough and dozens of officials.
Stephen D’Onofrio in 2003 expanded his Saw Mill Cafe to two floors and 18,000 square feet to accommodate notable musical acts and attract more patrons. After he hired hip-hop artist Method Man to perform in April 2004, Seaside Park began a five-year campaign of harassment, he claims in the suit.
As part of his damages, he seeks $800,000 in legal fees he claims he incurred fending off regulatory actions by the borough.
He claims his customers and employees were intimidated by police, his certificate of occupancy was revoked based on erroneous information and special conditions were placed on his liquor license.
Several regulatory actions and other legal disputes ensued, including an administrative law action before the Ocean County Construction Board of Appeals that was pending as of Thursday.
In the course of those proceedings,he was represented by R.C. Shea & Associates, solo Harvey York and Gilmore & Monahan, all in Toms River, and Connell Foley in Roseland.
D’Onofrio sold the business in May 2009 and, that December, filed suit.
In submitting documentation of his legal fees, D’Onofrio sought to withhold information he claimed was protected by attorney-client privilege.
The borough contended that, by including attorney fees in the damages claim, D’Onofrio placed any communications in the billing statements “at issue,” and thus waived privilege.
Last Sept. 27, Magistrate Judge Tonianne Bongiovanni permitted D’Onofrio to submit, in lieu of the unredacted billing records, bill summaries and attorney certifications assuring their relation to the underlying matters.
Bongiovanni did not agree with the borough that D’Onofrio was “seeking to use the attorney-client privilege as a sword and a shield” and noted efficiency interests in bypassing “the time consuming and costly process of requiring line-by-line redactions.”
The borough urged Thompson to vacate the order. It cited George v. Siemens Indus. Automation, Ind., 182 F.R.D. 132 (D.N.J. 1998), which provides that when a party puts privileged information “at issue” by making it relevant to the case, and application of the privilege would deny the opposing party access to information vital to its defense, the privilege is waived.
D’Onofrio “cannot now produce only the information relating to the fees that he wants the Borough Defendants to see,” the borough argued.
On Thursday, Thompson rejected the motion, saying Bongiovanni struck a solid balance.
It’s not clear whether the at-issue doctrine applies to this situation, Thompson found, noting that “Third Circuit cases that do consider the at-issue doctrine in the context of the attorney-client privilege do so in situations where the advice of counsel is being utilized as an affirmative defense.”
Those cases are “reasonably distinguishable” because they put at issue the content of the privileged communications, not the “non-privileged details such as the type of communication and time spent,” as in D’Onofrio’s case, Thompson said.
The judge added that defense counsel still can bring objections to the hours billed and the fees’ reasonableness, and Bongiovanni’s order left open the possibility that she may demand further disclosures by D’Onofrio.
Thompson said she “fails to see how trusting attorney certifications with regards to the billing statements is significantly different than the trust opposing counsel normally must exercise when receiving copies of billing statements recorded at another firm.”
“It may be that Plaintiff ultimately must present full, unredacted billing statements in order to fairly and clearly justify an award of damages,” but “the Court does not at this time find good reason to overturn Judge Bongiovanni’s order,” Thompson said.
Kevin McCann and Philip Davolos III of Chance & McCann in Bridgeton, D’Onofrio’s attorneys, say they don’t expect an interlocutory appeal, and any challenge of the summaries’ adequacy likely would come at the damages stage.
“I don’t see it coming anytime before a jury verdict in this case,” McCann says.
Michael Vassalotti of Brown & Connery in Westmont, Seaside Park’s attorney, did not return a call.
The case is in discovery.
Bongiovanni previously addressed a dispute over production of other documents when she discovered that Brown & Connery mistakenly turned over 872 pages of allegedly privileged materials in the case — records from Toms River firms Secare & Ryan and Hierling Gannon & McKenna, which represented the borough in the underlying dispute with D’Onofrio.
Because Brown & Connery had multiple chances to discover the errors and did not, they effectively waived attorney-client privilege and weren’t entitled to get the records back, Bongiovanni said on May 30.