SHIPMAN ASSOCIATES, LLC, S/B/A THEBLAM V. WHITE & CASE, LLP FSTCV206046192S SUPERIOR COURT JUDICIAL DISTRICT OF STAMFORD AT STAMFORD November 01, 2022 Ozalis, Sheila A., Judge ORDER ORDER REGARDING: 05/06/2022 213.00 MOTION FOR ORDER OF COMPLIANCE – PB SEC 13-14 (INTERR/PROD – 13-6/13-9) The foregoing, having been considered by the Court, is hereby: ORDER: MEMORANDUM OF DECISION The defendant White & Case, LLP ("White & Case"), has moved to compel the production of certain communications between the plaintiff, Shipman Associates, S/B/A TheBalm, and its former counsel. Latham & Watkins. The plaintiff has claimed that the attorney-client privilege protects the 145 documents it has identified on its Privilege Log. In particular, at issue before this Court is whether Shipman Associates, S/B/A TheBalm waived the attorney-client privilege over communications and documents prepared by its prior counsel, third-party law firm Latham & Watkins, relating to an employee warrant and the resolution of the warrant claims. In connection with this dispute, the Court entered an order for an in camera review of the 145 documents to determine if the attorney client privilege applies and the Court has reviewed in camera these documents. "In Connecticut, the attorney-client privilege protects both the confidential giving of professional advice by an attorney acting in the capacity of a legal advisor to those who can act on it, as well as the giving of information to the lawyer to enable counsel to give sound and informed advice. . . . The privilege fosters full and frank communications between attorneys and their clients and thereby promote[s] the broader public interests in the observation of law and [the] administration of justice. . . . The privilege applies, however, only when necessary to achieve its purpose; it is not a blanket privilege." (Citation omitted; internal quotation marks omitted.) State v. Kosuda-Bigazzi, 335 Conn. 327, 342, 250 A.3d 617 (2020). In determining whether a party has waived attorney-client privilege, the Court considers: (1) whether the waiver was intentional; (2) whether both disclosed and undisclosed communications concern the same subject matter; and (3) whether fairness dictates considering them all together. Ghio v. Liberty Ins. Underwriters, Inc., 212 Conn. App. 754, 771, 276 A.3d 984, cert. denied, 345 Conn. 909 (2022). "[T]he fairness principle, which is often expressed in terms of preventing a party from using the privilege as both a shield and sword . . . In practical terms, this means that parties in litigation may not abuse the privilege by asserting claims the opposing party cannot adequately dispute unless it has access to the privileged materials." (Internal quotation marks omitted.) Id., 773. It is well established that "voluntary disclosure of the content of a privileged attorney communication constitutes waiver of the privilege." (Internal quotation marks omitted.) State v. Taft, 258 Conn. 412, 421, 781 A.2d 302 (2001). The Connecticut Appellate Court has recognized the subject matter waiver rule of attorney-client privilege and has held that "the voluntary disclosure of a privileged attorney-client communication constitutes a waiver of the privilege as to all other communications concerning the same subject matter when the trial court determines that the waiver was intentional and that fairness dictates that the disclosed and undisclosed communications be considered together." Ghio v. Liberty Ins. Underwriters, Inc., supra, 212 Conn. App. 775-76. Because the waiver must be intentional, "an inadvertent disclosure of protected information can never result in a subject matter waiver." (Internal quotation marks omitted.) Id., 776. Moreover, a party waives privilege when it "specifically pleads reliance on an attorney's advice as an element of a claim or defense, voluntarily testifies regarding portions of the attorney-client communication, or specifically places at issue, in some other manner the attorney-client relationship." (Internal quotation marks omitted.) Id., 773. In this case, the plaintiff claims that what is in issue is defendant's mishandling of an employee stock warrant issue and advice given to the plaintiff on that subject. The plaintiff also claims that successor counsel's advice is privileged and defendant is not entitled to seek production of successor counsel's communications with the plaintiff. The defendant claims that the privilege log produced by the plaintiff identifies three general categories of documents: (1) communications preceding the Latham Memorandum that would be used to inform that advice; (2) subsequent advice regarding the warrant; and (3) subsequent advice for handling the warrant dispute. The defendant contends that the Privilege Log reveals that in addition to the single Latham & Watkins legal memorandum produced to defendant by the plaintiff, there was a subsequent version of the Latham & Watkins memorandum and many other communications advising on the warrant. Defendant contends that these documents should be produced to it as the attorney-client privilege has been waived on the subject matter of the warrant by the plaintiff's allegations in its complaint and by its production of a version of the Latham & Watkins memorandum on the same subject matter. The plaintiff counters that the allegation it made in Paragraph 42 of its complaint is not an important allegation, it does not allege that plaintiff relied on Latham & Watkins' legal advice, and plaintiff has in good faith already produced the Latham & Watkins Memorandum relevant to this action. This Court agrees with defendant. It is undisputed that Latham & Watkins provided warrant advice to the plaintiff and how to resolve the warrant issue. It is also undisputed that the plaintiff has knowingly and intentionally produced in discovery a legal opinion memorandum prepared by Lathham & Watkins relating to the enforceability of the employee stock warrant at issue in this case. In addition in Paragraph 42 of the plaintiff's Amended Complaint, the plaintiff has alleged in support of its claim of alleged malpractice that "W & C's omission of these points was so glaring that successor counsel spelled it out on the first day it was retained, in a memo to the client that actually cited, and quoted from New York cases which explained these points of law in a clear and simple manner." (Amended Complaint Para. 42.) The Court finds that fairness dictates allowing defendant to see the entirety of Latham & Watkins' advice regarding the warrant issue, including communications on how to resolve the warrant issue, instead of limiting defendant to a single memorandum hand-picked by the plaintiff. Accordingly, after reviewing the documents claimed as privileged in camera, the Court makes the following rulings: (1) The documents listed on the Privilege Log as Nos. 8, 11, 12, 15, 18, 20, 21, 22, 24, 25, 26, 30-34, 70-80 are not privileged. These records shall be produced to the defendant by 11/22/22; (2) The Court cannot reach a determination as to waiver with respect to documents identified on the Privilege Log as Nos. 13, 23, 32, 47, 54, and 58, as the only written notations on such documents was "produced in native format" or "technical issue"; (3) There are documents listed on the Privilege Log that the plaintiff is not claiming as privileged and may have already been produced to the defendant. The Court finds that documents identified as Nos. 2, 3, 5, 6, 16, 19, 28, 29, 36, 38-41, and 53 on the Privilege log are marked non-privileged and if such documents have not been previously produced to the defendant, they shall be produced by 11/22/22; (4) The Court finds that the attorney-client privilege has been intentionally waived with respect to the subject matter of the warrant and fairness dictates after review of the documents listed on the Privilege Log as Nos. 1, 4, 7, 9, 10, 14, 17, 27, 35, 27, 42-46, 48-52, 55-57, 59-69, and 81-145 that such documents be produced. Such records shall be produced to the defendant by 11/22/22. Superior Court Results Automated Mailing (SCRAM) Notice was sent on the underlying motion. 429710 Judge: SHEILA ANN OZALIS