No. 07-5702-op
     In re County 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

 9   ADAM 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
16   AS 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.

                                             1
1         Petition granted.

2                                   James P. Domagalski, Frank T.
3                                   Gaglione, Hiscock & Barclay, LLP,
4                                   Buffalo, NY, for Defendants-
5                                   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.

13   MINER, 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

19   production 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

25   mandamus.

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"),
                                      2
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, 

, 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.     

14          During the course of discovery, the Magistrate Judge to whom

15   the matter was assigned ordered the production of ten specific e-

16   mail communications claimed to be subject to the attorney-client

17   privilege and withheld by Petitioners.     See 

18   consisted of correspondence between the offices of the Erie
19   County Attorney and the Erie County Sheriff.     See 

  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."    

Judge opined that the

26   communications did not involve legal advice or analysis but dealt

                                        3
1    only with administration and policy, including the drafting of

2    regulations to change existing policy.      See 

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 

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.     

  We also noted that the privilege

18   would be lost or undermined if review were to await final
19   judgment.   

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 general
                                         4
1         policy or political advice unprotected by the
2         privilege.

3    

(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."   

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, 

(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 the
                                      5
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    

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, 

(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."   

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."   

(citing John Doe Co. v. United
21   States, 

, 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, 

(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 to
                                      6
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, 

, at *2 (citing 

   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   

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.   

  Responding to questions surrounding a

26   memorandum 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

29   Attorney’s Office regarding changes in the law.    

  testimony by Livingston regarding advice of counsel was

31   terminated by the objection of counsel for Petitioners.

                                       7
1         Defendant Gipson, the jail employee who signed the

2    memorandum, testified at his deposition that the County

3    Attorney’s Office was involved in rewriting the strip search

4    policy.    

Court stated that "this testimony

5    clearly indicates [Defendants-Petitioners’] reliance on

6    privileged communications to support the contention that the

7    strip search policy . . . was lawful."     Pritchard, 

   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."      

*4.

       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
19   petition 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 

  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 and

                                        8
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    

, 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, 

, 1292 (2d Cir. 1991) (citing

15   Hearn for the proposition that "the privilege may implicitly be

16   waived 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., 

, 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, 

, at *3 (S.D.N.Y.

26   Dec. 11, 1997) ("Hearn is problematic insofar as there are very

                                        9
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., 

, 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., 

, 363 (W.D. Pa. 1994) (rejecting the
10   third Hearn factor for vagueness and overbreadth); Connell v.

11   Bernstein-Macaulay, Inc., 

, 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

26   which it should be applied.

                                      10
1                                     VI.

2         The attorney-client privilege is one of the “oldest

3    recognized privileges for confidential communications.”     Swidler

4    & Berlin v. United States, 

, 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.”     

   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, 

  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., 

, 470 (S.D.N.Y. 1996).

25        In Bilzerian, the defendant argued that he did not intend to

26   violate the securities laws that he was charged with violating

                                      11
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 

.     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 cross-

6    examination that might require him to divulge otherwise

7    privileged communications with his attorney.     

  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."   

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.   

   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 the

                                     12
1    assertion."   John Doe 

.   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 

.

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

9    by one who pleads a claim or affirmative defense "put[s] the
10   protected information at issue by making it relevant to the

11   case."   

81.    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

16   privileged 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 communications

                                     13
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, 

, 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, 

,
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.    

  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."    

  306.    Respondents have not been denied “access to information

26   vital to” their claims.    Pritchard, 

, at *2

                                      14
1    (citing 

81).

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, 

, 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 

.

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-of-

23   counsel or good-faith defense at trial.




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