We consider here the validity of a discovery order premised on a theory of implicit or "at issue" waiver of protection for otherwise privileged or confidential information. Before the court are cross appeals in three consolidated cases pending in the Superior Court. In the underlying cases, the plaintiff Regan McCarthy has sued various parties, including attorneys and land surveyors, who, she alleges, failed to inform her that a parcel of land she purchased in Truro more than twenty years ago was not in fact the parcel that she believed she was purchasing, causing injury to her in a number of ways. The challenged discovery order required McCarthy's attorneys in a separate Land Court action, Alan E. Lipkind and Burns & Levinson LLP (collectively, B&L), to produce documents from that proceeding and required Lipkind to answer specified questions in writing.
McCarthy and B&L argue that the discovery order improperly required them to produce discovery protected by both the attorney-client privilege and the work product doctrine. The various defendants argue that the discovery order was proper, and in fact should have been broader. For the reasons discussed below, we conclude that at the present time the defendants have
1. Background. We summarize a long set of background facts based on the allegations in McCarthy's three Superior Court complaints and associated documents.
a. McCarthy's 1990 purchase of land in Truro. For a number of years, McCarthy vacationed on a property (McDermott property) on Higgins Hollow Road in Truro that was owned by Ellen and Robert McDermott and Mikhail Zakin (collectively, McDermotts). In 1990, McCarthy submitted the highest bid for a parcel of land in Truro at a mortgage foreclosure sale advertised and conducted by one of the defendants, Seamen's Savings Bank (Seamen's), which was the mortgage holder. The advertisement stated in part that the parcel would be sold "near the premises, at the end of the paved portion of Higgins Hollow Road, Truro, Massachusetts." McCarthy obtained a mortgage from Seamen's to fund the purchase of the parcel, and retained another of the defendants, Christopher Snow, an attorney, to represent her in connection with it. Before the closing, Snow retained Charles Rogers, a title examiner, to conduct a title search with respect to the parcel as it was described in Seamen's notice of the foreclosure sale.
McCarthy purchased this parcel from Seamen's under the belief that it lay to the south of Higgins Hollow Road and abutted the eastern boundary of the McDermott property on which she had vacationed. All the parties now agree, however, that the parcel purchased by McCarthy in 1990 is the parcel described
b. McCarthy retains various professionals. As recited, McCarthy hired Snow to represent her in connection with the closing on her purchase of parcel 2 from Seamen's in 1990. In her Superior Court complaint against him, McCarthy alleges that Snow knew that McCarthy believed the parcel abutted the McDermott property to the east, but despite having knowledge of or access to information indicating that parcel 2 was not located where McCarthy thought it was, failed to disclose to McCarthy that there was any question regarding the location of or title to parcel 2, and failed to recommend that she further investigate the parcel's location or obtain a survey before closing on the purchase. With respect to Seamen's, McCarthy alleges that bank personnel made various representations to her that the parcel she purchased in 1990 was located to the east of and abutted the McDermott property.
Also in 1990, McCarthy first engaged the defendant Chester N. Lay and his company, Slade Associates, Inc. (collectively, Slade), when she sought Lay's "opinion regarding the bounds of Parcel 2 and his advice on how to resolve Parcel 2's alleged landlocked status." At some point before 1995 she hired Slade to stake the corners of her lot, during which time Lay represented to her that the McDermott property abutted parcel 2 to the west. McCarthy hired Slade again in 2003 to stake a portion of parcel 2. In her complaint in the Slade action, McCarthy alleges, inter alia, that Slade failed adequately to warn McCarthy that her parcel was not located where she believed it to be, and knew or should have known that parcel 2 did not abut the McDermott property.
In 2003, McCarthy retained the defendant Lester Murphy, an attorney, to provide legal advice as to whether she could obtain access to a public way from what she believed to be her parcel; in 2004, McCarthy retained Murphy again in connection with
c. Land Court action. After a dispute arose between McCarthy and the McDermotts regarding a common boundary between the McDermott property and what McCarthy believed to be her parcel, McCarthy filed an action against the McDermotts in the Land Court on October 22, 2004 (Land Court action). In doing so, she was represented by B&L and Lipkind in particular. McCarthy's verified complaint alleged that the McDermotts were trespassing on her parcel, and she sought a declaratory judgment regarding the boundary line, as well as injunctive relief to prevent the McDermotts from obtaining access to what was, she believed at the time, her land. The complaint referred to McCarthy's 1990 deed and attached a copy of it, but also referred to the 1911 source deed — the deed that contained separate descriptions of parcels 2 and 5.
On January 27, 2005, counsel for the McDermotts filed a title report with the Land Court that revealed to McCarthy, allegedly for the first time, that she did not hold title to the property off Higgins Hollow Road to the east of the McDermott property, but that the parcel directly abutting the McDermott property to the east was parcel 5, and parcel 2 itself was located entirely within the Cape Cod National Seashore. On learning that she did not own parcel 5, McCarthy purchased that parcel in April, 2005, and proceeded with her Land Court action.
d. Superior Court actions. McCarthy subsequently filed the three separate actions in the Superior Court before us here. The gist of each complaint is either that the various defendants negligently (and erroneously) determined that parcel 2 directly abutted the McDermott property to the east, that the defendants negligently misrepresented to her that this parcel abutted the McDermott property to the east, or both. More particularly, in
Seamen's, Murphy, and Snow each filed motions to dismiss in their respective actions, essentially arguing that McCarthy's claims were time barred under the relevant statutes of limitations, because the gravamen of McCarthy's claims related to a purchase of property in 1990. On March 17, 2009, a Superior Court judge denied the motions on the ground that McCarthy's complaints against these defendants adequately invoked the discovery rule
e. Discovery. Slade deposed McCarthy in November of 2007 solely in connection with the Slade action. Commencing in December of 2007 through 2010, the defendants in all three actions separately sought discovery from B&L on the ground that the discovery was necessary in relation to their defenses.
In July, 2010, a Superior Court judge (motion judge) held an omnibus hearing on the various discovery motions in each of the three actions,
f. Appeals. On September 23, 2010, McCarthy filed a petition
2. Discussion. a. Introduction. The motion judge, finding that "the defendants have established the relevance of their discovery requests," determined that McCarthy's claims against the various defendants, and their respective defenses, including the statute of limitations, "established the basis for the `at-issue waiver'";
On appeal, McCarthy and B&L argue that the motion judge's order erroneously requires B&L and Lipkind individually to disclose information protected by the attorney-client privilege and the work product doctrine because there is no basis for finding an at issue waiver. Not surprisingly, the defendants take the opposite position. Seamen's, Murphy, and Snow contend primarily that this information is relevant to and necessary for their various statute of limitations defenses
After a brief recitation of the standard of review, we consider
b. Standard of review. As a general matter, this court "uphold[s] discovery rulings `unless the appellant can demonstrate an abuse of discretion that resulted in prejudicial error.'" Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 302 (2009) (Comcast), quoting Buster v. George W. Moore, Inc., 438 Mass. 635, 653 (2003). However, "[m]ixed questions of law and fact, such as whether there has been a waiver, generally receive de novo review." Comcast, supra at 303.
c. Attorney-client privilege. The privilege protects communications between a client and an attorney that are made in confidence for the purpose of giving or obtaining legal advice. See Mass. G. Evid. § 502(b) (2012). See also Comcast, 453 Mass. at 303.
The attorney-client privilege is subject to waiver. See generally 1 P.R. Rice, Attorney-Client Privilege in the United States § 2.2, at 52-53 (2011) ("assuming a limited number of exceptions are not applicable, [the] protection [afforded by the privilege] is absolute.... Absent a waiver of the protection... the privilege precludes the disclosure of the communications regardless of the need that might be demonstrated for the information in them"). In Darius v. Boston, 433 Mass. 274 (2001) (Darius), this court recognized the premise of a limited, at issue waiver, stating, "We accept, as a general principle, that a litigant may implicitly waive the attorney-client privilege, at least partly, by injecting certain claims or defenses into a case." Id. at 277. However, in Darius itself, we declined to find an at issue waiver of the attorney-client privilege for a number of reasons, including that the discovery sought by the defendant was excessively broad both temporally and in scope. Id. at 279-280, 282-283. Accordingly, we had no occasion to formulate a precise definition of at issue waiver.
Nonetheless, our decision in Darius, 433 Mass. at 280, was clear that where a defendant raises a statute of limitations defense that is met by the plaintiff's reliance on the discovery rule, the statute of limitations invocation, by itself, does not permit the defendant to intrude into the attorney-client relationship between the plaintiff and her lawyer only to locate a statement by the client that might contradict a statement or position that she has taken in the particular case.
In this case, we continue to recognize the concept of an at issue waiver of the attorney-client privilege, and, like a number of other courts, accept in general the premise that such a waiver might come into play where a statute of limitations defense is met by the plaintiff's reliance on the discovery rule. See, e.g., Pyramid Controls, Inc. v. Siemens Indus. Automations, Inc., 176 F.R.D. 269, 274-275 (N.D. Ill. 1997); Connell v. Bernstein-Macaulay, Inc., 407 F.Supp. 420, 423 (S.D.N.Y. 1976); Lama v. Preskill, 353 Ill.App.3d 300, 306-307 (2004); League v. Vanice, 221 Neb. 34, 44-46 (1985); Wardleigh v. Second Judicial Dist. Court of Nev., 111 Nev. 345, 356-357 (1995). See also Conkling v. Turner, 883 F.2d 431, 434-435 (5th Cir. 1989), and cases cited.
The seven questions Lipkind has been ordered to answer include two that directly implicate the attorney-client privilege.
d. Work product doctrine. In the recent Comcast case, we
Work product shielded by the doctrine is not privileged, but instead "is given qualified protection from discovery as a concession to the necessities of the adversary system." 1 D.M. Greenwald, E.F. Malone, & R.R. Stauffer, Testimonial Privileges § 2:1, at 2-3 to 2-4 (2005). Thus, rule 26 (b) (3) provides as follows:
Under the rule, the first question is whether the defendants have made the requisite showing that they have "substantial need" of the materials qualifying as work product that are covered by the motion judge's discovery order. We conclude that they have. McCarthy's injection of the discovery rule into these cases puts in play the state of her knowledge about the location of parcel 2, purchased by her in 1990. Cf. Madanes v. Madanes, 199 F.R.D. 135, 150 (S.D.N.Y. 2001) ("substantial need" shown where "the work product material at issue is central to the substantive claims in litigation"). That is, if McCarthy knew or reasonably should have known that parcel 2 did not abut the McDermott property at the time she filed the Land Court action on October 22, 2004, or in any event before January 11, 2005 (i.e., three years before she initiated the present Superior Court suits against the defendants other than Slade [see note 7, supra]), the discovery rule would not protect her from the defendants' statute of limitations and perhaps comparative negligence
The discovery order at issue directed B&L to produce certain documents, and further directed Lipkind to answer specific questions in writing. Considering first the documents, the order states that "certain correspondence and communications between [Heatley] and attorney Lipkind may be produced" and that "Lipkind, and by necessary implication, [B&L] ... shall further review and resubmit to the defendants the billing records relating to [Heatley], and her firm's title examination, redacting only that information which might constitute impressions or other cognizable work product claims."
B&L asserts in conclusory fashion that all the document discovery ordered by the motion judge — including, therefore, the billing records and all the Heatley records — qualifies as opinion work product, and under this court's opinion in Comcast, 453 Mass. at 314-315, perhaps is not discoverable at all, but certainly not without meeting a standard of "highly persuasive" rather than simply one of "substantial need." We disagree. We have not reviewed the bills in question, but as a general proposition, billing records are just that — records of amounts being billed to a particular client for services rendered and, presumably, a description of those services, the identity of
With respect to any title examination by Heatley, we assume
We also take the view that the defendants satisfy the second condition under rule 26 (b) (3) for obtaining the work product ordered by the motion judge, namely, that they are "unable without undue hardship to obtain the substantial equivalent of the materials by other means." Although B&L suggests that the defendants can simply examine title and other documents on record in the Barnstable County registry of deeds or available from other public sources to find information relating to the actual location of parcel 2, the suggestion misses the point. The focus of the defendants' inquiry is what McCarthy and B&L knew or reasonably should have known about the parcel's location at the time the Superior Court actions were filed. The public document review suggested by B&L might assist the defendants on the objective, "should have known" prong of the necessary knowledge inquiry, but it is not going to touch on the separate prong of subjective or actual knowledge; the defendants are entitled to information concerning both prongs and there is not another source that will similarly focus on the knowledge of B&L and, to some extent, McCarthy. See Ward v. Peabody, 380 Mass. at 818, and cases cited (discussing why certain documents constituting work product were discoverable: "[A]s far as appears neither the papers nor their substantial
Moreover, McCarthy and Lipkind have each testified in depositions conducted by Slade that they did not know before late January, 2005 — when the McDermotts' title report was filed in the Land Court — that McCarthy's parcel did not abut the McDermott property. The title and related documents that B&L and perhaps McCarthy
We turn to the questions that the motion judge ordered Lipkind to answer in writing.
As it did with respect to the documents, B&L asserts that these questions ask for opinion work product. Again, the claim fails. Simply identifying what documents an attorney reviewed, what documents were provided by a consultant, or what documents were provided to the client, in each instance without any requirement to describe content, reveals nothing about the attorney's (or the consultant's or the client's) opinion or impression of any of the documents, or any conclusions the attorney (or consultant or client) drew from them. See Bamberg v. KPMG LLP, 219 F.R.D. 33, 36 (D. Mass. 2003), citing In re San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007, 1015 1018 (1st Cir. 1988) (information concerning attorney's identification and selection of documents ordinarily falls "within the `less-shielded category' of `ordinary' work product but not within the `highly protected category' of `opinion' work product").
Question 6 asks Lipkind in substance about his knowledge concerning the location of parcel 5 before filing the Land Court action; question 7 asks Lipkind to identify and describe, respectively, the earliest date and the means by which he "first became aware that the McCarthy parcel [i.e., parcel 2] did not or might not abut the McDermott Property." There is substantial merit to Seamen's argument that Lipkind has expressly waived any claim of work product protection for these questions, given that he testified in his deposition that as of January 25, 2005, he was unaware that McCarthy's parcel did not abut the McDermott property to the east. See Tennison, 226 F.R.D. at 620-621. In any event, and again for reasons discussed, Lipkind may be ordered to answer question 6 and at least most of question 7.
e. Discovery requests of Seamen's, Murphy, and Snow. The
We review this aspect of the judge's order for abuse of discretion resulting in prejudicial error. See Buster v. George W. Moore, Inc., 438 Mass. at 653, citing Solimene v. B. Grauel & Co., 399 Mass. 790, 799 (1987). Discovery in these cases is ongoing. Particularly in light of the judge's offer to revisit the denial of the defendants' requests to depose Lipkind, we do not understand his order as intended to serve as the final definition of the discovery these defendants will be entitled to obtain. In the circumstances, we cannot find an abuse of discretion causing prejudice. However, on remand, there will be further proceedings concerning the discovery requests at issue in these appeals, and in that context we offer the following general observations.
(i) In substance, Seamen's, Murphy, and Snow seek production by B&L, inter alia, of all documents, including billing records, that might bear on the investigation undertaken by B&L before January 11, 2005, to determine the ownership, title, and actual location of parcels 2 and 5; documents actually reviewed by B&L before the same date; and all communications between B&L and anyone who performed any examination or conducted any title search on behalf of B&L in connection with the Land Court action before that date. In light of these defendants' statute of limitations defenses, they appear entitled to this requested discovery, which extends beyond the time frame and the limited scope of the discovery authorized to date.
(iii) Murphy argues that he is entitled to discovery of work product relating to the damages claimed by McCarthy — and particularly, it seems, B&L's bills. To the extent that McCarthy seeks to recover as damages in these cases all the fees she has paid to B&L in connection with the Land Court action, at some point, discovery relating to the bills might be appropriate, but the timing of such discovery is a matter for the motion judge to consider on remand.
3. Conclusion. The discovery order dated August 24, 2010, in the three consolidated cases before this court is affirmed in part and reversed in part. The cases are remanded to the Superior Court for proceedings consistent with this opinion.
Statement of Questions
1. Please identify by Book and Page, or if not recorded or registered, by description and number of pages, each and every deed, plan, instrument, probate, or other document which you reviewed for the purposes of determining the ownership, location, boundaries and/or access to a public or private road, of the McCarthy Parcel and/or McDermott Property prior to filing the Land Court Case Verified Complaint on or about October 22, 2004.
2. Please identify by Book and Page, or if not recorded or registered, by description and number of pages each and every document, including invoice, deed, plan, sketch, instrument, probate, report, memo, abstract and/or correspondence provided to you or to any person at Burns & Levinson LLP by Jane W. Heatley a/k/a Jane Mitchell prior to January 26, 2005, in connection with your work for Regan McCarthy ("Heatley Documents").
3. Did you provide any of the Heatley Documents, identified by your answers to question #2 above, to Regan McCarthy, either directly or indirectly? If so, for each such document, please identify the document, method of provision, and earliest date such provision occurred.
4. Did Regan McCarthy or any person acting on her behalf ever communicate or express a concern to you or any person at Burns & Levinson prior to January 26, 2005 that the McCarthy Parcel did not or might not abut the McDermott Property? If so, please describe the date, method and substance of each such communication.
5. Did you or any person acting on your behalf ever communicate or express a concern to Regan McCarthy or to any person acting on her behalf prior to January 26, 2005 that the McCarthy Parcel did not or might not abut the McDermott Property? If so, please describe the date, method and substance of each such communication.
6. On or about October 22, 2004, did you know that the fifth described parcel in the deed at Book 314, Page 45 formed the eastern boundary of the so-called "Rich Parcel," as the "Rich Parcel" is described in the Land Court Case Verified Complaint at paragraph 9(f) on pages 4-5 and shown on Exhibit 3 of the Verified Complaint?
7. Please state the earliest date and describe the means by which you first became aware that the McCarthy Parcel did not or might not abut the McDermott Property.
On the other hand, as we later discuss, one aspect of question 7 (inquiring into the timing and source of Lipkind's knowledge concerning the location of the McCarthy parcel relative to the McDermott property) might perhaps be read to call for the disclosure of communications within the scope of the attorney-client privilege, and to that extent, Lipkind may decline to respond at this time. See note 42, infra.