Blumenthal v. Kimber Mfg., Inc., (SC 16912)

• Decision Date: 29 July 2003
• Docket Number: (SC 16912)
• Court: Connecticut Supreme Court
• Parties: RICHARD BLUMENTHAL, ATTORNEY GENERAL v. KIMBER MANUFACTURING, INC., ET AL.

265 Conn. 1

826 A.2d 1088

RICHARD BLUMENTHAL, ATTORNEY GENERAL v. KIMBER MANUFACTURING, INC., ET AL.

(SC 16912)

Supreme Court of Connecticut.

Argued May 20, 2003.

Officially released July 29, 2003.

Sullivan, C. J., and Norcott, Katz, Palmer and Zarella, Js. Susan Quinn Cobb, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant (petitioner).

Richard S. Taffet, pro hac vice, with whom were Richard F. Wareing and, on the brief, Peter L. Costas and Jeanine M. Dumont, for the appellees (respondents).

Opinion

KATZ, J.

The petitioner, Richard Blumenthal, the attorney general of the state of Connecticut, appeals¹ from the decision of the trial court denying his application for an order requiring the respondents, Kimber Manufacturing, Inc. (Kimber), a firearms manufacturer with its principal place of business in Yonkers, New York, and Leslie Edelman, Kimber's president, to comply with the petitioner's discovery request for a certain document sent from one Kimber employee to an attorney and three other Kimber employees.² The petitioner contends that the trial court improperly determined that: (1) the communication was protected by the attorney-client privilege; and (2) the communication was not otherwise subject to disclosure under the crime-fraud exception to that privilege. We conclude that the trial court properly determined that the document was protected by the attorney-client privilege and that the petitioner did not meet his burden of establishing that the crime-fraud exception applies to exclude the document from protection under the privilege. Accordingly, we affirm the decision of the trial court.

The record discloses the following relevant facts. On March 17, 2000, Smith and Wesson Corporation (Smith & Wesson), a firearms manufacturer located in Springfield, Massachusetts, entered into an agreement with representatives of various federal, state and local governmental agencies (agreement). The agreement was an attempt to settle both pending and threatened litigation by these governmental agencies against various firearms manufacturers. The agreement required Smith & Wesson, as well as all other potential signatories to the agreement, to engage in certain practices, opposed by most of the firearms industry, regarding the manufacturing, sale and marketing of firearms. At the time of the proceeding before the trial court, Smith & Wesson was the only firearms manufacturer to have signed the agreement.

On May 2, 2000, based on his suspicion of the respondents' participation in a retaliatory economic boycott against Smith & Wesson, the petitioner issued to the respondents interrogatories and a subpoena duces tecum, pursuant to the petitioner's investigatory authority under General Statutes § 35-42, seeking documents "as to any matter relevant to any alleged violation of the Connecticut Antitrust Act"; General Statutes § 35-24 et seq.; and specifically any documents related to Smith & Wesson. On May 31, 2000, the respondents submitted responses, and thereafter submitted supplemental responses on July 20 and December 28, 2000. Unsatisfied with the respondents' disclosure, on March 20, 2001, the petitioner filed with the trial court an application for compliance. Thereafter, the respondents submitted five additional supplemental responses, leading to a total disclosure of approximately 577 pages of documents. After negotiation between the parties as to outstanding documents sought, the hearing on the petitioner's application for compliance was reduced to one issue — a claim of attorney-client privilege on a document sent via electronic mail (e-mail) by Dwight Van Brunt, a Kimber employee, to Edelman, Denis Schusterman, another Kimber employee, and Jerry S. Goldman, an attorney in private practice.³ The e-mail also was copied to Ryan Busse, another Kimber employee. The e-mail expressly referred to the Smith & Wesson agreement, and the firearms industry's initial reaction to it.

In response to a joint motion for entry of consent order, the trial court, Bryant, J., directed the respondents to submit the e-mail to the court for an in camera determination of the privilege issue. The parties submitted to the court a joint stipulation of facts, setting forth the factual and procedural background of the matter. At a hearing on the consent order, following a joint request, the trial court sealed the record.

Goldman, one of the parties to whom the e-mail had been sent, appeared as counsel on behalf of the respondents.⁴ Goldman represented to the court that, because the agreement arose out of a series of lawsuits that all named John Doe as a defendant in the complaints, potential firearms manufacturer defendants, like Kimber, needed to evaluate the agreement and the firearms industry's reaction to the agreement in order to plan an effective legal strategy of their own. Goldman also provided the court with the corporate titles of each of the e-mail recipients, which identified them as senior Kimber officers. Goldman contended that, because the reactions of others in the firearms industry to the agreement — such as whether to sign similar agreements or litigate — would inform Kimber's legal decision making, Kimber's management needed to keep track of these developments and communicate them to him, as Kimber's counsel. The petitioner contended that the e-mail was not subject to the attorney-client privilege because it was not marked as confidential and did not request legal advice; rather, according to the petitioner, the subject matter of the e-mail concerned ongoing business developments. The petitioner also contended that the respondents had presented no evidence that litigation had been filed or even threatened against Kimber, nor any evidence of the existence of "John Doe" defendants in such litigation. The petitioner further claimed that, because reference to the e-mail itself did not indicate that it satisfied the requirements of the attorney-client privilege, and because the respondents did not produce any evidence beyond the e-mail and the stipulated facts, the respondents had failed to satisfy their burden of proof to invoke the privilege. Furthermore, the petitioner argued that, even if the trial court were to infer that the e-mail had been a request for legal advice, and therefore privileged, it would be subject to disclosure under the crime-fraud exception to the privilege.

On September 10, 2001, the same day as the consent order hearing, the trial court, Bryant, J., issued an order stating that the e-mail was subject to a valid claim of attorney-client privilege. On January 30, 2002, in response to the petitioner's motion for articulation, the trial court issued a memorandum of decision setting forth the reasons for its decision. Specifically, the trial court set forth and applied the four part test that we articulated in Shew v. Freedom of Information Commission, 245 Conn. 149, 159, 714 A.2d 664 (1998), for determining whether the attorney-client privilege applies to protect communications between corporate employees and attorneys retained by the corporation. The court determined that, under the test, the e-mail qualified for protection from disclosure. Additionally, the court concluded that the crime-fraud exception did not apply because the e-mail "is a patent update of [firearms] litigation developments and does not advocate any criminal or illegal activity." This appeal followed.

Before addressing the merits of the petitioner's claims, we set forth the standard by which we review them. "We have long recognized that the granting or denial of a discovery request rests in the sound discretion of the [trial] court, and is subject to reversal only if such an order constitutes an abuse of that discretion.... [I]t is only in rare instances that the trial court's decision will be disturbed.... Therefore, we must discern whether the court could [have] reasonably conclude[d] as it did." (Citations omitted; internal quotation marks omitted.) Olson v. Accessory Controls & Equipment Corp., 254 Conn. 145, 156, 757 A.2d 14 (2000). "When reviewing claims under an abuse of discretion standard, the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness...." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 274, 819 A.2d 773 (2003).

In the present case, however, the specific issues before us are whether the attorney-client privilege protected this e-mail from disclosure, and whether, even if privileged, the crime-fraud exception applied to negate the privilege. Therefore, "[t]he scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record." (Internal quotation marks omitted.) Olson v. Accessory Controls & Equipment Corp., supra, 254 Conn. 156. We consider, therefore, the trial court's conclusions on the basis of the evidence properly presented and the permissible inferences drawn therefrom. State v. Reagan, 209 Conn. 1, 8, 546 A.2d 839 (1988).

I

We first address the petitioner's contention that the trial court improperly determined that the respondents had satisfied their burden of proving that the attorney-client privilege protected the e-mail from disclosure. Specifically, the petitioner contends that the trial court improperly relied on representations of counsel in lieu of evidence as the basis for its conclusion.⁵ The petitioner further contends that, in the absence of these...