Klein v. Hallett

STATE OF MAINE SUPERIOR COURT
Cumberland, 8S. CIVIL ACTION
Docket No, PORSC-CV-2022-00001

MARK KLEIN,
_ Plaintiff,
v.
THOMAS HALLETT,
DISCOVERY ORDER
DANIEL FELDMAN,

and

THOMAS F. HALLETT LAW
OFFICES, P.A.,

Mme eet ie Niemen nee nese” eee See Ne ee ee Thee ee

Defendants,

This matter came before the Court through the Defendants’ letter, dated February 24,
2023, requesting a discovery conference pursuant to M.R. Civ. P. 26(g). The conference was
held telephonically on July 31, 2023,' In attendance were Attorney Jeffrey Bennett, on behalf of
the Plaintiff, and Attorneys Bodie Colwell, Russell Pierce, and Dan Field, on behalf of the
Defendants, At the start of the conference, Attorney Bennett stated the Plaintiff would be
producing additional privilege logs. Attorneys Colwell and Pierce further advised the Court that
additional issues outlined in the Defendants’ Rule 26(g) letter had been resolved, leaving four (4)
discovery issues in dispute: (1) Plaintiffs communications with other lawyers prior to or during
the time he was represented by the Defendants, concerning the same subject matter on which the
Defendants represented the Plaintiff? (2) the amount the Plaintiff paid, from any source, to the

Defendants for the legal services provided by the Defendants regarding the action against the

'' The Defendants also filed supplemental requests dated March 9, 2023, and May 8, 2023,
(See Defs.’ Rule 26(g) Letter J 2 (Feb. 24, 2023.)

Plaintiff's ex-wives, Docket No. PORSC-CV-2018-00377 (the underlying action):? (3) all
medical records from the Plaintiff's primary care provider from 2010 to 2017;4 and (4) all of the
Plaintiff s communications and postings on social media relating to his ex-wives and/or the
Defendants.> The Court addresses these issues in order.

1. The Plaintiff's Communications with Other Lawyers

Generally, “[p]arties may obtain discovery regarding any matter, not privileged, which is
relevant to the subject matter involved in the pending action[]....” M.R. Civ. P. 26(a). A party
withholding information on the grounds that it is privileged “shall make the claim expressly and
shall describe the nature of the documents, cormmunications, or things not produced or disclosed
in a manner that, without revealing the information itself privileged or protected, will enable
other patties to assess the applicability of the privilege oe 2? MR. Civ. P. 26(b)(5)(A).° A

party’s reliance on the assertion of privilege does “not-xelieve [him] of the necessity to invoke

[the privilege] by a proper response to discovery requests,” Rice y, Lefebvre, 634 A.2d 963, 964
(Me. 1993) (citation omitted). The party asserting the privilege has the burden of demonstrating

“with sufficient specificity which material requested... should be protected .. . and why these

materials should be protected.” Pierce v. Grove Mfg. Co., 576 A.2d 196 (Me, 1990).

The attorney-client privilege protects from disclosure “the contents of any confidential
communication” made “[b]etween the client... and the client’s lawyer.” M.R, Evid. 502(b)(1).
A client is defined as “{a] person[].. . [t}o whom a lawyer renders professional legal services, or

who consults with a lawyer with a view toward obtaining professional legal services from the

3 See id, at | 6.

4 See id, at | 4,

5 (See Defs.’ Rule 26(g) Letter 2 (May 8, 2023).)

6 The purpose of M.R. Civ. P. 26(b)(5)(A), which is “a verbatim adoption of its federal counterpart,” is
“to provide a procedure for identifying information or material withheld under a claim of privilege or
work product.” MLR. Civ, P. 26 advisory committee’s note to 2007 amend,, Dec, 2007.

lawyer.” MLR. Evid. 502(a)(1). A lawyer is “[a] person authorized to practice law in any state or
nation.” MLR. Evid. 502(a)(3). A communication is “confidential” when it “is made to facilitate
the provision of legal services to the client and is not intended to be disclosed to any third party
other than those to whom the client revealed the information in the process of obtaining
professional legal services.” M.R. Evid. 502(a)(5). Even if the attorney-client privilege attaches
to certain communications, it does not protect them from disclosure when an exception to the
privilege applies or when the privilege has been waived. See MLR. Evid. 502(d), 310.

Here, the Defendants requested production of all communications between the Plaintiff
and other lawyers, prior to or during the time he was represented by the Defendants, on the same
subject matter on which he was represented by the Defendants. The Plaintiff has objected to this
request by asserting that the information sought is protected by the attorney-client privilege, On
February 15, 2023, subject to that objection, the Plaintiff responded to Interrogatory No. 6 by
providing a list of names including Defendant attorneys, their associates, and staff, describing the
nature of the consultation “as part of the attorney-client relationship.”’ (Defs.’ Ex. C, at 7.) The
Plaintiff also listed six other attorneys, identifying the nature of each consultation as
“confidential.’® (Defs.’ Ex. C, at 7.) No dates of any disclosed consultations were provided.
(Defs.’ Ex, C, at 7.)

As of the date of the discovery conference, the Plaintiff had provided one (1) privilege
log summarizing communications between himself and Attorney Jamieson. (Defs,’ Ex, D.) At

the conference, the Plaintiff represented that additional privilege logs were forthcoming. On

7 Interrogatory No, 6 requested identification of “each person with whom [the Plaintiff] consulted in
connection with [the underlying action], including the dates he consulted with each person, .. and the
nature of the consultation.” (Defs,’ Ex. C, at 7.)

® The Plaintiff listed Attorneys Neil Jamieson, Karen. Wolf, Michael Waxman, Ken Altshuler, Sarah
Mitchell, and Dana Prescott. (Defs,’ Ex. C, at 7.) Also listed was Susan Hasson, Esq., a “friend” with
wham the Plaintiff consulted “likely in 2018.” (Defs.’ Ex. C, at 9.)
August 22, 2023, the Plaintiff provided a privilege log summarizing his communications with
Attorney Mitchell and a privilege log summarizing his communications with Attorney Whipple.
(Defs,’ Exs. E, F.) Attorney Whipple is employed by the Defendant law firm. (See Defs.’ Mot,
Compei 4.)

Because the Plaintiff bears the initial burden of demonstrating the applicability of the
privilege to the communications at issue, he must properly invoke privilege by producing
descriptions of those communications with sufficient specificity for the Defendants to assess
whether the privilege attaches, The privilege logs already produced by the Plaintiff are a
genetaliy acceptable format for this purpose.

Therefore, the Court ORDERS the Plaintiff to respond to the Defendants’ discovery
requests by providing privilege logs summarizing all communications requested with respect to
which the Plaintiff is asserting the privilege, with sufficient specificity for the Defendants to
assess the applicability of the privilege, by April 1, 2024.

2, The Amount Paid to the Defendants by the Plaintiff

The Defendants requested information regarding payments made by the Plaintiff for their
legal services, regardless of the source of the funds. The Defendants stated this request was
relevant to the issue of damages. The Plaintiff is not opposed to providing this information but
advised the Court some of the bills were paid by his mother with a credit card. The Plaintiff
advised that his mother had passed away, and that because the probate of her estate had not yet
begun at the time of the 26(g) conference, the Plaintiff had been unable to access his mothet’s
credit card statements. The Plaintiff advised the Court that her heirs were waiting for the

appointment of a personal representative in the probate court, and that he could not admit or

deny the total amount he paid to the Defendants until after the personal representative of his
mother’s estate was appointed,

The Court ORDERS the Plaintiff to provide this requested discovery to the Defendants
within fourteen (14) days of the date of this Order. If the Plaintiff's mother’s estate has not
begun probate by then, the Plaintiff may file a motion to extend the date and must also advise the
Court of the current status of the probate of his mother’s estate and a reasonable estimate of
when the requested information will be forthcoming.

3. Ali Medical Records from the Plaintiff's Primary Care Provider
from 2010 to 2017

The Defendants seek the Plaintiff's medical records from his primary care provider to
establish a baseline for his emotional well-being from 2010 through 2017,? The Defendants
advised the Court their representation of the Plaintiff in the underlying action began on
November 22, 2016.!° The Plaintiff is not opposed to providing additional medical records but
argues going back to 2010 is unreasonable, and he asks the Court to set a later date for the
beginning of the date range encompassing documents he must provide.

The Court ORDERS the Plaintiff to provide all medical records from his primary care
provider, from November 22, 2011, through January 1, 2017, to the Defendants within fourteen
(14) days from the date of this Order. The Court finds that a timeframe beginning five (5) years
before the earliest date this cause of action may have arisen is reasonable.

4, AH Postings on Social Media Relating to the Plaintiff's Ex-Wives
and/or the Defendants

The Defendants seek discovery of all the Plaintiff's social media communications and

postings related to the Plaintiff’s ex-wives and the Defendants. The Plaintiff has responded that

The Plaintiff has already provided his medical records from 2018 to the present.
10 This is the date of the letter in which the Plaintiff engaged the Defendants’ services.

the Defendants are only entitled to social media postings that are public and that any private
social media postings are “private” in nature, like a diary. Social media content is generally not
privileged or protected by any special privacy rights, regardless of the privacy settings an
individual account owner may have selected on their social media account, However, as with all
discovery requests, the party seeking access must make a threshold showing that the requested
information is “relevant to the subject matter involved in the pending action.” MR, Civ, P.
26(b)(1). The subject matter of this litigation is the Defendants’ representation of the Plaintiff in
the underlying action involving his ex-wives, and injuries the Plaintiff sustained stemming from
that action. Therefore, the Court finds all of the Plaintiff’s social media postings related to his
ex-wives and/or the Defendants since November 22, 2016, are relevant, and ORDERS the
Plaintiff to provide all social media postings regarding his ex-wives and/or the Defendants since
Novertnber 22, 2016. .

Additionally, on September 13, 2023, the Defendants’ attorney filed a letter indicating
that on August 30, 2023, the Plaintiff produced a scanned 244-page PDF containing his
Facebook Comments. That letter raises several issues regarding the Plaintiff's response.
Therefore, the Court ORDERS counsel for the parties to meet in person within fourteen (14)
days from the date of this Order and exhaust all efforts to resolve the issues regarding the
Plaintiff's Facebook account, The parties shall be prepared to make reasonable agreements on
all issues in dispute. Any party or counsel who does not confer in good faith may be subject to
sanctions, Sce MLR, Civ, P. 16A(d), 37(b)(2). After such conference has occurred, the
Defendants’ attorney shall promptly certify to the Court in writing whether a Rule 26(g)
conference with the Court is required and, if so, shall succinctly state without argument: (1) the

particular issues or discovery requests that remain unresolved; and (2) the parties’ good-faith

estimate of the amount of the Court’s time needed for that conference. Upon receipt of that

notification, the Clerk shall promptly schedule a discovery conference before this Court pursuant

to MLR. Civ. P, 26(g)(1).

The Clerk is directed to enter this Discovery Order upon the civil docket by reference

pursuant to MLR, Civ, P, 79(a).

Dated: February 7, 2024

WEE

Hon. Patrick C, Larson
Justice, Maine Superior Court

Entered on the Docket: 02/0 i200 ty

inti ke Bailey, Esq.
intiff-Jeffrey Bennett, Esq./Broo -
Hefendants Hallett & Hallett Whipple & Weyrens PA:
Sigmund Schutz, Esq./Badie Colwell, Esq.
Defendant Feidman-Russell Pierce, Esq.