WOODBURY KNOLL, LLC, et al. v. SHIPMAN & GOODWIN, LLP, et al., SC 18584

Judicial District of New Haven

 Writ of Error; Whether Attorney Work Product is Absolutely Immune from Disclosure; Whether Attorney-Client Communications were Properly Subject to Disclosure. The plaintiffs brought this legal malpractice action, claiming that due to the defendant's malpractice, they were forced to, among other things, defend against two foreclosure actions and prosecute a quiet title action.  They sought over $4 million in damages, representing attorney's fees and settlement payments that they allegedly paid in connection with the lawsuits.  The defendants served Finn, Dixon & Herling, LLP (FDH), which represented the plaintiffs in the actions, with a notice of deposition and a subpoena directing FDH's custodian of records to produce documents relating to its representation of the plaintiffs and the decision to settle the litigation.  FDH moved to quash the subpoena and for a protective order on several grounds, including that a substantial portion of the requested materials contained attorney work product and/or attorney-client communications that were privileged and protected from disclosure under Practice Book §§ 13-2 and 13-3.  The defendants objected, claiming that compliance with the subpoena was not unduly burdensome, that FDH failed to establish that the materials were privileged and that even if FDH had made such a showing, the plaintiffs waived their attorney-client and work product privileges by putting this information at issue through claims made in their action.  They also asserted that FDH had no standing to object to the subpoena.  The trial court sustained the defendants' objection, explaining "that the subpoena was not unduly burdensome; that a blanket assertion of the rule is inadequate; that the work product rule is not absolute and subject to the court's discretion; that, even if privileged, the materials sought were disclosable under the implied waiver or at issue exception; that FDH has no standing as both the attorney/client privilege and the work product rule belong to the client; and that the information sought is essential and cannot be otherwise obtained and that its disclosure can lead to the discovery of information material to the claims and defenses of the parties."  In ruling that attorney opinion work product does not enjoy absolute immunity from discovery under Practice Book § 13-3 (a), the court reasoned that, in the case at hand, where the plaintiffs specifically placed at issue their decision to settle the litigation by seeking as damages the amounts voluntarily paid along with the associated legal fees, a strict adherence to the rules of practice would work an injustice.  FDH subsequently filed this writ of error.