Barrett v. Rosario

Background

The court received the parties’ October 22, 2021 joint letter about an evidentiary hearing concerning the defendants’ motion to enforce settlement. The order established procedures and deadlines for that hearing.

Hearing and preparation

The court scheduled the evidentiary hearing for December 2, 2021, at 10:00 a.m. in Courtroom 12C of the Daniel Patrick Moynihan United States Courthouse in New York. Under the Southern District of New York’s COVID-19 protocols, everyone attending or participating had to wear face masks throughout the hearing, including while giving or taking testimony. If either party objected to those conditions, the party could request a remote hearing and propose a videoconferencing platform by November 15, 2021.

The parties had to serve document-production requests for materials to be used at the hearing by November 1, 2021, and responses were due by November 15, 2021. The court prohibited depositions in preparation for the hearing. Both parties could, however, cross-examine opposing witnesses about testimony presented directly by affidavit.

By November 24, 2021, each party had to provide opposing counsel and the court with documentary exhibits, proposed findings of fact and conclusions of law, and direct testimony by affidavit, as described in the judge’s individual rules. The parties were directed to email those materials to the court’s chambers.

Privilege ruling

The court ruled that Chandra K. Barrett had waived attorney-client and work-product privilege concerning communications with her counsel about the settlement. Attorney-client privilege protects certain confidential communications between a lawyer and client, while work-product protection covers certain materials prepared for litigation. The court explained that a party can waive these protections by placing the attorney-client relationship directly at issue.

The parties agreed that Barrett had waived privilege over some communications but disputed the waiver’s scope. The court limited the waiver to communications concerning the parties’ settlement discussions in and around March 2021, because Barrett would rely on privileged communications in making arguments about those discussions. The court rejected the defendants’ broader position that Barrett had waived privilege over all communications with her counsel, including communications about unrelated topics.

Disposition

The court entered the hearing, discovery, testimony, and privilege directives described above. The order did not state whether the defendants’ motion to enforce settlement would ultimately be granted or denied.