Czernyk v. Bongiovanni

Background

The plaintiff requested an in-camera review, meaning a private court review, of communications that the defendant claimed were protected by the attorney-client privilege. The requested communications were emails between the defendant and Bianca Cacace, the defendant’s cousin and a recent law school graduate, and emails between the defendant and Andrew Bourke, a communications director employed by the defendant’s prior counsel.

The court had granted the request for review and gave the defendant an opportunity to oppose it. The opinion states that the defendant did not file an opposition. In the materials submitted for review, the defendant included emails between himself and Bourke on which attorneys were copied. Because the plaintiff did not request review of those emails, the court made no determination about them.

Legal standard

Because the case involved state-law claims in a diversity action, the court applied New York law to attorney-client privilege. Under that law, the party asserting privilege must establish an attorney-client relationship, a communication made in that relationship for the purpose of obtaining legal advice, and the intended and actual confidentiality of the communication. The communication must be primarily or predominantly legal in character.

The court also explained that privilege generally applies only to communications with attorneys licensed to practice law. It may extend to work performed by a nonlawyer enlisted by legal counsel to help prepare for litigation, but communications must still be for legal advice or litigation preparation rather than another purpose.

Communications with Bianca Cacace

The emails with Cacace primarily involved exchanges of Word document attachments. The attachments were not provided to the court and apparently had not been preserved. The court found that the defendant offered no evidence establishing an attorney-client relationship with Cacace. The emails provided no context and contained no specific statements or questions showing that the defendant consulted her as a lawyer.

The court considered the plaintiff’s evidence that the defendant had already retained counsel, that Cacace was a newly admitted lawyer who worked in an unrelated field, and that she was not admitted to practice before the court when the emails were exchanged. The court noted that admission to that particular court was not required by itself, so Cacace’s lack of admission there was not dispositive.

The court also found that the defendant had not shown that the emails were sent to obtain or provide legal advice. The attachment titles, including “demand letter” and “criminal memo,” were broad and did not establish the purpose of the communications. One detailed email resembled a law school examination concerning a New Hampshire statute, but the court found no additional evidence showing that the defendant posed the questions to Cacace to obtain legal advice. The defendant therefore failed to meet his burden, and the court found that the communications between the defendant and Cacace were not privileged.

Communications with Andrew Bourke

The emails exclusively between the defendant and Bourke appeared to focus on media matters and scheduling. Although privilege can extend to work performed by a nonlawyer to assist counsel with litigation, the court found that the defendant had not shown that these communications were for litigation preparation or for obtaining or providing legal advice.

The emails included comments about an article that appeared related to the legal case, but the court found that the media discussions and legal discussions appeared separate. Relying on the distinction between legal advice and public-relations advice, the court concluded that the defendant had not established privilege for the communications exclusively between him and Bourke.

Ruling and effect

Judge Jennifer E. Willis found that the communications between the defendant and Cacace, and the communications exclusively between the defendant and Bourke, were not subject to attorney-client privilege. The defendant was ordered to turn over the communications that the court had not deemed privileged. The order did not determine the privilege status of communications between the defendant and Bourke on which attorneys were copied, because those communications were outside the plaintiff’s request.