Court Demands That Defendant Identify Those With Access to Privileged Documents

November 21, 2018

In 2015, the court handling a malicious prosecution case against the Town of Islip held that the Town had waived privilege protection for documents that “were apparently accessible by all Town employees, ” even those without a need to know, and that might also have been accessed by members of the public “in days past.”  Norton v. Town of Islip, No. CV 04-3079 (PKC) (SIL), 2015 U.S. Dist. LEXIS 125114, at *11, *14 (E.D.N.Y. Sept. 18, 2015). 

The parties’ privilege fights have continued, and plaintiff recently challenged the Town’s declaration that “‘[t]here is no reason to believe’ that the privileged documents were accessed by anyone other than those individuals and offices to whom they were addressed.”  Norton v. Town of Islip, CV 04-3079 (PKC) (SIL), 2018 U.S. Dist. LEXIS 177811, at *24 (E.D.N.Y. Oct. 16, 2018).  The court again addressed the access issue.  After explaining that it was “unable to credit the Town Defendants’ conclusion about access of the subject documents,” the court ordered the Town to provide “affidavits from an individual or individuals with knowledge setting forth where each document was kept, including all individuals who had access to the documents and when that access was provided.”  Id. at *25, *28.  And the court then doubled down, emphasizing that “[f]or the sake of clarity, the Court is directing the Town Defendants to explain who had access, not just who actually accessed the documents at issue and what was done to maintain confidentiality.”  Id. at *28.

It is difficult to imagine any institutional client (governmental or corporate) being able to comply with such a remarkable requirement.