The opinion of the court was delivered by: Simandle, District Judge
This action is before the Court on the appeal of defendant Parking Authority of the City of Camden ("Parking Authority") from the April 26, 2002 Order of the Honorable Joel B. Rosen, United States Magistrate Judge, which directed that defendant Parking Authority must produce eight letters authored by defendant and former Executive Director of the Camden County Parking Authority, Anthony Scarduzio, now deceased, to his attorneys, Thomas Joseph Hagner, Esquire and William Tambussi, Esquire ("the Scarduzio letters"). Mr. Hagner and his firm, Kenney & Kearney, LLP, were attorneys for Mr. Scarduzio and for the Parking Authority, while Mr. Tambussi was Mr. Scarduzio's personal attorney. Each of these letters was written by Scarduzio after he was served with the Complaint in this litigation, in which Mr. Hagner represented him. Scarduzio's letter to Mr. Tambussi likewise was written in this time frame (January 3, 2001) and pertained to allegations made against Scarduzio in this lawsuit. *fn1 The Parking Authority asserts that the seven letters from Scarduzio to Hagner and the one letter from Scarduzio to Tambussi were protectable under the attorney-client privilege and that Judge Rosen erred when he determined that Scarduzio had waived that privilege. Plaintiffs contend that Judge Rosen's Order was neither clearly erroneous nor contrary to law and therefore must be affirmed. For the reasons stated herein, defendant Parking Authority's appeal will be denied and Judge Rosen's April 26, 2002 Order denying the application for a protective order and directing the production of the Scarduzio letters will be affirmed.
The facts underlying this motion may be summarized as follows. Anthony Scarduzio, now deceased, was the Executive Director of the Parking Authority for the City of Camden until May 31, 2001. Mr. Scarduzio died in July, 2001. From January 4, 1999 until May 31, 2001, Lana Irrgang ("Irrgang") was employed as the full-time Administrative Assistant to former director Scarduzio. At the time of her hiring as Scarduzio's Administrative Assistant, it is undisputed that Ms. Irrgang withdrew from her union and became responsible for typing Scarduzio's documents, organizing Parking Authority files as well as "her" personal files, and making herself familiar with all documents in all files so that she could assist Scarduzio in finding them when necessary. From December, 2000 until April, 2001, Ms. Irrgang was out on maternity leave. During Ms. Irrgang's maternity leave, two temporary administrative assistants, Roquel ("Rocky") Toledo and Dawn Rago, worked for Scarduzio.
The eight documents for which defendants sought a protective order (the "Scarduzio letters") were typed by one of the temporary assistants, specifically Rocky, during the time period of Ms. Irrgang's maternity leave. Ms. Irrgang testified that upon her return from leave, Scarduzio handed her three privileged Scarduzio letters (marked AC-1, AC-2, and AC-3) and instructed her to read them and make copies for herself so she would know what was going on in case she was called as a witness by Bowen in the case. (See Irrgang Dep., 2/15/02, Tr. 19:15-22:4, 22:16- 24:16, 25:1-26:11.) Ms. Irrgang later testified that Scarduzio instructed her to read and print all the documents in Rocky's computer file, created while she was on maternity leave, for her file, so that she would know what was going on and use them in the future if she needed to. (See Irrgang Dep., Tr. 103:8-104:19.) In both variations, Ms. Irrgang testified that Mr. Scarduzio specifically instructed her to keep copies of the letters he authored to his attorneys so she would know what was going on, in case she needed them, and in case she got jammed up, presumably in the current litigation.
The privilege issue central to this appeal arose at the deposition of Irrgang, which took place on February 15, 2002. Ms. Irrgang brought a number of documents, eight of which (the Scarduzio letters) defense counsel asserted were privileged, to the deposition. Defense counsel took possession of the eight documents and on March 14, 2002, moved for a protective order barring the disclosure of these documents before Judge Rosen. On April 23, 2002, oral argument was heard and a hearing was held before Judge Rosen at which Irrgang testified. (Haworth Cert., Ex. 3, the "Protective Order Hearing".) Judge Rosen found that the letters were privileged, but that Scarduzio had waived the privilege and he denied the defendants' motions at the conclusion of the hearing. (See Protective Order Hearing, Tr. 23:4-12.) Elaborating, Judge Rosen said: One of the touchstones of the attorney/client privilege is an intent to keep a document confidential. Confidential communication between a client and his or her attorney. . . . I'm satisfied, however, after reading the deposition transcript and talking to [Irrgang] here that [Scarduzio] gave her these documents and gave her his permission to use them if she ever thought it was appropriate. That is not consistent with an intent to keep a document confidential. And I find that not that there was an implicit waiver, but there was an explicit waiver. (Protective Order Hearing, Tr. 23:6-24.) Judge Rosen then ordered that the documents be produced by April 26, 2002 unless a stay was sought. Defendants moved for a stay on April 26, 2002, which was granted in an Order entered on May 3, 2002. This appeal from Judge Rosen's Order, filed May 9, 2002, followed.
Defendant Parking Authority argues, as it did in the initial motion for a protective order before Judge Rosen, that there was no waiver of the attorney/client privilege because Irrgang took the Scarduzio letters without permission for her own use and, alternatively, that she is not a third party to the privilege since the nature of her job was so closely related to Scarduzio's function as Executive Director. Additionally, the Parking Authority asserts for the first time on appeal that the privilege was not Scarduzio's to waive. Plaintiffs assert that Judge Rosen's Order was not clearly erroneous nor contrary to law and therefore must be affirmed.
A. Appeal from an Order of a Magistrate Judge
"A United States Magistrate Judge may `hear and determine any [non- dispositive] pretrial matter pending before the court.'" Cardona v. General Motors Corp., 942 F. Supp. 968, 970 (D.N.J. 1996)(quoting 28 U.S.C.§ 636(b)(1)(A)); see also Fed. R. Civ. P. 72(a); L. Civ. R. 72.1a(1). "In all non-dispositive pre-trial matters, a magistrate judge may issue an opinion and order." Id. A party objecting to a magistrate judge's order may, within ten days of service of the order, serve and file objections with the district judge. See Fed. R. Civ. P. 72(a); L. Civ. R. 72.1c(1)(A).
The Federal Magistrates Act of 1968 provides that a district court may reverse a magistrate judge's determination of a non-dispositive issue only if it is "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); accord Fed. R. Civ. P. 72(a); L. Civ. R. 72.1(c)(1); see also Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1113 (3d Cir. 1986), cert. denied, 484 U.S. 976 (1987); Lithuanian Commerce Corp. v. Sara Lee Hosiery, 177 F.R.D. 205 (D.N.J. 1997). "A finding is clearly erroneous only `when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Cooper Hospital/Univ. Medical Center v. Sullivan, 183 F.R.D. 119, 127 (D.N.J. 1998) (quoting Lo Bosco v. Kure Engineering Ltd., 891 F. Supp. 1035, 1037 (D.N.J. 1995)(quoting United States v. United States Gypsum Co., 333 U.S. 364, 395(1948)); see also South Seas Catamaran, Inc. v. Motor Vessel Leeway, 120 F.R.D. 17 (D.N.J. 1988). In reviewing a magistrate judge's factual determinations, a district court may not consider any evidence which was not presented to the magistrate judge. See Haines v. Liggett Group, Inc., 975 F.2d 81, 92 (3d Cir.1992); Lithuanian Commerce Corp., 177 F.R.D. at 213.
Under the clearly erroneous standard of review, the reviewing court will not reverse the magistrate judge's determination even if the court might have decided the matter differently. See Cardona, 942 F. Supp. at 971 (quoting Toth v. Alice Pearl, Inc., 158 F.R.D. 47, 50 (D.N.J. 1994) (citing Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985)). "On the other hand, this Court will conduct a de novo review of a magistrate judge's legal conclusions." Cooper Hospital, 183 F.R.D. at 127 (citing Lithuanian Commerce Corp., 177 F.R.D. at 214; Haines, 975 F.2d at 91; Lo Bosco, 891 F. Supp. at 1037; Campbell v. International Business Machines, 912 F. Supp. 116, 119 (D.N.J.1996)).
On April 23, 2002, Judge Rosen heard oral argument and considered the testimony of Ms. Irrgang at a hearing on this issue. Prior to the hearing, Judge Rosen had received briefs and written submissions on this issue. Judge Rosen carefully evaluated the facts and the law and, accepting Ms. Irrgang's testimony about what the former Executive Director told her to do with the documents (i.e., put them in "her" files in case she needed them personally or was called as a witness by Bowen), and he determined that Mr. Scarduzio had waived any attorney/client privilege that might have applied. The Parking Authority does not challenge the law applied by Judge Rosen, rather, it challenges Judge Rosen's factual determination that Scarduzio's instruction to Irrgang to print, read, and use the letters for her protection constituted a waiver, and that Irrgang did not merely take these documents without Scarduzio's authorization. *fn2 ...